Define Rape.

California Penal Code section 261 defines the crime of “rape” as any nonconsensual sexual intercourse accomplished by means of threats, force, duress, menace or fraud.

When most people think of rape they envision a violent offense. While violence certainly can be part of a rape charge many other kinds of conduct are covered by Penal Code section 261 – conduct that carries the same penalties.

Having sex with a person who is passed out or too intoxicated to legally consent;
Threatening to expose a secret if someone refuses to engage in sexual intercourse; or
Using a position of authority to persuade a person to engage in sexual intercourse such as a police officer promising not to issue a traffic citation if a person agrees to sexual intercourse.

California law defines rape as follows: When an individual engages in sexual intercourse with another person either against that person’s will; without that person’s consent or when their consent has been obtained through fraud, duress, menace, any kind of fear; the inability to give consent because of a mental disorder or disability which the accused should have known about; or being unconscious of the nature of the act [asleep].

When most people think of rape they think of a man forcing a woman to engage in sex. However California’s rape laws do not require the aggressor to be a man – a woman can be charged with rape as well. Similarly, rape can occur between partners of the same gender.

California has a number of statutes which cover rape-related crimes:

Penal Code section 262 – Spousal Rape. The only difference between Penal Code sections 261 and 262 is that the aggressor and the victim must be married for a violation of Penal Code section 262 to occur.
Penal Code section 261.5 – Statutory Rape. Engaging in sexual intercourse with any person under the age of 18. People under the age of 18 are not legally adults and therefore under the law, they are unable to consent to engaging in sexual conduct. In other words if a person under the age of 18 consent to sexual intercourse their consent is invalid.
Penal Code section 266c – Unlawful Sexual Activity Due to False or Fraudulent Pretenses. Penal Code section 266c states that any person who induces another to engage in sexual intercourse, sexual penetration, oral copulation or sodomy when his or her consent is obtained by false or fraudulent means which induces fear is illegal.
Penal Code section 289 – Penetration with a Foreign Object. Penetration, however slight, of a genital or anal opening with a body part other than a sex organ or with any other object, qualifies under this statute.
Penal Code section 288a – Oral Copulation by force or fear. The legal definition of forcible oral copulation is very similar to the definition of rape. It is oral copulation while an individual uses threats, force, fear, fraud, duress or menace in order to accomplish an act of oral copulation against the victim’s will.
Penal Code section 243.4 – Sexual Battery. California law has many definitions of sexual battery but the most common one is this: Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery.
Sexual battery is also often charged when the prosecution would like to charge a violation of Penal Code section 261, rape, but they don’t have sufficient evidence to do so.


Innocent people are charged with crimes every day. There are any number of reasons people are wrongly accused of crimes. Sometimes it’s as simple as a lying complaining witness. Law enforcement and District Attorney’s offices are trained to believe the person making the accusation. Law enforcement is often so busy they lack the time and resources to thoroughly investigate claims before charges are filed. This is why it is important to hire an experienced criminal defense attorney such as Kresta Daly to defend against these devastating allegations.

Each case is unique making it impossible to list every possible defense to sex crime allegations. A few of the more common defenses are:

Consent is the honest belief that the other person engaged in sexual conduct willingly. Consent can become particularly important when there is a history between the two individuals. For example, if a man and a woman were having sex and the woman changed her mind and decided she didn’t want to engage in further sexual activity, she has to clearly communicate her desire to stop having sex to her partner.
The court has to instruct on consent when there is “substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (People v. Williams (1992) 4 Cal.4th 354,362)
Mistaken Age
People lie about their ages all the time for any number of reasons. If the person making the accusations lied about their age to the person they had sex with, and it was reasonable for the accused individual to believe the lie, this is a defense.
False Accusations
The reasons people make up false rape accusations are numerous. The ‘victim’ willingly engaged in sex and was remorseful about his/her decision the next day. The ‘victim’ cheated on his/her significant other and is afraid of being caught. Nothing happened and the ‘victim’ is trying to ruin the reputation of the accused. The ‘victim’ hopes to recover money.
Mistaken Identity
Crime victims are often asked to identify their assailants out of a photo array or at a live line-up. This method of identifying a potential subject is extremely unreliable. Studies have shown that witnesses are very poor at identifying their assailant. Notwithstanding the problems with this investigatory tool, law enforcement continues to rely on it. If the person “identified” doesn’t have a solid alibi they can spend a lot of time and money establishing that they were not the person who committed the crime.
Insufficient Evidence
In order to convict a person of a crime the prosecution has to prove guilt beyond a reasonable doubt. A reasonable doubt is often defined as that state of the evidence which gives a jury an abiding conviction in the truth of the charges. Beyond a reasonable doubt is a high evidentiary standard. Sometimes the best possible defense is pointing out all the flaws in the prosecution’s proof.

Sexual intercourse

Any penetration, no matter how slight, counts as “sexual intercourse” for purposes of rape. This definition is extremely broad. At trial the judge reads the jury instructions that define Penal Code section 261. In part, CalCrim 1000 states “Sexual Intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]” (See also People v. Karsai (1982) 131 Cal.App.3d 224, 233-234.) Courts have held that a person can be convicted for multiple counts of rape based on each separate act of penetration. This means a person could be convicted of multiple counts of rape for conduct which occurred only on one brief occasion.

California rape laws are very complex. If you or someone you know has been accused of a sex crime you need a criminal defense lawyer who understands how these laws work and who will work hard to defend you. Kresta Daly has been a Sacramento and Central Valley criminal defense attorney for more than 16 years. She has successfully defended countless sex cases. If you are facing criminal charges call 916-440-8600 to make an appointment with her today.
What is “Consent”?

Rape is sexual intercourse that occurs without one party’s consent. Consent is often a crucial issue in many rape prosecutions. In California criminal courts rely on CalCrims to instruct the jury on the law and the elements the jury must find. CalCrim 1000 defines the elements of rape pursuant to Penal Code section 261. A person is considered to have consented to sexual intercourse if they act freely and voluntarily and are aware of the nature of the act.

Courts are often required to give an instruction regarding the withdrawal of consent. That instruction says:

A person who initially consents to an act of intercourse may change their mind during the act. If they change their mind, the act of intercourse becomes rape because it occurred without their consent if:

They communicated to the defendant that they objected to the act of intercourse and attempted to stop the act;
They communicated their objection through words or acts that a reasonable person would have understood as showing their lack of consent; and
The defendant forcibly continued the act of intercourse despite the other person’s objection.

A defendant can defend against rape charges if the defendant can show there was substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed. (People v. Williams (1992) 4 Cal.4th 354,362. ) When issues of consent arise this law is often very important. If one partner did not clearly express that they did not wish to engage in sexual intercourse with the defendant, or if that person was unclear about whether or not they wanted to have sex that is a defense to allegations of rape.

The prosecution has to prove beyond a reasonable doubt that the defendant knew the other person didn’t consent. In other words, it’s not enough that the prosecution prove that the victim didn’t consent. The prosecution must also prove beyond a reasonable doubt the defendant knew the victim didn’t consent. This is a very high burden of proof for the prosecution. There are many different ways to build a defense when consent is at issue. If you are facing charges for a sex crime, call experienced, aggressive criminal defense lawyer Kresta Daly at 916-440-8600.
Sentences for Rape under California Penal Code 261 PC

Rape is a felony. Anyone who is convicted of rape under Penal Code section 261 could be sentenced to anything from formal probation and county jail time to up to 8 years in prison [for each count of conviction]. There are a number of possible enhancements for convictions of Penal Code section 261 which can substantially increase a person’s prison term. Enhancements can take a variety of forms including whether or not the victim was injured and if the victim was under the age of 18.

In addition to going to jail or prison, a rape conviction is also a strike under California’s three strikes law. Almost all rape convictions require life-time registration under California Penal Code section 290 as a convicted sex offender (There are a few limited exceptions to this rule such as rape committed by fraud.) Penal Code section 290 registration carries with it a number of collateral consequences such as residency restrictions and electronic monitoring. A violation of Penal Code section 290 is a separate felony offense.
Sentencing Hearing

All defendants in California are entitled to a sentencing hearing. This is a defendant’s opportunity to try to persuade the court why the court should not sentence them to prison. Criminal defense lawyer Kresta Daly knows how to build mitigating evidence and present persuasive arguments to the court regarding why someone convicted of rape shouldn’t go to prison.

It’s important at sentencing to present a view of the whole individual to the court, explaining why and how this person ended up before the court being sentenced. It’s also important to persuade the court that they will never see the defendant again – that there were specific reasons someone committed a crime and those reasons have been addressed. The reasons vary greatly from person to person.

Determining the best defense plan and getting the right experts on board takes time and attention. Building this kind of evidence can take months, sometimes even years, but it is a critical step in building a defense when a person has been accused of a sex crime. Criminal defense attorney Kresta Daly has more than 16 years of experience in building defense and mitigation evidence for people who are accused of a sex crime.

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