Sexual assault is an unlawful deed that is sensual or sexual in nature. One of the most serious sex crimes in California is rape. Being convicted for this crime comes with social stigma, and you must register as a sex offender. Convicts also serve a prison sentence and pay hefty fines. Although sex offenders should face the full force of the law, some accused persons are denied their rights and others are falsely accused. If wrongfully convicted, the life of a person charged with rape is ruined. It is the reason you should retain the expertise of The LA Criminal Defense Law Firm. We believe that everyone is innocent until proven guilty. Even if you are charged with rape, our attorneys will ensure the due process of the law is followed and that your rights are protected to minimize the damage that can be done when someone is accused or charged with rape.

California Legal Definition of Rape

As per PC 261, rape is sexual intercourse between individuals where one of the participants in the act has not given his or her consent or not willing to engage in the sexual act. Based on this definition, the act of rape occurs through:

  1. Duress

Rape can be accomplished through intimidation where a person uses direct or implied threats to compel or intimidate a reasonable person into agreeing to or perform an act of sexual intercourse which he or she could otherwise not have engaged in.

  1. Menace

Rape can also be accomplished through threats, declarations, or any actions that show plans to cause harm to another person.

  1. Fear of Bodily Harm

 If a victim of rape feared that he or she or another person might be harmed, then he or she might have given in to the sexual intercourse. Also, if the defendant knew of the victims fear, then he or she might have taken advantage of the fear to perform the act of sexual assault.

  1. Fraud

At times, rape might occur when the defendant falsely convinces the victim that they are married or that the sexual act will serve a professional purpose, whereas it does no such thing.

Other ways rape can be accomplished include:

  • Physical force
  • Violence
  • Fear of retaliation

Apart from the use of force, rape can occur when:

  • The victim is too intoxicated to consent to the intercourse
  • The accuser was unable to consent to the intercourse because of a mental health condition or physical disability that the defendant knew or ought to have known about.
  • The victim was unconscious or asleep when the sexual act occurred.

If you engage in any of these acts, then you will be accused of rape and charged under PC 261.

Facts the Prosecution Must Prove in Rape Charges

The prosecution attorney must verify specific facts before the court to determine that you are guilty of rape. The elements they must prove are:

Sexual Intercourse

The prosecution must establish that you engaged in penetration irrespective of how slight it was with another party. Penetration is what counts as sexual intercourse. If there was sex penetration with another person against their will, even if you didn’t ejaculate, that is enough evidence that you raped someone.

The Victim was Not Married to the Accused at the Time

If the prosecution can successfully prove that the accused person was not married to the victim when they engaged in the illegal sexual act, then the accused might be convicted of the rape charge. But if they were married, the sexual offense becomes a distinct crime under spousal rape.

The Act was Accomplished by Acts Listed in the Legal Definition of Rape

If the prosecution can prove that you as the accused used fear, force, fraud, violence and duress to accomplish the sexual act, then you can quickly be convicted of rape.

No Consent

You will be convicted of rape if the prosecutor can show the court that you engaged in sexual intercourse with another person without their consent. Consent under this law is defined as positive cooperation in the sexual act. If the victim or the person you are alleged of rape did not engage in the act freely or with knowledge about the nature of the action, then you are guilty of rape. 

Understanding Consent in Rape

The majority of the victims accused of rape allege that they had consent because of certain things that happened before the sexual act. However, these things don’t actually mean the victim consented. Some of these things are discussed below:

  1. Previous Dating or Marital Relationship

You, as the accused, might think that because you were married or used to date the victim, you had consent to engage in the act. It is not valid unless you can provide additional evidence to show you had approval. Even if you are married to the victim, marriage is not enough evidence that the victim consented to the act. Although an illegal act of a sexual nature between married couples might not be charged under PC 261, it is a crime under PC 262.

  1. Request for a Condom or Contraceptive

A lot of people might allege that they had consent because the victim asked them or suggested that they put on a condom or use a contraceptive. This is not enough to prove you had permission. However, you can use that to show the victim was giving you mixed signals that made you believe that they had given consent justifiably.

  1. Withdrawn Consent

At times, the victim might consent to the sexual intercourse but then later change his or her mind to withdraw the consent. Although the act began as consensual sexual intercourse, it might turn into rape if:

  • The victim communicated to the accused that they were against the action and tried to stop the sexual act.
  • The victim communicated the withdrawal of consent in a manner that a reasonable person would understand.
  • The accused continued with the sexual act despite the communication of withdrawal of consent.

Keep in mind that although the prosecution focuses on showing that you had no consent from the victim, to convict you, they must prove that you reasonably believed the victim had denied you permission. If they can’t prove that you knew the victim had not consented, then you are not guilty of this sex crime.

Another essential thing to note about rape is that the prosecution doesn’t need to prove that the victim attempted to resist the sexual act physically. The victim might have endured in another way apart from physical resistance because people react to trauma in all kinds of manners. The court considers facts surrounding the case to determine if the accused believed the sex was consensual or not.

Rape Shield Law

The law forbids the introduction of the alleged accuser’s sexual conduct in court to protect their privacy. It means that even if the victim has a reputation of having consensual sexual intercourse with multiple partners, it cannot be used to prove that you as the defendant or accused had consent from the victim when the alleged rape occurred.

Penalties for Rape

As said earlier, rape is a high-profile crime which is severely punished in California. The prosecution charges persons accused of rape with felony charges. Upon conviction, the defendants in these cases face potential penalties that include:

  • Thirty-six, seventy-two, or ninety-six months state imprisonment
  • Formal probation and no more than twelve months in jail in place of state imprisonment.

However, note that you can only face these penalties if:

  • The accused is guilty because of raping a victim who could not give consent because of disability.
  • The accused fulfilled the act by pretending to be somebody else known to the alleged victim.
  • The defendant threatened to use the powers of a public official to accomplish the act of rape.

In these scenarios, the judge feels the need to grant probation in place of prison incarceration to serve the interests of justice. But in cases where the victim was unconscious or intoxicated during the rape, a prison sentence is compulsory.

Additionally, if you are convicted of rape, you are subject to:

  • A potential extra thirty-six to sixty months of state incarceration where the alleged victim suffered substantial physical injuries.
  • A fine of $10,000 or below
  • A potential strike

For rape cases involving minors, the penalties are:

  • Possible state imprisonment of no more than 84, 108, or 132 months for persons below eighteen years.
  • 108, 132 months, or 156 months state imprisonment where the minors involved are below fourteen years.

Another severe penalty for rape is registration as a sex offender.

Sex Offender Registration

California PC 290, requires convicts of sex crimes to register as sex offenders. If you have been found guilty of tier three sexual offense, PC 290 requires you to register as a sex offender for a lifetime. Tier three offenders include people convicted of rape sex trafficking children, repeated sex crimes and sexual assault against children aged ten years or below. As a registered sex offender, you have to keep your local law enforcement authority informed of your whereabouts for the whole time you are living, working or schooling in California. You will do this for the rest of your life if your cases involve rape.

Failure to register as a sex offender is a crime on its own, and it’s filed as a felony. A person accused of rape might be required to register as a second-tier sex offender after a rape conviction if the victim was a minor aged eighteen years or less and is not in a position to give consent due to a mental disorder or physical disability. The registration requirement under this tier is twenty years.

Being accused of rape doesn’t mean you will have to face these penalties. You can avoid them by having the right criminal defense attorney by your side. The proper defense can see the charges of rape dismissed or reduced.

Legal Defenses for Rape Charges   

In Los Angeles, to successfully defend yourself against rape charges depends on the circumstances surrounding the case and disapproving the element of no consent. Remember a person can be convicted of rape charges with little or no evidence; thus, the need to have an excellent defense attorney by your side. Some of the legal defenses you can apply to stay out of prison and face other harsh penalties include:

  1. False Accusation

A lot of people have been put behind bars for rape, whereas they have been falsely accused. Most of the accusers in these cases are former spouses or lovers who are seeking revenge, jealousy, driven by anger or retaliation. If you don’t take care as a defendant, you might end up being convicted of something you didn’t do. But with an experienced criminal defense attorney, you can prove that the accusations are false. DNA tests are the best way to prove that you were wrongfully accused. If DNA evidence shows that you didn’t commit the sex offense, the charges will be dismissed. With the many cases of rape convicts who have been acquitted of rape charges in California after DNA evidence shows they were wrongfully accused, using the false accusation to fight the charges can help you stay out of prison.

  1. Consent

It is possible to argue that the accuser had initially consented to the sexual intercourse but later withdrawn the consent but failed to communicate effectively so. You went ahead to penetrate because you reasonably believed you had their approval. If you can show the person consented to the act, then rape didn’t occur at all because the sex was consensual. Also, you can use the mistake of fact as your defense if the victim gave you mixed signals to show that they had consented to the sexual act. If the victim asked you to wear a condom, you could argue that you reasonably believed she gave consent to sexual intercourse. You should be acquitted of the charges if you can prove that you had justifiable assume that the victim had consented to sexual penetration.

  1. Mistaken Identity

At times, the police might influence the decision of eyewitnesses during the identification so that they can point out you as the offender during a photographic police line-up. This happens where police want to close a case quickly or set someone up. Also, eyewitnesses might identify the wrong person in circumstances where there is poor lighting or where the accused was wearing a mask. A lot of people end up behind bars because of mistaken identity. Your attorney can question how the witness was able to identify you while it was dark or where the accused was wearing a face mask making the jury doubt if for sure the witness positively identified the perpetrator of the illegal sexual act.

  1. Insufficient Evidence

A rape allegation would stand in court if the victim sought medical attention immediately after the alleged rape. This helps in obtaining physical evidence. If the alleged victim never sought medical care, there will be no sufficient evidence actually to prove that you committed the sex offense. Also, if there were no witnesses who saw or heard the sexual assault, the whole case will be based on allegations. It will be easy to have such a lawsuit dismissed based on insufficient evidence if the only evidence is the victim’s word.

Rape and Other Related Offenses

California has many sexual assault offenses that are charged along with or in place of rape. Some of these offenses include:

Statutory Rape

The sex crime is codified under PC 261.5. The law prohibits or makes it illegal for individuals to engage in sexual intercourse with a minor or individual below the age of eighteen years. Persons under the age of 18 years have no ability to give consent under the law which is why even if an adult engages in consensual sexual intercourse with a minor, it is still deemed statutory rape because the judge believes the adult had no consent.  This sex crime is a wobbler in California. The charge the prosecution will opt to file for depends on the age difference between the victim and the defendant.

Oral Copulation by Force   

The crime is defined under PC 288 (a). It is very similar to rape in that the accused uses force, threats, violence, malice, fraud and coercion to coerce the victim into a sexual act. The difference between rape and forced oral copulation is that in oral copulation the sexual act is oral, but in rape there is sexual intercourse. Violation of PC 288 (a) is a felony. The punishment for a conviction under this Penal Code is incarceration in state prison for up to thirty-six, seventy-two, or ninety-six months. 

Sexual Battery

PC 243.4 defines sexual battery as touching of another person’s intimate parts with the intent of sexual pleasure, abuse or arousal without their consent. Instead of the prosecution charging you with rape, they can opt for sexual battery where there is sexual assault, but there is no actual sexual penetration or intercourse that took place. The penalties for a misdemeanor sexual battery conviction include half or one-year jail sentence, or a fine of no more than two thousand dollars. If you are convicted under a felony charge, the potential punishment is 2, 3, or 4 years’ incarceration in prison and a fine of no more than ten thousand dollars.

Spousal Rape

The sex offense is charged in lieu of rape, where the act occurred between married spouses. Spousal rape is defined under PC 262, and it’s very similar to PC 261. The difference is that the victim in spousal rape is the accused’s spouse. The two offenses are also related in terms of penalties.

Date Rape

This is not an independent crime from rape. It is defined under PC 261 same as rape. It occurs where people engage in illegal sexual intercourse while dating or spending time together, and one of the participants in the sexual intercourse has not consented or is doing it against their will.

Lewdness with a Child

PC 288 defines lewd act with a child as when an individual touches a child aged 15 years and below somewhere in his or her body for sexual pleasure or gratification. The penalties for the crime also depend on the age of the victim and the relationship the victim has with the defendant. Lewd acts with a child are mostly charged alongside rape, whereby the victim of the alleged rape is below the age of fifteen years. The penalties for a conviction for this sexual offense is three, six or eight year’s state imprisonment and a fine no more than ten thousand dollars if the victim was less than fourteen years and no force was used. But if there was force used against a minor child below 14 years, the punishment is imprisonment for up to sixty, ninety-six and one hundred and twenty months or a fine of no more than $10,000.

Forcible Penetration with a Foreign Object

The crime is defined under PC 289. It is very similar to rape because it is defined as forcible penetration. The only difference is that the crime focuses on a foreign object such as dildo, fingers, or a stick. Rape, on the other hand, rape is forcible penetration using a sexual organ. The penalties for a conviction under PC 289 are similar to those of a rape conviction.

Find a Los Angeles Criminal Defense Attorney Near Me

Being convicted of rape comes with potential lifetime registration as a sex offender. It means you might never get a decent place to live, work or school. This is just one of the many punishments which result from rape charge conviction. Therefore, if you have been charged with rape or any other sex offense in California, we invite you to contact The LA Criminal Defense Law Firm at 310-935-1675. Our main objective is to ensure that people accused of rape are not wrongfully convicted. Reach out to us today for a free consultation about various sex crimes.