Allegations, charges, or convictions for rape are damaging to your reputation and career. In addition, the society will view you as a sexual offender. The law might also require you to register for life as a sex offender. These consequences are harsh. However, you can fight these charges with the right defense. The Orange County Criminal Lawyer is here to defend you when you are facing charges of rape. The attorney will explain to you the charges you are facing, the potential defenses, and the penalties you are likely to get when convicted.
Overview of Rape
California PC 261 defines rape as sexual intercourse with another person against his or her will or consent. Rape is an offense where both men and women are possible victims. The law covers rape for both genders. You are guilty of rape if you have sexual intercourse with someone using violence, physical force, and duress.
The elements of rape include:
- You had sexual intercourse with another person
- The person was not married to you at the time
- The person did give their consent to the sexual intercourse
- You had sexual intercourse with a person through physical force, violence, or duress.
Let us explore the definition and scope of each element:
Sexual intercourse refers to any slight penetration of the vagina or genitals by a penis.
Consent is positive, voluntary, and informed cooperation in the sexual act. If a person does not understand the true nature of the act due to insanity, physical disability, unconsciousness, or intoxication, he or she cannot give consent to sexual intercourse.
If the person withdraws his or her consent, then you are supposed to stop having sexual intercourse with him or her. The victim withdraws the consent if he or she:
- Communicates to you that she/he does not wish to continue the intercourse and attempts to stop it
- The victim communicates in a way that implies no consent
If you continue having intercourse with the victim after the withdrawal of consent, then the prosecution could charge you with rape.
The victim can also not consent to sexual intercourse if the offender uses duress. Duress refers to direct or implied threats that coerce the victim into having sexual intercourse with you. For example, if the victim consents to sexual intercourse due to:
- A threat of serious injury to him or herself or another person
- Fear of retaliatory action from the offender
- Fraudulent representation of the nature of the act
Fraud in rape cases refers to manipulation applied by the offender through trickery, deception, or false misrepresentation to gain an undue advantage. For example, if a healer lies to his or her patients that sexual intercourse is part of the treatment, then the healer is committing rape through fraud.
In some cases, the offender might trick the victim into believing that the two are married to convince the victim that the intercourse is legal. Instances of such trickery are common where the victim is a minor.
When determining whether the other person gives consent to sexual intercourse, the following do not apply:
- The person has previously consented to sexual intercourse
- The victim requests you to use some form of contraceptive such as condoms
- You cannot use the victim’s sexual conduct or history to prove that the victim consented to the act
- If the victim does not show resistance to the act, you cannot use this to support his or her consent
The prosecution can charge you under different rape laws, including:
1. Date Rape
Date rape falls under the general rape laws in PC 261. It refers to non-consensual sexual intercourse between people who are dating. If the victim is involuntarily intoxicated, for example, through date rape drugs, he or she cannot legally give consent to sexual intercourse. Even in cases of voluntary intoxication, you must prove that he or she understood the nature of the act and was conscious.
Date rape is a felony with penalties such as:
- Incarceration for three, six or eight years in state prison
- Felony probation with up to one year in county jail, except where the victim was intoxicated, unconscious or asleep
- Up to five additional years if the victim suffered significant injury
- A fine of $10,000
- A strike
2. Statutory Rape PC 261.5
When you have unlawful sexual intercourse with a minor, then you are committing statutory rape. Statutory rape does not require the element of consent. The law assumes that a minor does not have the legal authority to consent to sexual intercourse. The elements of sexual rape that the prosecution has to prove to include:
- You had sexual intercourse with another person
- You were not married to the victim at the time of committing the offense
- The victim was under 18 at the time you had sex with him/her
Statutory rape punishes both violent and consensual sex if one of the parties was a minor at the time of the offense. Even if you have been dating and have a stable relationship, you cannot legally engage in intercourse until both of you are legally adults. The age requirement for statutory rape means that both parties can be charged with statutory rape if both of you are minors.
The prosecution will charge statutory rape as a misdemeanor or felony, depending on the age difference between the offender and the victim.
- Statutory rape with a minor not less than three years younger than you is a misdemeanor.
- However, the offense becomes a wobbler is the victim is more than three years younger than you
- Statutory rape is also a wobbler if the victim is less than 16, and you are older than 21 at the time of the offense.
The penalties for misdemeanor statutory rape conviction include:
- Informal probation
- Up to one year in county jail
- A maxim of $1000 in fines
A felony conviction for statutory rape will attract the following penalties:
- Felony probation and up to one year in county jail
- Incarceration for 16 months, two years or three years or up to four years if you were 21 or older and the victim was less than 16 at the time of the offense
- Fines not exceeding $10,000
3. Spousal Rape PC 262
Yes, it is possible to rape your spouse. California is tough on spouses who rape their partners and punishes the offense severely. Spousal rape is a common charge in domestic violence cases. It includes various elements, including:
- You had non-consensual intercourse with the victim
- You were married to the victim at the time of the offense
- You had intercourse with your spouse using force, violence or duress
Force, duress, or violence takes the right of your spouse to resist sexual intercourse. Consent is absent in marital intercourse if:
- Your spouse could not resist due to intoxication, and you know or should reasonably know of your spouse’s inability to consent
- Your spouse is unconscious of the act
- You have sex with your spouse through threats of retaliation, serious bodily injury or inflicting extreme pain
- The defendant uses the threat of using his or her authority as a public official to arrest, deport or incarcerate his or her partner
Like in general rape cases, your spouse can withdraw his or her consent during the act.
California punishes spousal rape as a felony. The penalties for spousal rape include:
- Felony probation (except if the act is forcible of the spouse is unconscious of the act)
- Three, six, or eight years in state prison
- An additional three to five-year sentence if you inflict great bodily injury on your spouse
- Fines not exceeding $10,000
- Registration as a tier three sex offender for three years if you accomplished the act through force or violence
The court can increase your sentence to a life sentence if you have previous convictions for sex crimes, you accomplished the act through violence, or you have a third strike on your record.
4. Oral Copulation by Force PC 266 c
Oral copulation by force refers to any contact between the mouth of the victim and the genitals or anus of the offender. The elements of the offense include:
- You bring your genitals or anus into contact with the victim’s mouth ( you could also be guilty if you perform oral copulation on the victim without his or her consent)
- Without the victim’s consent
- Using force, fear, duress or violence
Like in rape cases, the victim cannot give consent to oral copulation if he or she is intoxicated, unconscious, or mentally disabled.
Oral copulation refers to contact with the genitals of another person to the slightest degree, regardless of whether penetration occurs.
The penalties for the offense depend on the age of the victim. The penalties for a victim ages 18 and above include:
- Felony probation (except if the victim was unconscious or intoxicated)
- Incarceration in state prison for three, six, or eight years
- A fine of $10,000
When the victim is a minor, the penalties will include:
- A state prison sentence of six, eight or ten years if the victim was 14 or older at the time of the offense
- Incarceration in state prison for eight, ten or twelve years for victims who were less than 14 at the time of the offense
Note that you could be charged with a PC 288(a) violation if you engage in oral copulation with a minor. The offense is a less serious one compared to oral copulation with force or fear.
In most cases, oral copulation with a minor is a wobbler. The prosecution determines whether to charge you with a misdemeanor or a felony based on:
- The age difference between the victim and the offender
- The criminal history of the offender
If you are a minor charged with this offense, you will be charged in juvenile court. The prosecution will determine whether you understood that the act was wrong when committing the offense.
The offense is a wobbler if the victim was at least 16 at the time of the offense, and the offender was 21 years or younger.
The penalties for the misdemeanor offense include summary probation, one year in county jail and $1000 in fines. For a felony, the penalties include up to three years in state prison, felony probation, and $10,000 in fines.
If, at the time of the offense, the victim was younger than 16 and the defendant older than 21, the offense is a felony. The penalties, in this case, will be felony probation or up to three years in state prison and a fine not exceeding $10,000.
If the victim was younger than 14, and the defendant was at least ten years older than the victim, then the offense is a felony. The incarnation period increases to a minimum of three years to a maximum of eight years in state prison.
Any parties who take part in the act or help the offender will receive punishment in a similar way to the offender. If you are convicted for oral copulation by force or fear, you must register as a tier-three sex offender for life.
5. Forcible Penetration with a Foreign Object PC 289
PC 289 makes it a crime to commit sexual intercourse by forcibly inserting a foreign object into the genitals or anus of another person without his or her consent. You must understand the elements of the offense to understand the definition of the offense. These elements include:
- You forcibly commit an act of sexual intercourse through the use of a foreign object
- Without the consent of the other person
- Through force, violence, or duress
- For sexual gratification or abuse
Forcible penetration could include:
- Any penetration, however slight in the genital or anus of the victim
- Causing the victim to penetrate the offender's genitals or anus or of a third person
- Causing the victim to penetrate his or her genital opening or anus using a foreign object
If you are charged with a PC 289 violation, you cannot defend yourself by asserting that you did not actually penetrate a woman’s vagina. The law requires that you only penetrate her labia to be guilty of the offense.
Sexual gratification occurs when you derive pleasure from forcibly penetrating or causing a person to forcible penetration with a foreign object.
Foreign objects that can be used for sexual gratification include substances, instruments, or body parts. PC 289 often applies in sexual assault cases where the victim does not know what the offender used to penetrate him or her.
Forcible penetration with a foreign object is a California felony. The penalties vary depending on the circumstances of the offense and the age of the victim.
The penalties include:
- Formal probation (except for offenses committed against an unconscious or intoxicated persons, or through the use of fear or force)
- Incarceration for three, six or eight years in state prison
- A fine of $10,000
When you commit the offense against a minor, the penalties include:
- Incarceration in state prison for six, eight or ten years if the victim was 14 years or older
- A state prison term of eight, ten or twelve years for a minor below 14 years
The offense carries the mandatory requirement to register as a sexual offender.
Legal Defenses
Charges for rape have a lifetime impact on your life. The incarceration period comes and goes, but some effects such as the mandatory requirement to register as a sex offender stay for life. The stigma surrounding sex crimes provide a fertile ground for the prosecution of innocent people through false accusations. A rape defense attorney is one of your best weapons in fighting the charges of rape. Here are the common defenses your attorney might use:
1. The Alleged Victim Consented to the Act
Rape occurs when you have intercourse with another person against his or her will. However, you cannot be guilty of an offense if he or she agreed to sexual intercourse. You can also assert your innocence if the victim did not communicate his or her withdrawal of consent effectively.
You can use the behavior of the victim to prove that you reasonably believed that he or she granted consent.
The prosecution must also prove that you knew or should have known that the defendant does not consent to the intercourse. For example, if a woman does not wish to have sex with you, but does not raise any objection, then you cannot be guilty of rape.
2. You reasonably believed the Alleged Victim was a Legal Adult
You might be facing charges of rape against a minor. In such a case, you need to prove that you reasonably believed that the victim was a legal adult. For example, if you pick up a woman at a bar that allows people 21 or over, it would be reasonable to believe that she is an adult.
In some cases, you can use the body size, appearance, and dressing of the victim to support your belief that he or she was not a minor.
3. False Accusations
False accusations lead to the prosecution of up to 10% of innocent people. False accusations arise out of emotionally charged situations such as anger, jealousy, and revenge. If you are the victim of false accusations, you need an attorney to help you debase the rape allegations.
4. Mistaken Identity
Mistaken identity cases of rape are common. They happen when the victim or eyewitnesses have to identify the offender. In most of these cases, the victim does not know the offender. Mistaken identity arises due to prejudiced identification by witnesses, poor lighting, or offenders wearing masks.
5. Insufficient Evidence
The prosecution must present sufficient evidence to prove that the offense meets all the legal elements. If inconsistencies or gaps exist, then your lawyer can argue for dismissal of your charges.
6. You Did Not Have Intercourse
The law requires that intercourse take place even to the slightest degree for you to be guilty of the offense. Therefore, you cannot be guilty if the physical contact you had with the victim did not amount to intercourse.
With the right defense, you can achieve various results, including:
- Having your charges reduced to the less serious sexual battery charges
- Dismissal of charges especially those arising from false accusations and mistaken identity
Sexual battery is an offense that involves:
- Touching the intimate parts of another person (genitals, buttocks anus, breasts)
- Without the victim’s consent
- For sexual gratification or abuse
The punishment for sexual battery depends on the circumstances of the offense and your criminal record. Some of the aggravating factors in sexual battery include:
- The victim is unlawfully restrained
- Is institutionalized for medical treatment due to a medical incapacity or serious disability
- Does not understand the nature of the act
Sexual battery is a wobbler offense. Misdemeanor sexual battery is punishable by up to six months of a county jail sentence and fines not exceeding $2000. The fine can increase to $3000 is the victim is your employee. The court could release you on informal probation instead of jail time. You will also have to register as a sex offender for at least ten years.
If you are convicted for felony sexual battery, you will face the following penalties:
- Formal probation
- Up to four years in state prison
- An additional sentence of up to five years if the victim sustains great bodily injury
- $10,000 in fines
- Lifetime registration as a sex offender
The victim of rape can choose to file a civil lawsuit against you to recover damages they suffered due to the offense. You should, therefore, be prepared and speak to an attorney.
Find a Orange County Criminal Defense Attorney Near Me
Rape is one of the most serious offenses in California. Most of the rape charges are felonies, meaning you will be sentenced in state prison and earn a strike on your record. Being a felony, it is also harder to qualify for an expungement, meaning that the criminal record will stay with you for life. In addition, you will have to register as a sex offender. The sex-offender status limits your career and educational pursuits. It could also affect future relationships you have with potential partners. You can avoid these negative consequences by applying the right defenses to fight the charges. The Orange County Criminal Lawyer gives defendants facing charges of rape a nonjudgmental listening ear, defends, and represents these clients in fighting the charges. Reach out to us at 714-262-4833 for a free consultation.
