Los Angeles Criminal Lawyer Explains Rape and Statutory Rape Laws

Previously, I have written a more general article on California Sex Crimes and one on California Child Sex Crimes.  This article takes a closer look at two of the most serious sex offenses under California Law, Rape and "Statutory" Rape.  At the core of the term rape is the idea of non consensual sex.  Different jurisdictions take different approaches in defining rape, but consent is almost always the most important inquiry.  One thing is for sure: rape charges are very serious and can completely destroy the lives of those accused.  Prison, a "strike" under California's Three Strikes law, sex offender registry and more can mean not only harsh punishments, but significant barriers to re-entry into society upon completion of the sentence.

Though many people think of a masked, unknown assailant with a weapon when they hear the term "rape" the vase majority of rape accusations do not fall within this "stranger rape" scenario.  In recent years, the term "date rape" has become much more common, referring to non consensual sex between two people who do know each other.  In these cases, consent and force can be murky issues.  Drugs and alcohol are frequently involved in the consent determination, and further complicate the case.  Incidents where the accuser claims to have been "drugged" without their knowledge (e.g. Bill Cosby, Cee-Lo Green) are much more difficult to defend than cases of voluntary intoxication.

Being arrested, charged with a crime, accused of a crime or investigated for a crime is scary, frustrating and can have a serious impact on your life.  Sex crimes, especially rape, can be even more devastating.  Rape accusations can be false, in order to get back at the accused for something else, or protect the reputation of the accuser (e.g. "I wasn't cheating on my boyfriend; I was raped.").

RAPE - PENAL CODE SECTION 261
In California, rape is non consensual sexual intercourse achieved by means of force, threats or fraud.  Though some jurisdictions have eliminated the force requirement altogether, California has not.  Still, the force, threats or fraud requirement has been greatly relaxed in rape prosecutions, with very slight force being sufficient for the DA to charge someone with rape.  Though non consensual sex without any force or fear is technically not rape under California law, it is the scenario that most commonly leads to rape prosecutions.  Though the consent issue is often the hardest to determine, whether there was in fact any use of force or fear is also an important question for the jury.  Rape is punishable by up to 8 years in prison, more if: the victim is a minor, the defendant has prior strike or prison sentences and other enhancements.  Rape of a child under 14, for example, is punishable by 15 years to life in prison.  You need a passionate, aggressive, knowledgeable attorney on your side, who can cast doubt on the accusation and maintain your innocence.  The most common defenses in rape cases are: consent, lack of force, false accusations, mistaken identity, and lack of evidence.

STATUTORY RAPE - PENAL CODE SECTION 261.5
The "age of consent" in California is 18.  This means that no one under the age of 18 can consent to sex.  Additionally, there are no age restrictions for who can be guilty of statutory rape.  This means that two 16 year olds who engage in seemingly consensual sex are both guilty of statutory rape.  While many states have close-in-age provisions that do not punish those who are within a certain short age range, California Law is harsher in that regard.  PC 261.5 is a "wobbler" meaning that it can be charged as a misdemeanor or as a felony.  The main factors the prosecuting agency will use to determine how to file the case will include:  the age difference in question, the age of the victim, whether a position of power exists (e.g. student-teacher), and the defendant's criminal history.  This means that a 19 year old with no criminal history, who has sex with a 17 year old is more likely to face misdemeanor charges.  Conversely, a 35 year old teacher who has sex with a 15 year old student is almost certainly going to face felony charges.  An interesting note on California Statutory Rape Law is that California does permit a "reasonable mistake of age" defense.  While statutory rape is a strict liability offense in most jurisdictions, California does not wish to punish those who had sex with a minor not knowing that the minor was under age.  This can be a difficult defense to win, but at least makes the prosecution's case a little bit harder to prove.  Since there is no close-in-age defense, and a minor victim cannot consent, the defenses in statutory rape cases include: false accusations (never engaged in sex),

SPOUSAL RAPE - PENAL CODE SECTION 262
Rape can happen within a marriage.  If the accuser is the accused spouse, there is a different charging section, PC 262.  Spousal rape is punishable by up to 8 years in prison, just like Rape under PC 261.  Additionally, it is also a strike under California's Three Strikes Law.  In addition to being a serious sex crime, PC 262 qualifies as a crime of domestic violence, which carries its own unique consequences.

ORAL COPULATION BY FORCE - PENAL CODE SECTION 288a(c)(2)
In the same way that non consensual intercourse achieved by the use of fear or force is rape under Penal Code Section 261, Oral Copulation that is non consensual and achieved by force is also a very serious crime, punishable by up to 8 years in prison.  The same defenses would apply to both rape and oral copulation by force charges: false accusations, consent, insufficient evidence, mistaken identity, lack of force, and more.

FORCIBLE PENETRATION WITH A FOREIGN OBJECT - PENAL CODE SECTION 289
Penetration with fingers or other objects (not sexual organs), when achieved by means of force or fear is a serious felony in California.  The charge carries a possible prison sentence of up to 8 years, is a strike under CA's repeat offender laws and requires lifetime sex offender registration.

ASSAULT TO COMMIT RAPE - PENAL CODE 220
Committing an assault with the intention of committing a sexual assault is a felony punishable by up to 6 years in California State Prison.  Additionally, convictions under this section shall require lifetime sex offender registry

If you or a loved one has been arrested, charged, accused or is under investigation for a serious sex crime, including: rape, statutory rape, oral copulation by force, you need a best defense possible.

More Information about California Sex Crimes
More Information about California Child Sex Crimes