Sec 261 of the California Penal Code defines rape as the non-consensual intercourse committed through the use of threat, force or fraud. The following are the crimes committed under the generic crime of rape:
• Sec 262 of the California Penal Code or Spousal Rape;
• Sec 261.5 of the California Penal Code or Statutory Rape;
• Sec 266(c) of the California Penal Code or Oral Copulation by Force;
• Date Rape;
The crime of rape is committed when the sexual act is accomplished against an individual’s will without their consent by means of force, violence, duress, menace, fear of bodily harm, fear of retaliation and fraud. Also, when the victim is too intoxicated to provide consent, unable to give consent due to a mental disorder or physical disability or unconscious about the nature of the act, the crime is committed.
The elements of the crime of rape are as follows:
• The sexual act was consummated, regardless of how slight the penetration;
• The act was committed against another person not the accused’s spouse;
• The said act was committed against the will of the other person;
The absence of consent would be the central fact of the case. In essence, the exercise of free will and agreement to the nature of the act is consent. Even if there was or is a standing relationship between the parties does not presume the presence of consent. Also, the request for the use of a condom is not consent per se. Thus, consent when provided at the outset, withdrawn at any time, even in the absence of resistance would be considered as rape under the law.
Nowadays, rape is not just considered as a crime against women but is now applicable to both men and women. Also, the accused for the crime of rape can include individuals that cause the commission of the crime even without actual participation.
This crime is prosecuted as a felony and thus the following penalties are imposable:
• Formal probation, if the crime was committed without the use of force or violence;
• Imprisonment between three (3) to eight (8) years in state prison with an additional three (3) to five (5) years if the victim suffered great bodily injury;
• Payment of fines of up to $10,000;
• Mandatory registration under Sec 290 of the California Penal Code;
• Mandatory registration under California’s Three Strikes Law;
The crime of rape is a serious offense in California. Should you be or know anyone facing any of these charges, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.
