California Penal Code 261 PC Rape

What are the factors or elements for 261 rape? 

Under Penal Code 261 PC, rape is broadly defined, nonconsensual sexual intercourse accomplished by means of threats, force, or fraud. This kind of rape is a California sex crime in and of itself.

When many people think of rape, the first thing that comes to mind is rape committed by means of physical force. But other, less obvious situations can lead to California rape charges too. These include:

  • A man having sexual intercourse with a woman who is passed out drunk,
  • A doctor “tricking” his female patient into having sex with him by telling her it’s the only way to cure a particular illness, and
  • A police officer telling a woman that he has pulled over for DUI that he will let her go if she has sex with him.

But there are also a variety of rape-related crimes that fall under the umbrella of California rape law. These include:

  • Penal Code 262 PC “Spousal Rape”,
  • Date Rape,
  • Penal Code 261.5 PC “Statutory Rape”,
  • Penal Code 266c PC “Oral Copulation by Force”, and
  • Penal Code 289 PC “Forcible Penetration with a Foreign Object.”

Legal Consequences:

If you are convicted of “rape” under the California Penal Code Section 261, you face the following penalties:

  • A felony conviction
  • Formal probation with a maximum sentence of 1 year in county jail OR
  • Up to 3, 5, or 8 years in the state prison

The sentence may be enhanced if:

  • Victim sustained a great bodily injury:
    • 3-5 additional years in the state prison
    • Up to $10,000 in fines and
    • A possible “strike” on your criminal record pursuant to the California’s Three Strikes Law.
  • Victim is a minor:
    • If the victim is a minor under the age of 18 years old, the state prison term goes up to 7, 9, or 11 years.
    • If the victim is a minor under the age of 14 years old, the state prison term goes up to 9, 11, or 13 years in prison.
  • In addition to the penalties above, most rape convictions lead to the requirement that the offender register as “sex offender” pursuant to California Penal Code section 290.  Failure to register as a sex offender is a felony. 

California Penal Code 261 PC Rape

How can we defend you against charges of California Penal Code 261 PC Rape?

The most common defenses that a skilled criminal defense attorney can use to defend you from a rape charge are as follows:

False accusations:

Often times, rape is a false accusation that the alleged victim uses out of revenge, anger, or some other selfish purpose. That is why it is very important to have a highly skilled criminal defense attorney on your side who can conduct a preliminary investigation to determine whether something about the facts or the evidence does not add up.


If you can show that the alleged victim consented to sexual intercourse, then the act does not qualify as rape.  Even if the accuser says she consented at first but then wanted to stop, unless she effectively communicated her desire to stop, you cannot be expected to understand that she wanted to stop the intercourse.

Reasonable Belief in Consent:

Moreover, even if the alleged victim did not actually consent, but you had a reasonable belief that she did, it is not rape.  You are not guilty of rape if you actually and reasonably believed that the woman consented to the intercourse and actually and reasonably believed that she consented throughout the act of intercourse.

Contact us:

We have been successfully defending clients facing all types of criminal charges in Sonoma and Marin Counties, since 1992.

The 100 Trial Lawyers Association has recognized us as one of the best criminal defense attorneys in the country!

Please call our office today at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential case evaluation.

Don’t bargain with your freedom! The right attorney makes all the difference between your freedom and incarceration!

Please CLICK HERE to visit our dedicated page on sex crimes charges for more info. 

Leave a Reply

Call Now
Text Us
Scroll to Top