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AWARD WINNING ORANGE COUNTY CRIMINAL ATTORNEY

Orange County Rape Attorney

At common law, that is the law we brought with us to the United States from England when we first settled here, rape was defined as the unlawful carnal knowledge of a woman by a man, who was not her husband, without her consent. We have come a long way since then, and this is reflected in California Penal Code §261. California defines rape today as sexual intercourse, with a person who is not a spouse of the perpetrator under specific circumstances. When people hear of a “rape”, they generally imagine sexual intercourse by force or threats. In California, rape can occur without force or threats, as long as there was no consent; California imposes an affirmative consent rule. This means an individual can be guilty of rape, even though he did not use physical force, or threats of physical force to engage in the sexual intercourse. Further, California defines “sexual intercourse” as any penetration, regardless of how slight that penetration is.

California Penal Code §261 provides several examples of conduct that would satisfy the statute, and result in a conviction for the crime of rape.

  1. Engaging in sexual intercourse with an individual who is incapable of consent (mentally disabled). However, the Prosecution must prove that the Defendant knew, or should have known, of that disability and incapability of consenting to the intercourse.

  2. Engaging in sexual intercourse with another, against their will, which is accomplished by force, duress, or fear of immediate bodily injury.

  3. Engaging in sexual intercourse with an individual who is unable to resist by virtue of any anesthetic substance, illegal substance, or intoxicating substances, and the Defendant knew, or should have known, that the victim was unable to resist.

  4. An individual engaging in sexual intercourse with another person is unconscious and unaware of the act, the Defendant knows, or should know this fact. In this situation, “unconscious” means either: (1) the victim is incapable of resisting as a result of the victim being asleep or unconscious, (2) the victim was completely unaware that the sexual intercourse ever occurred; or (3) the victim was unaware of the act because the Defendant led the victim to believe the penetration was for a professional purpose.

  5. When an individual engages in sexual intercourse, consensually, with the victim; and that consent was induced by the Defendant pretending to be someone known to the victim.

  6. Where an individual engages in sexual intercourse with the victim by threatening harm, or retaliation against the victim, or any other person, and it is reasonable for the victim to believe that the Defendant will actually follow through with that threat. Here, the “threat to retaliate” means a threat to falsely imprison, cause extreme pain, cause serious bodily injury or death, or kidnap.

  7. The Defendant accomplishes sexual intercourse against the victim by threatening to utilize the power, as a public official, to arrest, deport, or incarcerate the victim. Additionally the victim reasonably believes the Defendant is actually a public official, and has the ability to follow through with their threat.

As stated above, the list is not a comprehensive list, but illustrates various conduct that would result in a conviction under California Penal Code §261.

WHAT IS THE LEGAL DEFINITION OF RAPE?

To be convicted of rape, the Prosecution must prove three elements beyond a reasonable doubt:

  • You were involved in sexual intercourse with the Victim.
  • At the time of the sexual intercourse, the victim was not married to Defendant.
  • The sexual intercourse was not consensual.

Since the Prosecution must prove every element beyond a reasonable doubt, it is important to understand each of those elements. The attorneys at Orange County Criminal Attorney have ample experience representing a variety of criminal charges for our clients, including rape charges. As a result of our attorneys’ extensive knowledge, we equipped to build the best defense available for your case. Below is a detailed analysis of the elements involved in the rape charge. 

WHAT IS SEXUAL INTERCOURSE?

Pursuant to California Penal Code §261, a rape charge cannot stand without sexual intercourse. The code defines “sexual intercourse” as penetration of any orifice (vagina, anus, mouth). The degree of penetration is irrelevant; even the slightest penetration will suffice to sustain a conviction on rape charges. Further, it is unnecessary to reach climax for the rape charge to stand. California law protects victims even further by holding that even if the sexual intercourse was initially consensual, the sexual intercourse will become rape if in the middle of the act, the victim changes their mind, and attempts to terminate the act.

WHAT DOES LACK OF EFFECTIVE CONSENT MEAN?

In determining whether or not there was effective consent, we look to the intent of the victim. If there is no consent, then the Prosecution has a strong argument to support their rape charge. In some scenarios, there is insufficient consent, notwithstanding the fact that the victim appears to be consenting to sexual intercourse. There are many scenarios where this may be the case: (1) the victim consented, but was unable to understand the nature of the Defendant’s conduct, (2) if the Victim is intoxicated, or mentally infirm, (3) the victim initially consented, but then became unconscious, Additionally, for consent to be present, an individual needs to provide positive cooperation as an exercise of free will. An individual must freely and voluntarily consent to sexual intercourse, with knowledge of the nature of the act itself.

As mentioned above, consensual sexual intercourse can become rape if the individual changes their mind in the middle of the act. If, at any point, the victim conveys to the Defendant through words, or actions, that she no longer consents to the sexual intercourse, in a manner that would lead a reasonable person to understand that consent has been withdrawn, the consensual intercourse has now become a rape under California law.

WHAT IS THE LEGAL RELEVANCE OF WHETHER OR NOT THE VICTIM WAS MARRIED TO THE DEFENDANT AT THE TIME OF THE RAPE?

Under the California Penal Code, to be convicted for rape, the victim must not have been married to the Defendant at the time of the alleged conduct. If at the time of the act, the Victim was married to the Defendant, this will be considered as spousal rape pursuant to California Penal Code §262.

DEFENDANT MUST HAVE KNOWN THAT THERE WAS A LACK OF CONSENT

As mentioned above, lack of consent is a critical element that the Prosecution must prove beyond a reasonable doubt, to prove that element the Prosecution is required to show that the Defendant did not actually, and reasonably, believe that the Victim had willingly engaged in, that is consented to, the sexual intercourse. If the Prosecution can prove beyond a reasonable doubt that the Defendant’s belief that there was consent was unreasonable, or that they did not actually believe there was consent, then this element will be satisfied.

DOES THE GENDER OF THE VICTIM MATTER FOR RAPE CHARGES IN CALIFORNIA?

At common law, only a woman could be the victim of rape, not a man. Today however, both a man and a woman could be convicted of rape. For instance, if a woman forced a male to engage in acts of a sexual nature with her, she may be held accountable for the crime of rape pursuant to California Penal Code §261.

Additionally, if a woman aided a man in raping another woman, she may still be held accountable for rape, despite the fact that she did not actually have sexual intercourse with the victim through a theory of aiding and abetting.

WHAT ARE THE PENALTIES IF I AM CONVICTED OF RAPE?

In California, it is always a felony if you are convicted of rape. The punishment for this crime is up to eight (8) years incarceration, and a fine of up to ten thousand ($10,000) dollars, or a combination of both. Additionally, depending on the facts of the case, a rape conviction could also count as a strike pursuant to California’s “three strikes law.”
If the victim of the rape has suffered serious bodily injury, it is mandatory that you serve an additional five (5) years of incarceration.
Further, if your conviction involved a minor, you face an additional penalty of seven (7) to eleven (11) years of jail time. In the unfortunate situation where the victim is under the age of 14, you may face up to thirteen (13) additional years of incarceration.

In addition to all of these penalties; if you are convicted of rape, you will automatically be placed on the sex offender registry. This label follows you for life.

WHAT ARE THE LEGAL DEFENSES MY OCCA ATTORNEY CAN RAISE IF I AM ACCUSED OF RAPE?

As mentioned above, a conviction for rape is a felony in California. A felony will appear on your criminal background check. In this day and age, employers are increasingly conducting background checks on potential employees. As a general rule, employers are hesitant to hire individuals with criminal records. Further, a conviction for rape may constitute a strike under California’s “three strikes law.” With each additional “strike” the penalties will increase exponentially. Finally, a conviction for rape will result in your name being placed on the sex offender registry; this label will remain with you for your entire life. Having competent counsel to protect you against allegations of rape is vitally important, in light of the severity of the consequences you face. If you have been accused of rape, contact an attorney of Orange County Criminal Attorney immediately. The attorneys at OCCA will fight to build the most effective defense available for your case; ultimately resulting in potentially avoiding the dire consequences associated with a conviction for rape. There are a number of defenses your OCCA attorney could pursue. Some of these defenses include:

  • You were wrongfully accused of the rape.
  • The victim consented to sexual intercourse, and did not withdraw consent.
  • The Prosecution has failed to prove all the elements of their case.
  • The Victim mistakenly identified you as the Defendant.

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