The Rape Law of California

Under California law, particularly Penal Code 261 PC, defines rape as non-consensual intercourse committed through the use if threat, force or fraud. There are many other crimes included in the general term of rape in California, which includes any of the following:

• Spousal Rape under Penal Code 262 PC;
• Date Rape;
• Statutory Rape under Penal Code 261.5;
• Oral Copulation by Force under Penal Code 266(c) PC;

In essence, rape is committed when the sexual act is accomplished against the person’s will without their consent by means of force, violence, duress, menace, fear of bodily harm, fear of retaliation and fraud. Rape is also committed when the victim is too intoxicated to give consent, unable to give consent due to a mental disorder or physical disability or unconscious about the nature of the act.

The elements of the crime are as follows:

• The sexual intercourse was consummated, regardless of how slight the penetration was;
• The act was committed when the other person was not a spouse;
• The intercourse was committed against the will of the other person;

What is central to this whole crime is the absence of consent. Consent is in essence the exercise of free will to the commission of the act. The fact that there has been a relationship is not evidence of such consent during the said act. The suggestion or communication that a condom be worn is not considered as consent per se. Furthermore, such consent can be withdrawn at any time even if at the start the consent was given.  Even if there was no resistance to the act, it does not constitute consent if such consent was not freely given.

Rape is not just a crime against women. Now, California rape laws apply to both men and women and even if the individual does not participate but causes the commission of the crime, that person can also be charged with rape.

Rape is considered as felony and the following penalties are imposable upon an individual convicted of the crime:

• Formal probation, should the rape not involve the use of force or violence;
• Jail time between three to eight years in a California State Prison facility. Should the rape be attended with great bodily injury, an additional three to five years is added to this jail time;
• Fines of up to $10,000 maximum;
• Registration as a sex offender under Penal Code 290 PC;
• Registration as a strike under the California Three Strikes Law.