Rape, Penal Code 261
If you have been charged with Rape, contact Los Angeles Criminal Defense
Attorney, Robert M. Bernstein today.
Penal Code § 261. (a) Rape is an act of sexual intercourse accomplished with a
person not the spouse of the perpetrator, under any of the following circumstances:
(1) Where a person is incapable, because of a mental disorder or developmental
or physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act.
(2) Where it is accomplished against a person's will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury
on the person or another.
(3) Where a person is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this condition
was known, or reasonably should have been known by the accused.
(4) Where a person is at the time unconscious of the nature of the act,
and this is known to the accused. As used in this paragraph, "unconscious
of the nature of the act" means incapable of resisting because the
victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential
characteristics of the act due to the perpetrator's fraud in fact.
(D) Was not aware, knowing, perceiving, or cognizant of the essential
characteristics of the act due to the perpetrator's fraudulent representation
that the sexual penetration served a professional purpose when it served
no professional purpose.
(5) Where a person submits under the belief that the person committing
the act is the victim's spouse, and this belief is induced by any
artifice, pretense, or concealment practiced by the accused, with intent
to induce the belief.
(6) Where the act is accomplished against the victim's will by threatening
to retaliate in the future against the victim or any other person, and
there is a reasonable possibility that the perpetrator will execute the
threat. As used in this paragraph, "threatening to retaliate"
means a threat to kidnap or falsely imprison, or to inflict extreme pain,
serious bodily injury, or death.
(7) Where the act is accomplished against the victim's will by threatening
to use the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that the
perpetrator is a public official. As used
in this paragraph, "public official" means a person employed
by a governmental agency who has the authority, as part of that position,
to incarcerate, arrest, or deport another. The perpetrator does not actually
have to be a public official.
(b) As used in this section, "duress" means a direct or implied
threat of force, violence, danger, or retribution sufficient to coerce
a reasonable person of ordinary susceptibilities to perform an act which
otherwise would not have been performed, or acquiesce in an act to which
one otherwise would not have submitted. The total circumstances, including
the age of the victim, and his or her relationship to the defendant, are
factors to consider in appraising the existence of duress.
(c) As used in this section, "menace" means any threat, declaration,
or act which shows an intention to inflict an injury upon another.
The punishment for rape is up to 8 years in state prison and lifetime
registration as a sex offender.