California Penal Code Section 261 defines rape as follows: An act involving sexual intercourse which was accomplished by a perpetrator who is not the spouse of the victim and was committed under one or more of the following circumstances. One (1), The alleged victim was unable to grant legal consent due to a mental disorder, a physical or developmental disability and that the perpetrator new of the victims inability to legally establish consent. Two (2), the act of intercourse was accomplished through the use of force or violence, duress or menace, or fear that immediate bodily harm will come either to the victim or even a third party. Three (3), the victim was under the influence of an intoxicating substance (including but not limited to alcohol) which prevented the victim from resisting the sexual assault. Four (4), the victim was unconscious or unaware of the act. Five (5) that the sexual intercourse was performed while the victim falsely believed the perpetrator to be his/her spouse. Six (6) by threat of a future act of retaliation, or seven (7) when the perpetrator, usually a peace officer threatens the arrest, incarceration or deportation of the victim to accomplish the intercourse.
Being convicted of rape in the State of California provides little chance of being granted probation (Local Custody v. State Prison), however, despite the odds, an aggressive sex crimes and rape defense attorney may be able to overcome the odds and keep a client from going to state prison. If convicted in open court by a jury or your attorney was unable to negotiate a probation deal, you may be subject to that base term of three, six or even eight years in State Prison. Your exposure can be much greater if there is more than one victim or you are alleged to have committed the act on more than one separate occasion. If this is the case, you may be sentenced separately and consecutively on each separate act.
Other California Penal Code Sections which amount to “rape” in the State of California includes, Lewd and Lascivious Acts on a Minor that were accomplished through force or Statutory Rape where despite the victims willingness to participate or even initiate the sexual intercourse, he/she is under that age of eighteen while the alleged perpetrator is eighteen or older.
It is imperative the you and your attorney prepare a aggressive defense strategy. In investigating an allegation of Rape against my client, will look at several factors. Often I will begin by determining if a rape kit / exam was ever done. Known by various names such as Sexual Assault Forensic Evidence (SAFE), Sexual Offense Evidence Collections (SOEC) and Physical Evidence Recovery Kit (PERK), they are used shortly after a sexual assault to collect fibers from clothes, hair, semen, Saliva or other bodily fluids. If such a procedure was not done on the alleged victim, the prosecution has just lost what may ultimately be the key evidence in their case. Additional considerations include the alleged victim's metal order, her relationship to the perpetrator, any history of prior allegations of “Rape” and finally is it reasonable for the perpetrator to believe that consent had actually been given.