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California Rape Law & Defense

Penal Code 261(A)(2)

The most common criminal charge for the crime of Rape is found at California Penal Code Section 261(A)(2), which is also known as Forcible Rape. There are many variations of rape charges in California depending on the status of the victim (i.e. age, relationship to defendant, mental capacity of the victim, etc.).

The crime of rape is a felony in California, and if convicted, the defendant may face up to 8 years in prison (11 years for victims over 14 and under 18, and 13 years for victims under 14).

For attempted forcible rape the defendant is charged under PC 664/261(A)(2). If found guilty of attempted forcible rape under PC 664/261(A)(2) the defendant may face up to 4 years in prison. 

The crime of rape under PC 261(A)(2) is considered a strike in California. Rape charges under PC 261(A)(2) are also considered violent. This means that the defendant must serve 85% of his or her prison sentence even with time off for good behavior (as opposed to 50% of a prison sentence for non-violent criminal charges).

In addition, rape charges under PC 261(A)(2) are considered "fully consecutive" sentences. This means that the defendant must serve his or her full prison sentence according to the rape

conviction before any other sentence for any other conviction starts. For example: if the defendant is found guilty of rape under PC 261(A)(2) and is also found guilty of sexual battery, the defendant must first serve a full sentence according to the rape charges before his or her sentence for the sexual battery starts. (most non-sex crimes convictions run "concurrent" to other charges and thereby saves a lot of prison sentence time).

To prove that the defendant committed the crime of rape pursuant to PC 261(A)(2), the prosecutor must prove that the defendant sexually penetrated a woman who is not the wife of the defendant, that he sexually penetrated the woman by force, violence, or fear, and that the defendant sexually penetrated the woman without her consent.

Note: Sexual penetration, however slight, is an essential element to prove the crime of rape.

As stated above, in order to prove the crime of rape pursuant to PC 261(A)(2) the prosecutor must prove that the woman who alleges that she was raped by the defendant is not the wife of the defendant. If the woman who alleges that she has been raped by the defendant is the wife of the defendant then the prosecutor will usually file sexual battery charges under penal code section 243.4, or rape of a spouse charges under PC 262(A)(1) or PC 262.

For the crime of rape to be complete under PC 261(A)(2) there must be some sexual penetration of the woman. If a woman claims that she has been raped,  but there is no sexual penetration claimed or proven, the prosecutor will usually file sexual battery charges under penal code section 243.4, or attempted rape under penal code section 664/261.

Furthermore, for the defendant to be convicted of rape under PC 261(A)(2), the prosecutor will also have to prove that during the commission of the alleged rape the defendant used some fear, force, threat, or violence, which was directed towards the woman, or someone the woman knows, and that the threat of violence is to an immediate danger of the woman alleging rape or to someone she knows.

For example, a threat to physically retaliate, murder, or kidnap a woman if she does not submit to the sexual penetration equals sexual penetration by fear or force.

With respect to the element of consent, pursuant to PC 261(A)(2), a defendant may be charged with rape where a woman who initially consents to an act of intercourse later changes her mind and withdraws her consent during the act of intercourse. If the women changes her mind as to consent, under the law, the act of sexual intercourse is then committed without her consent from the point in time where the woman withdrew her consent,  so long as the woman reasonably communicates her lack of consent by words or conduct during the intercourse.

For example, a woman who initially consents to sexual intercourse but later withdraws her consent during intercourse must somehow communicate to the defendant that she wishes to withdraw her consent by either expressly communicating her desire to cease sexual intercourse or by actually resisting the sexual intercourse; otherwise, the defendant will be unaware of the fact that the woman has withdrawn her consent after beginning intercourse.

In some situations the woman who alleges forcible rape under PC 261(A)(2) is incapable of giving her consent to sexual intercourse. For example, a sleeping woman, an unconscious woman, a severely intoxicated woman, a severely mentally disabled woman, or a legally underage woman, are all incapable of giving consent to sexual intercourse.

With respect to the situation of an underage woman who is legally incapable of consenting to intercourse, no force or fear needs to be proved by the prosecutor. All that needs to be proved is that there was sexual intercourse between the defendant and the woman and that the woman was under the age of 18. The is commonly known as "Statutory Rape," or "Unlawful Sexual Intercourse." Statutory rape is usually charged under PC 261.5(c) 

Furthermore, no consent to sexual intercourse is found where the defendant pretends to be the husband or boyfriend of a woman while having intercourse with the woman. This situation is known as "fraud in the inducement" to sexual intercourse. No consent to intercourse is found in "fraud in the inducement situations."

Finally, the fact that a defendant has had prior sexual activity with the woman who alleges rape, or the fact that the defendant is presently dating the woman who alleges rape, does not equal consent to sexual intercourse. Also, the fact that a woman has consented to sexual intercourse in the past with the defendant does not mean that she consented on any particular occasion.

Defense to a criminal charge of rape (PC 261(A)(2))

Marital Status: Evidence that the defendant is the husband of the woman who is alleging rape is a defense to PC 261(A)(2) criminal charges. However, as indicated above, a defendant may be charged with "rape of a spouse" under penal code section 262.

Lack of Force or Fear: The defendant is not guilty of rape under PC 261(A)(2) if he had intercourse with a woman without force, fear, menace, threats, intimidation, or duress. However, this element is rarely used as a defense because the measure of fear instilled in a rape victim is subjective and difficult to measure. Rather, the lack of force or fear would tend to prove that the woman consented (See below on the defense of consent to rape charges).

No Sexual Penetration: The defendant is not guilty of the crime of rape under PC 261(A)(2) if there was no sexual penetration proven. However, in the case of no proof of sexual penetration, no matter how slight, the prosecutors may still file sexual battery charges or attempted rape charges if the prosecutors believe that those charges are appropriate.

Reasonable Mistake as to Consent: The defendant is not guilty of rape according to PC 261(A)(2) if the

defendant actually and reasonably believed that the woman consented to the intercourse (even if the woman did not actually consent to the sexual intercourse). The prosecutor has the burden of proving that the defendant did not actually and reasonably believe that the woman consented. In addition, actual and reasonable, but mistaken belief, as the victim's age, mental state, and level of intoxication of the rape victim, are also defenses to rape charges. Note: Defendant's Intoxication is not a defense to a charge of rape.

Actual Consent: If the woman actually consented to the sexual intercourse, evidence of her actual consent would serve as a defense to rape charges under PC 261(A)(2).

Unfortunately, rape charges under PC 261(A)(2) are sometimes filed erroneously by woman who consented during sexual intercourse but later claim that the intercourse was non-consensual. False accusations of rape are more common after relationship breakups, or just before a civil suit for rape (sexual battery) is initiated (where the woman who alleges the rape is seeking money damages for her alleged injuries).

It is also a defense to a charge of rape under PC 261(A)(2) where the woman actually consented to intercourse even if the defendant misrepresented the facts in order to seduce the woman into having sexual intercourse. For example: The defendant is not guilty of the crime of rape where he makes a promise of marriage in order to seduce a woman into having sexual intercourse with him.

The reason for this is that the woman actually consented to the sexual intercourse with the defendant. This situation is different than "Fraud in the inducement" discussed above because the woman who is alleging the rape actually consented to the sexual intercourse with the defendant and the defendant is not pretending to be a different person (See difference at Fraud in the Inducement above)

Restrictions on defenses to rape under California "Rape Shield Laws"

In California, the legislatures have enacted a series of laws that limit the type of evidence that may used by the defendant in a rape case. Under Evidence Code 1103 and 782 also known as "Rape Shield Laws," defendants may not be allowed to show evidence of consent by virtue of the fact that the woman who is alleging the rape has a reputation for sexual promiscuity, dressed in any particular manner, or that on any particular occasion the woman behaved in a sexually promiscuous manner.

However,  prior false accusations of sexual molestation or rape by the alleged rape victim is relevant on the issue of the complaining rape victim's credibility (not on the issue of consent), and is therefore admissible evidence.

Criminal Liability for the crime of Rape PC 261(A)(2)

As stated, a criminal rape conviction rape under PC 261(A)(2) subjects the defendant to the penalty of up to 8 years in prison. Furthermore, the defendant, if convicted of rape, will be required to register as a sex offender with local authorities for the remainder of the defendant's life. Rape convictions could also lead to immigration consequence, enormous fines, probation or parole requirements, professional licensing restrictions, CPS and administrative hearings initiated, civil lawsuits and more.

Closely associated charges to rape under PC 261(A)(2): 

Assault with intent to commit rape (PC 220); Attempted spousal rape (PC 666/289, 663, 262); Attempted Rape 664/261(A)(2); Sexual battery (PC 243.4(e)(1)); Sexual battery by restraint (PC 243.4(a)); Sexual battery of institutionalized victim (PC 243.4(b)); Sexual battery of an unconscious victim (PC 243.4(c)); kidnapping with intent to commit rape (PC 209(B)(1):

To learn more about the crime of rape charged as PC 261(A)(2), in California, including defenses to rape & spousal rape, contact a California Sex Crimes Criminal Defense Attorney today.


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Continuous sex abuse of child
Lewd Act on a minor under 14
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Rape by force or fear of injury
Rape of an intoxicated victim
Rape of an unconscious victim
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Statutory rape
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Keeping a house of ill repute
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Sodomy by force or fear
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Oral cop of a minor under 16
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Oral cop on intoxicated victim
Annoy or molest a child
Distribute nude images


Criminal Defense Attorney California Rape Crimes PC 261(A)(2)



Christopher Dorado, Esq. 1030 Nevada Street Suite 105 Redlands, CA. 92374 Also see Sex Crimes Defense Lawyer

California sex crimes attorney serving Redlands, YucaipaRialtoSan BernardinoFontanaRancho CucamongaOntarioVictorvilleRiversideHesperia & More