Rape

Rape is defined as when a person engages in sexual intercourse with another person without their consent or the person’s ability to give consent. What this essentially means is that if a person accuses you of having sexual intercourse with them regardless of their age, it constitutes rape. There are times a person can have sex with an individual that cannot consent legally. Having sex with a minor in California is considered rape and the law calls it statutory rape. There are also cases where caregivers get accused of having sexual intercourse with the people they are charged to care for, and they cannot consent. This too is rape under the laws of California. Sometimes the accusations are falsified, or you did not know the other was a minor, and then suddenly you find yourself facing criminal charges. Call us at the Los Angeles Criminal Defense Attorney to prepare your defense and help you avoid severe penalties.

Understanding Rape Laws in California

Rape laws in California make it a crime for a person to engage in sexual intercourse without the express authority of the other person customarily called consent. When sexual intercourse happens, under the state of California laws, it becomes a criminal offense or rape when:

  • Physical force was used by the defendant to threaten, intimidate or force the victim into an intercourse
  • Because of fear of potential injury or bodily injury, the victim let the sex happen
  • There was a lack of ability to consent from the victim either because they were intoxicated, have a physical disability, or developmental delay
  • The sexual intercourse happened when the victim was asleep, unconscious, or was unaware of what was happening.
  • Through fraudulent representation, the defendant initiated sexual intercourse

In addition to the above scenarios, the state also recognizes rape with minors. This involves having sex with a minor below the age of 18. The age of the victim, the defendant, and the difference is essential in establishing the seriousness of the charges. Just by having sexual intercourse with a minor regardless of whether they were aware, lied about their age and consented to the act, it is a crime. The law recognizes that a minor is unable to give consent. As such, the prosecutor is not required to prove if there was violence or threats.

 

An Overview of California Law on Rape

In California, the law makes rape a crime, and the laws guiding each type of rape are different. Some of the rape categories and the laws that govern them include:

PEN 261 – Rape

When sexual intercourse happens with an individual, the defendant can be charged with rape if it happened as follows:

  • The victim has a mental disorder, physical disability, or a developmental disorder making them unable to give consent legally, and it is in the knowledge of the perpetrator.
  • If intercourse occurs against the will of a person because they were threatened, forced, or put under duress. The victim may have consented due to fear of bodily harm or intimidation and warnings from the perpetrator.
  • When sexual intercourse happens where the victim was in no position to give consent or to resist due to intoxication, and the perpetrator was aware of their situation
  • When sex happens, and the victim does not understand the act, and the defendant is aware of it. In this case, it means the victim is unable to resist because:
  • They were asleep or unconscious
  • Did not know, perceive or recognize the act happened
  • The victim was unaware or could not recognize crucial signs of the deed because of the defendant’s fraud in fact.
  • The victim was unaware or could not understand the signs of the act because the perpetrator fraudulently represented it as serving a purpose professionally
  • Where the victim submits to the act because they believe the perpetrator is known to them. This happens when the accused pretends and conceals their identity to make the victim feel they are known to each other.
  • Where the perpetrator threatens with retaliation in the future should the victim refuse, and there is a reason to believe that they will carry out their threat. A perpetrator can threaten to kidnap, injure, or kill a loved one or the victim if they don’t consent to the act.
  • The victim consents due to threats of using authority to arrest, incarcerate, or deport them if the victim truly believes the perpetrator has the power to do it.

Penalties for Rape

The law is stringent on rape charges, and they are prosecuted as a felony. If a person is convicted of the crime of rape, they may face jail time in state prison for three, six, or eight years. Some rape cases can see the judge issue formal probation with a one year jail time in county jail. This happens only when:

  • The perpetrator is found guilty of rape with the only reason being the victim was unable to consent because of a disability
  • The perpetrator was able to rape because they pretended to be a person known to the victim and they were not
  • The perpetrator managed to rape by using public official's authority
  • All rape cases inclusive of ones where a victim was intoxicated, asleep or unconscious, they attract a mandatory jail time in state prison. In addition to these penalties, the defendant can have other penalties, such as:
  • A possibility for an extra three to five years imprisonment if the victim sustained significant bodily injuries
  • Paying a fine not exceeding $10,000
  • A possibility of having a “strike” in your permanent record based on the law of Three Strikes in California.

If the victim of the rape was a minor below the age of 18, the maximum jail time might be increased to seven, nine, or eleven years. If the victim is below the age of 14, the most probable penalty will be nine, eleven, or thirteen years in state prison.

In addition to the severe penalties, if a person is convicted of rape, they are required to register as sex offenders of tier three-level for a lifetime.

Possible Defenses in Rape Cases

Many people have been accused of rape falsely because little or no evidence may be required. Some of the legal defenses your lawyer will put across include:

False accusations

Most sex crimes are initiated out of anger, revenge, jealousy, or pure malice. According to reports, many rape cases are falsified in the state of California. A study by the FBI concluded that about 10% of rape cases are based on falsehoods with other studies indicating the figure is higher. There have been reports of many victims of false accusations being released after spending time in jail on false convictions. DNA evidence helps in determining the authenticity of rape cases. If you have been falsely accused of a rape, an experienced lawyer should be able to bring evidence that proves that, and you get acquitted.

Consent

A sexual intercourse act is considered rape if the other person did not consent to it. If the act was consensual, the person should not allege rape even if they changed their mind later. The alleged victim must have communicated effectively her need to withdraw consent. Equally, if you are convinced and have good reasons why you believe the alleged victim consented, then you cannot be convicted.

Insufficient Evidence

If the supposed victim of rape did not ask for medical care after the act, there might lack evidence to support rape allegations. Equally, if there is no witness to the rape, the case may be based on personal accusations. In such a situation, using a lack of sufficient evidence may be a good defense. Most prosecutors have a hard time proving a rape charge if the evidence available is the word of the accuser that is uncorroborated.

Mistaken Identity

The number one reason for most wrongful rape convictions is wrongful identification by an eye witness. Unless the perpetrator is known to the victim, it is difficult for the victim to identify him due to the following:

  • The perpetrator may have had a face mask on
  • There was inadequate lighting where the rape occurred
  • Police lineups that can be prejudicial

These factors have from time and time again contributed to the conviction of a person wrongly, and unless the victim can accurately identify the defendant, this defense can be used.

PEN 261.5 – Statutory Rape

The California law criminalizes the act of having sexual intercourse with a person that is below the age of 18. It does not matter if the person did this willingly or not. However, different circumstances determine the charges. Under this penal code in the state of California, a person is charged with statutory rape if:

  • When a person engages in sexual intercourse with a person not married to them, and they are below the age of 18
  • If a person engages in sexual intercourse with a minor that is not three years older or younger than them, they are charged with a misdemeanor
  • A person that engages in sexual intercourse with a minor three years younger is considered guilty of a felony or a misdemeanor and faces county jail imprisonment of not more than a year
  • A person that is 21 years or older and engages in sexual intercourse with a child under the age of 16 is guilty of a felony or a misdemeanor and faces county jail imprisonment of between a year and four years.

Statutory rape cases are common in the state of California.  Many teenagers are engaging in sexual activities and put some law-abiding citizens in trouble when they were not aware of the age of the victim. Based on the circumstances above, there are various scenarios where consenting sexual intercourse can turn into a statutory rape case. Some of these include:

  • When a 19-year-old girl has consensual sex with a 16-year-old boy that is in some of her classes
  • When a 30-year-old teacher or professor develops a relationship that is sexual with a girl of 17 years in their class
  • When a boy and a girl both teenagers have been in a romantic relationship but decide to have sex when the boy is 18, and the girl is 16

Unfortunately, statutory rape charges are often brought against innocent individuals. Many of the alleged victims may make such accusations out of anger, jealousy or are out for revenge. This has led to many falsified charges as well as wrongful arrests that lead to prosecutions that are bogus.

Penalties

The state of California considers statutory offense as a wobbler offense. Based on the facts of the case, the offense can be charged as a felony or a misdemeanor.

The difference in age between the alleged perpetrator and the minor plays a big role in establishing how to try the case. The penalties become more severe when the defendant is 21 years or older while the victim is 16 years or younger. If this is the case, the defendant if found guilty, they can be imprisoned in the state prison for not more than four years.

Legal Defenses

To protect your rights as well as your future, you need to hire an experienced criminal defense attorney to help you defeat charges of statutory rape. Some legal defenses that are most effective include:

  • You were not aware that the alleged victim was a minor, and you have reasons that lead you to this assumption. To support this defense, the defendant must indicate statements or actions that the alleged victim said or did that meant they were over 18. The general appearance and dressing also go to show if the victim appeared 18 or younger. The place that you met the victim is significant. For instance, if you met them in a bar that sets a requirement for patrons to be over the age of 18 or 21. If you also notice the victim order an alcoholic drink and presents a driving license that shows her age as over 21, then as a defendant, you reasonably believed the victim to be over 21.

Naturally, meeting a minor in a bar makes it easy to assume the person is 18, and they

may be using a fake ID.

  • There was no sexual intercourse that took place between you and the minor. Many statutory rape cases are based on malice, anger, revenge, or even jealousy. The victim or even their parents can fabricate falsehoods against the person for a number of reasons. A good lawyer should help the victim beat prove the allegations to be falsehoods and get the defendant acquitted.

What the Prosecutor Must Prove

For a person to be convicted on statutory rape charges under PEN 261.5, the prosecution needs to prove three facts or elements of statutory rape crime. These elements are:

  • The defendant engaged in sexual intercourse with a minor
  • The people that engaged in the act were at the time not legally in a married relationship together
  • At the time of the act, the supposed victim was younger than 18

In a statutory rape case, a prosecutor is not required to demonstrate that force or violence was used to enable intercourse or the victim gave no consent to have intercourse. This differentiates statutory rape from other rape charges in California, where the main element of the case is if the intercourse was consensual or not. This allows criminal charges to be leveled against individuals that are in a loving and caring relationship simply because of the age of the parties.

Determining the age

The law in California states that a person is older by one year at a minute past midnight on the date of their birthday. During trial proceedings in a rape case, the law takes into consideration the age of the victim and the defendant.

Can a Minor be Charged with Statutory Rape?

Under the statutory rape laws of California, a minor can also be charged with rape. If you engaged in sexual intercourse when below the age of 18, you can also be a defendant. This may be conflicting because, at that age, the defendant should also be considered a victim. Many prosecutors avoid prosecuting cases where two teenagers engage in consensual sex, but that does not in any way mean one cannot be charged. Most of these cases where both the victim and the defendant are minors are tried under the juvenile system.

Penalties for Statutory Rape

Earlier, it was stated that statutory rape charges are a wobbler offense. If the defendant is charged with a misdemeanor, the penalties may include:

  • Summary or informal probation
  • County jail time of a maximum of a year
  • Fines of up to $1,000

If the defendant faces felony charges, the possible penalties will include:

  • Formal or informal probation in addition to a county jail time of up to a year
  • Sixteen, twenty-four, or thirty-six months in custody. If the defendant were 21 years or older while the victim was 16 years or younger, the possible jail time would change to two, three, or four years.
  • The defendant will also be expected to pay a fine of $10,000 or below.

If Convicted of Statutory Rape, Should You Register as a Sex Offender?

If you are found guilty of statutory rape and are sentenced, you are not required to register as a sex offender. However, there are other related acts that will require a person to be registered as a sex offender. These include normal rape or when a person is found to engage in lewd acts with a minor.

Related Charges to Statutory Rape

There are other charges that are related to statutory rape in California. These are when an adult engages in lewd acts with a minor, and are prosecuted under PEN 288. The definition of lewd acts under the law is:

  • When an adult touches a child in a sexual manner to get sexual pleasure out of it
  • When an adult causes a child to touch themselves for sexual pleasure.

Based on the particular case, the perpetrator can find themselves:

  • Serving a jail sentence of up to a year in a county jail
  • facing the possibility of life imprisonment in state prison.

The Romeo and Juliet Law

The state of California does not recognize the Romeo and Juliet Law. This is the law that allows people close in age to perform sexual acts. For instance, if a person is 16 years, and the other is 15 years, and they engage in sex, the law allows this. However, in California, this is unacceptable. If two people below the age of 18 engage in sexual intercourse, they will both be prosecuted for statutory rape because the Romeo and Juliet law does not exist.

Are there Incidences where a Minor can have Sex with an Adult Legally?

The state of California does not have a legal minimum age for marriage. PEN 261.5a states that unlawful sexual intercourse with a minor happens when the people involved are not legally married. What this essentially means is that if a person is legally married to the minor and they engage in sex, then the act cannot be classified as a sexual crime. However, if the sex is not consensual even if they are married, it becomes spousal rape.

PEN 262 – Spousal Rape

The law considers spousal rape to have happened under one or more of the circumstances as earlier discussed in PEN 261 Rape. If a person is accused of raping their spouse, the prosecutor must prove that indeed the rape happened based on the same circumstances discussed earlier.

Penalties for Spousal Rape

Just like in non-spousal rape charges, if a spouse is convicted of raping the other, they will face similar charges like those for non-spousal rape.

Legal Defenses

As earlier indicated, little or no evidence is required in most rape cases to convict a defendant. However, this has resulted in many falsified accusations with rape within marriage not left out. A spouse may accuse the other of rape due to a number of emotional reasons. With a good lawyer, the defendant can unmask these reasons and possibly get an acquittal. The defenses a lawyer will use here are the same as those in PEN 262 Rape.

Find a Los Angeles Criminal Defense Lawyer Near Me

Rape accusations are common in California, with many of them being falsified because of various underlying issues. Whether in a relationship or not, it is easy to find yourself accused of rape that will damage your reputation and future. If facing rape charges, you need to hire a lawyer to prepare your defense and protect your rights. Talk to us at The Los Angeles Criminal Defense Attorney, and we will quickly start formulating your defense as we tirelessly work to safeguard your reputation. Call us at 310-564-2606 today for a free consultation and an appointment.

If you have been arrested in Orange County and need a criminal defense attorney please check out this law firm: Orange County Criminal Lawyer

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