June 23, 2020 48299488 0 Comments

Rape is non-consensual sexual intercourse with another person (Penal Code sections 261(a)(1), (a)(2), or (a)(3)).  The offense can occur in a variety of forms.  To prove a defendant committed a rape offense, the prosecutor must prove that:

  • that he/she had sexual intercourse (penetration, however slight)
  • both parties were not married at the time
  • the victim did not consent to the intercourse
  • the defendant used force/violence, or threat of force or violence, inflicted bodily injury, committed in retribution, and/or through fraud


“Consent” (or the lack thereof) is probably the most disputed element between a defendant and the victim.  While “consent” to intercourse may be communicated to the defendant initially by words, gestures or deeds, it can also be retracted (taken back) by the victim in the same way (even as the act of intercourse continues).  And, if a “reasonable person” would have understood the words, gesture or deeds to mean that “consent’ was being withdrawn, but the defendant continues with intercourse, then he/she is still criminally liable for rape.  It is not required that the victim say, “stop!”, or that he/she “fight back” physically.  

Also, the law recognizes that there are some victims who are unable to provide “consent”; someone too intoxicated, a person with a mental disorder, and an unconscious person.  In such cases, a defendant who proceeds to have sexual intercourse can be charged with a rape charge.  


Clearly the victim, and any witnesses (if available) will need to be interviewed by law enforcement and the prosecutor to gain a clear picture of what happened during the alleged rape.   How that initial, and any subsequent, interview with the victim are conducted is crucial to the accuracy and integrity of the information elicited from the victim.  In many cases, a defendant will also have provided a statement to law enforcement (usually before he/she has hired counsel!).  The information and evidence obtained through these interviews are invaluable to developing and identifying possible defenses.  

For example, was the victim in a normal state of mind during the interview or upset and angry, were the questions posed to the victim done appropriately or were they “leading” (designed to get a specific response), were the people guiding the victim’s specially trained or experienced handling rape investigations, and very importantly, were there any material discrepancies or contradictions in anything the victim said in the initial police report versus subsequent interviews.

In cases where physical evidence is obtained and/or available (through “rape kit”, skin/hair/semen DNA, clothing, photos, video or audio recordings, etc.), it is important to determine if the items were properly collected, stored and analyzed.  Any flaws or defects in the preparation or evaluation of physical evidence can have significant impact on the quality and admissibility of that evidence.

Likewise, in fully evaluating the details of the sexual encounter with the client, an experienced attorney may determine that a viable defense exists.  For example, 

  • given that “consent” and the “withdrawal of consent” can be non-verbal, perhaps the victim’s silence or passiveness also created a “reasonable belief” in the client’s mind that consent was still ongoing during intercourse
  • there was no sexual intercourse that ever took place (there was no vaginal penetration of any kind)
  • intoxication of victim did not become apparent until after intercourse 
  • defendant has consensual sex with girlfriend who afterwards becomes angry with defendant for reasons un-related to the intercourse (thus, falsely accused)   

Punishment, Aggravating Factors & Sex Registration

Rape can only be charged as a felony.  If convicted of the charge of rape, the defendant’s punishment can include being placed on formal probation and serving up to one year of custody in the county jail, plus fines/fees and restitution.  If felony probation is denied, the defendant may serve 3 years, 6 years, or 8 years of custody in state prison.  

If the victim of the rape was a minor under the age of eighteen, the defendant could serve 7 years, 9 years, or 11 years of custody in state prison.  If the victim was a minor under the age of fourteen, the defendant could serve 9 years, 11 years, or 13 years of custody in state prison.  And, if any rape conviction involved the infliction of great bodily injury (“GBI”), then the defendant may serve an additional 3 to 5 years in state prison.

Finally, as of 2017 in California, a new three-tiered system (SB 384) exists for designating for how long a defendant is required to register as a sex offender.  For a rape conviction, the registration requirement is a lifetime obligation (Penal Code section 290).  Failure to register can result in either a new misdemeanor or felony offense, punishable up to one year in county jail or 3 years in state prison.