Rape

 Rape is the non-consensual intercourse accomplished through force, fraud, or intimidation. This definition seems straightforward, and the expectation is that the cases are simple. However, a rape allegation has several complexities. As an alleged offender, overcoming these charges could prove challenging.

Many have been convicted of the crime with little to no evidence and are paying a hefty price. It is thus in your best interest to turn to an experienced criminal defense attorney when Pasadena authorities introduce rape charges against you. Their experience will aid in fighting the rape charges, and at Michele Ferroni Pasadena Criminal Attorney Law Firm, we promise to use our expertise to ensure you receive the best legal outcome.

a. Rape as Defined Under California Law PC 261

It is a crime to engage in non-consensual intercourse under PC 261. Threats, force, or fraud rob victims of their ability to give consent. That is why the three issues matter in a rape case. Further, having sexual intercourse with an unconscious or an individual suffering mental health issues also increases the possibility of facing rape charges because the victim cannot consent.         

When rape is mentioned, the first thought is that the perpetrator used violence. While violence is also factored into the case, it is not the only way rape can occur. Of importance is the non-consensual element. Therefore, you should not mistake the failure of a victim to fight back or resist for consent. 

Elements of Rape

Prosecutors can only successfully make their case under PC 261 by proving particular elements of the crime. They are:

• Engaging in sexual intercourse with the victim
• The victim did not consent to the sexual intercourse
• You accomplished the sexual act by force, violence, and the threat of violence, menace, fraud, coercion, or retribution.

Sexual Intercourse

Any penetration of the vagina or genitalia by a penis amounts to sexual intercourse. It follows that even in situations where there was slight penetration, under PC 261, you will be deemed to have committed rape.

Additionally, ejaculation is not required for the act to be considered sexual intercourse.

Lack of Consent

Sexual encounters require cooperation. That is, both parties willfully participated in the act. The lack of voluntary or willful engagement in sexual intercourse is grounds for being charged with rape.

Prosecutors will also be keen on the ability of the victim to comprehend the nature of the act. Engaging in sexual activity with persons who cannot understand the action is also enough to result in rape charges. This argument suffices if the victim has a mental disorder or is incapacitated to an extent they do not comprehend the nature of the act like intoxicated or drugged persons.

It is also important to note that a person could change their mind about participating in sexual intercourse after the act was initiated. While your accuser did give consent initially, he/she could decide not to proceed. A changed mind means that you no longer have permission. Should the victim communicate they do not consent to the act in words or actions, but you proceed to forcibly engage in the act despite the victim’s communication, you will be culpable under this section.

The communication will be subjected to a reasonable standard. That is, a reasonable person would believe and understand the actions or words expressed by the victim to mean no consent.

Also, note that an individual does not have to resist or fight back to communicate the lack of consent.

Use of Intimidation Tactics

When force, violence, or the threat of violence, fraud, or menace is used, a person cannot participate in the act voluntarily, freely, or willfully.

Rape of a Spouse

Before 2021, rape in the case of a married couple was an offense under PC 262. However, the law was repealed by Assembly Bill 1171. Under the new law, any non-consensual sexual intercourse with a spouse that meets the threshold of rape under PC 261 is a crime. Anyone found guilty of the crime is punishable under PC 261.

The bill offers one exception: Any sexual intercourse with a spouse incapable of giving consent on account of suffering a mental disorder or a physical or developmental disability is not rape.

California Rape Laws Apply to All Genders

The general assumption in rape cases is that the victim is a woman. This assumption is not unfounded as most reported rape cases involve women as victims. However, this does not mean men do not fall victim to rape cases.

California law on rape applies to both men and women. The law acknowledges rape victims and does not discriminate against men, should they fall victim to rape.

Rape laws in California also extend to accomplices. Under PC 31, it is a crime to facilitate, encourage, or aid the commission of a crime, in this case, rape. You, therefore, will face rape charges, found guilty if prosecutors prove their case beyond a reasonable doubt, and face rape penalties as the perpetrator. This law encompasses all participation, including insignificant acts like being present at the scene or merely knowing the crime occurred.

Penalties of Rape Under PC 261

Rape under PC 261 is a felony punishable by a prison sentence of up to 8 years. The judge could issue formal probation terms instead of the prison sentence if convinced.

You could also face an additional 3 to 5 years in prison if the victim in the case suffered significant bodily injury.

If the victim was under 18 years at the time of the crime, the judge would add 11 years to your sentence. If the alleged victim was under 14 years when the crime was allegedly committed, you would receive an additional 13 years to your sentence. 

Further, a conviction results in lifetime registration as a sex offender.

b. Rape as Defined Under California Law PC 261.5 (Statutory Rape)

Engaging in sexual intercourse with a minor is a crime under PC 261.5, referred to as statutory rape. Note that the definition, unlike rape, does not mention consent. This is because minors are deemed to be incapable of consenting. Therefore, you will be charged with statutory rape even if the minor willingly participated in the sexual act.

For purposes of this law, minors are persons under the age of 18 years.

You can only be convicted of statutory rape if prosecutors prove the following elements.

• You had sexual intercourse with the alleged victim — Any sexual penetration, regardless of how slight amounts to sexual intercourse. Further, the act is still sexual intercourse even if there was no ejaculation.
• The alleged victim was a minor at the time you allegedly committed the crime.
• The defendant and the alleged victim were not married to each other when they engaged in sexual intercourse — PC 261.5 offers one exception. The sexual encounter is not rape if the defendant and the alleged victim were legally married when the sexual act took place. However, that the minor was married to another does not exclude you from culpability for this offense.

A departure from rape under PC 261.5, force, intimidation, threats, or violence are not requirements for prosecutors to prove. Additionally, the lack of consent is not a consideration for the case.

The Age of Offenders and Its Impact Upon Conviction

An offender’s age is key in a statutory rape case. Court’s rely on this age to determine an offender’s sentencing upon conviction. Additionally, the age of the alleged victim also comes to focus.

You can only be found guilty of statutory rape if the victim is a minor at the time of the sexual intercourse. As per California law, you are one year older at one minute past midnight (0001 Hrs) on the day of your birthday. Therefore, a person is only a minor at any time before 0000 Hrs on the eve of their birthday. 

What of minors engaging in sex? What happens then?

Under PC 261.5, a minor can be found guilty of statutory rape if he/she engages in sexual intercourse with another minor. However, the minor will be tried in the juvenile court system. Unlike other states, California does not have the Romeo and Juliet law.

Under the Romeo and Juliet law, exceptions are provided to the general rule that you cannot engage in sexual relations with an individual below the consenting age if you are also a minor. The exceptions are state-specific. For example, Texa’s Romeo and Juliet laws allow minors aged 14 and 17 to have sexual relations as long as they offer consent. However, the older party has to be three years the age of the younger minor and as long as the consenting younger party is at least 14 years.

Also worth noting, prosecutors can only charge you with statutory rape within one year since the crime was committed for a misdemeanor offense and three years for a felony offense.

Penalties for Statutory Rape

Statutory rape is a wobbler offense. Prosecutors can either seek misdemeanor or felony charges. Further, each violation is penalized differently, taking an offender’s age into account.

Prosecutors first consider the following to determine what charges they would prefer.

• You commit a misdemeanor offense if you are older than the victim by no more than three years.
• Prosecutors can pursue misdemeanor or felony charges if you exceed the alleged victim’s age by more than three years.
• If you are 21 years of age or older and the alleged victim is less than 16 years old at the time of the sexual intercourse, you can either be charged with a misdemeanor offense or a felony. The penalties issued for 21-year old (or older) felony offenders are significantly heftier.

Additionally, your case could become an automatic felony if you have any prior convictions.

Misdemeanors are punishable by a jail sentence of no more than one year or summary probation and a fine of no more than $1,000.

Felonies, on the other hand, are punishable by formal probation or 16 months, 2, or 3 years in custody for under 21 years offenders. Defendants 21 years or older with victims less than 16 years old receive prison sentences of 2, 3, or 4 years. Additionally, a fine of up to $10,000 will be imposed.

Unlike PC 261 violations, there is no sex offender registration requirement for statutory rape.

Additional Consequences of a Conviction for Ordinary and Statutory Rape

A rape conviction affects your immigration status and gun rights.

Rape falls under the category of crimes involving moral turpitude, which are deportable offenses. Any non-citizen convicted of rape will be deported to their country of origin and marked as inadmissible.

As for gun rights, California law prohibits convicted felons from possessing or owning guns. A conviction for rape or a felony statutory rape conviction will take away your gun rights.

Legal Defenses Against Rape

Here’s a look at some of the legal defenses attorneys have used to defend individuals facing rape charges successfully.

Your Accuser Gave Consent

Consent can be both expressed and implied. Both create the reasonable and honest belief that the sexual intercourse is consensual and that both parties are willing participants. If you reasonably believed that your accuser permitted you to engage in sexual intercourse, then you can use this defense, which could exonerate you from the rape charges. 

However, your accuser must have been conscious and in a state where he/she reasonably comprehends the nature of the act.

For statutory rape, consent is not a defense, unlike in PC 261.

False Accusations

Accusers have different motives when filing complaints. The occasional pursuit of payback and acts of jealousy drive individuals to accuse others of wrongdoing, and rape is no different. For married couples, the accuser could allege rape to secure a divorce or tip the scales to their favor in a child custody battle. 

An experienced attorney will demonstrate the accuser’s falsified information as evidenced by any of the above-mentioned motives, thus fabricating the accusations against you.

No Sexual Intercourse

Sexual intercourse in law is clearly defined. You could have engaged in sexual activities that do not rise to the definition of sexual intercourse. If so proven, you are not guilty of rape. You could, however, face sexual assault charges for engaging in non-consensual sexual acts with no penetration.

Mistaken Identity

Rape that occurred in poorly lit environments, in the dark, or if perpetrators of the crime wore a mask create a possibility of misidentification. The problem is further compounded if you have a past criminal record or are registered as a sex offender. Police officers will include you in a lineup, and the victim ends up mistakenly pointing to you as the culprit.

In this scenario, your attorney will argue that you are a victim of misidentification, a compelling argument to have the charges dropped. 

Work with your attorney so that they select the best defense for your case.

Expungement of a Rape Conviction

PC 1203.4 provides guidelines for expungement. An expungement allows defendants to withdraw their no contest or guilty pleas to enter a not guilty plea and have the case dismissed. If granted, the expungement releases you from the negative consequences of a conviction. Therefore, you do not have to disclose your conviction to an employer.  

Expungement is only available for defendants in rape cases if judges issue probation terms as a punishment upon conviction. Moreover, you are eligible for an expungement of a rape conviction if you served a jail sentence.

Individuals who served a prison sentence for rape are not candidates for expungement.

Civil Lawsuits in Rape Cases

Rape victims can seek damages under California’s personal injury law. The civil and criminal proceedings are independent. You can face criminal proceedings, and the outcome of the case does not impact the civil case should the alleged victim seek damages in the civil case.

Additionally, the two cases seek a different outcome. In the criminal proceedings, prosecutors will seek a guilty determination. If successful, you will face prison time, remain on probation, and pay fines. However, for civil proceedings, the plaintiff, the rape victim, seeks compensatory and punitive damages for the rape offense.  Rape victims can recover damages for medical bills, lost wages, psychological counseling, lost earning capacity, insomnia, anxiety, pain, and suffering in their suit. Additionally, the courts can award them punitive damages to punish you for the offense and serve as a deterrent for others not to engage in the crime.

Should the rape victim sue you for damages, consult with a personal injury attorney on how best to approach the case.  

Offenses Related to Rape

Prosecutors have three other crimes related to rape to consider. They can introduce the violations as additional charges to your rape criminal proceedings or charge you with the offenses if a rape conviction is not feasible. The offenses include:

• Sexual battery, a PC 243.4 violation
• Forcible oral copulation, a PC 287 violation
• Forcible penetration with a foreign object, a PC 289 violation
  

  a. Sexual Battery

Sexual battery is a PC 243.4 violation. The offense is also referred to as sexual assault.

It is a crime under PC 243.4 to touch intimate body parts of another person without their consent for sexual gratification, abuse, or arousal. You can either be charged with a felony or a misdemeanor violation.

You will be charged with a felony if the alleged victim was:

• Illegally restrained
• Unaware of the nature of the act because the defendant fraudulently convinced him/her that the touching was for a professional purpose
• Institutionalized and either seriously disabled or medically incapacitated, or
• Forced to touch your intimate parts or masturbate or touch another’s private parts under any of the above circumstances.

Misdemeanor offenders receive a jail sentence of 6 months or one year with an additional fine penalty of no more than $2,000 or $3,000 for victims who are your employees. Individuals convicted of felony charges receive 2, 3, or 4-year prison sentences and a fine penalty of $10,000.

Individuals convicted of misdemeanor or felony violations under PC 243.4 will be required to register as sex offenders. You will be required to register as a tier-one sex offender, whereas if convicted of a felony, you will register as a life-long tier-three sex offender.

b. Forcible Oral Copulation

Oral copulation achieved through force or fear is non-consensual contact between an individual’s mouth and another person’s anus.

PC 287 violations are felonies. Upon conviction, you will be sentenced to 3, 6, or 8 years in prison. A judge could also impose a $10,000 fine. The penalties increase if the victim is a minor (less than 18 years old). A conviction results in 6, 8, or 10 years in prison if the child is 14 years but less than 18 years, and 8, 10, or 12 years, if the child is under 14 years.    

You will also be required to register as a tier-three life-long sex offender, meaning you will renew your registration every year for the rest of your life.

c. Forcible Penetration With a Foreign Object

It is a crime to forcibly penetrate an individual’s vagina or anus with a foreign object, without consent or through force, intimidation, or threats of force. You could also face additional charges for:

• Sexual penetration on an individual too intoxicated to resist
• Sexual penetration on an individual unconscious of the nature of the act
• Sexual penetration on an individual incapable of legally consenting owing to physical disability, mental disorder, or developmental disability

Prosecutors pursue PC 289 violations as felonies.

A conviction results in a prism sentence of 3, 6, or 8 years with a possibility of a fine of up to $10,000. Convictions under PC 289 also result in a requirement to register as a sex offender, a tag that remains in effect all your life. You will be registered as a tier-three sex offender. Failure to register as a sex offender results in felony charges.

Contact a Reliable Pasadena Criminal Defense Attorney Near Me

Experience is pivotal in developing a defense strategy to fight off rape charges. At Michele Ferroni Pasadena Criminal Attorney Law Firm, our attorneys bring their wealth of knowledge to represent clients facing rape charges in Pasadena. We have a proven track record. Call us today at 626-628-0564, and let us prepare to fight off the rape charges.