CALIFORNIA PENAL CODE 262 – SPOUSAL RAPE
Spousal rape, also known as marital rape, is also prosecuted as a felony with a three to eight-year prison sentence and lifetime sex offender registration. An additional five years is added to the prison sentence if the spouse suffers great bodily injury.
Spousal rape is defined as a husband having sexual intercourse with his wife without her consent or by force under the following circumstances:
- The spouse uses force, violence, threats, or fear of bodily injury to commit the rape;
- The victim is unable to give consent because the spouse administered a substance to intoxicate or drug the victim;
- The victim is unconscious at the time of intercourse;
- The victim consents to the intercourse because of threats made by the spouse; or,
- Sexual intercourse occurred because the victim was threatened by his or her spouse with arrest or deportation.
Spousal Rape was repealed under AB 1171 and is now prosecuted under PC 261.
CALIFORNIA PENAL CODE 261.5 – STATUTORY RAPE
California defines statutory rape as sexual intercourse with a minor under the age of 18. Any penetration of the vagina or genitalia by the penis, regardless of how slight or regardless of whether the perpetrator ejaculated, is considered statutory rape. Consent is not an issue with statutory rape because a minor under the age of 18 cannot legally consent to sexual intercourse even with a partner that is under the age of 18 at the time of the act.
Whether the crime is prosecuted as a misdemeanor, or a felony depends on the ages of the parties and is at the discretion of the district attorney. The sentence for a conviction of statutory rape is one year in county jail or up to three years in a state prison. The conviction does not require the perpetrator to register as a sex offender.
PENAL CODE 261 – RAPE IN CONCERT
Rape in concert is a charge used to prosecute a person who assists the perpetrator in committing the act of rape. The person assisting or aiding in the rape does not need to participate in the act of rape nor does that person need to be present at the actual time of the rape to be convicted under this code section.
The state of California prohibits sexual battery, which occurs when someone touches an intimate part of another person’s body while that person is restrained, the touching is against their will, and the touching occurs for the sexual gratification of the defendant. Sexual battery can be charged as a misdemeanor or felony, depending on the facts and circumstances surrounding the charges. As a misdemeanor conviction for sexual battery, the penalties can be up to a year in county jail and a fine as large as $2,000. For a felony conviction of sexual battery, the penalties can be up to four years in state prison and a fine as large as $10,000. Both the misdemeanor and felony convictions for sexual battery require ten years of sexual offender registration. To be found guilty of sexual assault, the prosecutor must prove that you restrained the alleged victim, touched the person, or made them touch you in a sexual manner, and the touching was against the alleged victim’s will.
Sodomy is a crime under certain situations, including when an adult commits sodomy on a minor or when a person uses force, fear, or threats to commit sodomy. Sodomy always includes a sexual act that involves penetration of the penis of one person and the anus of another. Relevant factors to this crime do not include the “degree” to which the penetration occurred, ejaculation, or the length of time of penetration. A violation of Penal Code 286 is considered a serious sex crime that can be charged as a misdemeanor or a felony. The statute divides the crime of sodomy according to the victim’s age and whether the act was consensual. Sodomy becomes a crime when threats, intimidation, or force are used or:
- The alleged victim is under the age of 18.
- The alleged victim is under the age of 16, while the defendant is over 21.
- Sodomy was engaged with a minor under the age of 14, and there is more than a ten-year age difference between the minor and the defendant.
- Sodomy was accomplished by threats of retaliation in the future against the alleged victim.
- The defendant acted in concert with another person to commit acts of sodomy which were against the will of the victim and accomplished by the use of force or fear.
- Sodomy was performed on someone who was incapable of giving consent. That person may have been incapacitated, unconscious, or had mental or physical disabilities.
Sodomy is a wobbler when it occurs with a minor or between jail or prison inmates. When charged as a misdemeanor, the penalties for sodomy include up to one year in county jail and a fine as large as $1,000. A felony sodomy conviction brings penalties of up to three years in prison and the requirement to register as a California sex offender.
Oral Copulation by Force or Fear is a specific charge that relates to non-consensual contact between one person’s mouth and another’s anus or genitals. The penalties for this offense can range up to 12 years in state prison and a lifetime registration as a tier three sex offender. Oral copulation between consenting adults is legal but can become illegal when the act is done in public, it is not consensual, or at least one of the participants is a minor. When force, violence, menace, fear, duress, or a threat is used in the commission of oral copulation, it becomes a crime. Penalties can range from three years in a California State Prison to 12 years in prison, depending on the age of the victim and the presence and extent of any injuries to the victim.
What Are the Penalties for a Rape Charge in California?
Rape is a felony offense in California, with penalties that include a three, six, or eight-year prison sentence. A conviction also dictates that the defendant will register as a sex offender for life. If the victim is under the age of 18, there can be penalty enhancements. The court can also impose an additional three to five years of prison if the victim suffered great bodily injury. A rape conviction also counts as a strike under California’s Three Strikes system.
If you are later convicted of another serious felony after your rape conviction, the penalty for the new crime will be doubled. If you are convicted of a third serious felony, you will likely spend life in prison. If the conviction is for rape of a victim under the age of 13, the prison sentence is 13 years. If the rape victim is between 14 and 17, the prison sentence is 11 years, regardless of whether you thought the victim was older or they did not tell the truth about their age.
If you used force or violence to commit the rape, or if the victim sustained great bodily injury, the court may not grant you probation in lieu of prison time. Since rape is considered a crime of moral turpitude, a non-citizen convicted of rape will face deportation once their prison term ends.
Is There a Statute of Limitations for Rape in California?
Every state has statutes of limitations that determine the amount of time the state has to file criminal charges against a person suspected of a crime. In California, the crime you commit has a bearing on the statute of limitations. In the case of rape, the statute of limitations was amended in 2017, and now there are no time restrictions for certain sex crimes, including rape.
Most felony sex crimes have a ten-year statute of limitations. When a sex crime is committed against a minor, prosecution can occur until the minor reaches his or her 40th birthday. In addition to rape, the following crimes have no statute of limitation: gang rape, sodomy with a person under the age of 18, oral copulation with a person under the age of 18, continuous sexual abuse of a child, lewd and lascivious acts with a minor under the age of 14, or sexual penetration against the victim’s will.
The statute of limitations for sex crimes that occurred prior to January 1, 2017, still applies. While in most cases, the statute begins on the date of the rape, if the rape is repeated over time, the statute begins as of the most recent incident of rape.
What Are Some Defenses to Help Me Fight Rape Allegations?
There are several defenses to the charge of rape, although the defense your attorney uses will depend on the circumstances and facts of your charges. Some common defenses include:
- Actual innocence
- Consent
- Insanity
- Lack of evidence
- Constitutional violations
- Police misconduct
Hiring an Experienced Riverside Rape Defense Lawyer Near You
Facing allegations of rape can be devastating. Like all sex offenses, you are likely to be found guilty in the court of public opinion long before your trial takes place. You could even lose your job and your family as a result of the rape charges against you. It is important to have a strong Riverside rape defense lawyer by your side throughout the legal process. It is equally important that the criminal defense attorney you choose has a proven track record of defending those accused of rape. A great attorney will fight zealously on your behalf, working to have your charges reduced or dismissed, negotiate a plea bargain that is in your best interests, or negotiate a lesser sentence if you are convicted.
How a Riverside Rape Defense Lawyer from Greenberg, Greenberg & Kenyon Can Help
If you are being investigated or if you are charged with rape, you need an aggressive and experienced Riverside rape defense lawyer to represent you. A rape conviction will result in a criminal record that will follow you the rest of your life affecting where you can live, your right to own and possess a firearm, and your potential job opportunities.
If you are arrested for rape, exercise your right to remain silent, and immediately request an attorney. Do not talk to the police. Any information you give the police to try to “clear up” the matter will be used against you.
Do not risk your freedom and your future. Rape is a very serious charge. Contactan attorney at Greenberg, Greenberg & Kenyon today to schedule a free confidential consultation.
