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California Rape Laws

Rape laws criminalize sexual intercourse that happens without the consent of at least one of the participants. Rape falls under the broader category of sexual assault (which includes offenses such as groping and other unwanted sexual contact). If an individual has sexual intercourse with someone, the crime of rape may occur under the following scenarios described by California state laws:

  • The defendant used physical force, intimidation, duress, or threats;
  • The victim reacted due to fear of immediate bodily injury or injury to another person;
  • The victim lacked capacity to consent (developmental delay, physical disability, intoxication);
  • The victim was unconscious, asleep, or otherwise unaware that sexual intercourse was happening;
  • The defendant induced sexual intercourse by making a fraudulent representation

State law also defines the rape of minors when an adult engages in sexual intercourse with a minor (18 and younger in California). The severity of the charge depends on the age of the victim and the age difference between the defendant and the victim. When sexual intercourse happens between an adult and a minor, the act itself may be enough for a prosecution as the minor, by law, is not able to provide lawful consent. In these cases, a prosecutor does not need to show that the defendant engaged in any threatening, violent, or otherwise unlawful conduct that can sometimes describe rape between adults.


California Penal Code Section 261 (general definition of non-spousal rape)

California Penal Code Section 261.5 (definition of statutory rape)

California Penal Code Section 262 (definition of spousal rape)

California Penal Code Section 264 (punishments for rape crimes)
Possible Penalties

In general, California state laws punish a conviction of rape with a sentence of imprisonment in state prison for 3, 6 or 8 years. The potential sentence can increase when:

  • The rape victim is a minor who is over fourteen years of age (7-11 years)
  • The victim is a child under the age of fourteen (9-13 years)
  • The defendant acted in concert with another person to rape the victim

California state laws also set fines from $2,000 to $25,000 as civil penalties when an adult engages in sexual intercourse with a minor.

State law establishes an alternate punishment for rape when less than three years separate the ages of the defendant and the victim. For this crime, the prosecutor may pursue either a misdemeanor charge or a felony charge. The consequences of a conviction may be a term ranging from 1-3 years in county jail. The state can also consider the defendant's prior or current criminal record in deciding whether to pursue enhanced sentencing.

Defenses The most common defense to rape is consent. If the defendant can prove that sexual intercourse did not violate the victim's will, due to the other person's consent or permission, the prosecutor may be unable to establish the elements of rape. Consent often becomes a controversial defense, however, because the argument may require evidence of the victim's sexual history. When the rape victim is a child or an individual lacking mental capacity, consent is not an available defense.

Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.

Related Resources For California Rape Laws

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If you've been charged with rape or a related sex crime, it may not seem like you have many options. However, it's important to understand that you're innocent and the prosecution has the burden to prove your case beyond a reasonable doubt. False rape accusations have been made and have resulted in acquittals, especially where juries find the existence of consent. However, it's up to you to make your case to the jury which is why it's critical to have an experienced criminal defense attorney in your corner. Speak with one today and receive a free initial evaluation of your case.

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