Rape

Defending a California Penal Code 261: Rape

California Penal Code 261, or rape, is defined as the forced act of sexual intercourse. There are many variables that fall under this penal code as well, including forced intercourse with a foreign object, forced oral copulation, statutory rape and date rape. Being accused of Penal Code 261 is frightening, and it’s important to contact criminal lawyers, Orange County or otherwise, as soon as you have been accused.

Defending Penal Code 261

When an individual has been accused of rape, the first thing an attorney will do is go over the details of what happened, getting the details from his or her client while they are still fresh in the mind. There are many different defenses and the attorney will use those details to strategize a defense that conveys the client’s innocence. Some of the most common defenses include:

Consensual Act:

If the alleged victim gave his or her consent to the sexual intercourse, the accused is not guilty of rape. Many times, a victim will claim that he or she gave their consent at the beginning but then changed their mind. However, if the victim did not clearly communicate that they no longer wanted to participate in the sexual act, the accused is still not guilty of rape since he or she did not know the victim had changed their mind.

False Accusations:

As with other crimes, rape is often claimed by ‘victims’ out of jealousy, rage, or other reasons as a means to ‘get back’ at the accused. This is unfortunate, but it happens all the time. If this is the case, an attorney will compile evidence which points to this fact and will convey this to the judge and jury. Things that will be considered are other rape allegations from the same ‘victim’ pointing at other individuals, the circumstances surrounding the case, etc.

Mistaken Identity:

Unfortunately, many rapes occur at night and in conditions where it is difficult for the victim to actually see his or her attacker. Many different things can affect a victim’s ability to correctly identify an attacker, such as low light, prejudice in photo or police officer line-ups, face coverings, poor vision and many other things. Many individuals have been released from custody after having been proven innocent through DNA evidence of rape crimes they were convicted of. This is one reason why contacting an attorney right away is so important.

The law itself says as follows:

261.

1. Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the followingcircumstances:
   1. Where a person is incapable, because of a mental disorder ordevelopmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committingthe act. Notwithstanding the existence of a conservatorship pursuantto the provisions of the Lanterman-Petris-Short Act (Part 1(commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as anelement of the crime, that a mental disorder or developmental orphysical disability rendered the alleged victim incapable of givingconsent.
   2. Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawfulbodily injury on the person or another.
   3. Where a person is prevented from resisting by any intoxicatingor anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by theaccused.
   4. Where a person is at the time unconscious of the nature of theact, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:
      1. Was unconscious or asleep.
      2. Was not aware, knowing, perceiving, or cognizant that the act occurred.
      3. Was not aware, knowing, perceiving, or cognizant of theessential characteristics of the act due to the perpetrator's fraudin fact.
      4. Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator'sfraudulent representation that the sexual penetration served aprofessional purpose when it served no professional purpose.
      5. Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is inducedby any artifice, pretense, or concealment practiced by the accused,with intent to induce the belief.
      6. Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or anyother person, and there is a reasonable possibility that theperpetrator will execute the threat. As used in this paragraph,"threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, ordeath.
      7. Where the act is accomplished against the victim's will bythreatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has areasonable belief that the perpetrator is a public official. As usedin this paragraph, "public official" means a person employed by agovernmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does notactually have to be a public official.
2. As used in this section, "duress" means a direct or impliedthreat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform anact which otherwise would not have been performed, or acquiesce inan act to which one otherwise would not have submitted. The totalcircumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraisingthe existence of duress.
3. As used in this section, "menace" means any threat,declaration, or act which shows an intention to inflict an injury upon another.

When an individual is accused of rape, his or her future is often on the line. It’s important to take that seriously and contact a capable attorney who also understands the gravity of the situation and will fight to ensure his or her client’s rights. If you or a loved one has been arrested for rape, get professional representation from experienced criminal defense attorneys immediately to protect your rights by contacting our firm.

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