Rape Prosecution – California Penal Code  261

To show that a defendant is guilty of rape, the prosecution must prove that:

1.    The defendant had sexual intercourse with the victim;

2.    That the defendant was not married to the victim at the time of the intercourse;

3.    That the victim did not consent to the intercourse; AND

4.    That the defendant accomplished the intercourse by:

a)    Force or Fear (force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else)

b)    Threats of  Future Bodily Harm (a threat to retaliate in the future against the victim or someone else)

c)    Threat of Official Action (a threat to use the authority of a public office to incarcerate, arrest, or deport someone)

Special Issue Regarding Consent:

A woman who initially consents to the intercourse may later change her mind during the act. If she does so, the act of intercourse will become non-consensual rape if:

1.    She communicated to the defendant that she objects to the intercourse and wishes to stop;

2.    She communicated her objection through words or actions that a reasonable person would understand as her lack of consent; AND

3.    The defendant forcibly continued the act of intercourse despite her objections.

Additional Notes:

•    “Sexual intercourse” means any penetration, no matter how slight, of the vagina or genitalia by the penis.
•    “Consent” only exists when it is freely and voluntarily given while aware of the nature of the act.
•    Intercourse is accomplished by “force” if enough physical force is used to overcome the victim’s will.
•    Intercourse is accomplished by “fear” if the victim was actually and reasonably afraid at the time of intercourse.
•    A “threat retaliate” is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.
•    Non-consensual rape is accomplished if the victim was somehow incapacitated, due to mental or physical disability, alcohol, or unconsciousness, and the defendant knew or should have known of the victim’s condition.
•    A woman must be alive at the time of sexual intercourse in order for the crime of rape to occur.