January 31, 2024 By Paul Wallin

Defending Against Rape Charges | PC 261 

If you or someone you know is facing criminal charges in the state of California, it’s important to understand the laws that govern the crimes. One such law is California Penal Code 261 (PC 261), which deals with sexual assault.

Choosing Wallin & Klarich to represent your case puts you in a better position to receive the best outcome for your case. We have over 40 years of experience in Southern California. Call us today at (877) 4-NO-JAIL for your free consultation!

How is Rape Defined? 

Under California Penal Code 261, rape is defined as an act of sexual intercourse performed under certain circumstances that constitute lack of consent. These circumstances might include instances where the individual is incapable of giving consent due to mental disorder or physical disability, or where consent is obtained through fraudulent representation. The act must be against the person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. Importantly, the law recognizes that rape can occur even within marital relationships. Understanding this definition is crucial as it underscores the severity and broad scope of what constitutes rape under California law.  So, if you or someone you know is facing rape charges under California PC 261, it’s essential to seek legal help immediately. A defense attorney can thoroughly analyze the facts of your case and develop a strong defense strategy to protect your rights.

Statutory Rape

Statutory rape involves sexual intercourse with a person who is under the age of consent. In California, the age of consent is 18 years old. This means that if a person has sexual intercourse with someone under the age of 18, they can be charged with statutory rape, even if the other person consented to the act.

Forcible Rape

Forcible rape is when sexual intercourse occurs without the alleged victim’s consent, through force or threat of force. This can include physical force, threats of harm, and even intoxication. Forcible rape is a felony charge in California and carries harsh penalties including prison time.

Spousal Rape

Spousal rape is when sexual intercourse occurs without the alleged victim’s consent within a marriage or domestic partnership. In the past, spousal rape was not considered a crime in California, but now it is treated the same as other forms of rape and can result in felony charges.

Date Rape

Date rape is when sexual intercourse occurs without the alleged victim’s consent on a date or social outing. This can include situations where someone uses drugs or alcohol to incapacitate the alleged victim. Date rape is also a felony charge in California and can result in severe penalties.

What is PC 261? 

California PC  261 defines sexual assault as any non-consensual sexual act, including rape, sodomy, and oral copulation. It also covers acts such as penetration with a foreign object or sexual touching without consent.

Under PC 261, the prosecution must prove that the accused used force, violence, duress, fear of bodily injury, or threats to commit the act. The alleged victim’s lack of consent is a crucial element in this charge.


The penalties for violating California PC 261 vary depending on the circumstances of the case. In general, sexual assault is considered a felony offense and can result in imprisonment for up to eight years in state prison. However, if certain aggravating factors are present, the penalties can be increased.

For example, if the victim is a minor or if the offender has a prior conviction for sexual assault, the sentence can be extended to life imprisonment. Additionally, offenders may also face fines and mandatory registration as a sex offender.

Possible Defenses

If you are facing charges under California PC 261, it’s crucial to seek legal representation right away. An attorney can help you build a strong defense and protect your rights. Some potential defenses against PC 261 charges may include:

  • Lack of consent: If the victim did not give their permission for the sexual act, it could be argued that no crime was committed.
  • Mistaken identity: In some cases, the accused may have been wrongly identified as the perpetrator of the sexual assault.
  • False accusations: Unfortunately, false allegations of sexual assault do occur. Your attorney can help you prove your innocence and show that the accusations are unfounded.

How a Defense Attorney Can Help

When facing charges under California PC 261, a skilled defense attorney can be an invaluable ally. They will understand the complexities of the law and can guide you through the court process, ensuring that your legal rights are protected every step of the way. An attorney can scrutinize the prosecution’s evidence, question the validity of their case, and present a persuasive defense in court. They can negotiate plea deals or argue for reduced sentences, where appropriate. Furthermore, an experienced attorney can provide much-needed emotional support, helping you navigate the stress and uncertainty of a criminal charge. Remember, the goal of your defense attorney is not just to fight for your innocence, but also to ensure that the legal process is fair and just. So if you or someone you know is facing charges under California PC 261, don’t face them alone. Seek out a trusted and experienced defense attorney to help you navigate this difficult time.  

At Wallin & Klarich, you will never be left wondering what will happen next with your case. Our attorneys will help you through each step of the process, and figure out the best strategy for your case, which will help you get the best possible outcome. Our attorneys at Wallin & Klarich are here to help you. We offer exceptional service, experience, and affordable payment options to help you manage the cost of hiring a defense attorney. Call our office today for a free consultation!

Contact Wallin & Klarich Today 

If you are facing rape charges, you need an aggressive defense attorney to fight for your freedom. With 40+ years of experience, our attorneys at Wallin & Klarich have helped thousands of clients win their cases or get their charges reduced to a lesser degree. We know the most effective defenses to argue on your behalf, and we will do everything in our power to help you achieve the best possible result in your case. 

You may not be aware of all your options. Calling our office costs you nothing, but picking up the phone could be the difference between years in prison and years of freedom. Let our skilled attorneys examine your case to find the best way to avoid prison.Discover how our team can assist you. Contact us today, toll-free at (877) 4-NO-JAIL or (877) 466-5245 for a free consultation with a skilled defense attorney.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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