December 16, 2010 By Paul Wallin

I’m being accused of rape. What can I expect to happen next? – California Penal Code 261

The nature and consequences of a rape allegation are serious at the very least. Defined under Penal Code 261, rape consists of non-consensual intercourse that is accomplished by means of force, intimidation, or fraud. Even the slightest penetration will constitute “intercourse” for the purpose of a rape charge. Due to the fact that rape can be alleged with little to no evidence, anyone, is susceptible to false or mistaken accusations.

The main thrust of a rape allegation is that the sexual intercourse was achieved against the will of the victim, or that it was achieved by a lack of valid consent. Rape is considered to have occurred against the will of the victim if it was achieved through a coercive use of force or threat that compels the victim to submit under duress or fear of retaliation. Since the victim is not required to resist, the fact that the victim fails to fight back cannot be viewed as consent.

Likewise, if the victim is somehow incapacitated due to a mental disorder, intoxication, or unconsciousness, they cannot be held capable of giving valid consent. Therefore, having sex with someone who is asleep or too drunk to be aware of the situation can constitute rape – even in the absence of physical violence or threats.

Rape can also occur through fraud. In these situations, the victim may have given consent, but it is consent that is defective because it was fraudulently obtained. Rape by fraud can occur in situations in which the accused falsely convinces the victim that they are married or through other forms of impersonation or deceit intended to gain the victim’s consent.

A conviction for rape is punishable as a felony offense. If convicted, you can potentially serve a sentence of three, six, or eight years in state prison. The sentence may also be extended another three to five years if the victim suffered great bodily injury from the rape. Since rape is a serious sex crime offense, you may also be required to register as a sex offender for the rest of your life pursuant to Penal Code Section 290, which entails regularly notifying local law enforcement of your general whereabouts.

For these reasons, it is very important that you seek the legal representation of an experienced criminal defense attorney. Since rape can be a convenient means of exacting malicious revenge or retaliation, it is crucial that you have an attorney who can aggressively refute or fend off false accusations. Depending on the circumstances of your case, an attorney can argue mistaken identity, insufficient evidence, or prior false accusations of the alleged victim to help you overcome your rape allegation.

At Wallin & Klarich, our Orange County attorneys have been in practice for over 40 years and can put that experience to use in helping you avoid the debilitating consequences of a rape conviction. Call us at (888) 280-6839 or visit our website at We will be there for you when you call.

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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