Experienced Lawyer for Rape Charges Explains Prosecution of Penal Code 261 PC

Do You Need a Criminal Defense Lawyer for Rape Charges?

Rape is a serious crime.

If you are successfully prosecuted for rape in California under 261 PC, the penalties you face will be severe and the social stigma associated with having to register as a sex offender could be a devastating consequence that follows you for the rest of your life. That is why you should not hesitate to speak to an experienced criminal defense lawyer for rape charges.

Our team of rape lawyers at Wallin & Klarich is committed to helping you defeat rape charges or mitigate the consequences so that the punishment fits the crime. The first thing our lawyers will do is learn the details of your case and explain to you how rape cases are prosecuted.

Let’s explore the definition of rape and what the prosecution must prove in order to convict you under Penal Code 261.

What Has to Be Proven for Rape Under 261 PC

Rape is defined as any “non-consensual sexual intercourse accompanied by means of threat, force, or fraud,” according to California law.

The California Jury Instructions list several elements that the prosecution must prove beyond a reasonable doubt in order to convict of rape under Penal Code 261. You cannot be convicted of rape in California unless all of the following elements are proven beyond a reasonable doubt:

  • You had sexual intercourse with the victim
  • At the time of the sexual act, you and the victim were not married
  • The victim did not consent to the sexual intercourse, AND
  • You accomplished by using threats, force or fraud to induce the victim into engaging in sexual intercourse

Below you can find the full jury instructions listed under CALCRIM 1000 that are read to members of the jury before each rape trial in California. The jury instructions list all elements of this crime and provide some explanation for each element.

Some of these elements are much more complicated than others. Let’s examine each of these elements closer so that you can completely understand what the prosecution must prove to convict you.

You Had Sexual Intercourse with the Victim

defense to rape
Not having sex may be a defense to rape.

The first element that the prosecution must prove in order to convict you of rape is that sexual intercourse did in fact take place between you and the alleged victim. In order to understand how prosecutors attempt to prove this, we must examine the definition of “sexual intercourse” under California law.

The law defines sexual intercourse as any penetration, no matter how slight, that is sexual in nature. Any sexual penetration can satisfy this requirement, including with foreign objects. However, for the purposes of rape under PC 261, the act of sexual intercourse must involve the penis penetrating the vagina. Other acts of penetration are covered under different criminal laws.

Therefore, if the act you committed did not involve penetration of the vagina by the penis, you should not be convicted of violating PC 261. The fact that the sexual intercourse did not happen could be a valid legal defense that a skilled rape attorney could use to fight the charges against you.

You and Your Accuser Were Not Married When the Sexual Intercourse Took Place

You cannot be convicted under Penal Code 261 if the act of sexual intercourse involved your spouse. This may seem strange. It is illegal to rape your spouse, but an act of rape involving your spouse would be prosecuted as “spousal rape” under California Penal Code 262.

The reason why this is a separate crime is because spousal rape was not always considered a crime in California. For a time, it was presumed that your spouse implicitly consented to any sexual intercourse within the confines of your marriage, but California lawmakers added PC 262 to cover the crime of spousal rape. This crime has the same elements as rape, minus the fact that you were not married to the victim at the time of the incident.

Your Accuser Did Not Consent to Sexual Intercourse

This element is the most complicated one because consent is a complex concept. The idea of consent does not seem difficult to understand, but there are many circumstances in which you may think you have consent to sex when you really do not.

An important thing you must understand about consent is that the person involved in sexual intercourse must be legally able to provide consent. If there is anything that impairs a person’s ability to consent to or physically resist sex, this does not count as consent under the law. Some circumstances where someone cannot legally provide consent include when:

  • The person is so intoxicated that he or she is unable to physically resist
  • The person is impaired by a controlled substance and cannot physically resist or is mentally unaware or cognizant that the act is occurring
  • The person is unconscious or asleep

Additionally, you need to know that both parties involved in sex must have consent throughout the entirety of the sexual intercourse. Consent may be revoked at any time during the sexual intercourse. In other words, if your accuser initially consented to the sexual intercourse, but then changed his or her mind and informed you through words or action, then any sexual intercourse taking place after that point is considered non-consensual.

If the alleged victim consented to the sexual intercourse, then your criminal defense lawyer for rape likely has a strong defense.

Sexual Intercourse was Accomplished Using Threats, Force or Fraud

To convict you of rape, the prosecution must prove that you used threats, force or fraud in order to make the victim have sexual intercourse with you. This element of the crime could be met by only by proving you used a single one of these methods to coerce the victim to have sex with you. Let’s explore each of these methods further:

  • Rape by threats – Under California rape laws, threats include any verbal or non-verbal actions that would convey to the alleged victim that you will retaliate somehow if he or she does not have sex with you. For example, let’s say you share custody of a child and the mother comes to your house to pick the child up. Before the child returns to the mother’s custody, you tell the child’s mother that you will hurt the child unless she has agrees to have sex with you. If you go through with the act, you could be convicted of rape by means of threats.
  • Rape by force – Rape by force is what most people like think of when they hear the term “rape.” Having non-consensual intercourse by means of force requires the prosecution to show that you somehow used physical violence, such as restraining the alleged victim, in order to carry out the sexual act.
  • Rape by fraud – Rape by fraud is accomplished by inducing someone to have sex. For example, a doctor tells a patient that he is going to put her under anesthesia to perform a medical procedure, but it is just a ruse to perform a sex act upon without her consent. Another example of rape by fraud is if you’re at a party and you see a woman enter a bedroom and turn off the lights. You go into the dark bedroom pretending to be her husband or boyfriend and engage in sexual intercourse with her.

Other Charges Commonly Associated with Rape in California

When you are accused of a crime in California, you will likely face multiple charges. There are several sex crimes that are closely associated with rape that often charged alongside rape or commonly confused with the crime of rape. These charges include:

Speak to an Experienced Criminal Defense Lawyer for Rape Charges Today

lawyer for rape
Contact a lawyer for rape today!

When it comes to rape, the allegations by the victim are often the only evidence in a case against the defendant. However, the prosecution will have the burden of proving all of the elements of this crime beyond a reasonable doubt. You should speak to an experienced criminal defense lawyer for rape so that your lawyer can develop a defense strategy that will raise doubt that you committed the crime.

At Wallin & Klarich, our skilled and knowledgeable lawyers have been successfully defending clients facing rape charges for more than 40 years. Through our extensive legal experience and aggressive defense, our law firm has developed a strong track record of success when it comes to defending clients facing sex crimes. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, you can find an experienced Wallin & Klarich lawyer for rape available near you no matter where you work or live.

Contact our law firm today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.


California Criminal Jury Instructions for Rape (CALCRIM 1000)

Rape or Spousal Rape by Force, Fear, or Threats (Pen. Code, § 261(a)(2), (6) & (7))

The defendant is charged [in Count ] with rape [of his wife] by force [in violation of Penal Code section 261(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant had sexual intercourse with a woman;
  2. He and the woman were (not married/married) to each other at the time of the intercourse;
  3. The woman did not consent to the intercourse; AND
  4. The defendant accomplished the intercourse by

<Alternative 4A—force or fear>

[force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.]

<Alternative 4B—future threats of bodily harm>

[threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.]

<Alternative 4C—threat of offıcial action>

[threatening to use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport. The woman must have reasonably believed that the defendant was a public official even if he was not.]

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]

[To consent, a woman must act freely and voluntarily and know the nature of the act.]

[A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent if:

  1. She communicated through words or acts to the defendant that she no longer consented to the act of intercourse;
  2. A reasonable person would have understood that her words or acts expressed her lack of consent; AND
  3. The defendant forcibly continued the act of intercourse despite her objection.]

[It is not required that she physically resist or fight back in order to communicate her lack of consent.]

[Evidence that the defendant and the woman (dated/were married/had been married) is not enough by itself to constitute consent.]

[Evidence that the woman (requested/suggested/communicated) that the defendant use a condom or other birth control device is not enough by itself to constitute consent.]

[Intercourse is accomplished by force if a person uses enough physical force to overcome the woman’s will.]

[Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do [or submit to] something that she would not do [or submit to] otherwise. When deciding whether the act was accomplished by duress, consider all the circumstances, including the woman’s age and her relationship to the defendant.]

[Retribution is a form of payback or revenge.]

[Menace means a threat, statement, or act showing an intent to injure someone.]

[Intercourse is accomplished by fear if the woman is actually and reasonably afraid [or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it].]

[A woman must be alive at the time of the sexual intercourse for the crime of rape to occur.]

<Defense: Reasonable Belief in Consent>

[The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse [and actually and reasonably believed that she consented throughout the act of intercourse]. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty.]

New January 2006; Revised February 2013, February 2014


Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of rape or spousal rape. If spousal rape is charged, the court must include the appropriate bracketed language throughout the instruction to indicate that the parties were married.

The court should select the appropriate alternative in element 4 describing how the sexual intercourse was allegedly accomplished.

Rape requires that the victim be alive at the moment of intercourse. (People v. Ramirez (1990) 50 Cal.3d 1158, 1175–1177 [270 Cal.Rptr. 286, 791 P.2d 965]; People v. Carpenter (1997) 15 Cal.4th 312, 391 [63 Cal.Rptr.2d 1, 935 P.2d 708].) Intercourse with a deceased victim may constitute attempted rape if the defendant intended to rape a live victim. (People v. Kelly (1992) 1 Cal.4th 495, 524–526 [3 Cal.Rptr.2d 677, 822 P.2d 385].) If this is an issue in the case, give the bracketed
sentence that begins with “A woman must be alive . . .”

The defendant must continue to actually and reasonably believe in the victim’s consent throughout the act. If the act of intercourse begins consensually and the victim then changes her mind, the victim must clearly and unequivocally communicate to the defendant her withdrawal of consent to the act. If, however, the defendant initiates the use of nonconsensual duress, menace, or force during the act, the victim’s subsequent withdrawal of consent to the act may be inferred from the circumstances and need not be expressed. (People v. Ireland (2010) 188 Cal.App.4th 328, 338 [114 Cal.Rptr.3d 915]). If there is an issue regarding the defendant’s continued belief in the victim’s consent, give the second optional first sentence in the definition of “Defense: Reasonable Belief in Consent.”

Defenses—Instructional Duty

The court has a sua sponte duty to instruct on the defense of reasonable belief in consent if there is “substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (See People v. Williams (1992) 4 Cal.4th 354]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542 P.2d 1337].)

Related Instructions

CALCRIM No. 1001, Rape or Spousal Rape in Concert, may be given in conjunction with this instruction, if appropriate.



  • Elements. Pen. Code, § 261(a)(2), (6) & (7)
  • Consent Defined. Pen. Code, §§ 261.6, 261.7.
  • Duress Defined. Pen. Code, § 261(b).
  • Menace Defined. Pen. Code, § 261(c).
  • Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d 224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v. Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
  • Fear Defined. People v. Iniguez (1994) 7 Cal.4th 847, 856–857 [30 Cal.Rptr.2d 258, 872 P.2d 1183] [level of fear].
  • Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16 Cal.Rptr.3d 891, 94 P.3d 1089].
  • Mistake of Fact Regarding Consent. People v. Mayberry,supra, 15 Cal.3d at pp. 153–158; People v. May (1989) 213 Cal.App.3d 118, 124 [261 Cal.Rptr. 502].
  • Circumstances Requiring Mayberry Instruction. People v. Dominguez (2006) 39 Cal.4th 1141 [47 Cal.Rptr.3d 575, 140 P.3d 866].
  • Withdrawal of Consent. In re John Z. (2003) 29 Cal.4th 756, 760 [128 Cal.Rptr.2d 783, 60 P.3d 183].
  • Inferring Lack of Consent From Circumstances. People v. Ireland (2010) 188 Cal.App.4th 328, 338 [114 Cal.Rptr.3d 915].
  • Victim Need Not Resist. People v. Barnes (1986) 42 Cal.3d 284, 297–302 [228 Cal.Rptr. 228, 721 P.2d 110].
    Spousal Rape:
  • Elements. Pen. Code, § 262(a)(1), (4) & (5).
  • Duress Defined. Pen. Code, § 262(b).
  • Menace Defined. Pen. Code, § 261(c).
  • Mistake of Fact Regarding Consent. People v. Burnham (1986) 176 Cal.App.3d 1134, 1148–1149 [222 Cal.Rptr. 630, 542 P.2d 1337]; see People v. Mayberry,supra, 15 Cal.3d at pp. 153–158; People v. May (1989) 213 Cal.App.3d 118, 124 [261 Cal.Rptr. 502].
    Secondary Sources
    2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 1–12, 18.
    6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.20[1][a], [2], 142.23[1][e] (Matthew Bender).
    Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17 (The Rutter Group).


Gender-specific language is used because rape usually occurs between a man and a woman. In keeping with plain English principles, the committee used those terms to make the instruction clear and concrete.

Penal Code section 262 requires that the intercourse be “against the person’s [or victim’s] will.” (Pen. Code, § 262(a)(1), (4) & (5).) “Against the will” has been defined as without consent. (People v. Key (1984) 153 Cal.App.3d 888, 895 [203 Cal.Rptr. 144]; see also People v. Young (1987) 190 Cal.App.3d 248, 257 [235 Cal.Rptr. 361].)

“[T]he offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection . . . . ‘[I]t is immaterial at what point the victim withdraws her consent, so long as that withdrawal is communicated to the male and he thereafter ignores it.’ ” (In re John Z.,supra, 29 Cal.4th at p. 760.)

The instruction includes definitions of “duress,” “menace,” and the sufficiency of “fear” because those terms have meanings in the context of rape that are technical and may not be readily apparent to jurors. (See Pen. Code, §§ 262(b) [duress] and (c) [menace]; People v. Iniguez,supra, 7 Cal.4th at pp. 856–857 [fear].)

The term “force” as used in the rape statutes does not have a specialized meaning and court is not required to define the term sua sponte. (People v. Griffın,supra, 33 Cal.4th at pp. 1023–1024.) In People v. Griffın, the Supreme Court further stated,

Nor is there anything in the common usage definitions of the term “force,” or in the express statutory language of section 261 itself, that suggests force in a forcible rape prosecution actually means force “substantially different from or substantially greater than” the physical force normally inherent in an act of consensual sexual intercourse. [People v. Cicero (1984) 157 Cal.App.3d 465, 474 [204 Cal.Rptr. 582].] To the contrary, it has long been recognized that “in order to establish force within the meaning of section 261, subdivision (2), the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].” (People v. Young (1987) 190 Cal.App.3d 248, 257–258 [235 Cal.Rptr. 361] . . . .)

(Ibid. [emphasis in original].)

The committee has provided a bracketed definition of “force,” consistent with People v. Griffın,supra, 33 Cal.4th at pp. 1023–1024, that the court may give on request.


  • Assault. Pen. Code, § 240.
  • Assault With Intent to Commit Rape. Pen. Code, § 220; In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55]; People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where forcible rape is charged].
  • Attempted Rape. Pen. Code, §§ 663, 261.
  • Attempted Spousal Rape. Pen. Code, §§ 663, 262.
  • Battery. Pen. Code, § 242; People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see People v. Marshall (1997) 15 Cal.4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d 262] [battery not a lesser included of attempted rape].


Consent Obtained by Fraudulent Representation

A person may also induce someone else to consent to engage in sexual intercourse by a false or fraudulent representation made with an intent to create fear, and which does induce fear and would cause a reasonable person to act contrary to his or her free will. (Pen. Code, § 266c.) While section 266c requires coercion and fear to obtain consent, it does not involve physical force or violence. (See People v. Cardenas (1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567] [rejecting defendant’s argument that certain acts were consensual and without physical force, and were only violations of section 266c].)

Minor Victim and Unanimity

“Generic testimony” by a victim who was 15 and 16 years old does not deprive a defendant of a due process right to defend against the charges. If the victim “specifies the type of conduct involved, its frequency, and that the conduct occurred during the limitation period, nothing more is required to establish the substantiality of the victim’s testimony.” (People v. Matute (2002) 103 Cal.App.4th 1437, 1446 [127 Cal.Rptr.2d 472] [affirming conviction for multiple counts of rape under Pen. Code, § 261(a)(2); citing People v. Jones (1990) 51 Cal.3d 294, 316 [270 Cal.Rptr. 611, 792 P.2d 643]].)

When there is no reasonable likelihood the jury will disagree on particular acts of molestation, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim. (People v. Matute, supra, 103 Cal.App.4th at p. 1448; People v. Jones, supra, 51 Cal.3d at pp. 321–322; see CALCRIM No. 3501, Unanimity: When Generic Testimony of Offense Presented.)

Mistake-of-Fact Defense and Developmental Disability

A defendant cannot base a reasonable-belief-of-consent defense on the fact that he is developmentally disabled and, as a result, did not act as a reasonable person would have acted. (People v. Castillo (1987) 193 Cal.App.3d 119, 124–125 [238 Cal.Rptr. 207].)

Multiple Rapes

A penetration, however slight, completes the crime of rape; therefore a separate conviction is proper for each penetration that occurs. (People v. Harrison (1989) 48 Cal.3d 321, 329–334 [256 Cal.Rptr. 401, 768 P.2d 1078].)

Resistance Is Not Required

Resistance by the victim is not required for rape; any instruction to that effect is erroneous. (People v. Barnes,supra, 42 Cal.3d at pp. 292, 302.)

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