Facing rape allegations can be an anxious and overwhelming time. If you or someone you love has been accused of rape, the best thing you can do is learn your rights and begin building your defense as soon as possible.

California law defines rape as nonconsensual sexual intercourse accomplished by means of:

Violence, duress, threats or fraud, or
The victim being unconscious or otherwise unable to consent.

Rape is a serious crime in California, and its punishments are severe. A conviction carries sentences of up to eight (8) years in prison, with sentences ranging as high as 13 years if the victim was a minor. Under California’s Megan’s Law, a rape conviction can also carry lifetime registration as a sex offender.

By understanding your rights and working with a criminal defense attorney skilled in sex crimes, you can defend your freedom and protect yourself from life-changing consequences.

Call Today – 800-834-6434

Definition of rape in California

The legal definition of rape in California law is sexual intercourse with someone, in which one of these two conditions is met:

It was against the other person’s consent. In order to prove this, a prosecutor will need to show that the defendant engaged in violence, physical force, threats, coercion, fraud or that the defendant invoked a fear in the victim of retaliation or physical harm against themselves or another person. We’ll talk more about what this means in a moment.
The victim was unable to consent. In order to prove this, a prosecutor will need to show that the victim was unable to give consent due to a mental or physical disorder or disability, too intoxicated to consent or not conscious enough to understand the nature of the act.

We just said a lot in those two bullets, so let’s unpack what this actually means with a few examples in the next few sections.

What is sexual assault?

Sexual assault is a legally defined term that encompasses rape and any other nonconsensual sexual touching. In order for the sexual contact to be considered rape or sexual assault, it must be done without the victim’s consent and by means of force, coercion, fraud or threats.

Types of evidence in rape cases

For the purposes of proving rape in a courtroom, evidence of any penetration — no matter how slight — is enough to prove that sexual intercourse occurred.

Proving that the act occurred against the victim’s will or without their consent is much more complex, and it’s very reliant on physical evidence and the facts of the case. Prosecutors might look for evidence of some of the examples above:

Violence or physical force. If someone used violence to compel another person into sexual intercourse, that would likely be considered rape under California law.
Threats. The same would be true if the defendant made a “threat, declaration or act” that demonstrated an intention to inflict an injury on another person.
Example: Mike corners Mindy in a parking garage and draws a gun. He orders her to have sex with him. Even though he did not use any violence or physical force, the act of drawing his weapon might be enough to be considered a reasonable threat.
Coercion. This is a direct or implied threat used to force someone into doing an act they otherwise wouldn’t have done.
Example: Mike is Mindy’s boss. Mindy arrives late for work one day, and Mike says he will have to fire her unless she has sex with him. This could be a case of rape via coercion or duress.
Fraud. According to California law, this covers cases where 1) the defendant convinces the victim they are married or 2) convinces the victim that the intercourse served a “professional” purpose, even though it actually did not.
Example: Mike is posing as a casting director for an adult film production company, even though he has no connection to any such production. He meets Mindy online and offers to cast her after her “tryout.” This would be a case of rape via fraud.

When building a case, a prosecutor will thoroughly assemble as many pieces of evidence as possible to prove that one of the elements above occurred. They will scour physical evidence like clothing, security camera footage, “rape kits” and build lists of witnesses and credible sources to place the defendant at the scene of the crime.

How does California law define consent?

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If a prosecutor can’t find any evidence of force, threats, coercion or fraud, they can also prove that a rape occurred by showing that the victim did not give consent or was unable to give consent.

California state law defines consent as positive cooperation in an act as an exercise of free will. In other words, everyone engaging in sex has to indicate positive cooperation in the act, regardless of their pre-existing relationships and histories.

Example: Mike and Mindy have been married 10 years and have had an active sex life. Mindy isn’t interested in sex, and she tells Mike this. Despite this, Mike continues to make advances on her and rather than escalate the situation by continuing to refuse, Mindy quietly accedes. This could be the related crime of “spousal rape.”

As well, California’s Rape Shield Law is designed to protect the privacy of victims in the courtroom. It says that it’s not permissible to use a victim’s past sexual history as evidence of consent.

Example: Mike and Mindy are dating. Mindy tells Mike of engaging in rape fantasy roleplay with a previous boyfriend. One day Mike tries acts out a fantasy on Mindy while she isn’t expecting it, and she resists throughout. Even though Mindy previously engaged in rape fantasy roleplay with another partner, Mike cannot use this as evidence (in the courtroom and in the situation) that she consented to sex with him.

State law also says that consent can be withdrawn at any moment. This means that everyone involved in sexual intercourse must be constantly aware that their partners are positively cooperating.

Example: Mike is interested in BDSM, and he visits his “mistress” Mindy. During the course of a session, Mindy sodomizes Mike, which is something he regularly enjoys. However, in this session Mike indicates that he’s become uncomfortable and indicates to Mindy that he wants her to stop. She continues, and could be guilty of rape.

Withdrawing consent can be a bit of a tricky situation, so in cases where consent was withdrawn, courtrooms will usually look for three elements:

The victim communicates to the defendant that he or she objects to the act and wishes to stop;
This is done in a way that would cause a “reasonable” person to recognize the seriousness of the request;
The defendant continues intercourse anyway.

Of course, if the victim is unconscious, drugged or too intoxicated to legally consent, then this could also be considered rape.

Example: Mike and Mindy go out for drinks. After having several drinks, Mindy becomes “blackout” drunk, to the point that she has trouble standing up and is unaware of where she is. They go back to Mike’s apartment and have sex. Because Mindy was too unaware of her own surroundings to positively cooperate, she might not have been able to give consent.

Does the victim need to resist?

Everyone reacts to trauma differently. While some people might experience a “fight or flight” response, it’s common and perfectly normal for others to “freeze.”

Under California law, the victim does not need to show any evidence that they resisted in order to prove that a rape occurred.

Penalties for rape charges in California

Rape is a felony in California. It carries a mandatory sentence of three, six or eight years in a California State Penitentiary. As well, it includes:

Fines of up to $10,000
A “strike” on your record per California’s Three Strikes Law
Lifetime registration as a “tier-three” sex offender

As we mentioned, a prison sentence is mandatory. Following the outcry over the lenient sentence given to Stanford swimmer Brock Turner in a rape case, the California State Assembly passed AB-2888 in 2016, which prevents judges from deferring, granting probation or otherwise limiting sentences in rape cases.

As well, depending on the facts of the case, the penalties for rape in California can also include:

Up to 11 years in prison if the victim is under the age of 18, and up to 13 years in prison if the victim is 14 or younger.
An additional 3 to 5 more years in prison if the victim sustains a significant injury.

How to fight rape and sexual assault charges in California?

Facing a rape accusation can be devastating, but working with a criminal defense attorney skilled in sex crimes cases can help put your mind at ease.

Your attorney should have a proven track record defending cases similar to yours, thoroughly examining the evidence and facts of the case, and then working to get the best possible outcome for you in the courtroom. Many rape cases are dismissed simply because the prosecution cannot show enough evidence, or because the alleged victim didn’t communicate clearly enough that they didn’t consent to the act.

A good attorney will tell you that it’s not always possible to secure an acquittal or dismissal, but he or she should be prepared to fight tirelessly for you if your freedom and livelihood is at stake.

Robert M. Helfend has been fighting for the Constitutionally guaranteed rights of those accused of rape for more than 40 years, representing clients throughout the Los Angeles area. If you or someone you love has been accused of rape, call today for your free case evaluation — 800-834-6434.