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:

Force, violence, duress, menace, threats or fraud, or
The victim being unconscious, intoxicated, disabled or otherwise physically 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

What is the definition of rape in California?

Under California Penal Code Section 261, rape is defined as sexual intercourse accomplished without consent and involving:

Force, violence, duress, menace, or threats;
The victim’s incapacity to consent due to intoxication, unconsciousness, disability, or mental disorder;
Fraudulent representation.

“Sexual intercourse” refers to any penetration, however slight. It does not require ejaculation or completion of the act.

Examples of situations considered rape

Force or violence – Mark physically restrains Lisa against her will and forces her to engage in sexual intercourse.
Threats or menace – Mark threatens Lisa’s safety or her family’s safety unless she submits to sex.
Incapacity due to intoxication or unconsciousness – Lisa is heavily intoxicated or unconscious and unable to consent, and Mark engages in sexual intercourse with her.
Fraud – Mark falsely convinces Lisa he is her husband or that intercourse is part of a necessary medical procedure.

California law defines consent as clear, voluntary, and affirmative agreement to engage in sexual activity. Silence or a lack of resistance does not equal consent. Consent can be withdrawn at any time, even if previously given, and once withdrawn, continuing becomes unlawful.

California’s Rape Shield Law protects victims by prohibiting the use of a victim’s past sexual history as evidence of consent.

In other words, everyone engaging in sex has to indicate positive cooperation in the act, regardless of their pre-existing relationships and histories.

Example 1: 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.”

Example 2: 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.

Example 3: 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.

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.

What’s the difference between sexual assault and rape?

While the terms “rape” and “sexual assault” are often used interchangeably, they have distinct legal meanings in California. Rape specifically involves nonconsensual sexual intercourse or penetration, whereas sexual assault encompasses a broader range of nonconsensual sexual activities.

Sexual assault may include unwanted sexual touching, fondling, groping, or any sexual act performed without consent. It does not necessarily involve penetration. For example:

Sexual assault example – Mark forcibly kisses Lisa and touches her intimately against her wishes. This qualifies as sexual assault but not rape.
Rape example – Mark forcibly engages in sexual intercourse with Lisa despite her objections. This qualifies specifically as rape.

Understanding this distinction is critical because penalties and legal strategies can vary significantly between sexual assault and rape charges.

Evidence used in rape charges

As we mentioned earlier, in order to prove that rape occurred, prosecutors must show:

Sexual intercourse occurred, and
The intercourse was nonconsensual.

Common forms of evidence include:

Physical evidence – This includes DNA samples, fibers, clothing, bodily fluids, and medical examinations collected through forensic rape kits. Physical evidence can significantly impact the outcome, confirming both that intercourse occurred and potentially indicating force or injury.
Witness testimony – Statements from the victim are central to prosecution. Additionally, testimony from third-party witnesses who saw or heard anything relevant — such as cries for help, sounds of distress, or suspicious activities — can support allegations.
Surveillance footage and electronic evidence – Video surveillance from the scene or surrounding areas may confirm timelines and events. Electronic communications like text messages, emails, or social media interactions can indicate threats, coercion, intent, or prior knowledge of consent issues.
Documented threats or coercion – Written threats, recorded calls, or messages documenting intimidation or manipulation by the defendant can directly establish elements like duress, threats, or coercion.

What is the minimum sentence for rape in California?

In California, rape is a felony offense. The minimum sentence for a rape conviction is three years in state prison. However, sentences typically range from three to eight years depending on case circumstances.

Factors that can significantly increase penalties include:

Victim’s age – Up to 11 years if the victim is under 18; up to 13 years if the victim is 14 or younger.
Use of violence or causing injury – Additional 3-5 years if substantial physical harm occurs.
Prior criminal convictions, particularly under California’s Three Strikes Law, can lead to significantly harsher sentences.

California passed Assembly Bill 2888 in 2016, which restricts judges from granting probation or lenient sentences in rape convictions. Thus, prison time is mandatory upon conviction.

Typical 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.

Sex offender registration requirement

Convictions for rape require lifetime registration as a Tier 3 sex offender under California’s Megan’s Law. This has lifelong implications, including:

Public registry listing.
Restrictions on housing, employment, and residency.

How to fight rape 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.

What to do if charged with rape in California

If you’re accused, take immediate action:

Do not speak to investigators without an attorney – Anything you say can significantly harm your defense.
Preserve evidence – Keep texts, emails, social media exchanges, or anything that supports your version of events.
Hire an experienced criminal defense attorney – The earlier you involve professional representation, the better your chances of obtaining a favorable outcome.

Contact Robert M. Helfend for immediate defense

Los Angeles criminal defense attorney Robert M. Helfend has over four decades of experience defending clients against serious sex crime allegations. If you face rape charges, you need an aggressive defense to protect your freedom and your future.

For a free and confidential case evaluation, call attorney Robert M. Helfend now at 800-834-6434.

Published December 23, 2018. Updated March 15, 2025.