Rape is defined in California Penal Code Section 261 as an act of sexual intercourse (actual penetration of a woman’s vagina with the man’s penis) with someone other than a spouse, carried out without consent and accomplished through force, threat of violence or intimidation. Consent is a key factor in a rape case and is a defense to a charge of forcible rape because if the accused could reasonably have believed the victim was consenting, there is no forcible rape. In sex crime cases, California defines consent as "positive cooperation in act or attitude pursuant to an exercise of free will." Therefore, an defendant's reasonable belief that the victim was consenting to an act of sexual intercourse is a defense to a charge of forcible rape.
This scenario is unlikely when any significant force is used. However, it is possible to have a case where the victim submits from fear, but the accused believes the victim consented. This can occur where the parties read "the signals" quite differently. Whether there is rape depends on whether the jury finds that a person in the defendant's circumstances could "reasonably" have believed the other party consented.
When there is no sexual penetration, there is no rape but there may be attempted rape or an assault with intent to rape. Unlike rape, attempt or assault with intent are what the law calls "specific intent" crimes. This means that in order to find an accused guilty, the prosecutor must show the accused intended to have intercourse by force or threat of injury and against the will of the victim. Even if the accused unreasonably believes the victim is consenting, the accused does not have the intent necessary for the crime.
In California, rape is found if the sexual intercourse took place:
- Against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
- Where the victim is unable to resist because the accused has administered, or is responsible for administering, an intoxicating, narcotic, or anesthetic substance.
- Where the victim is unconscious of the nature of the act and the perpetrator is aware of this.
- Where the victim believes, due to the perpetrator's intentional deceptive acts, that the perpetrator is her spouse.
- Where the perpetrator threatens to retaliate against the victim or any other person, and there is a reasonable possibility the perpetrator will execute the threat. Threats to retaliate include threats to kidnap, imprison, and inflict extreme pain, serious bodily injury, or death upon the victim.
- Where the victim is incapable of giving consent and the perpetrator reasonably should know this.
- Where the victim reasonably believes the perpetrator is a public official and the perpetrator threatens to use public authority to imprison, arrest, or deport the victim or someone the victim knows.
By law, persons convicted of rape are required to register as sex offenders with a local law enforcement agency. Prior to release from prison, jail, a mental hospital, or on probation, sex offenders are notified in writing of their duty to register, and a copy of the notification form is forwarded to Department of Justice (DOJ). When a sex offender is released into the community, the agency forwards the registration information to DOJ.
Registered sex offenders are required to update their information annually, within five working days of their birthday. Some sex offenders must update more often: transients must update every 30 days, and sexually violent predators, every 90 days. The Sex Offender Tracking Program keeps track of the next required update, and if a registered sex offender is in violation of the update requirements, the Internet web site will show the registrant as being in violation. |
