Accused of rape or sexual assault? You need an experienced lawyer who has what it takes to defend you. Call Los Angeles rape defense attorney Robert M. Helfend today – 800-834-6434.

If you or someone you love has ever been accused of rape, you know just how devastating the consequences can be.

Rape allegations have immediate personal and professional repercussions. Being accused of rape can lead to damaged relationships, loss of professional opportunities and lost wages — long before you even set foot in a courtroom.

That’s why it’s so important to speak with an experienced criminal defense attorney immediately if you or someone you love has been accused of rape or sexual assault.

The California criminal justice system works swiftly and aggressively to prosecute rape cases. However, an attorney can help safeguard not only your constitutionally guaranteed right to due process, but also your personal freedom and reputation.

What is the definition of rape in California?

California Penal Code 261 PC defines rape as nonconsensual sexual intercourse accomplished by the means of:

  • Threats, force or fraud, or
  • A victim who is unconscious or incapable of consenting.

In order to convict you of rape, a prosecutor will have to prove that certain facts of the case were true. We often call these the “elements of the crime.” 

Rape has four elements:

  1. You had sexual intercourse with the alleged victim. This is considered as any amount of penetration, no matter how slight.
  2. That you were not married at the time. If you were, you could be guilty of a separate crime called “spousal rape.”
  3. That the other person did not consent to the intercourse.
  4. This was accomplished through either “threats, force or fraud,” or that the alleged victim was otherwise unconscious or unable to consent.

Let’s look at these three examples:

Example 1: Mike is a college junior and meets Sarah at a party. Both students drink heavily at the party to the point that Sarah is drifting in and out of consciousness. Mike brings Sarah back to his apartment, where the two have intercourse. Because Sarah was not conscious enough to consent to the encounter, Mike could be guilty of rape.

Example 2: Dave represents himself as a photographer for a pornography company, even though he actually is not. He places ads on online personals asking for interested models. When interviewing models, he asks them to “audition” with him. Dave is likely guilty of rape by fraud.

Example 3: Ian is dating Paul, and the couple has a fight. Later in the day, Ian goes to the bar and meets Charlie. Ian and Charlie go back to Charlie’s house and begin to have sex. A few minutes in, Ian feels remorseful about the affair and tells Charlie that he’d like to stop. Charlie continues and Ian, not wanting to escalate the situation, allows the encounter to continue.

Even though Ian initially consented, he is allowed to withdraw consent. As well, even though Ian didn’t physically resist at that point, his lack of consent was not respected. Charlie could be guilty of rape.

What are the penalties for rape in California?

Rape is a felony in California, punishable by three, six or eight years in California State Prison. If the victim is a minor, the minimum punishment for rape is seven years in prison, with a maximum of 13 years. 

In either case, a conviction of rape can entail:

  • Fines of up to $10,000
  • An additional three to five years in state prison if the victim sustains a “great bodily injury”
  • A strike on your record, pursuant to California’s three strikes law

As well, in most cases, a conviction for rape will carry lifetime registration as a tier-three sex offender in California. This can create a cascade of issues for the rest of your life, from immigration issues to loss of professional licensure, difficulty finding housing and job loss.

Other offenses commonly charged as rape under California law

What is date rape?

“Date rape” refers to a situation where a person has non-consensual sexual intercourse with someone they:

  • Are or were dating, or
  • Were voluntarily spending time with.

Date rape cases are prosecuted under 261 PC, which is California’s rape law. In order to convict you of rape, the prosecutor must prove:

  1. You had sex with the alleged victim. 
  2. That you were not married at the time.
  3. That the other person did not consent.
  4. This was accomplished through either “threats, force or fraud,” or the alleged victim was otherwise unconscious or unable to consent.

Let’s look at two examples:

Example 1: Mark and Lisa have been dating for years. One night they go out for drinks, and Lisa drinks past the point of intoxication. They return to their apartment, where Lisa passes out on the bed. Mark undresses her and begins having sex with her. Even though the couple has an established sexual history and even though Lisa voluntarily drank past the point of intoxication, she lost the ability to consent when she fell unconscious. Every instance of sexual intercourse must be consensual under California law, so Mark could be guilty of rape.

Example 2: David and Cindy are out for drinks on their first date. When Cindy excuses herself to the restroom, David puts date rape drugs in her drink. She later “blacks out” and returns with David to his apartment, where he has sex with her. Because this was a case of “involuntary intoxication,” this almost certainly is rape.

Penalties for date rape

Date rape is prosecuted as a felony in California, punishable by:

  • Three, six or eight years in California State Prison
  • Fines of up to $10,000
  • A strike on your record, pursuant to California’s three strikes law

If convicted, you’ll likely also be required to register as a tier-three lifetime sex offender. This means you will have to re-register with your local police department on an annual basis and anytime you change your address for the rest of your life.

Appearing on California’s sex offender registry is often more of a burden than the prison sentence itself. It can lead to loss of professional licensure (for doctors, nurses and engineers), and we often hear stories of it causing issues with finding housing and work.

Does California law punish false accusations of date rape?

Given the sensitive nature of date rape cases, this is rare to see. However, California law does prohibit false accusations of a crime. Under 148.5 PC, it’s a misdemeanor to knowingly make a false report to a peace officer. This is punishable by up to six months in county jail and fines up to $1,000.

Additionally, if the false accusation resulted in a prosecution, the accused might have grounds to file a civil lawsuit against the accuser.

What is Statutory Rape?

California Penal Code 261.5 PC defines statutory rape as a case of someone above the age of consent (18) having sex with an unmarried partner who is below the age of consent.

In order to convict you of statutory rape, a prosecutor must prove three things happened:

  1. You had sexual intercourse with another person. California law defines sexual intercourse as any amount of bodily penetration, even if there was no ejaculation.
  2. You and the other person were not married at the time. In prior case law, the courts have found that this does not excuse cases where the partner was married to someone else.
  3. Your partner was under 18 at the time of the offense. According to California law, a person turns 18 years old at 12:01 a.m. on the day of their birthday.

It does not matter if force was used or if your partner agreed to the encounter. If the other person was under the age of consent at the time, they were not legally able to consent to the encounter.

Example 1: A 40-year old college professor develops a sexual relationship with a 17-year-old freshman in one of his classes. Even though both parties may have agreed to the relationship, the freshman was not legally able to consent, and this could be a case of statutory rape.

The age of consent in California is 18. This means that it is illegal for anyone under the age of 18 to engage in sexual activity. Additionally, it is important to note that even if both parties are under the age of 18, one or both parties may still be charged with statutory rape if they are accused of engaging in sexual activity with someone who is below the age of consent.

Does California Have a ‘Romeo and Juliet’ Law?

Many states have ‘Romeo and Juliet’ laws, which make it legal for a minor to have sex with someone else as long as both parties are around the same age. 

California does not have a ‘Romeo and Juliet’ law, meaning that in all cases, it is illegal to have sex with someone younger than 18.

Example 2: An 18-year-old high school senior strikes up a relationship with a 16-year-old sophomore. If this pair were to have sex, it would likely be a violation of PC 261.5, because the sophomore had not reached the age of consent.

Example 3: Two 16-year-old high school sophomores start dating. Even though the are the same age, a sexual encounter would violate California’s statutory rape law.

Penalties for Statutory Rape

Statutory rape is a “wobbler” under California law, which means that it can be charged as either a felony or misdemeanor. Prosecutors use this scale to decide how to charge the case:

  1. If you were no more than 3 years older than the alleged victim at the time of the encounter, it statutory rape is always charged as a misdemeanor.
  2. If you were more than 3 years older than the victim, the case can be tried as a felony or misdemeanor.
  3. If you were 21 years old or older and your partner was under 16 at the time of the encounter, the case can still be tried as a felony or misdemeanor. However, the felony penalties are steeper in this case.

As a misdemeanor, statutory rape is punishable by:

  • Misdemeanor probation (also known as informal or summary probation)
  • Up to one year in county jail
  • Fines of up to $1,000

As a felony, statutory rape is punishable by:

  • Probation (either felony or misdemeanor probation)
  • Up to three years in county jail in the case of item No. 2 above
  • Up to four years in the case of item No. 3
  • Fines of up to $10,000

If someone is convicted of statutory rape, they can also face civil penalties in addition to criminal penalties. Those civil penalties are:

  • Up to $2,000 if the victim is less than 2 years younger than the defendant
  • Up to $5,000 if the age gap is at least 2 years
  • Up to $10,000 if the age gap is greater than 3 years
  • Up to $25,000 if the defendant was 21 or older and the victim was younger than 16

Only adult defendants are subject to civil penalties.

Does a Statutory Rape Conviction Require Me To Register As a Sex Offender?

In California, a conviction for statutory rape does not require a person to register a sex offender. However, facing the conviction can still cause a great deal of damage to a person’s reputation.

What is ‘Rape act in concert?’

“Robert Helfend is one of the best criminal defense attorneys I’ve ever worked with. He was so knowledgeable, and always made sure I understood everything every step of the way.” Pat, CA

Under 264.1 PC, prosecutors can apply rape act in concert charges in cases of rape, spousal rape or forcible penetration by a foreign object. Rape act in concert can happen in one of two ways:

  1. You personally committed rape while someone else assisted in the rape.
  2. You “aided and abetted” someone else who committed forcible rape.

“Aiding and abetting” means that you helped someone commit the crime. In order to show that you aided and abetted a rape, the prosecutor will have to prove that:

  1. You knew the perpetrator planned to commit the rape.
  2. You intended to help him or her carry out the crime.
  3. You assisted, encouraged or facilitated the commission of the crime, either through your words or actions.

Penalties for gang rape in California

As we mentioned above, the penalties for gang rape in California are quite steep. It is always charged as a felony, and the maximum penalty depends on the age of the victim.

  • If the victim was an adult over 18 – 9 years in California State Prison
  • If the victim was a minor between 14 and 18 – 11 years
  • If the victim was under 14 – 14 years

These penalties are applied in addition to any other punishments you might face around the rape act itself. A conviction of rape act in concert will also require you to register as a tier-three lifetime sex offender. 

How do I fight rape charges?

“Robert really came to my rescue! I found myself under false accusations and he really came through. I was really freaking out, and Robert was able to make me feel like I was in good hands. I can’t recommend his services enough.”Drew, CA

Rape accusations are serious, but a skilled defense attorney can review the facts of your case and build the best possible defense for you. 

If you have been accused of rape, the prosecutor has to prove beyond a reasonable doubt not only that you were there (false accusation, mistaken identity), but that consent was not given. An attorney can help review the evidence in the case — physical evidence, witness accounts, testimony — to deconstruct the prosecution’s arguments.

Robert M. Helfend has served the Los Angeles area as a criminal defense attorney for more than 30 years, specializing in sex crimes cases. Call today for a free case evaluation — 800-834-6434.

Published December 8, 2019. Updated May 15, 2024.