With the crime of rape, you should be aware that you are facing extremely serious charges, and need to contact an experienced San Diego criminal defense attorney as soon as possible.

In the state of California, rape involves an act of sexual intercourse which is against a person’s will, or without their consent.
Many believe the element of force defines rape but in fact, it is the element of consent, which is dependent upon the age of the victim, whether he or she was old enough and of sound mind to consent, and whether consent was present both before and during the act of sexual intercourse.
The offense of rape is criminalized under California Penal Code §261, and, to obtain a conviction for the crime, prosecutors must show that:

  • You willfully engaged in the act of sexual intercourse with another person;
  • The other person said “no,” i.e. did not give consent to the act of sexual intercourse, and
  • It was not reasonable for you to believe the victim consented to the act of sexual intercourse.

The following acts can also result in charges of rape in the state of California:

  • Forcible sexual intercourse with a date (date rape);
  • Forcible sexual intercourse with a minor (statutory rape);
  • Using deceit or lies to coerce a victim into performing sexual intercourse;
  • Taking advantage of a person who passed out from being drugged or is intoxicated;
  • Forceful oral copulation;
  • Rape of a spouse, and
  • Forcible penetration with an object.

You should know that rape is never a misdemeanor crime in the state of California and sentences are severe.
The penalties for a San Diego rape conviction include:

  • A sentence of 3, 6, or 8 years in a California state prison;
  • Fines as large as $5,000;
  • Formal probation (as opposed to informal probation), and
  • The requirement to register as a sex offender for the remainder of your life.

Additionally there are several enhancements which can result in longer sentences.
Some of these enhancements include:

  • Rape of a minor which carries an enhanced sentence of a minimum of 7 years in a California state prison and a maximum of 13 years in a California state prison.
  • Rape that results in serious bodily injury to another person carries an enhanced sentence of an additional 3-5 years in a California state prison, a fine as large as $10,000 and one strike under California’s Three Strikes Law.

Sex Offender Registration 

Under California Penal Code §290, any person convicted of the crime of rape must register as a sex offender for the remainder of his or her life.
Registered sex offenders must update their information each year through the Department of Justice, and within five days of any moves.
The offender’s address, details of his or her sex offense a conviction, photograph and a general description are on a public website for anyone to see.
As you can imagine, while a prison sentence and fines are certainly serious penalties, the requirement to register as a sex offender for the remainder of your life can prevent you from getting a job, renting a home, attending college on a government loan, obtaining a professional license or owning a firearm.
Of course, this is true for any felony conviction, but there is an added serious social stigma to being listed on the sexual offender registry.

How Rape Impacts Immigration

If you are in the United States illegally, under California Penal Code §261, you could not only face the same criminal penalties as a citizen, you may also be subject to removal or deportation and you may never be eligible to obtain a green card or to re-enter the United States.

Defenses Against the Crime of Rape

While the defense used by your criminal defense attorney will be tailored specifically to the facts of your charges, there are several defenses which could be helpful in your case, such as:

  • You were falsely accused, perhaps by an ex who was angry with you, wanted revenge, or was seeking an advantage in a divorce or child custody case.
  • You were misidentified as the person who committed the crime, when, in fact, you have a solid alibi (actual innocence).
  • You have already been acquitted of assault with intent to rape, therefore double jeopardy laws prohibit a subsequent prosecution for rape.
  • There was physical contact, but no penetration.
  • You had reasonable belief that the alleged victim had consented to have sexual intercourse.

Just so you know, voluntary intoxication is not considered a valid defense to the charge of rape, and neither is impotency in a person who has reached the age of puberty.
Also, a man can be charged with rape against another man and a woman can be charged with rape for assisting a man in the rape of another woman.

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