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What Are Some Common Defenses for a PC 261 Rape Charge?

Posted by Ronald D. Hedding | Aug 30, 2022

The crime of rape is defined under California Penal Code 261 PC as non-consensual sexual intercourse using force, threats, or fraud. A felony rape conviction carries a sentence of up to 8 years in prison and a mandatory lifetime requirement to register as a sex offender.

Rape does not always involve the use of force; instead, it can also occur when the victim cannot give consent due to intoxication, is unconscious, or is incapable of consenting due to mental illness.

Common Defenses for a PC 261 Rape Charge

This means you can be charged with PC 261 rape if you have sexual intercourse with someone with their consent or against their will. Rape charges could be filed if the illegal act was achieved not just by using force or violence but with coercion, fear of bodily harm, fear of retaliation, or fraud.

The most common form of rape crime is by force or coercion under Penal Code 261(a)(2) PC, which says: “against a person's will using force, violence, duress, menace, or fear of immediate unlawful bodily injury on the person or another.”

Penal Code 261(a)(1) PC defines another type of rape crime as sexual intercourse with a person “incapable, because of a mental disorder or developmental or physical disability, of giving legal consent.”

Penal Code 261(a)(3) and (a)(4) PC cover a mentally incapable form of the rape crime to include not just victims with mental disorders but also intoxicated, anesthetized, unconscious, or unaware or incapable of resisting.

Penal Code 261(a)(5) PC covers a rape crime to include where the perpetrator induces a victim to believe they are someone else to whom the victim would consent. The inducement could be “by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.”

Penal Code 261.5 PC covers a rape crime to include sexual intercourse with someone, not the perpetrator's spouse, and a minor, defined as under age eighteen. Our California sex crime defense lawyers will review this further below.

What are the Related California Crimes for Rape?

What Are the Best Defense Strategies?

Most people charged with rape are looking at prison, sex registration for life, and a host of other problems, so obviously, if you're innocent and didn't commit the rape, you will want to look at what defenses might be available to you.

Best Defense Strategies for PC 261 Rape Charges

First, the most straightforward defense is that I didn't rape anybody.  I don't know who that person is.  I don't know what they're talking about; therefore, I'm innocent. 

They're not going to find my DNA.  There will not be any witnesses, and that, I guess, would be just a general common defense.

But people often don't have the luxury to use that defense because they somehow connect with the alleged victim.  Maybe they went on a date with them, and both parties got intoxicated.  The person being accused of rape thought they were given the green light to engage in sexual intercourse.  They did so. 

The other person woke up in the morning and claimed they were too drunk to consent and must have been raped.  Of course, there are various reasons, and you must defend yourself.

Types of defenses in that scenario would be that I was just as intoxicated as the other party.  I believe they consented.  They kissed me.  You're not going to find any physical evidence consistent with rape, and we did go out, and I didn't do anything wrong.

The most crucial issue in a rape prosecution is consent, or the lack thereof.  Perhaps we can argue the sexual activity with the alleged victim was consensual, which is a complete defense to rape charges.

This could be established through cross-examination of the complaining witness.   That evidence might raise a reasonable doubt that the defendant committed any rape crime.

Gain an Advantage in a Child Custody Case

Another defense I see utilized a lot is a situation where the person knows the other party, and the other party has some motive to try to get them in trouble for rape. 

For example, as bad as this sounds, I've seen scenarios where husband and wife are getting divorced.  They've got kids.  There's a lot of money on the line, and a significant other claims rape when there wasn't one to gain a tactical advantage in a divorce, with child custody, and with money. 

In this scenario, that would certainly be a motive to lie, make things up, and put the other party in a bad situation.

Contact a Sex Crime Defense Professional

No matter what your situation is, you are entitled to be defended.  If you want the best, you've come to the right place.  I've been working in the criminal defense field for approximately 30 years.

Sex Crime Defense Professional

I worked for the District Attorney's office early in my career, and then I worked for a superior court judge. Then in the early 1990s, I became a criminal defense attorney defending people like you.

When we're talking about defenses for rape cases, we've got to look at the specific facts of your case and what happened, and then we can decide the best course of action. 

Sometimes you don't want to defend the case.  You want to try to work out a resolution with the prosecutors because the prosecutors have good evidence.  We've got to make that decision right from the beginning and be on the right path.  Are we going to fight the case, or are we going to mitigate the case? 

Sometimes, we even fight the case to damage the prosecutor's case because they're being unreasonable, only to resolve the case later once we make it clear what happened.

If you want the best, pick up the phone.  Ask for a meeting with Ron Hedding at the Hedding Law Firm. We offer a free case review by phone or complete the contact form.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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