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Difference Between Rape and Consensual Sex

What Factors Determine Whether an Encounter with Someone is Rape or Consensual Sex?

The serious felony crime of rape is described under California Penal Code 261 PC as non-consensual sexual intercourse by use of force, threats, or fraud.

A rape conviction is punishable by up to 8 years in prison and there is a requirement to register as a PC 290 sex offender for life.

In order to be charged with rape, you don't have to always use physical force to complete the act of sexual intercourse, for example:

  • victim was unconscious,
  • victim was not able to consent due to intoxication,
  • victim suffered from a mental illness incapable of giving consent.

This means you can be charged with PC 261 rape in situations where sexual intercourse occurred against someone's will, or without consent.

Rape charges can also be filed if the act was completed using duress, fear of bodily harm, fear of retaliation, or fraud.

For more information, our Los Angeles sex crime defense lawyers are providing a detailed review below.

Definition of Penal Code 261 PC Rape

California Penal Code 261 PC defines the crime of rape as follows:

  • “The act of sexual intercourse that was accomplished with someone who is not the spouse of the perpetrator, under certain circumstances.”

The statute describes numerous situations where sexual intercourse could end up with rape charges being filed, such as:

  • use of physical force or violence to overtake victim,
  • use of duress which is a threat that is sufficient to coerce them into sexual intercourse,
  • menace which is a threat or act showing intent to cause injury,
  • fear of bodily harm or retaliation meaning threats to commit kidnapping, imprison, or cause victim serious injury or death,
  • fraud meaning the use of trickery or deceit to convince the victim to engage in sexual intercourse.

Clearly, the common theme of PC 261 is to prohibit sexual intercourse without consent of both parties.

Definition of Penal Code 261 PC Rape

Most rape charges are filed in a situation where there was some type of force or violence, but many others are due to other reasons.

Lack of consent

It's considered a lack of consent when the victim is incapable of giving consent due to intoxication, lack of consciousness, or they suffer from a mental illness.

Further, anyone who gives initial consent to have sexual intercourse can change their mind during sex and no longer give consent.

Legally, consent means cooperation in an act or attitude as an exercise of free will.

Related California crimes 

Factors that Determine Rape Charges

This is the battle when it comes to these rape cases that are filed in Los Angeles, the San Fernando Valley, all over California.

I've handled these cases for the last 30 years.  I've seen cases where someone is arrested and they don't get filed because we did the hard investigation to make sure the prosecutors knew that they had a weak case.

I've seen cases that have been filed and then later end up getting dismissed by the judge after a preliminary hearing, and of course, I've handled cases where there's been not-guilty verdicts.

I've also seen cases where people get convicted or worked out deals.  So, I have a pretty good idea about what factors determine when:

  • you get yourself involved with another person,
  • have an encounter with them,
  • maybe it's through a date App or some other means, and
  • then you end up having sex with them and the next thing you know, you're being accused of raping them.

Intoxication 

One big issue that comes up is intoxication.  Sometimes the woman will end up getting intoxicated, either by way of alcohol or drugs, claim that something's been slipped in her drink, and then she ends up realizing that she had sex.

She feels like she was unconscious at the time she had sex with the person, and therefore, the person took advantage of her.

That's one of the big factors that come up.  Many times, my clients have told me, “I was drunk too, so if we're both drunk and everything's going smoothly and nobody's crying, yelling, screaming, fighting, running away, and we end up having sex, how do I get blamed for it?

Why am I the person who took advantage of the other party?”

Pretext phone call 

Of course, the police are going to look at the surrounding circumstances of the case.

Pretext Phone Call in a California Rape Cases

A lot of times what I see happening in that particular scenario, when you're talking about rape versus whether it was consensual, is that the alleged victim will either make a phone call that the police tape record and accuse the person of doing something wrong, and the person does or says something that acknowledges that they know they did something wrong, that's a tacit admission of guilt.

They have it tape recorded.  That's called a pretext phone call.  That happens all the time.

Text message 

Another scenario that I see is when sometime after the sexual encounter, the woman sends a text message to the other party, accusing the other party of raping them.

Then, he person says, for example, “I'm so sorry; I don't know what came over me” or claims they were drunk or whatever the case may be, versus saying, “wait a minute, I didn't do anything.  I didn't rape you.

What are you talking about?  It was consensual.  You agreed.  I agreed.  We were both drunk.  We were both kissing.”

Review of Overall Circumstances in Rape Cases

So, you have to look at the circumstances of the case and that's really what's going to break the tie between a consensual sexual encounter versus a non-consensual rape-type situation, and of course, your attorney is crucial in that because some of these cases could go either way.

Sometimes there's arguments on both sides.  Sometimes the prosecutors see that you're doing or saying something that a normal innocent person wouldn't do, and sometimes your defense attorney sees that the alleged victim is doing stuff that a victim would not normally do.

So, you have to put that together, make our argument, get your theory of the case.

So, in a lot of these cases, if the client is claiming that they're innocent, they go to trial because sometimes there's evidence on both sides and a jury has to decide.

That's why you have to have a seasoned trial attorney who knows what they're going and who has handled these types of cases.

Review of Best Defense Strategy for Rape Case

I really suggest, if you're looking for somebody like that, you check out my reviews, my videos and come and meet with me.  I've been doing this a long time.  I've done many successful trials.

Part of it is, not only do I have experience, but I'm truth with the client and I'm good at what I do and I have a good feel for when a case can be won and when a case can be lost.

A lot of time, you can win these cases where somebody's being charged with rape and it's really a consensual situation and there's some reason that the alleged victim is accusing the other person.

Criminal Defense for California Rape Charges

Perhaps their boyfriend finds out that they had sex with another person and now they have to come up with an excuse.  You wouldn't think somebody would do that, but I've seen it on countless occasions.

So, you really have to evaluate the evidence on both sides and then you decide, ultimately, whether or not you want to roll the dice against the prosecutors.

But, if you do want to roll the dice against the prosecutors and you're indicating that you're innocent, I suggest you do fight the case all the way if you're innocent and didn't do anything wrong.

You definitely want to have a warrior by your side who's handled many cases like yours and had success.

You've taken the first step.  You've landed on this website.  You've checked out this information.  Now, take the next step.  Pick up the phone and ask for a meeting with Ron Hedding.

I have a pretty good perspective on how these cases are dealt with, how they're handled and what can be done to win them.

Hedding Law Firm is located at 16000 Ventura Blvd #1208 Encino, CA 91436. Our law firm offers a free case evaluation at (213) 374-3952.

Contact Us Today

Hedding Law Firm is committed to answering your questions about state or federal sex crime issues in California and throughout the United States.

I'll privately discuss your case with you at your convenience. All consultations are free, discreet, and confidential. Contact us today to schedule an appointment.

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