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Is Penetration Required in a California Rape Case?

Believe it or not, this is usually a big issue in California Penal Code 261 PC rape cases — whether or not there was any penetration.

Sometimes the alleged victim is asleep or intoxicated and is not 100% clear about precisely what happened.  Often, I see cases where the alleged victim in these rape cases is incapacitated.

A blackout drunk or taking some drugs, and later on is waking up and trying to piece together what happened, and all of a sudden, they're pointing the finger at the person they were with.

Sometimes, you're having these social media hook-ups, and things go awry, and someone's being accused of raping another person.

Penetration Must Occur in Penal Code 261 Rape Cases

Penetration is a significant factor when it comes to rape.  If there is no penetration, then there is no rape.

I've fought many cases where the alleged victim does not know whether or not there was penetration. She thinks there was, but is not sure, and is just claiming penetration even though they don't know whether or not there is penetration.

Penetration Must Occur in Penal Code 261 Rape Cases

One thing that can help the prosecutors is if the:

  • defendant, themselves, admits that he penetrated the victim, or
  • if they can get some medical evidence.

For example, the person gets a sexual assault examination at the hospital with the nurse, and the offender's semen or DNA is found inside the vagina.  That's evidence that there was penetration.

What About Just Slight Penetration?

Another thing about this penetration issue in rape cases in Los Angeles is that the penetration can be very slight, which will be enough for a rape case.

Even though maybe the perpetrator didn't necessarily have sex with the alleged victim, if they were trying to have sex and they penetrated the person, that's enough for purposes of rape.  Of course, the issue is going to be:

Is Penetration Required in a California Rape Case?
  • how do they prove that?
  • how do they show a jury that there was penetration?
  • how do they show a jury that this wasn't a consensual encounter?

In many of these cases that I see, the people are getting together.  They're drinking.  They're having a great time.  They're kissing and hugging.  The woman goes back to the guy's house, and the sex is consensual.

So, everything's good right up until that point, and then somehow, things go awry.  Either it's because the perpetrator raped the person, or the person may be intoxicated and didn't remember what happened.

They wake up naked in a stranger's bed.  They figure they would never have a one-night stand with anybody, so I must have been raped.

Then they start accusing the person.  Often, I see it sometime after the incident; all of a sudden, you're seeing text messages being exchanged back and forth.

Police Investigative Tool of a Pretext Phone Call

Another tremendous investigative tool in these rape cases where penetration is claimed is a pretext phone call from the alleged victim to the perpetrator, and the police tape-record the conversation.

The police give questions to the alleged victim to ask, and usually, it's them confronting the person about what they did, asking a bunch of questions.

Of course, they're trying to gather information from the police in one of these pretext phone calls.

If they can get the defendant to say that he is sorry and acknowledge that he did something wrong, now they have a good foothold as far as evidence goes in potential prosecution for that case.

Criminal Defense for California PC 261 Rape Cases

So, if you or a loved one is charged with rape and penetration is an issue, or maybe other problems are surrounding the case, pick the phone.  Set up a meeting.

What I have you do is come in and sit down with me.  We go over the case piece by piece and decide exactly how we're going to defend it.

Criminal Defense for California PC 261 Rape Cases

What we're going to do, whether or not the case is going to trial, whether we're going to plea bargain and keep you out of custody and try to avoid sex registration and a whole host of other things that come along with these types of offenses, and once we make that decision, we will move forward.

So, let my almost 30 years of experience working for the District Attorney's office, working for a Superior Court judge, and being the guiding force behind the Hedding Law Firm now for approximately 27 years, help you.

Pick up the phone.  Ask for a meeting with Ron Hedding.  I stand at the ready to help you.

Hedding Law Firm is a top-ranked criminal defense law firm located in Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436.

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