Rape | Penal Code § 261

Description

Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator. A person who engages in such act where a person is mentally or physically disabled or unable to give legal consent, where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another, or the person is prevented from resisting by any intoxicating or anesthetic substance, or the person is unconscious at the time of the act and this is known to the accused may be charged with a felony. Punishment enhancement may apply for false imprisonment, or using threat or incarceration or Kidnapping.

What does the prosecutor have to prove?

1. The defendant engaged in an act of sexual intercourse with a person other than defendant’s spouse.
2. The act of intercourse was against the will of the alleged victim.
3. The act was accomplished by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the alleged victim or to another person.
4. The offense involved separate victims or involved the same victim on separate occasions.

Punishment

Felony: 3years/6years/8years
With probation 0-364 days

 

Can this be charged as a felony or a misdemeanor (“wobbler”)?	No
Is this charge a strike?	Yes
Is this charge a “serious felony”	Yes
Is this charge a “violent felony”	No
Do I have to register as a sex offender if convicted?	Yes
Do I have to register as a drug offender if convicted?	No
Do I lose my right to own or possess a firearm if convicted?	Yes
Do I lose my right to vote if convicted?	Yes
Am I eligible for a local sentence (PC § 1170(h)) if convicted?	No
Am I eligible for PC § 1000 drug diversion if convicted?	No
Am I eligible for Prop. 36 drug diversion if convicted?	No
Am I required to give a DNA sample if convicted?	Yes
Is this charge considered a “crime of moral turpitude” for immigration purposes?	Yes
Is this charge considered a “aggravated felony” for immigration purposes?	Yes
Is this charge considered a “controlled substance violation” for immigration purposes?	No
Is this charge considered a “domestic violence” for immigration purposes?	No
Is this charge considered a “firearm conviction” for immigration purposes?	No