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Rape by Force or Fear
(PC 261(a))

Law, Punishment & Defense

Information on the crime of rape by force or fear is found at California Penal Code section 261(a). There are several varieties of rape crimes under PC 261. The following is a brief discussion of the law and punishment related to the most frequently charged rape crimes in California. For more information, contact our sex crimes criminal defense attorneys today for a free consultation.

CA Rape Crimes Law (Abbrev.)

Rape is an act of non-consensual sexual intercourse under any of the following circumstances:

  • Where a victim is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known, or reasonably should be known, to the person committing the sexual act PC 261(a)(1).

  • Where it is accomplished against a victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another PC 261(a)(2).​

  • Where a victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused PC 261(a)(3).

  • Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim was asleep, threatened, unconscious, or was induced to believe that the defendant was someone other than the defendant PC 261(a)(4).

The most common allegation of rape is found at PC 261(a)(2) rape by force or fear. To prove that the defendant is guilty of rape by force or fear, the district attorney must prove:

  • The defendant had sexual intercourse with a woman, and

  • The woman did not consent to the intercourse, and

  • The defendant used force, fear, or threats to accomplish the sexual intercourse.

Sexual Intercourse Defined: Sexual Intercourse means penetration, no matter how slight, or the vagina or genitalia by the penis. Ejaculation is no required.


Note: A woman who initially consents to an act of intercourse may change her mind during the sexual intercourse, and if she clearly communicates, through words or conduct, her objection to the sexual intercourse, then the sexual intercourse become unlawful and without consent at the point in time when the rape victim clearly communicated her objection to sexual intercourse. This is known as withdrawn consent. Also, under California law, a man cannot be a rape victim under California law. If a man is sexually penetrated the crime is sexual penetration (PC 289).

PC 261 Punishment

Felony Prison Sentence: Rape charges are classified as felonies, except statutory rape charged under PC 261.5(c), which may be classified as a misdemeanor in some situations. Different rape charges carry different maximum prison sentences. Below is a list of common PC 261 rape charges and their corresponding maximum prison sentence:

  • PC 261(a)(2) Rape by Force or Fear of Bodily Injury: Maximum punishment is eight (8) years in prison with eligibility to earn up to fifteen percent (15%) credit off sentence for good behavior while in prison.

  • PC 261(a)(2) Rape of Victim 14-17 Years old by Force or Fear of Bodily Injury: Maximum punishment is eleven (11) years in prison with eligibility to earn up to fifteen percent (15%) credit off sentence for good behavior while in prison.

  • PC 261(a)(3) Rape of intoxicated victim ("Date Rape"): Maximum punishment is eight (8) years in prison with eligibility to earn up to fifty percent (50%) credit off sentence for good behavior while in prison.

  • PC 261(a)(4) Rape of Unconscious Victim: Maximum punishment is eight (8) years in prison with eligibility to earn up to fifty percent (50%) credit off sentence for good behavior while in prison.

Probation Sentence: A probation sentence in a rape case is period of supervision instead of prison. In some rape cases, it might be possible to qualify for a probation sentence, with or without a jail sentence, but only if there are unusual or special circumstances in the case that justify a probation sentence.


Whether or not a probation sentence is available in any rape case depends on many factors, including: the presence of any enhancements to the rape charges, the egregiousness of the facts, the defendant's criminal history, and more. A probation sentence for rape is classified as felony probation, and if granted, the defendant will be ordered to fulfill terms (promises) of probation. For more information, see Probation & Parole for Sex Crimes.


Sex Offender Registration:  PC 261 Rape charge convictions carry a requirement to register as a sex offender. Sex offender registration includes, among other things, registering and updating, the defendant's name and address with the local police in the city where the defendant lives. Registration requirements are strict and vary depending on what type of rape crime was committed. For more information, see CA Tier System for Sex Offenders and Sex Offender Registration Requirements.

Additional Punishment: In addition to any jail or prison sentence, if convicted of the crime of rape, the defendant may face some, or all, of the following punishments: restitution to victims, fines, criminal protective orders, enhanced punishment for future criminal convictions, firearm ownership prohibition, civil lawsuits, loss of employment or immigration status, denial of entry into the US military, and more.

Defense to Rape (PC 261)

Common defenses to rape include "victim's" consent to sexual intercourse, reasonable interpretation that the alleged victim consented, mistake of fact, statute of limitations, reasonable believe that the alleged victim was over the age of seventeen (17) [for statutory rape crimes], coerced confessions, police investigation misconduct, intoxication, insanity, insufficient evidence of penetration or sexual intercourse, alibi, and more.

Note: Evidence that the alleged victim is sexually promiscuous is not generally allowed as a defense to a rape case. However, evidence of the alleged victim's reputation for dishonesty and her motive to fabricate are generally issues covered by defense.

For more information on defenses to rape crimes, including a discussion of the statute of limitations for rape crimes, see Defense Strategies in CA Sex Crimes.

To learn more about rape crimes, or California penal code section 261(a), contact our sex crimes criminal defense lawyers today. Our deeply experienced team of defense attorney have successfully defended hundreds of sex crimes criminal charges in the Inland Empire. There is no charge for a discreet consultation with one our award-winning, passionate trial attorney. Call today!


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