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Attempted Rape (Forcible Rape)
PC 664-261(a)(2)
Law, Punishment, & Defense

The crime of attempted forcible rape is committed when a defendant makes a direct, but ineffectual step, towards the commission of the crime of rape, coupled with the specific intent to commit rape (PC 664-261(a)(2)).


Attempt Defined: An attempt to commit a crime consists of two elements: a specific intent to commit a crime, and a direct but ineffectual act done towards its commission (PC 21a). Essentially, attempt means to try, but fail, to do something.

Rape Defined: Rape is defined the sexual penetration of a woman, by a man, which is committed without the woman's consent, or by force or fear of bodily harm to the woman or a third person. Sexual penetration means the man’s penis entered the woman’s vagina, no matter how slight the penetration, and no matter the duration of the penetration.

Without Consent: Consent to sexual intercourse is only valid when an adult woman understands the nature of her circumstances, and thereafter, freely and voluntarily assents to enter into sexual intercourse with another person. Thus, there is no valid consent when sexual intercourse occurs with a minor (legally uncapable of consenting), a person who is intoxicated, disabled, or unconscious, a person who is subjected to force or fear of bodily harm as a condition of her consent, or where consent is obtained by fraud.

Example: At a house party, Janet has too much to drink, and she goes to a private bedroom in the house to lie down. David knows that Janet is overly intoxicated, and he follows Janet into the private bedroom to have sexual intercourse with her. David removes Janet’s clothing, but before he able to sexually penetrate Janet, he is caught by other guests at the house party. The police are called, and David is charged with the attempted rape of an intoxicated person (PC 664/261(a)(3)).

Attempted Rape Punishment

Prison Sentence: Attempted rape is charged as a felony in California. The length of prison sentence related to attempted rape depends on the exact rape offense that is alleged against the defendant. Consider the following attempted rape offenses:

  • PC 664/261(a)(2) Attempted Rape by Force or Fear: Maximum prison sentence up to four (4) years.

  • PC 664/261(a)(2) Attempted Rape of a Minor 14-17 Years Old: Maximum prison sentence up to five and half (5.5) years.

  • PC 664/261(a)(3) Attempted Rape of an Intoxicated Person: Maximum prison sentence up to four (4) years.

  • PC 664/261(a)(2) Attempted Rape of a Minor Under 14 Years Old: Maximum prison sentence up to six and half (6.6) years.

  • PC 664/261(a)(4) Attempted Rape of an Unconscious Person: Maximum prison sentence up to four (4) years.

  • PC 664/241(a)(5) Attempted Rape of Victim by Fraud: Maximum prison sentence up to four (4) years.

Probation Sentence: A probation sentence is not available in most attempted rape cases. Exception: A conviction for attempted rape of a mentally or physically disabled person (PC 664/261(a)(1)), or attempted rape by fraud (PC 664/261(a)(5)), may qualify for a probation sentence where special circumstances exist that justify a probation sentence.


Suspended Prison Sentence: Neither a “suspended” prison sentence, nor a “split” prison sentence is available in attempted rape cases. This means that if the defendant does not receive a probation sentence after an attempted rape conviction (rare), then the defendant must serve his sentence in a California state prison, and no part of that prison sentence may be served out-of-custody on work release or house arrest.

Sex Offender Registration: A defendant convicted of attempted rape must register as a sex offender pursuant to PC 290. Failure to Register as a sex offender after a conviction for any PC 664/261 crime is a separate crime and a possible probation or parole violation. The length of sex offender registration depends on the exact attempted rape crime for which the defendant was convicted.

Additional Penalties: In addition to a prison sentence and mandatory sex offender registration, if found guilty attempted rape (PC664/261), the defendant may suffer additional direct and indirect penalties, including, criminal protective orders, firearm prohibition, civil lawsuits, victim restitution, loss of professional license, deportation from the United States (immigration consequences), fines and fees, and more.

If you have been criminally charged with a sex crime in California, including any violation of PC 664/261 (attempted rape), contact our sex crimes criminal defense lawyers today for a free consultation. Our highly experienced sex crimes criminal defense lawyers have helped hundreds of defendants charged with misdemeanor and felony sex crimes in the Inland Empire, and we can help you too. Call today.


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