near me
California Penal Code 261 PC - Rape Laws And Penalties


Los Angeles Criminal Defense LawyerCalifornia Penal Code 261 PC defines the criminal offense of rape. Pursuant to PC 261, rape occurs when a person employs force, threats, or deception to engage in sexual intercourse without the other person’s consent. The following situations of sexual intercourse may constitute rape:

  • If an individual is incapable of providing consent due to intoxication.
  • If the act is accomplished by means of force, violence, or severe coercion.
  • If the person is unable to give consent due to a mental disorder.
  • If the person is unconscious at the time of the incident.

261 PC: (a) Rape is an act of sexual intercourse accomplished under any of the following circumstances:

(1) If a person who is not the spouse of the person committing the act 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 act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. This paragraph does not preclude the prosecution of a spouse committing the act from being prosecuted under any other paragraph of this subdivision or any other law.

(2) If 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.

(3) If a person is prevented from resisting by an intoxicating or anesthetic substance, or a controlled substance, and this condition was known, or reasonably should have been known by the accused.

(4) If 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 meets any one of the following conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

(5) If a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

(6) If the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

(7) If the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

(b) For purposes of this section, the following definitions apply:

(1) “Duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and the victim’s relationship to the defendant, are factors to consider in appraising the existence of duress.

(2) “Menace” means any threat, declaration, or act that shows an intention to inflict an injury upon another.



Consent is a crucial element in sexual interactions, as defined by Penal Code 261.6. Consent requires a person to have a clear understanding of the nature of the actions involved and to willingly and freely express their approval.


It is important to recognize that consent can be withdrawn even after initially being given. If the victim communicates their non-consent through words or actions during the sexual encounter, and you forcibly continue the act of intercourse despite their objections, at that point, your actions may be considered non-consensual.

For Example, let’s consider a scenario where Sheilah, a virgin, initially expresses her desire to have sex with her boyfriend, John. They begin the process, but before penetration, Sheilah communicates that she is not ready and needs more time. Despite her objection, John proceeds to engage in sexual intercourse with her. In this situation, John could be guilty of the crime of rape.

Even if Sheilah initially consented, her withdrawal of consent and clear expression that she was not ready should have been respected by John as a reasonable person. It is important to understand and acknowledge that ongoing consent is essential throughout any sexual activity, and individuals should always prioritize the clear and voluntary consent of their partner.


According to Penal Code 261, there are specific categories of people who are unable to give consent to sexual intercourse. These include:

  • Intoxicated individuals: When someone is under the influence of alcohol or drugs and is unable to make sound decisions, engaging in sexual activity with them is considered rape.
  • Individuals with mental disorders: People with mental disorders may not have the capacity to provide informed and voluntary consent. Engaging in sexual activity with them without their clear and understanding consent is considered non-consensual.
  • Unconscious persons: If a person is unconscious, they are unable to provide consent. Engaging in any sexual activity with an unconscious individual is considered non-consensual.
  • Individuals under 18 years old: In California, individuals under the age of 18 are legally considered minors and are unable to provide consent to engage in sexual activity with an adult. Engaging in sexual intercourse with a minor, even if they appear to give consent, is considered statutory rape and is a criminal offense.

It is crucial to understand and respect these limitations on consent to ensure that any sexual activity is consensual and lawful. Consent should always be obtained from a willing and capable individual who is of legal age and in a sound state of mind.


In order to secure a conviction for rape, a prosecutor must establish the following elements of the crime:

  • The accused engaged in sexual intercourse with another person.
  • The other person did not provide consent for the sexual intercourse.
  • The accused used any of the following methods to accomplish the act:
    • Employed physical force to overcome the person’s will.
    • Employed violence with the intention to cause harm or death.
    • Used duress to coerce the person into engaging in sexual activity.
    • Used menace, which includes threats, statements, or acts that demonstrate an intent to injure someone.
    • Exploited the presence of fear, where the person genuinely and reasonably felt afraid.
    • Carried out the act as a form of retribution, seeking payback or revenge.
    • Employed fraud by using deceit or trickery to manipulate the person into engaging in sexual activity.

For the purposes of this statute, “sexual intercourse” is defined as any form of penetration, regardless of its degree, of the vagina or genitalia by the penis. Ejaculation is not a necessary requirement for an act to be considered sexual intercourse.

Example of Rape Crime:

A man and a woman meet online and decide to go on a date. As the date unfolds, they enjoy each other’s company and the man suggests they continue the evening at his place for a drink. Once they arrive, they share a passionate kiss, but the woman expresses her boundaries and makes it clear that she doesn’t want to engage in further intimacy. Despite her repeated refusals, the man persists in trying to initiate sexual activity. Feeling uncomfortable and wanting to leave, the woman firmly states her decision. However, the man disregards her wishes and insists that she cannot leave until she agrees to have sex with him. Sadly, the woman reluctantly gives in to his demands. Shortly afterward, she decides to leave, feeling emotionally distressed about the situation.

The man’s act of forcefully restraining the woman until she consented to sexual intercourse would be classified as a case of forcible rape.


In California, rape is classified as a felony offense, which carries a mandatory prison sentence of three, six, or eight years in a California State Penitentiary. In addition, the following consequences may apply:

  • Monetary Penalties: Conviction for rape can result in fines of up to $10,000 imposed by the court.
  • Three Strikes Law: Under California’s Three Strikes Law, a rape conviction is considered a “strike” offense. This means that it will be counted as a serious prior conviction, and subsequent convictions for serious offenses can result in enhanced penalties and longer prison sentences.
  • Lifetime Registration as a Sex Offender: A rape conviction in California typically leads to lifetime registration as a “tier-three” sex offender. This requires the individual to provide regular updates of their personal information and whereabouts to law enforcement authorities.

It is important to consult with a qualified legal professional who specializes in criminal law in California to understand the specific implications of a rape conviction in your case, as laws can be subject to change and individual circumstances may vary.


The sentences vary based on the age of the victim:

  • ranging from 3 to 8 years in prison for victims aged 18 and older,
  • 7 to 11 years in prison for victims aged 14 to 17,
  • and 9 to 13 years in prison for victims under 14.

Additionally, lifetime sex offender registration is required for all cases involving minors.


In California, under certain circumstances, rape convictions can be expunged. Specifically, a rape conviction may be expungeable if:

  • You are granted and successfully complete felony probation.
  • You are not sentenced to state prison but instead serve your sentence in county jail.

If you receive a prison sentence for rape, the conviction is not eligible for expungement.

Therefore, eligibility for expungement of a rape conviction in California depends on meeting the specific criteria mentioned above. Consulting with a knowledgeable Los Angeles expungement attorney specializing in California criminal law is recommended to assess your individual situation and provide accurate guidance regarding expungement possibilities. An experienced lawyer can help you know how a sex crime conviction can be removed from your record in California.


  • Consent: The accused may argue that the victim consented to the sexual activity. This defense can be difficult to prove, as the burden of proof is on the accused to show that they reasonably believed that the victim consented.
  • False accusation: The accused may argue that the victim has falsely accused them of rape. This defense can be difficult to prove, as the burden of proof is on the accused to show that the victim is lying.
  • No sexual intercourse: The accused may argue that no sexual intercourse actually took place. This defense can be difficult to prove, as the prosecution will likely have physical evidence, such as DNA, to support their case.
  • Mental illness: The accused may argue that they were suffering from a mental illness at the time of the alleged rape that impaired their ability to consent to sexual activity. This defense can be difficult to prove, as the accused will need to show that they were unable to understand the nature of their actions due to their mental illness.

These are just some of the defenses that may be available to people charged with rape in California. The best way to determine which defenses are available in your case is to speak with an experienced criminal defense attorney near you.


Yes, a conviction for rape can have adverse consequences on a person’s immigration status, particularly if they hold a visa or legal permanent resident status in the United States. According to immigration law in the United States, certain offenses, including crimes of moral turpitude or aggravated felonies, can result in inadmissibility.

Being deemed inadmissible can prevent individuals from entering or being allowed to remain in the United States.


Several California statutes pertain to the offense of rape under Penal Code 261 PC, which include:

  • Penal Code 261(a)(1) PCRape of an individual with mental disabilities.
  • Penal Code 261(a)(3) PC – Rape of someone incapable of giving consent.
  • Penal Code 261(a)(5) PC – Rape accomplished through fraud or deception.
  • Penal Code 261.5 PCStatutory rape, which involves engaging in sexual intercourse with a minor.
  • Penal Code 243.4 PC – Sexual battery, which refers to the unlawful touching of intimate body parts.
  • Penal Code 289 PC – Forcible penetration with a foreign object.
  • Penal Code 287 PC – Forced or coerced oral copulation.
  • Penal Code 288a PCEngaging in oral copulation with a minor.
  • Penal Code 220 PC – Assault with the intent to commit a felony offense.
  • Penal Code 286 PC – Sodomy, involving non-consensual anal or oral intercourse.
  • Penal Code 422 PC – Making criminal threats to harm or intimidate someone.
  • Penal Code 646.9 PC – Stalking, which involves willfully harassing or following another person.
  • Penal Code 601 PC – Aggravated trespassing, entering someone’s property with the intent to cause harm or commit a crime.


In California, rape is classified as a felony, and if convicted, it results in the permanent loss of the right to own, purchase, or possess firearms. However, there is a possibility of having your gun rights restored through a governor’s pardon.


Rape is a serious felony offense in California, involving engaging in non-consensual sexual intercourse with a victim through the use of threats, duress, violence, or menace. If convicted, the potential penalties include up to 8 years of imprisonment in state prison. Furthermore, depending on the severity of the injuries suffered by the victim, the judge may impose an additional sentence enhancement of 3 to 5 years.

If you or a loved one is facing charges of rape, it is imperative to seek the assistance of an experienced Los Angeles rape defense attorney. A skilled attorney can help develop strong defenses to prove innocence or work towards reducing or dismissing the charges. Look for a lawyer who has a successful track record in handling similar cases, obtaining dismissals or favorable outcomes for their clients.

Cyrus Tabibnia, the principal at Tabibnia Law Firm, is an experienced, aggressive and highly capable attorney who can provide the necessary legal support in building a robust defense against rape charges and protecting your rights. To reach out for assistance, contact Cyrus Tabibnia at 866-713-2159.

Cyrus Tabibnia

Cyrus Tabibnia

Cyrus Tabibnia, also known as Shahrooz Tabibnia, is a criminal defense lawyer in Los Angeles, California. With a law degree from Loyola Law School, Los Angeles, he has been practicing law since 2005 and holds license #237348. With over 18 years of experience, Cyrus specializes in various misdemeanor and felony criminal Law including Domestic Violence, Theft Crime, Sex crime, DUI & DWI, Personal Injury, Employment Law, and Cannabis & Marijuana Drugs Law. Being bilingual in English, Persian, and Spanish enables him to effectively communicate with a diverse range of clients. From 2014 to 2018, he served as a board member of the Iranian American Bar Association. An expungement attorney in Los Angeles who can assist you in clearing your criminal record in the state of California.

    Get A Case Review Today

    Please prove you are human by selecting the flag.

    EXCELLENT rating
    Based on 39 reviews
    I would like to sincerely thank my attorney Cyrus Tabibnia and the Tabibnia Law firm for everything you have done for me and my family. Highly satisfied customers and excellent service is what you want when you hire an attorney. I was always treated with respect, if I needed anything or had any questions or concerns Mr. Tabibna was always available. I give a five-star rating as one of his clients and would honestly give a ten-star review if I could, because he is an awesome attorney worth every penny. I would highly recommend to anybody looking for a criminal defense attorney that Cyrus Tabibnia and his law firm be the one you consider
    Pharroh Knight
    Pharroh Knight
    2 April 2024
    Thank you for being so generous with your time and expertise and providing a legal consult! We really appreciate it
    Eli Elay
    Eli Elay
    6 February 2024
    My family had an urgent matter late on a Friday night. Cyrus took our call at 10p, listened to our situation, and answered all our questions. He was thorough in his explanations and addressed our concerns. What we appreciated the most was that he was not pushy and walked us through different approaches for our situation. We have not needed legal representation yet, but with Cyrus’ flexibility, transparency, and straight forwardness, we would highly recommend him.
    14 December 2023
    I had a DUI charge where I was having difficulties having an attorney give me the time of day to hear me about my case. I called different places and finally found Cyrus Tabibnia Law Firm a criminal Defense Attorney. I called him and he promptly returned my call. He sat down with me and listened to me, he understood my situation and gave me the peace of mind that lifted the stress I was going threw off my shoulders. He took control and walked me through everything. He explained the process of what to expect and what to do. Whenever I needed to talk to Cyrus, he made himself available to me. I was happy with the outcome of my case and would definitely recommend anyone to give Cyrus Tabibnia a call if they need a dependable criminal attorney to represent them.
    E T
    E T
    19 November 2023
    Mr. Cyrus Tabibnia has been outstanding in his knowledge and work related to legal matters. I have very much appreciated working with you.
    14 November 2023
    I have appreciated working professionally with Mr. Cyrus Tabibnia and his law firm on various cases that will assist his clients.
    Roxanna Rahban
    Roxanna Rahban
    14 November 2023
    Excellent Attorneys AND Customer service. They were patient, kind, and incredibly clear in their communications regarding my case and followed up promptly at each step of the process. I felt seen, heard and valued as a client and highly recommend this firm to anyone who is looking for kindness, professionalism and great results.
    Alexandra Sophia Marsalis
    Alexandra Sophia Marsalis
    14 November 2023
    Dedicated Attorney I have had the privilege of knowing attorney Cyrus Tabibnia since 2010, when he used to be a dedicated Board member at our local Bar Association in Los Angeles. He has always been respected by his colleagues for his legal contribution to the members of the Bar Association. While interacting with him professionally, I have found him to be a man of integrity, a competent counsel and zealous advocate for his clients in a variety of civil and criminal cases. Despite his busy professional schedule, Cyrus adheres to his family values and keeps his precious friendship with the rest of us. I am honored to call Cyrus a colleague and endorse him for the services that he offers to the public.
    Zaher Fallahi
    Zaher Fallahi
    14 November 2023
    I endorse the Tabibnia Law Firm. Mr. Tabibnia is colleague and staunch professional. He is clearly dedicated to his clients, craft, and practice. Do not hesitate to reach out to Mr. Tabibnia for services.
    Daniel Forouzan
    Daniel Forouzan
    10 November 2023

    Recent Posts

    Practice Areas

    Locations We Serve