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Rape by Force or Fear
PC 261 Crimes

Information on the crime of rape is found in at California penal code section 261. The following information is related to rape charges where the defendant is not acting in concert with other defendants, where the the victim is the spouse of the defendant, or where the victim is under the age of consent (minor). For information on these other rape crimes, please see PC 264 (rape in concert), PC 262 (spousal rape), and PC 261.5 (statutory rape).

CA Rape Laws (Abbrev.)

Rape is an act of sexual intercourse accomplished with a person who is not the wife of the perpetrator, 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).

Perhaps 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

  • The woman did not consent to the intercourse

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

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 act, and if she communicates to the defendant her objection to the act through either words or conduct then the intercourse is unlawful and without consent. This is known as withdrawn consent.

Note: A man cannot be a rape victim under California law. If a man is sexually penetrated the crime is sexual penetration (PC 289).


Felony Sentence: Rape charges are classified as felonies, except statutory rape charged under PC 261.5(c), which may be classified as a misdemeanor.

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 a 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. 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 may be possible to qualify for a probation sentence, with or without a jail sentence. Probation sentences in PC 261 rape cases is allowed under unusual or special circumstances. 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, etc. A probation sentence for rape is classified as felony probation, and if granted, the defendant will be ordered to fulfill terms (promises) of probation. Some probation terms can include a jail sentence (as opposed to a prison sentence), or a work release or house arrest sentence.

Super Strike: Most PC 261 rape charges are classified as super strikes under California's Three Strikes Sentencing Law. A super strike is a criminal charge that means the offense is among the most serious in the criminal law and the potential for early release on parole or reclassification of the charge is unavailable if the defendant was sentenced to prison. All rape charges are considered violent crimes and most rape charges are also considered serious crimes as those terms are defined in the law. Serious and violent crimes can trigger third strike sentencing and violent crimes are ineligible to receive early release on parole under California's new Prop 57 law.

Moral Turpitude Crime: Rape charges are considered to be crimes of moral turpitude, which means that rape is considered to be morally wrong. Licensed professionals, such as doctors, nurses, lawyers, etc., who suffer a conviction for any crime considered to be a crime of moral turpitude, may have his or her professional license, revoked or suspended. In addition, immigrants who are convicted of crimes of moral turpitude may be deported from the United States.

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.

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: consent, 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.

To learn more about the crime of rape and defenses to 261 PC, contact our San Bernardino County sex crimes criminal defense lawyers today for a free consultation. Call today!


Quick Legal Reference​

Crime: Rape by Force or Fear

Code: PC 261(a)(2) (CalCrim No. 1000-10005

Wobbler: No. PC 261(a)(2) is not a wobbler. PC 261(a)(2) is charged only as a felony.​


Incarceration: ​PC 261(a)(2) prison sentence range:

  • Rape by force or fear of bodily injury: 3, 6, or 8 years

  • Rape of 14-17 year old: 7, 9, or 11 years

  • Rape of minor under 14: 9, 11, or 13 years

Probation: Probation is not available in PC 261(a)(2) cases. ​

PC 1170(h)): No. PC 261(a)(2) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a conviction, that is not part of a probation sentence, must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.

Strike: PC 261(a)(2) is a strike offense per California's Three Strikes law because this crime is considered a Serious offense (PC 1192.7), and a Violent offense (PC 667.5(c). Strike offenses are subject to reduced good time credits in jail or prison and other penalty enhancements upon subsequent criminal convictions.

Credits: 15% good conduct credits available.

CIMT: PC 261(a)(2) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:

  • Immigration problems

  • Professional Licensing problems

  • Impeachment on credibility


Firearms: PC 261(a)(2) convictions bar defendant from owning or possessing a firearm.

Registration: If convicted of PC 261(a)(2), defendant is required to register as a sex offender with law enforcement. 

Bail: $250,000 (San Bernardino County)

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Related Crimes

  • Rape by force or fear of bodily injury PC 261(a)(2)

  • Rape in concert PC 261.4(a)

  • Spousal rape by force or fear of injury PC 262((a)(1)

  • Rape of intoxicated victim PC 261(a)(3)

  • Rape of unconscious victim PC 261(a)(4)

  • Statutory rape PC 261.5(c) & PC 261.5(d)

  • Sexual penetration with foreign object PC 289

  • Rape of minor 14-17 years old PC 261(a)(2)

  • Rape by threat of arrest or deportation PC 261(a)(7)

  • Rape of victim who believes defendant is known to her PC 261(a)(5)

  • Spousal Rape by intoxication PC 262(2)(2)

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