Rape by force or fear of bodily injury
Information on the crime of rape by force or fear is found at California penal code section 261(a)(2).
PC 261(a)(2) Law (Abbr.)
PC 261(a)(2) Rape is the unlawful sexual intercourse of a woman that is not the spouse of the defendant and which is accomplished against the woman's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another (PC 261(a)(2) Abbr.).
Sexual intercourse is any penetration, however slight, of the penis into the vagina. Ejaculation is not required to prove sexual intercourse.
A woman who initially consents to an act of sexual intercourse may change her mind during the act of sexual intercourse and withdraw her consent; however, the woman must communicate her withdrawal of consent, either expressly (by words) or impliedly (through physical resistance), or the woman's withdraw of her consent to sexual intercourse can not be used to show that the defendant acted unlawfully.
PC 664/261(a)(2) Attempted Rape:
An attempted rape is a substantial effort made by the defendant towards committing the crime of rape, coupled with the defendant's specific intent to commit rape, but where the defendant is unable to commit the target offense of rape.
For example, if the defendant struggles with a woman while trying to rape the woman and because of the struggle the defendant is not able to sexually penetrate the woman, the defendant may be charged with attempted rape.
PC 261(a)(2) Sentence & Punishment
Probation Sentence: A probation sentence is period of supervision instead of an actual jail or prison sentence. Probation sentence are not available in PC 261(a)(2) cases.
Sex Offender Registration: If found guilty of lewd and lascivious acts on a minor under 14 (PC 288(a)), the defendant will be ordered to register as a sex offender pursuant to PC 290. For more information please see sex offender registration requirements.
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, “consent” shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.
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PC 261(a)(2): Rape by Force or Fear of Injury
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