Rape
and Unlawful Sexual Intercourse
California
Penal Code, sections 261-261.5
261. (a)
Rape is an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator,
under any of the following
circumstances:
(1) Where a person 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.
(2) Where 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) Where a person 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.
(4) 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 meets
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) Where a person submits
under the belief that the person committing
the act is the victim's spouse, and this
belief is induced by any artifice, pretense,
or concealment practiced by the accused,
with intent to induce the belief.
(6) Where 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) Where 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) As used in this section,
"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 his or her
relationship to the defendant, are factors
to consider in appraising the existence
of duress.
(c) As used in this section,
"menace" means any threat, declaration,
or act which shows an intention to inflict
an injury upon another.
261.5. (a) Unlawful
sexual intercourse is an act of sexual
intercourse accomplished with a person
who is not the spouse of the perpetrator,
if the person is a minor. For the purposes
of this section, a "minor" is
a person under the age of 18 years and
an "adult" is a person who is
at least 18 years of age.
(b) Any person who engages in an act
of unlawful sexual intercourse with a
minor who is not more than three years
older or three years younger than the
perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act
of unlawful sexual intercourse with a
minor who is more than three years younger
than the perpetrator is guilty of either
a misdemeanor or a felony, and shall be
punished by imprisonment in a county jail
not exceeding one year, or by imprisonment
in the state prison.
(d) Any person 21 years of age or older
who engages in an act of unlawful sexual
intercourse with a minor who is under
16 years of age is guilty of either a
misdemeanor or a felony, and shall be
punished by imprisonment in a county jail
not exceeding one year, or by imprisonment
in the state prison for two, three, or
four years.
(e) (1) Notwithstanding any other provision
of this section, an adult who engages
in an act of sexual intercourse with a
minor in violation of this section may
be liable for civil penalties in the following
amounts:
(A) An adult who engages in an act of
unlawful sexual intercourse with a minor
less than two years younger than the adult
is liable for a civil penalty not to exceed
two thousand dollars ($2,000).
(B) An adult who engages in an act of
unlawful sexual intercourse with a minor
at least two years younger than the adult
is liable for a civil penalty not to exceed
five thousand dollars ($5,000).
(C) An adult who engages in an act of
unlawful sexual intercourse with a minor
at least three years younger than the
adult is liable for a civil penalty not
to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years
who engages in an act of unlawful sexual
intercourse with a minor under 16 years
of age is liable for a civil penalty not
to exceed twenty-five thousand dollars
($25,000).
(2) The district attorney may bring actions
to recover civil penalties pursuant to
this subdivision. From the amounts collected
for each case, an amount equal to the
costs of pursuing the action shall be
deposited with the treasurer of the county
in which the judgment was entered, and
the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which
is hereby created in the State Treasury.
Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the
purpose of preventing underage pregnancy
upon appropriation by the Legislature.
(3) In addition to any punishment imposed
under this section, the judge may assess
a fine not to exceed seventy dollars ($70)
against any person who violates this section
with the proceeds of this fine to be used
in accordance with Section 1463.23. The
court shall, however, take into consideration
the defendant's ability to pay, and no
defendant shall be denied probation because
of his or her inability to pay the fine
permitted under this subdivision.
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