When rape is portrayed in television or in movies, it is portrayed in a way that leaves no doubt the perpetrator committed the crime. But consent during a sexual act is sometimes less clear than you think.

What happens if your partner consented to sexual activity but begins to object while in the middle of intercourse? Is this “rape” in the conventional sense?

Rape Defined by Law (PC 261)

California Penal Code Section 261 defines rape as sexual intercourse accomplished against a person’s will by means of force, violence, menace, duress or fear.1 Consent is further defined as positive cooperation in act or attitude, where the person acts freely and voluntarily and has knowledge of the nature of the act or transaction.

Put simply, “no” does indeed mean “no.” If, during consensual intercourse, one party begins to refuse to continue, asks for things to stop, or acts in such a way that can be identified as non-positive cooperation, then the intercourse must stop. If it does not stop, a rape has occurred.

This question is separate from the question of whether a charge of rape will be brought. As with any crime, the act must be accompanied by a culpable mental state, or “mens rea.” In this type of situation, “mens rea” can be difficult to identify and prove because of the nature of the crime.

According to the Judicial Council of California Criminal Jury Instructions, the prosecution has the burden of proving beyond a reasonable doubt that you did not actually and reasonably believe that your partner consented in order to convict you of rape.2 This is where it is important to have an experienced criminal defense attorney fighting for you. Prosecutors know that it can be difficult to prove this because of the altered mental state, so your attorney may be able to convince prosecutors not to press formal charges of rape against you.

Alternative Charges

Although prosecutors may decide not to proceed with rape charges, you could still be charged with a crime. They may instead choose to bring lesser charges in lieu of the rape charge, such as sexual battery.

If your attorney is unable to get the charges against you dismissed, he may be able to convince the prosecutors to reduce the charge to sexual battery. If you are convicted of felony sexual battery, you could face up to four years in prison, but you could also face lesser misdemeanor charges or be placed on probation.

Call the Criminal Defense Attorneys at Wallin & Klarich Today

A rape conviction could have a negative impact on you for the rest of your life. That is why you need to speak to an experienced rape attorney immediately if you are being charged with rape in California. Our attorneys at Wallin & Klarich have over 30 years of experience successfully defending our clients against rape charges. We will fight to help you obtain the best possible outcome in your case.

With offices in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a knowledgeable Wallin & Klarich attorney who can help you no matter where you are located.

Call us at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will be there when you call.

1. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=261-269 href=”#ref1″>↩

2. [CALCRIM 2015, Series 1000, Section A href=”#ref2″>↩

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