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California Rape Defense Attorneys

What You’ll Find In This Article:

Rape is one of the most serious charges anyone can face. A mere accusation of rape can have long lasting dire consequences to one’s family, career, and reputation. There are several laws addressing rape in California. However, rape falls into two categories:

  • Sexual conduct without or against the person’s consent (i.e. by force, threat of force or retaliation, false pretenses, intoxication, and/or mental incapacity).  


  • Or sexual conduct with someone who cannot consent as a matter of law (i.e the person is under 18 years old).

Are You in Need of a Rape Defense Attorney?

Rape is a serious crime in California. If you are convicted, you could be sentenced to many years in state prison and required to register as a sex offender for the rest of your life. If you have been charged with rape, you need to hire an experienced rape defense attorney in California. Read below for more information on California rape laws or call the attorneys at Wallin & Klarich for advice about the specific details of your case.

What Is Rape?

Rape is defined as forcing a person to have sexual intercourse against that person’s will, typically through use of physical force.

According to California Penal Code 261, Rape is considered as such when sexual intercourse is forced upon a person and:

  • That person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent
  • 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
  • That person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance
  • That person is incapable of resisting because the victim meets one of the following conditions:
    • was unconscious or asleep
    • was not aware, knowing, perceiving, or cognizant that the act occurred
    • 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
  • That 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
  • 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
  • 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

What’s The Difference Between Rape And Sexual Battery?

Not all forms of sexual assaults are classified as rape.  For example, sexual battery is a form of sexual assault charged through Penal Code section 243.4(e)(1). Unlike rape, sexual battery per Penal Code section 243.4(e)(1) can only be a misdemeanor.  You can be convicted of sexual battery if the prosecution can be prove:  

  1. You touched an intimate part of the alleged victim;
  2. The alleged victim did not consent to the contact; and
  3. You touched the victim with the specific intent to cause sexual arousal.  A person convicted of sexual battery can serve up to six months in county jail.

There are several additional theories of sexual battery pursuant to Penal Code section 243.4 which can be charged as felony or a misdemeanor depending on the facts and circumstances of the case.  The district attorney has discretion to file these charges as a felony or misdemeanor but nevertheless need to prove that the person touched the intimate part of the alleged victim through force, restraint, or if done by fraudulently representing the touching served a professional purpose.  A person convicted of felony sexual battery can serve up to four years in state prison or up to a year if convicted as a misdemeanor. 

A conviction for any type of sexual battery will also require the person to register as a sex offender.

What To Do If You Have Been Accused Of Rape?

When someone is accused of rape it can be one of the most serious challenges a person can ever face. It is often said that a “rape allegation” can be very easily made but hard to disprove. Many rape cases are not clear cut.

Often the “alleged victim” may not remember details accurately.

In other cases the person alleging the rape may feel regret or guilt over an otherwise consensual sexual encounter.

We have defended rape cases where it turned out that friends may have influenced or coerced the person reporting rape to believe they were raped when in fact they wer not. 

In other cases a rape victim may falsely identify a person of rape when in fact the person accused was not the rapist.

Probably the most common defense to a rape charge is when both parties to the sexual encounter agree that the  the sexual activity started as consensual but there is a disagreement as to whether the alleged victim consented to an act of intercourse taking place. In these type of  cases it may be necessary for the defense to call “medical experts” to testify as to the type of physical evidence that is often seen when an act of rape takes place. 

As you can see there are numerous defenses when someone is accused of the very serious crime of rape. The California Rape crime attorneys at Wallin & Klarich are here to aggressively defend your rights. Allow us to examine your case, and we will see to it that you are given every opportunity to clear your name.

What Is Statutory Rape?

Statutory rape is charged under Penal Code section 261.5. Statutory rape is also called unlawful sexual intercourse with a minor. A minor is anyone who is under the age of 18. Since this person is not considered an adult under California law they cannot lawfully consent to sexual conduct.  

Unlike most rape laws, statutory rape is not always charged as a felony and, in some instances, does not require automatic sex offender registration. For example, if the person is not more than three years older than the minor at the time of intercourse then the prosecution will  charge the person with a misdemeanor per Penal Code section 261.5(b) and if convicted the person would  face up to six months in county jail. 

If the person is more than three years older than the minor (Pen. Code section 261.5(c)) then the prosecution can charge either a felony or a misdemeanor. As a felony you face up to three years in state prison and up to one year in county jail as a misdemeanor.  

If the accused is over 21 years old and the minor is under 16 years of age (Pen. Code section 261.5(d)) then the prosecution could charge either a felony or a misdemeanor. If the person is convicted of the felony then the person faces up to four years of state prison and up to a year in county jail if convicted of a misdemeanor. Additionally, a conviction for statutory rape does not automatically require sex offender registration per Penal Code section 290.      

You might be surprised to learn that minors can be charged with statutory rape. That’s because statutory rape is unlawful sexual intercourse with a minor. This includes sex between minors. However, if the minor is alleged to have committed a crime when they were under 18 years old, then they will likely face criminal charges in juvenile court. If the minor is accused of committing a sex crime then in most cases they will not have to register as a sex offender. However, there are certain types of convictions that will require a minor to register as a sex offender. 

What To Do If You Have Been Accused Of Statutory Rape?

If you or someone you love has been accused of statutory rape then it is critical you find an attorney experienced with defending statutory rape charges. There are several defenses that an experienced criminal defense attorney can show to prove you that you are not guilty of statutory rape. Your attorney could show that you did not have sexual intercourse with a minor or you honestly and reasonably believed the minor was over the age of 18.   

Call the skilled and experienced attorneys at Wallin & Klarich to discuss your case at (877) 4-NO-JAIL (714-386-7061). We will be there when you call.

Author:Stephen D. Klarich

Stephen D. Klarich is one of the most highly respected sex crime attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Klarich a premiere Southern California attorney. Mr. Klarich founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Klarich has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving sex offenses, murder, violent crimes, misdemeanors, felonies and other sex crimes. View all posts by Stephen D. Klarich.

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