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PC 261 Rape -- Acts constituting.

PC 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:

PC 261(a)(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. . . 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.

PC 261(a)(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 persons or another.

PC 261(a)(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled, and this condition was known, or reasonably should have been known by the accused.

PC 261(a)(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 fraudulent representation that he sexual penetration served a professional purpose when it served no professional purpose.

PC 261(a)(5) Where a person submits under the belief that the person committing the act is the victims spouse, and this belief is induced by an artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

PC 261(a)(6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victims 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 inflict extreme pain, serious bodily injury, or death.

PC 261(a)(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 reasonable belief that the perpetrator is a public official.

(b) Duress means 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.

NOTES:  Rape, by any of the above sections is a serious offense. I you have been charged or arrested for a violation of PC 261 in Fresno, Madera, Kings, or Tulare County, you should seriously consider hiring an experienced criminal defense attorney.

How long would I go to prison if I was convicted of a violation as defined by PC 261 or PC 262?

This is a common question for those accused.  It is also a factor for a criminal defense attorney to consider when evaluating how to proceed with a case.  The penal code state the punishment for Rate, as defined in section 261 or 262, is punishable by imprisonment in state prison for three, six, or eight years. [PC Section 264(a)] (Also See Unlawful Sexual Intercourse and Sex Crimes)

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