The crime of rape generally refers to non-consensual sexual intercourse that is committed by physical force, fear, intimidation, trick or deception; or with a person unable to give consent because they are mentally disabled, unconscious, or so intoxicated they are incapable of giving consent.1
A rape is committed usually by one person, however it may be committed by more than one person in which case it would constitutes the separate offense of Rape in Concert.2 The victim of a rape must be alive in order for the act to be considered a rape.3 While this may seem obvious, it can often be an issue where a rape is alleged in addition to a homicide.
There is no, “he said, she said defense,” in rape prosecutions the uncorroborated testimony of a victim is sufficient to convict if convincing enough to a jury.
While the law does not punish someone who is merely present during the commission of a criminal offense, however someone who encourages a rape can under some circumstances be convicted as an accomplice. One example is a bystander at a party who witnesses a rape in progress and decides to photograph it with a cell phone, and while doing so performs some act or acts to facilitate the accomplishment of the rape becomes an accomplice, no matter how minor the act or acts may be, perhaps just closing a door, or turning off a light.
A person can not only be guilty of raping his wife, but can also be convicted of aiding and abetting a third person who is raping his wife. Also a woman can be guilty of aiding and abetting a man in the rape of another woman.
Resistance is unnecessary where there is force or fear; however where it does exists it is relevant for the prosecution to use such evidence to show no consent.
There must be some degree of penetration, no manner how slight, for an act to be termed a rape, and each separated penetration can be an additional violation. In one illustrative case the defendant’s penis kept slipping out of the victims vagina, forcing him to reinserted it eight or nine times. After conviction the court sentenced him to consecutive sentences for each reinsertion.
Unlawful Sexual Intercourse can be accomplished with a willing party who is less than 18 years of age since a person under the age of 18 does not have the legal capacity to consent. This often is called statutory rape. A mistaken, but honest belief as to the victim’s age is a good defense.
If the person who commits the offense is 3 years or less older than the victim then the crime is a misdemeanor.8 If the person who commits the crime is more than three years older than the victim then the offense can be either a felony or a misdemeanor, with a maximum sentence of three years in prison. If the person who commits the crime is over 21 then the crime may be a felony or misdemeanor, with a maximum sentence of 4 years in prison. A minor victim cannot be held liable, either as an aider and abettor or a coconspirator, for the victim’s own statutory rape.
1 Section 261 of the California Penal Code
2 Sections 262, 289 of the California Penal Code
3 Section 263 of the California Penal Code
4 Section 261 of the California Penal Code
5 Section 262 of the California Penal Code
6 Sections 262, 289 of the California Penal Code
7 Section 261.5 of the California Penal Code
8 Section 261.5 of the California Penal Code