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California Penal Code Section 261

Legal Research Home > California Laws > Penal Code > California Penal Code Section 261

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 any 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 someone known to the victim other than the
accused, 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.

Section: 261  261.5  261.6  261.7  261.9  262  263  264  264.1  264.2  265  266  266a  266b  266c  Next

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Last modified: March 17, 2014