San Diego Criminal Lawyer on Rape and other Sex Crime Charges

Rape – General Crime:

In California, being accused of and/or charged with rape is very serious, and the Police, Sheriffs, and Prosecutors vigorously pursue and punish those accused of rape. Rape is an extremely serious accusation to make against another, but unfortunately many innocent people are falsely accused and prosecuted for rape.

Rape is punished under California Penal Code §261, which defines rape as sexual intercourse with another under various enumerated circumstances. Depending on the circumstances, the charge may be a lesser-included offense of rape or a different type of rape crime punished under related penal sections.

The mere allegation of rape can significantly affect the life of anyone accused of rape. Therefore, it is essential to speak with a knowledgeable San Diego criminal lawyer as soon as possible after such an accusation – in some instances early legal intervention may prevent prosecution altogether.

Elements of PC §261 – Rape:

To be convicted of Rape the Prosecutor must prove each of the following elements beyond a reasonable doubt:

1. You had sexual intercourse with another;
a. Sexual intercourse is defined as any penetration of the vagina by the penis, no matter how slight the penetration (penetration does not require ejaculation).
b. Both men and women can commit rape.

2. You were not married to that person at the time;
a. If you were married to the other person and the other elements of rape are present, the crime is known as “Spousal Rape,” which is punished pursuant to CA PC §262.

3. The other person did not Consent to the intercourse;
a. See Consent discussion below.


4. You achieved the intercourse through:
a. Force, violence, duress, menace, or fear of illegal and immediate physical harm to the other person or someone else;
i. Duress: Threats (explicit or implied) that would make a reasonable person feel compelled to act or not do something they otherwise wouldn’t have done or not done.
ii. Menacing: Showing an intention to injure another.
iii. Intercourse by Fear: Where another actually and reasonably fears for their safety, or if they unreasonably fear for their safety and you know they are afraid and exploit that fear.
b. Future threats of bodily harm to the other person or someone else;
i. This includes threats of kidnapping, false imprisonment, or of extreme pain, injury, or death.
c. Threats of official action (arrest, jail, deportation).

If the Prosecutor is unable to prove even one of these elements beyond a reasonable doubt, you may not be convicted of Rape under CA PC §261. Contact an experienced Criminal Attorney in San Diego if you are accused of rape to discuss your case and any defenses in order to ensure the best possible outcome for you.


Consent is defined as the other person freely, knowingly, and voluntarily participating in the act. The consenting party must be able to exercise reasonable judgment. To prove lack of consent, the Prosecution bears the burden to prove beyond a reasonable doubt that you did not actually and reasonably believe the other person consented.

Consent may be withdrawn during the act – This can happen if:
1. They communicate to you that they object to having sex and try to stop it;
2. A reasonable person would’ve understood the objection (verbal or through acts) to show lack of consent;
3. You forcibly continued the intercourse against their objection.
? Note: The alleged rape victim is not required to physically resist.Evidence that you and the other person had dated or were married is not sufficient to show consent. Neither is the other person’s suggestion, request, or statement to you to use a condom or other contraceptive. to (CALCRIM 1000).

? The other party may lack the capacity to consent if they suffer from a mental or physical disability, AND that disability makes them unable to consent.

? There can be no consent where someone can’t resist because they are excessively intoxicated (drugs, alcohol, and anesthetics), and you knew or reasonably should’ve known that fact.

? There can also be no consent where another is unaware of the nature of the act, which occurs where the other person:
• Was actually unconscious or asleep;
• Was unable to perceive, consciously understand, or be aware that the act was occurring;
• Wasn’t aware, cognizant, or perceptive of the act because of your fraud in fact.
• Thought that the penetration served a profession purpose when it in fact did not because of your fraud in fact.

? There is no consent where another allows the intercourse believing that you are their spouse if your acts or omissions are intended to make the other believe you are their spouse.

The criminal lawyers of Gedulin & Greany have experience with the most serious types of rape cases. We have helped clients through this most difficult time in their lives.