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Rape in California when a Person is Incapable of Giving Consent – California Penal Code Section 261

Under California Penal Code Section 261, rape is defined as an act of sexual intercourse with a person who is not the spouse of the perpetrator. Rape can be accomplished in a number of different ways. Penal Code Section 261(a) lists the different circumstances under which a rape charge can result.

Another type of rape that can be charged is when the sexual act is accomplished by force, violence, duress, menace, or fear of immediate bodily injury on the alleged victim or another.

Section 261(a)(1) states that rape can occur where the sexual act is accomplished against the alleged victim’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another.

In this sense, the prosecution must prove that the defendant used some sort of force or threat of force in order to accomplish the sexual act.

“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 determining the existence of duress.

“Menace” means any threat, declaration, or act which shows an intention to inflict an injury upon another.

If you or a loved one has been charged with rape, it is important that you talk to an experienced criminal defense attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in handling all types of rape cases. Call us today at (888) 280-6839 or visit us on our website at www.wksexcrimes.com. We will be there when you call. Read our next blog as we will cover another area of rape.

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