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California Penal Code
261 269
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 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 the victim's spouse, 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.
261.5. (a) Unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse of the
perpetrator, if the person is a minor. For the purposes of this
section, a "minor" is a person under the age of 18 years and an
"adult" is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years older or
three years younger than the perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger than
the perpetrator is guilty of either a misdemeanor or a felony, and
shall be punished by imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison.
(d) Any person 21 years of age or older who engages in an act of
unlawful sexual intercourse with a minor who is under 16 years of age
is guilty of either a misdemeanor or a felony, and shall be punished
by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison for two, three, or four years.
(e) (1) Notwithstanding any other provision of this section, an
adult who engages in an act of sexual intercourse with a minor in
violation of this section may be liable for civil penalties in the
following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse
with a minor less than two years younger than the adult is liable for
a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse
with a minor at least two years younger than the adult is liable for
a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse
with a minor at least three years younger than the adult is liable
for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor under 16 years of age is
liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).
(2) The district attorney may bring actions to recover civil
penalties pursuant to this subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action
shall be deposited with the treasurer of the county in which the
judgment was entered, and the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which is hereby created in the
State Treasury. Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the purpose of preventing
underage pregnancy upon appropriation by the Legislature.
(3) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates this section with the proceeds of this fine
to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
261.6. In prosecutions under Section 261, 262, 286, 288a, or 289,
in which consent is at issue, "consent" shall be defined to mean
positive cooperation in act or attitude pursuant to an exercise of
free will. The person must act freely and voluntarily and have
knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be
sufficient to constitute consent where consent is at issue in a
prosecution under Section 261, 262, 286, 288a, or 289.
Nothing in this section shall affect the admissibility of evidence
or the burden of proof on the issue of consent.
261.7. In prosecutions under Section 261, 262, 286, 288a, or 289,
in which consent is at issue, evidence that the victim suggested,
requested, or otherwise communicated to the defendant that the
defendant use a condom or other birth control device, without
additional evidence of consent, is not sufficient to constitute
consent.
262. (a) Rape of a person who is the spouse of the perpetrator is
an act of sexual intercourse accomplished under any of the following
circumstances:
(1) 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.
(2) 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.
(3) 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 fraud
in fact.
(4) 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.
(5) 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) Section 800 shall apply to this section. However, no
prosecution shall be commenced under this section unless the
violation was reported to medical personnel, a member of the clergy,
an attorney, a shelter representative, a counselor, a judicial
officer, a rape crisis agency, a prosecuting agency, a law
enforcement officer, or a firefighter within one year after the date
of the violation. This reporting requirement shall not apply if the
victim's allegation of the offense is corroborated by independent
evidence that would otherwise be admissible during trial.
(c) 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 apprising
the existence of duress.
(d) As used in this section, "menace" means any threat,
declaration, or act that shows an intention to inflict an injury upon
another.
(e) If probation is granted upon conviction of a violation of this
section, the conditions of probation may include, in lieu of a fine,
one or both of the following requirements:
(1) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
For any order to pay a fine, make payments to a battered women's
shelter, or pay restitution as a condition of probation under this
subdivision, the court shall make a determination of the defendant's
ability to pay. In no event shall any order to make payments to a
battered women's shelter be made if it would impair the ability of
the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution
to the injured spouse, required by Section 1203.04, as operative on
or before August 2, 1995, or Section 1202.4, or to a shelter for
costs with regard to the injured spouse and dependents, required by
this section, until all separate property of the offending spouse is
exhausted.
263. The essential guilt of rape consists in the outrage to the
person and feelings of the victim of the rape. Any sexual
penetration, however slight, is sufficient to complete the crime.
264. (a) Rape, as defined in Section 261 or 262, is punishable by
imprisonment in the state prison for three, six, or eight years.
(b) In addition to any punishment imposed under this section the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates Section 261 or 262 with the proceeds of this
fine to be used in accordance with Section 1463.23. The court shall,
however, take into consideration the defendant's ability to pay, and
no defendant shall be denied probation because of his or her
inability to pay the fine permitted under this subdivision.
264.1. The provisions of Section 264 notwithstanding, in any case
in which the defendant, voluntarily acting in concert with another
person, by force or violence and against the will of the victim,
committed an act described in Section 261, 262, or 289, either
personally or by aiding and abetting the other person, that fact
shall be charged in the indictment or information and if found to be
true by the jury, upon a jury trial, or if found to be true by the
court, upon a court trial, or if admitted by the defendant, the
defendant shall suffer confinement in the state prison for five,
seven, or nine years.
264.2. (a) Whenever there is an alleged violation or violations of
subdivision (e) of Section 243, or Section 261, 261.5, 262, 273.5,
286, 288a, or 289, the law enforcement officer assigned to the case
shall immediately provide the victim of the crime with the "Victims
of Domestic Violence" card, as specified in subparagraph (G) of
paragraph (9) of subdivision (c) of Section 13701 of the Penal Code.
(b) (1) The law enforcement officer, or his or her agency, shall
immediately notify the local rape victim counseling center, whenever
a victim of an alleged violation of Section 261, 261.5, 262, 286,
288a, or 289 is transported to a hospital for any medical evidentiary
or physical examination. The victim shall have the right to have a
sexual assault victim counselor, as defined in Section 1035.2 of the
Evidence Code, and a support person of the victim's choosing present
at any medical evidentiary or physical examination.
(2) Prior to the commencement of any initial medical evidentiary
or physical examination arising out of a sexual assault, a victim
shall be notified orally or in writing by the medical provider that
the victim has the right to have present a sexual assault victim
counselor and at least one other support person of the victim's
choosing.
(3) The hospital may verify with the law enforcement officer, or
his or her agency, whether the local rape victim counseling center
has been notified, upon the approval of the victim.
(4) A support person may be excluded from a medical evidentiary or
physical examination if the law enforcement officer or medical
provider determines that the presence of that individual would be
detrimental to the purpose of the examination.
265. Every person who takes any woman unlawfully, against her will,
and by force, menace or duress, compels her to marry him, or to
marry any other person, or to be defiled, is punishable by
imprisonment in the state prison.
266. Every person who inveigles or entices any unmarried female, of
previous chaste character, under the age of 18 years, into any
house of ill fame, or of assignation, or elsewhere, for the purpose
of prostitution, or to have illicit carnal connection with any man;
and every person who aids or assists in such inveiglement or
enticement; and every person who, by any false pretenses, false
representation, or other fraudulent means, procures any female to
have illicit carnal connection with any man, is punishable by
imprisonment in the state prison, or by imprisonment in a county jail
not exceeding one year, or by a fine not exceeding two thousand
dollars ($2,000), or by both such fine and imprisonment.
266a. Every person who, within this state, takes any person against
his or her will and without his or her consent, or with his or her
consent procured by fraudulent inducement or misrepresentation, for
the purpose of prostitution, as defined in subdivision (b) of Section
647, is punishable by imprisonment in the state prison, and a fine
not exceeding two thousand dollars ($2,000).
266b. Every person who takes any other person unlawfully, and
against his or her will, and by force, menace, or duress, compels him
or her to live with such person in an illicit relation, against his
or her consent, or to so live with any other person, is punishable by
imprisonment in the state prison.
266c. Every person who induces any other person to engage in sexual
intercourse, sexual penetration, oral copulation, or sodomy when his
or her consent is procured by false or fraudulent representation or
pretense that is made with the intent to create fear, and which does
induce fear, and that would cause a reasonable person in like
circumstances to act contrary to the person's free will, and does
cause the victim to so act, is punishable by imprisonment in a
county jail for not more than one year or in the state prison for
two, three, or four years.
As used in this section, "fear" means the fear of physical injury
or death to the person or to any relative of the person or member of
the person's family.
266d. Any person who receives any money or other valuable thing for
or on account of placing in custody any other person for the purpose
of causing the other person to cohabit with any person to whom the
other person is not married, is guilty of a felony.
266e. Every person who purchases, or pays any money or other
valuable thing for, any person for the purpose of prostitution as
defined in subdivision (b) of Section 647, or for the purpose of
placing such person, for immoral purposes, in any house or place
against his or her will, is guilty of a felony.
266f. Every person who sells any person or receives any money or
other valuable thing for or on account of his or her placing in
custody, for immoral purposes, any person, whether with or without
his or her consent, is guilty of a felony.
266g. Every man who, by force, intimidation, threats, persuasion,
promises, or any other means, places or leaves, or procures any other
person or persons to place or leave, his wife in a house of
prostitution, or connives at or consents to, or permits, the placing
or leaving of his wife in a house of prostitution, or allows or
permits her to remain therein, is guilty of a felony and punishable
by imprisonment in the state prison for two, three or four years; and
in all prosecutions under this section a wife is a competent witness
against her husband.
266h. (a) Except as provided in subdivision (b), any person who,
knowing another person is a prostitute, lives or derives support or
maintenance in whole or in part from the earnings or proceeds of the
person's prostitution, or from money loaned or advanced to or charged
against that person by any keeper or manager or inmate of a house or
other place where prostitution is practiced or allowed, or who
solicits or receives compensation for soliciting for the person, is
guilty of pimping, a felony, and shall be punished by imprisonment in
the state prison for three, four, or six years.
(b) If the person engaged in prostitution is a minor over the age
of 16 years, the offense is punishable by imprisonment in the state
prison for three, four, or six years. If the person engaged in
prostitution is under 16 years of age, the offense is punishable by
imprisonment in the state prison for three, six, or eight years.
266i. (a) Except as provided in subdivision (b), any person who
does any of the following is guilty of pandering, a felony, and shall
be punished by imprisonment in the state prison for three, four, or
six years:
(1) Procures another person for the purpose of prostitution.
(2) By promises, threats, violence, or by any device or scheme,
causes, induces, persuades or encourages another person to become a
prostitute.
(3) Procures for another person a place as an inmate in a house of
prostitution or as an inmate of any place in which prostitution is
encouraged or allowed within this state.
(4) By promises, threats, violence or by any device or scheme,
causes, induces, persuades or encourages an inmate of a house of
prostitution, or any other place in which prostitution is encouraged
or allowed, to remain therein as an inmate.
(5) By fraud or artifice, or by duress of person or goods, or by
abuse of any position of confidence or authority, procures another
person for the purpose of prostitution, or to enter any place in
which prostitution is encouraged or allowed within this state, or to
come into this state or leave this state for the purpose of
prostitution.
(6) Receives or gives, or agrees to receive or give, any money or
thing of value for procuring, or attempting to procure, another
person for the purpose of prostitution, or to come into this state or
leave this state for the purpose of prostitution.
(b) If the other person is a minor over the age of 16 years, the
offense is punishable by imprisonment in the state prison for three,
four, or six years. Where the other person is under 16 years of age,
the offense is punishable by imprisonment in the state prison for
three, six, or eight years.
266j. Any person who intentionally gives, transports, provides, or
makes available, or who offers to give, transport, provide, or make
available to another person, a child under the age of 16 for the
purpose of any lewd or lascivious act as defined in Section 288, or
who causes, induces, or persuades a child under the age of 16 to
engage in such an act with another person, is guilty of a felony and
shall be imprisoned in the state prison for a term of three, six, or
eight years, and by a fine not to exceed fifteen thousand dollars
($15,000).
266k. (a) Upon the conviction of any person for a violation of
Section 266h, 266i, or 266j, the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed five thousand dollars ($5,000). In setting the
amount of the fine, the court shall consider any relevant factors
including, but not limited to, the seriousness and gravity of the
offense and the circumstances of its commission, whether the
defendant derived any economic gain as the result of the crime, and
the extent to which the victim suffered losses as a result of the
crime. Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs under Section
13837.
(b) If the court orders a fine to be imposed pursuant to this
section, the actual administrative cost of collecting that fine, not
to exceed 2 percent of the total amount paid, may be paid into the
general fund of the county treasury for the use and benefit of the
county.
267. Every person who takes away any other person under the age of
18 years from the father, mother, guardian, or other person having
the legal charge of the other person, without their consent, for the
purpose of prostitution, is punishable by imprisonment in the state
prison, and a fine not exceeding two thousand dollars ($2,000).
269. (a) Any person who commits any of the following acts upon a
child who is under 14 years of age and 10 or more years younger than
the person is guilty of aggravated sexual assault of a child:
(1) A violation of paragraph (2) of subdivision (a) of Section
261.
(2) A violation of Section 264.1.
(3) Sodomy, in violation of Section 286, when committed by force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person.
(4) Oral copulation, in violation of Section 288a, when committed
by force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person.
(5) A violation of subdivision (a) of Section 289.
(b) Any person who violates this section is guilty of a felony and
shall be punished by imprisonment in the state prison for 15 years
to life.
Did You Know?
- 90%
of the rapes and sex crimes
of children less than 12 years
old knew the offender, accodring
to police-recorded incident
data.
- Convicted
rape and sexual assult offenders
report that 2/3rd of their victims
were under the age of 18.
- State
felony court convictions, the
FBI's UCR arrests and National
Crime Victimization Surveys
all point to sex offenders being
older than other violent offenders,
generally in the early 30's.
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