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California Penal Code § [Section] 261(a)(2) – Rape

California Penal Code § [Section] 261(a)(2) – Rape

California Penal Code [CPC] §261(a)(2)Rape – CPC §261(a)(2) makes it illegal to have sex with anyone who isn't your spouse through force, fear, threats or duress. Rape always involves overcoming the free will of the victim, although it isn't required that the victim resist to communicate a lack of consent.

If you're convicted of Rape under CPC §261(a)(2) you face up to eight years in a state prison, fines of up to $10,000, or both imprisonment and a fine. You will also be required to register as a Sex Offender. The crime is, additionally, counted as a ‘violent felony' for purposes of California's “Three Strikes” system.

Note: While Section 261 creates several forms, this page focuses on Rape accomplished through force, fear, threats, menace or duress.

What Does California Penal Code §261(a)(2) [Rape] Prohibit?

In sum, to be guilty of Rape under CPC §261(a)(2), the prosecution must prove that:

  • You had sex with another person; AND,
  • You and the other person weren't married; AND,
  • The other person didn't consent; AND,
  • You used force or threats to get the person to have sex with you.

Defining “Rape” Under California Penal Code §261(a)(2)

To convict you under CPC §261(a)(2), the prosecution must prove the following beyond a reasonable doubt:

  • Sexual Intercourse: You had sexual intercourse[1] with another person; AND,
  • Weren't married: You and the other person weren't married to each other at the time of the intercourse; AND,
  • Did Not Consent: The other person did not consent[2] to the intercourse; AND,
  • Force, Violence… Or Threats: You accomplished the intercourse using force,[3] violence, duress,[4] menace or fear of injury[5] to the victim or to someone else.

Note: “A [person] must be alive at the time of the sexual intercourse for the crime of rape to occur. [¶] [You] [are] not guilty of rape if [you] actually and reasonably believed that the [person] consented to the intercourse and [you] actually and reasonably believed that [the person] consented throughout the act of intercourse.”[6]

Example: A well-known entertainer, Defendant Douglas, has been accused of raping a woman, Victim Veronica, after drugging a drink he gives her in his home.[7] Douglas, arrested and charged under CPC §261(a)(2), admits that he had sex with Veronica while she was unconscious. They weren't married at the time and, since she wasn't conscious at the time, Veronica couldn't have consented. Douglas admits these facts as well. But Douglas insists that drugging Veronica isn't a form of force or threat covered by CPC §261(a)(2) and that he can't be convicted as a result. Is Douglas correct or should he be convicted?

Conclusion: Douglas had sex with a woman who wasn't his wife at the time. The woman didn't consent. These are three of the elements required for conviction under Section 261(a)(2). However, as Douglas points out, Veronica drank the drug Douglas gave her without Douglas's using force or threats against her or anyone else. Thus Douglas overcame Veronica's lack of consent by intoxicating her - a form of Rape covered by a different section of CPC §261.[8] Therefore, while Douglas should be convicted of the crime of Rape, he shouldn't be convicted under CPC §261(a)(2).      

Penalties For “Rape” Under CPC §261(a)(2)

As noted previously, committing Rape under Section 261(a)(2) can result in a sentence of up to eight (8) years in state prison,[9] a fine of up to $10,000 (ten-thousand dollars), or both imprisonment and a fine.[10]

Rape is also considered a violent crime. Thus, if you're convicted of the offense, Rape will be counted as a “strike” on your official record.[11] If you receive three such “strikes,” you'll spend at least twenty-five years in prison.[12] Additionally, since current California law defines Rape as a “Tier Three” sex offense,[13] you'll have to register as a Sex Offender for the rest of your life if you're convicted under this Section.[14]  

Defenses To Rape Under CPC §261(a)(2)

Four of the more common defenses against a charge of Rape under Section 261(a)(2) are:

The Other Person Consented

Example: Defendant Derek goes on a date with Victim Vera. Vera is very attracted to Derek and ends the evening by having sex with him. Derek, as he's leaving, promises Vera that they'll go out again soon. But Derek decides that he doesn't want to see Vera and elects not to call her. Vera, realizing after a week that Derek's rejected her, gets angry and concludes that Derek took advantage of her. She calls police and reports Derek for violating CPC §261(a)(2). Derek is arrested and charged. Should he be convicted?

Conclusion: Vera, as the facts state, was attracted to Derek. She had sex consensually with him at the end of an evening. Later, when she decided Derek had taken advantage of her, she tried to withdraw her consent by complaining that Derek had committed a rape. But Derek didn't accomplish intercourse with Vera by overcoming a lack of consent through force or threats; Vera simply tried ineffectively to withdraw her consent a week after the fact. Derek should be acquitted because Vera consented to sex.   

The Evidence Is Insufficient

Example: An exotic dancer, Victim Val, is hired to perform at a fraternity party. She later complains that Defendant Dominic, a member of the frat, raped her after cornering her inside his room. District Attorney, believing Val wholeheartedly, decides that he doesn't need to have Val examined for medical evidence of rape. He has Dominic arrested and charged for violating CPC §261(a)(2).[15]  Dominic insists that he's innocent and that he shouldn't have even been charged. Should he be acquitted or convicted?

Conclusion: Since allegations of Rape are indeed extremely serious, prosecutors are required to have in hand certain forms of evidence before pressing charges for the crime. One form is evidence establishing the occurrence of the actual sex act. Thus, in the absence of eyewitness testimony, District Attorney should've sought medical proof that Val had been sexually penetrated on the night of the party. But, crediting Val's story entirely, District Attorney violated ethical rules applying to prosecutors by choosing to charge Dominic without having critical physical evidence of the crime. Dominic, therefore, should be acquitted because the evidence against him is insufficient.    

There Was An Eyewitness Mistake

Example: Police appeal to the public for help after Victim Vanya is raped without getting a clear look at her attacker. Eyewitness comes forward and says that he saw “a Mexican” running from the scene of the crime. Eyewitness later picks Defendant Diego from a police lineup, but only after struggling to settle on a suspect, because, as he sneers, “They all look alike to me.” Diego says he's never even seen Vanya. He's charged under §261(a)(2) nonetheless. Should Diego be convicted under the circumstances?

Conclusion: While the facts make it clear that Vanya was the victim of a rape, Eyewitness, who was the only link to the attacker's identity, is uncertain of whom he actually saw running from the attack. When Eyewitness says that people of Mexican ancestry “all look alike to” him, it means (at minimum) that none in the lineup should be charged; Eyewitness can't differentiate between the suspects. Courts might otherwise convict innocent people like Diego, absent certainty in identification, which would, in turn, deny the critical American guarantee of constitutional Due Process. This country's justice system does not operate along those lines. Diego should be acquitted because there was an eyewitness mistake.      

The Accusation Is False

Example: Defendant Don, a successful athlete, meets employee Victim Vanessa at a hotel where he and his team are staying for a road game. Don invites Vanessa to have a drink in his room. They spend an hour together before Vanessa leaves. Don goes to bed. But Don is arrested next morning after Vanessa, whose boyfriend learned that she was in Don's room, complains that Don raped her.[16] Don insists that he did nothing to Vanessa. Police arrest and charge Don under §261(a)(2). Should Don be convicted?

Conclusion: As the facts make clear, Don did not have sex with Vanessa. Vanessa, for reasons related to her boyfriend, simply claimed she'd been raped. There was no factual basis to her complaint. Don did not have sex with Vanessa and should be acquitted of the Rape charge because the accusation is false.

Related Offenses

Note: The crimes below are described as “related” because they're frequently charged with §261(a)(2) and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code contains several offenses related to Rape: Lewd Acts On A Child (CPC §288(a)), Statutory Rape (CPC §§261.5(a),(b)), Showing Or Sending Harmful Material To Seduce A Minor (CPC §288.2(a)(1)), Contacting Minor With Intent To Commit Certain Felonies (CPC §288.3(a)), Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)), Distributing Obscene Matter Showing Sexual Conduct By A Minor (CPC §311.1(a)), Lewd Conduct In Public (CPC §647(a)), Indecent Exposure (CPC §314(1)) and Sexual Battery (CPC §243.4(a)).

 

Lewd Acts On A Child

The crime of Lewd Acts On A Child (CPC §288(a)) occurs when an adult engages in a sex act with a minor under fourteen.  The act must occur “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires”[17] of yourself or the child.

Section 288(a) is written to so that prosecutors can charge differently, depending on the ages of the victim and defendant, so Lewd Acts On A Child is a “wobbler”[18] offense in California. The crime is related to Rape because both offenses can involve sexual conduct between adults and minor children, resulting in charges for both in the same trial.

If you're convicted of Lewd Acts On A Child under CPC §288(a), the penalty may be:

  • A term of up to eight (8) years in a state prison;[19] OR,
  • A fine of up to $10,000 (ten-thousand) dollars; OR,
  • Both a fine and imprisonment;[20] AND,
  • The duty to register as a Sex Offender.[21]

Note: Section 288(a) also requires some kind of touching “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the adult] or the child” for the law to be broken - but actual arousal isn't required. Additionally, it is not a defense that the minor consented to the act.[22]

More information can be found in the Sex Offense Lawyer section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will always go directly to a lawyer – and we guarantee it.

California Criminal Jury Instructions – Lewd Acts On A Child

To convict you under §288(a), the prosecutor must prove the following beyond a reasonable doubt:

You willfully touched a part of a child's body on the bare skin or through the clothing or you got a child to touch your body, the child's own body, or someone else's body on bare skin or through the clothing. The prosecutor must also show that you acted intending to gratify your sexual desires or the desire of the child. Finally, the prosecutor must prove the child was under age fourteen at the time of the act.

Example: Defendant Donald is attracted to Neighbor's seven-year-old son Victim Vinnie. He gives Vinnie a pornographic magazine depicting sex acts between adults and children in the hopes that the magazine will convince Vinnie to experiment sexually with him. Neighbor, however, finds the publication and reports Donald for committing a lewd act by providing obscene material to a minor. Donald is arrested and charged under CPC §288(a). Should he be convicted of Lewd Acts On A Child?    

Conclusion: As the facts state, Donald did intend on seducing a minor at the time he left the magazine for Vinnie; thus he acted intending on satisfying his own sexual desires, at a minimum. Vinnie was also much younger than fourteen at the time. These are elements of the charged offense. In order to violate Section 288(a), however, a suspect must've touched the alleged victim. While it's clear that Donald violated the law, the facts make no mention of Donald actually touching Vinnie. (He should instead be prosecuted for Showing Or Sending Harmful Material To Seduce A Minor.[23]) Therefore, while Donald should be prosecuted for committing a sex offense, he shouldn't be convicted of violating CPC §288(a).     

Statutory Rape

Statutory Rape (CPC §§261.5(a),(b)) occurs in California whenever an adult has “[u]nlawful sexual intercourse[24] […] with a [minor] who is not the spouse of the perpetrator[.]”[25] For purposes of the law, “adult” means a person eighteen years of age or older, while a “minor” is under eighteen.[26]

Section 261.5 is written to so that prosecutors can charge differently, depending on the ages of the victim and defendant.[27]  However, without aggravating facts, you won't be required to register as a Sex Offender for violating §261.5.[28] The crime of Statutory Rape is related to Rape because both offenses may involve sex acts between adults and minor children, resulting in charges for both in the same trial.

If you're convicted of Statutory Rape Of A Minor Within Three Years of your age, the penalty may be:

  • Imprisonment for up to six (6) months in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both imprisonment and a fine.[29]

Note:  The minor's consent is not a defense to a charge of violating CPC §§261.5(a) and (b). However, it is a defense that you reasonably believed the other person was eighteen or older. The prosecutor must prove that you didn't reasonably (and actually) believe that the other person was at least eighteen.[30]

More information can be found in the Statutory Rape section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. We guarantee your call will go directly to a lawyer.

California Criminal Jury Instructions – Statutory Rape

To convict you under CPC §§261.5(a),(b), Statutory Rape Of A Minor Within Three Years Of Your Age, the prosecutor must prove the following beyond a reasonable doubt:

You had sex with another person. You and the other person were not married to each other at the time. Finally, at the time of the sex, the other person was under the age of eighteen but not more than three years younger or older than you were.

Example: A prominent judge, Defendant David, is running for the state senate when a young woman, seventeen-year-old Victim Valentina, comes forward and says that David tried to date her a year prior. She says the he was very persistent. He even followed her and her friends around their local mall. She says that David was definitely trying to initiate a sexual relationship with her.[31] Police arrest David. He's charged under CPC §§261.5(a) and (b). David protests that he did nothing to, or with, Valentina. Should David be convicted?

Conclusion: The basic element required for any Statutory Rape conviction is an actual act of sex, even if it involves only slight penetration. The facts make it clear that David only tried to initiate a relationship with Valentina; he didn't actually have sex with her. Thus, even though Valentina was only sixteen at the time David courted her (and even though David tried to enter into what would've been an illegal sexual relationship with minor-aged Valentina), David cannot be convicted under CPC §§261.5(a) and (b).

Showing Or Sending Harmful Material To Seduce A Minor

Showing Or Sending Harmful Material To Seduce A Minor (CPC §288.2(a)(1)) occurs whenever anyone “sends, causes to be sent, exhibits, or offers to distribute or exhibit” material featuring minors engaged in sexual conduct. The material must be “harmful,”[32] it must sent or exhibited to sexually arouse the sender or recipient, and some sort of sexual contact must be intended to violate if the Code section. The crime is related to Rape because both Showing Or Sending Harmful Material To Seduce A Minor and Rape can involve adults and minors in sex acts or attempted sex acts.

Since CPC §288.2(a)(1) can be prosecuted as either Misdemeanor or a Felony, depending on the facts of your case, Showing Or Sending Harmful Material To Seduce A Minor is a “wobbler” crime[33] in California.   

If you're convicted of the Felony form of the offense, the penalty may be:

  • A term of up to five (5) years in a state prison;[34] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine;[35] AND,
  • The duty to register as a Sex Offender.[36]

Note: The depiction of nudity or sexual activity doesn't necessarily make material harmful. While the prosecution must prove that you knew the character of the material, however, it doesn't have to prove you knew the material met the definition of “harmful.”[37]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer –   and that's always guaranteed.

California Criminal Jury Instructions - Showing Or Sending Harmful Material To Seduce A Minor

To convict you under CPC §288.2(a)(1), the prosecution must prove the following beyond a reasonable doubt:

You exhibited, sent, distributed or offered to a minor material depicting at least one minor engaging in   sex acts. When you acted, you knew the character of the material, and knew, should've known, or should've believed the other person was a minor. You intended to gratify the sexual desires of yourself or the other person. Finally, you intended on having sexual intercourse, sodomy, or oral sex, or to have anyone involved with the material touch an intimate body part.

Example: A punk band's lead vocalist, Defendant Devon, is arrested after Mother of fourteen-year-old Victim Van sees an image printed inside the band's newest album, which Van purchased at a record store, and concludes that it's a depiction of male and female genitals.[38] Devon is charged under §288.2(a)(1) for painting, and including, the image in the album's liner notes. He insists that he didn't violate the law and should be protected by the First Amendment. Should he be convicted?        

Conclusion: There are multiple problems in this set of facts. First, and less obvious, is the fact that the First Amendment provides protection for expression that has serious artistic value. Thus, even if a jury were to decide that the image inside the album is “obviously offensive” and appeals to “prurient interest” (and would be, to that extent, “harmful”), the painting is still not unlawful if a jury decides that it's part of a sincere effort at creating art. To this extent Devon is correct. A more obvious problem, however, is that Devon didn't send, offer, or distribute the controversial image to Van. The album was sold inside a record store; anyone who wanted could offer to buy it. Thus he couldn't have known that Van was a minor. Presentation of the image wasn't motivated by sexual desire, furthermore, nor was it intended to provoke a sexual situation – not to mention that the facts say nothing of minors engaging in sex acts being depicted in the image. Therefore, since several elements of the offense aren't present (and since a First Amendment argument could succeed on these facts), Devon should be acquitted.   

Contacting Minor With Intent To Commit Certain Felonies

Contacting Minor With Intent To Commit Certain Felonies (CPC §288.3(a)) only occurs when an adult contacts a minor with the intent of violating one of the laws listed in the statute, all of which are felonies. The statute lists fifteen different offenses.[39]

You must know “or reasonably should know that the” person you've contacted is a minor in order to violate Section 288.3(a).[40] The crime is related to Rape because both Contacting Minor With Intent To Commit Certain Felonies and Rape may involve minors committing sex acts with adults.

All violations of CPC §288.3(a) are punished as attempts at the committing the named felonies. If you're convicted of an attempted violation of one of listed crimes and the statute creating the original offense doesn't create a specific Attempt[41] punishment, the penalty may be:

  • A term of up to three (3) years in a state prison;[42] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[43] AND,
  • The duty to register as a Sex Offender.[44]

Note: “Contacting or communicating with a minor includes direct and indirect contact or communication.”[45]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – guaranteed.

California Criminal Jury Instructions - Contacting Minor With Intent To Commit Certain Felonies  

To convict you under CPC §288.3(a), the prosecution must prove the following beyond a reasonable doubt:

You contacted, communicated with, or attempted to contact or communicate with a minor. You intended on committing one of the enumerated offenses with that minor when you did so. Lastly, you knew or reasonably should've known that the other person was a minor.

Example: Defendant Denise contacts a minor, Victim Verne, online. She intends on meeting with Verne in order to commit lewd acts punishable under CPC §288(a). She believes that Verne is a minor. But Denise is arrested before she's able to meet Verne. Denise insists that she can't be charged under CPC §288.3(a) because she never actually met with Verne. Is Denise correct or should she be convicted?

Conclusion: Denise didn't actually have to meet with Verne to violate the law. Penal Code §288.3(a) criminalizes communicating with a minor and having the intent to commit one of the listed felonies at the time of communication. Denise, as the facts make clear, wanted to commit a listed felony at the time she contacted Verne. She also thought that Verne was a minor. Denise, therefore, did everything necessary to violate the law without meeting with Verne. Denise should be convicted of the accusation.

Arranging Meeting With Minor For Lewd Purpose

Arranging Meeting With Minor For Lewd Purpose (CPC §288.4(a)(1)) makes it illegal to arrange to meet with a minor in order to expose your genitals, pubic area or your anus, or to meet in order to engage in lewd and lascivious conduct. Unlike similar offenses, CPC §288.4(a)(1) makes it a crime to arrange a meeting with someone you only assume “to be a minor.”[46] The crime is related to Rape because both Arranging Meeting With Minor For Lewd Purpose and Rape involve minors, adults, and sex acts.

If you're convicted of Arranging Meeting With Minor For Lewd Purpose, the penalty may be:

  • A term of up to one (1) year in a state prison; OR,
  • A fine of up to $5,000 (five-thousand dollars); OR,
  • Both a fine and imprisonment;[47] AND,
  • The duty to register as a Sex Offender.[48]

Note: If you arrange to meet with a minor and actually arrive at the location at or near the arranged time, you can receive up to four (4) years in a state prison[49] and a fine of up to $10,000 (ten-thousand dollars).[50] The same is true if you violate §288.4(a)(1) after a previous conviction of one of the crimes listed in CPC §290(c), a subpart of the statute establishing Sex Offender registration rules and crimes.

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer –   and we always guarantee it.

California Criminal Jury Instructions - Arranging Meeting With Minor For Lewd Purpose

To convict you under CPC §288.4(a)(1), the prosecution must prove the following beyond a reasonable doubt:

You arranged a meeting with a minor or a person you believed to be a minor. You were motivated by an unnatural or abnormal sexual interest in children when you arranged the meeting. Finally, you intended to expose your genitals, or your pubic or rectal area, or to have the minor expose these, or you intended to engage in lewd or lascivious behavior at the meeting.

Example: Defendant Dallas arranges online to meet fifteen-year-old Victim Victor. He makes the date intending on engaging in explicit sex acts with Victor when they meet. He believes Victor is a minor. When Dallas arrives at the prearranged location, however, he sees several police cars parked outside and drives past the house. Police follow Dallas, arrest him, and charge him under CPC §288.4(a)(1). Dallas says that he didn't actually meet with Victor and can't be prosecuted as a result. Is Dallas correct?     

Conclusion: The statute, in order to violate the law, only requires that an adult arrange to meet with a minor for a lewd purpose. Dallas's objection suggests that he had to meet with Victor in order to do something illegal. Penal Code §288.4(a)(1) actually criminalizes making the meeting. Dallas did that. Just arriving at the prearranged location around the scheduled time, furthermore, makes Dallas eligible for still more jail time - even though he did nothing more than drive past the house. He should be convicted.

Distributing Obscene Matter Showing Sexual Conduct By A Minor

Distributing Obscene Matter Showing Sexual Conduct By A Minor (CPC §311.1(a)) involves sending, bringing, or causing obscene matter to be sent or brought into the state. An alternative form involves

possessing, preparing, publishing, producing, developing, duplicating, or printing obscene matter. The law is broken if you offer to distribute obscene matter to someone else, or if you offer to distribute, show or exchange obscene matter with someone else. You must also know the nature of material and that it shows someone under eighteen participating in, or simulating, a sex act.

CPC §311.1(a) is a “wobbler”[51] offense in this state, meaning that it can be charged as Misdemeanor or a Felony, depending on the facts.  The crime is related to Rape because both obscene material involving minors and Rape can involve minors and sex acts.

If you're convicted of the Felony form of Distributing Obscene Matter Showing Sexual Conduct By A Minor, the penalty may be:

  • A term of up to three (3) years in a state prison[52]; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine;[53] AND,
  • The duty to register as a Sex Offender.[54]

Note: To be obscene, material must show sexual activity and meet the requirements for obscenity. A person who possesses obscene matter for his or her own personal use is not guilty of violating CPC §311.1(a) and material isn't considered “obscene” if all the persons under eighteen in the material are legally emancipated or if it only shows lawful conduct between spouses.[55]

More information can be found in the Child Pornography section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. Guaranteed.

California Criminal Jury Instructions – Distributing Obscene Matter Showing Sexual Conduct By A Minor

To convict you under CPC §311.1(a), the prosecution must prove the following beyond a reasonable doubt:

You sent, brought, or caused obscene matter to be sent or brought into the state or you possessed, prepared, published, produced, developed, duplicated, or printed obscene matter. You offered to distribute obscene matter to someone or you distributed, or showed, or exchanged obscene matter to, or with, someone. Finally, you knew the sexual nature of material, and you knew the material showed a person under eighteen personally participating in, or simulating, sex acts.

Example: Defendant Dalton is a film enthusiast who learns that his fourteen-year-old neighbor, Victim Vasily, is also becoming interesting in cinema. Dalton gives Vasily one of Dalton's favorite films about being a teenager, Kids,[56] and Vasily watches the film several times. Father sees the film as well. He's shocked by a scene in which a teenaged Rosario Dawson graphically describes a sex act and reports Dalton for violating CPC §311.1(a) through giving the film to his minor son. Should Dalton be convicted?

Conclusion: Without addressing the question of whether the film should be considered “obscene,” there is an element missing from these facts: the scene to which Father objected doesn't depict anyone under eighteen participating in, or even simulating, a sex act. The scene, as the facts make clear, involves a description of a sex act – nothing more. This deficit alone means that the charge must fail. But the absence of a sex act also means that the film had no unlawful “sexual nature” of which Dalton could've been aware at the time he gave Vasily the film. Dalton, it follows, shouldn't be convicted of the charge.

Lewd Conduct In Public

 

The crime of Lewd Conduct In Public (CPC §647(a)) occurs in California whenever a person touches him- or herself (or someone else) sexually in public. The touching must involve genitals, breasts, or buttocks. There must be someone who could be offended present and the defendant must know or suspect this.   You can be charged with both Rape and Lewd Conduct In Public, if the facts are right, but actual touching is required to violate CPC §647(a).

If you're convicted of violating Lewd Conduct In Public under Section (a), the penalty may be:

  • A term of up to six (6) months in the county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.[57]

Note: California Penal Code §647(a) does not require Sex Offender registration.[58]

More information can be found in the California Sex Offense Lawyers section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and it's always guaranteed.

California Jury Instructions – Lewd Conduct In Public

To convict you under §647(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully touched your, or another person's, genitals, buttocks, or (female) breast. You intended to sexually gratify yourself, or someone else, or to annoy or offend another. You were in a public place or a place open to public view at the time you did it and someone who might've been offended was present. You knew or should've known, finally, that another person who might've been offended was present.

Example: Defendant Devlin's adult Son is developmentally disabled. Devlin must care for Son, feed him, and help him relieve himself. Devlin and Son are at a coffee one day shop when Son needs to use the restroom. Devlin helps to remove Son's pants and wipes Son's buttocks when Son has relieved himself but he forgets to lock the door. This is how Victim Vi, opening the door, witnesses Devlin touching Son's buttocks. Vi reports Devlin for committing a violation of CPC §647(a). Should Devlin be convicted?      

Conclusion: Devlin willfully touched the buttocks of another person. These, however, are the only elements of the offense present in this example. Devlin provides care for Son; he didn't touch Son for reasons of sexual gratification, annoyance, or offense. The incident occurred inside a bathroom with a closed door, furthermore, and neither Devlin nor Son would've been aware of Vi's presence. (Vi opened a door that Devlin had simply neglected to lock.) Three elements of the crime are lacking. Thus, since the judge or jury must find for the defendant in this country if the prosecution cannot demonstrate even a single element of a charge, Devlin should be acquitted of the crime.

Indecent Exposure

In California, the crime of Indecent Exposure (CPC §314(1)) occurs when a person exposes his or her naked body or genitals in front of anyone who could be annoyed or offended by it. While most people think it only happens in public, Indecent Exposure can happen in just about any environment. The exposure, however, must be willful and lewd.

Penalties for Indecent Exposure vary. Section 314(1) may permit the prosecutor to charge you with a Felony if you expose yourself inside a home or “inhabited” building.[59] This makes §314(1) a “wobbler”[60]  offense: the prosecution can charge you with a Felony or a Misdemeanor, depending on the facts. You will be charged with a Felony if you're convicted of violating §314 more than once or if you're convicted of violating Section 314 after you've been convicted of Lewd Acts With A Minor, a violation of CPC §288.

If you're convicted of the Felony form of Indecent Exposure, the penalty may be:

  • A term of up to three (3) years in a state prison;[61] OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both imprisonment and a fine;[62] AND,
  • The duty to register as a Sex Offender.[63]

More information can be found in the Indecent Exposure section of the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call goes directly to a lawyer. Guaranteed.

California Criminal Jury Instructions – Indecent Exposure

To convict you under §314(1), the prosecutor must prove the following beyond a reasonable doubt:

You intended to expose your naked body or genitals near a person who might be offended or annoyed by it. You believed you would be seen, even if no one actually saw the exposure. Finally, you exposed yourself for your own sexual gratification, or someone else's, or to sexually offend someone else.

Example: Defendant Dario is a “flasher” who exposes his body publicly for sexual reasons. But having almost been arrested the last time he exposed himself, Dario slips into the home of Victim Vicky one night and exposes his genitals to her while inside her bedroom. Vicky reports Dario. He's arrested and charged under CPC §314(1) but insists that he did nothing wrong because he was inside a house when he exposed himself. Is Dario correct?          

Conclusion: Dario, who intended on exposing himself to Vicky when he entered her home, bared his genitals to Vicky for his sexual gratification. He also believed that he would be seen, we can assume, since he enjoys displaying his body to unsuspecting people. The only question is whether Dario had to do these things in public to violate the law. He did not; in fact, given that Dario exposed himself inside   an inhabited dwelling, he's eligible to receive a full year in prison, rather than the six months which is the ordinary default limit for Misdemeanor offenses. Dario should be convicted under CPC §314(1).

Sexual Battery

Sexual Battery (CPC §243.4(a)) occurs whenever anyone “touches an intimate part of another person while that person is unlawfully restrained.” The restraint can originate with you or an accomplice but it can only violate this Section “if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse.”[64]

Since the prosecution can charge you with a Felony or a Misdemeanor, depending on the facts of your case, Sexual Battery is a “wobbler”[65] offense in California. The crime is related to Contacting Minor To Commit Certain Felonies because you can intend on committing Sexual Battery when contacting a minor, which is one of the felonies listed in the statute.

If you're charged with the Felony form of Sexual Battery, the penalty may be:

  • A term of up to four (4) years in a state prison; OR,
  • A fine of up to $10,000 (ten-thousand dollars); OR,
  • Both a fine and imprisonment;[66] AND,
  • The duty to register as a Sex Offender.[67]

Note: “Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching.”[68]

More information on Sexual Battery can be found on the Kann California Defense Group's website. If you have questions, contact any of the Kann Defense Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer. That's a guarantee.

California Criminal Jury Instructions – Sexual Battery

To convict you under CPC §243.4(a), the prosecution must prove the following beyond a reasonable doubt:

You or an accomplice unlawfully restrained someone and touched an intimate part of that person's body or made that person touch him- or herself or touch someone else. You touched that person against his or her will and did it for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.

Example: Defendant Dmitri, who's very wealthy, often pays women to massage him at his mansion. One woman, Victim Velma, files a police complaint after Dmitri asks to her to remove her clothes before massaging him. Velma does as asked but later complains that she's been the victim of Sexual Battery.[69] She has Dmitri arrested and charged under CPC §243.4(a). Should Dmitri be convicted of the charge?        

Conclusion: Dmitri had Velma touch him for his own sexual gratification; this we can assume because he asked Velma to massage him while she was undressed. Velma didn't want to do what she did and later reported the incident to police. These are elements of the charged offense. But Dmitri did not restrain Velma in any way, which is absolutely necessary to violate the statute. Therefore, since the judge or jury in this country must find for the defendant any time an element of a charge can't be proven, Dmitri should be acquitted of Sexual Battery.

What Can I Do If I'm Charged With Rape?

The State of California regards sex crimes as a serious offense. If you're charged with Rape, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at the Kann California Defense Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested or charged with Rape, our attorneys will analyze the facts of your case and plan a defense strategy that will help you obtain the very best possible outcome.

Contact the Kann California Defense Group today to schedule your free and confidential consultation.                               

References

[1] “Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.” See California Criminal Jury Instructions 1000 (CALCRIM) (2017).

[2] “To consent, a [person] must act freely and voluntarily and know the nature of the act. [¶] A [person] who initially consents to an act of intercourse may change her [or his] mind during the act. If she [or he] does so, under the law, the act of intercourse is then committed without her [or his] consent if: [¶] 1. She [or he] communicated through words or acts to the defendant that she [or he] no longer consented to the act of intercourse; [¶] 2. A reasonable person would have understood that her [or his] words or acts expressed her [or his] lack of consent; AND [¶] 3. The defendant forcibly continued the act of intercourse despite her [or his] objection. [¶] It is not required that she [or he] physically resist or fight back in order to communicate her [or his] lack of consent. [¶] Evidence that the defendant and the woman [or man] dated, were married, [or] had been married is not enough by itself to constitute consent. [¶] Evidence that [a] [person] requested, suggested, [or] communicated that the defendant use a condom or other birth control device is not enough by itself to constitute consent.” See California Criminal Jury Instructions 1000 (CALCRIM) (2017).

[3] “Intercourse is accomplished by force if a person uses enough physical force to overcome the [person's] will.” See California Criminal Jury Instructions 1000 (CALCRIM) (2017).

[4] “Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do or submit to something that [he or] she would not do or submit to otherwise. When deciding whether the act was accomplished by duress, consider all the circumstances, including the [victim's] age and [ ] relationship to the defendant.” See California Criminal Jury Instructions 1000 (CALCRIM) (2017).

[5] “Intercourse is accomplished by fear if the [victim] is actually and reasonably afraid or [if] she [or he] is actually but unreasonably afraid and the defendant knows of her [or his] fear and takes advantage of it.” See California Criminal Jury Instructions 1000 (CALCRIM) (2017).

[6] See California Criminal Jury Instructions 1000 (CALCRIM) (2017).

[7] Fact pattern based on crimes committed by comedian Bill Cosby. See “Bill Cosby Is Found Guilty of Sexual Assault” by Graham Bowley and John Hurdle. The New York Times Online, April 26, 2018.

[8] Douglas should instead be charged under CPC §261 (a) (3).

[9] See CPC §264 (a).

[10] See CPC §672.

[11] See CPC §1192.7 (c) (3).

[12] See CPC §1170.12 (c) (2) (A) (ii). [Amended by Stats. 2018, Ch. 423, Sec. 85. (SB 1494) Effective January 1, 2019.]

[13] See CPC §290 (d) (3) (K). [Amended (as added by Stats. 2017, Ch. 541, Sec. 2.5) by Stats. 2018, Ch. 423, Sec. 52. (SB 1494) Effective January 1, 2019.]

[14] See CPC §290 (c). [Amended (as amended by Stats. 2017, Ch. 541, Sec. 1.5) by Stats. 2018, Ch. 423, Sec. 51. (SB 1494) Effective January 1, 2019.]

[15] Fact pattern based on allegations made against lacrosse players at Duke University in March of 2006. See “60 Minutes Investigates: The Duke Rape Case” by Evie Salomon. 60 Minutes Overtime, April 12, 2015.

[16] Fact pattern based on sexual assault and false imprisonment charges pressed against NBA star Kobe Bryant in 2003. See “Kobe Bryant's Disturbing Rape Case: The DNA Evidence, the Accuser's Story, and the Half-Confession” by Marlow Stern. The Daily Beast, April 11, 2016.

[17] See CPC §288 (a).

[18] See “Wobbler” definition at USLegal.com.

[19] See Endnote 17.

[20] See Endnote 10.

[21] See Endnote 14.

[22] See California Criminal Jury Instructions 1110 (CALCRIM) (2017).

[23] See CPC §288.2 §(a) (1).

[24] See California Criminal Jury Instructions 1070 (CALCRIM) (2017).

[25] See CPC §261.5 (a).

[26] See above.

[27] See CPC §§261.5 (b), (c), (d).

[28] See Endnote 14.

[29] See CPC §19.

[30] See California Criminal Jury Instructions 1072 (CALCRIM) (2017).

[31] Fact pattern based on wrongdoings of former Alabama judge Roy Moore, who is running (yet again) for the US Senate. See “These Are All The Roy Moore Sexual Misconduct Allegations” by Summer Meza. Newsweek Online, April 18, 2017.

[32] See California Criminal Jury Instructions 1140 (CALCRIM) (2017).

[33] See Endnote 18.

[34] See CPC §288.2 (a) (1).

[35] See Endnote 10.

[36] See Endnote 14.

[37] See Endnote 32.

[38] Fact pattern based on the arrest and trial of Dead Kennedys' lead vocalist Jello Biafra. See “30 Years Ago: Jello Biafra ‘Wins' Obscenity Trial” by Martin Kielty. Diffuser.fm, August 27, 2017.

[39] Specifically, the Code Section lists CPC §§207, 209, 261, 264.1, 273a, 286, 287, 288, 288.2, 289, 311.1, 311.2, 311.4, 311.11, 288a.

[40] See CPC §288.3 (a).

[41] See CPC §21a.

[42] See CPC §18 (a).

[43] See Endnote 10.

[44] See Endnote 14.

[45] See California Criminal Jury Instructions 1124 (CALCRIM) (2017).

[46] See CPC §288.4 (a) (1).

[47] See above.

[48] See Endnote 14.

[49] See CPC §288.4 (b).

[50] See Endnote 10.

[51] See Endnote 18.

[52] See Endnote 42.

[53] See CPC §311.1 (a).

[54] See Endnote 14.

[55] See California Criminal Jury Instructions 1141 (CALCRIM) (2017).

[56] See Kids (directed by Harmony Korine; Independent Pictures, 1995.)

[57] See Endnote 29.

[58] See Endnote 14.

[59] See CPC §314.

[60] See Endnote 18.

[61] See Endnote 42.

[62] See Endnote 10.

[63] See Endnote 14.

[64] See CPC §243.4 (a).

[65] See Endnote 18.

[66] See Endnote 64.

[67] See Endnote 14.

[68] See California Criminal Jury Instructions 935 (CALCRIM) (2017).

[69] Fact pattern based on crimes committed by disgraced ex-financier Jeffrey Epstein. For more information, see “Jeffrey Epstein” at Wikipedia.com.v

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