Rape is prosecuted under several sections of the Penal Code. The most commonly understood form of rape is that committed by force or fear, but rape can also be charged under other circumstances that do not involve any force. Most rape charges carry significant penalties and often result in a lifetime sex offender registration requirement. For that reason alone, it is of utmost importance that anyone accused of rape, even if he or she thinks the encounter was consensual, contact an Orange County rape defense attorney right away.

I am an experienced criminal defense attorney with proven results and I promise to vigorously defend your rights under the law. I have successfully defended hundreds of clients across Southern California and Orange County, including many who were charged with rape. Although rape is a serious charge, there are many potential defenses to the charge, but this crime requires an immediate investigation into the evidence in order to mount a successful defense. A diligent investigation and a vigorous defense can often result in reduced or dismissed charges, or if convicted, a term of probation in lieu of a prison sentence.

Contact me at any time to set up a confidential consultation with a rape defense attorney in Orange County without charge. I will work with you and your family to provide a fee structure that best suits your circumstances.

Rape (Penal Code Section 261)

Rape, under California Penal Code section 261, is any act of sexual intercourse with someone other than one's spouse that is not consensual. (Spousal rape is discussed below.)

Although rape is often thought of as an act requiring force, in fact, that is not true. It is also often believed that rape is a crime only against women. Again, that is not true. For example, if someone is mentally disabled to the extent that he or she is unable to give consent, an act of sexual intercourse with that person is rape and such an act could be committed by a man against another man.

It may also be rape under California law if someone has sexual intercourse with a person who is asleep, unconscious, or extremely intoxicated. There are other conditions that may constitute rape; what is shared by all is that the act of sexual intercourse was not knowingly consented to or was consented to under fraudulent representation. (An example of consent under fraudulent representation would be a psychologist telling his patient that part of her treatment is to have sexual intercourse with him.) Of course, that includes the more common form of rape, which is accomplished by force or fear.

It is not unusual for someone to be charged with rape for an act he or she thought was consensual. Most commonly, this happens when someone commits "date rape." These charges may be defeated by establishing that the "date rape" was in fact consensual but the offender is well-advised to seek the assistance of an experienced rape defense lawyer in Orange County immediately as the district attorney is vigorous in its prosecution of date rape and it often takes a defense attorney experienced in these matters to defeat the charge, even when it was clearly a consensual encounter. It is crucial to conduct a thorough and immediate investigation of such charges up front as the longer time passes, the more difficult it is to defend the charge.

Other defenses may be available to one accused of rape including a lack of evidence or the defense that the accusation was false (as when made in order to "get back" at someone).


Rape is a felony and the punishment for rape is severe. California law provides that the convicted offender serve a term of three, six, or eight years imprisonment in state prison. Probation in lieu of imprisonment may be granted but usually only when the rape did not involve force or violence. A greater sentence may apply if the victim was injured and if the victim was a minor, the punishment is greatly increased. If the victim was under the age of 18 the statute calls for a punishment of seven, nine, or eleven years imprisonment and if the victim was under the age of 14, the term of imprisonment is nine, eleven, or thirteen years in prison.

Furthermore, a rape conviction may result in a strike under the "Three Strikes" law and will usually result in a lifetime requirement that the offender register as a sex offender. This registration requirement will seriously and adversely affect almost every aspect of the registrant's life.

Statutory Rape (Penal Code Section 261.5)

Since under California law, a minor cannot give legal consent, a person who has sexual intercourse with a person under the age of 18 (who is not that person's spouse), even though the minor agreed to the act, has committed what is commonly called statutory rape. Statutory rape is prosecuted under section 261.5 of the Penal Code. It is sad but true that an 18 year old can be prosecuted and convicted under this section for having consensual sexual intercourse with his 17 year old girlfriend.

Statutory rape is distinguished from rape prosecuted under section 261 in that the minor clearly agreed to the act but because the law does not acknowledge the minor's consent, the seemingly consensual act becomes a crime.


This crime is prosecuted as a misdemeanor if there is less than three years age difference between the perpetrator and the victim and as either a misdemeanor or a felony if there is more than three years age difference. If charged and sentenced as a misdemeanor, the punishment is a maximum of one year in county jail and/or probation, fines, and potential restitution. If charged as a felony, the punishment is imprisonment for 16 months, two, or three years. If the offender is over 21 years of age and the victim is under 16 year of age, the punishment is imprisonment in county jail not exceeding one year, or by imprisonment for two, three, or four years.

Spousal Rape (Penal Code Section 262)

One can be charged with raping his or her own spouse under section 262 of the California Penal Code. This section makes it unlawful to commit most of the same acts made unlawful in section 261, but specifically against one's own spouse. (Section 261 specifically excludes one's spouse.) Thus, not only is sexual intercourse forced upon a spouse illegal, but even sexual intercourse with a sleeping or intoxicated spouse can be prosecuted under this section. Again, the defining condition is a lack of knowing consent.


Spousal rape is punished just as severely as rape prosecuted under section 261 and carries a term of imprisonment in the state prison for three, six, or eight years. If the spousal rape was accomplished by force or violence, the convicted offender will also be required to register as a sex offender for the rest of his or her life. An Orange County rape defense lawyer can help you try to avoid this difficult consequence.

Client Reviews
He was open, honest and compassionate (qualities you don't always find in an attorney) and his credentials proved that he is more than qualified to handle this complicated case. JoAnn H.
Not only did [my case] get resolved with great efficiency, [Mr. Weinberg and his team] were very open with me and kept the lines of communication flowing which I appreciated greatly. Ryan T.
There are many things about our conversations that told me that bill was an honest guy and knew what he was talking about. Amy C.