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Next to murder, rape is arguably the most heinous crime you can commit against another person. Rape robs the victim of their personal privacy and safety.

Accordingly, the penalty for rape set forth in Penal Code section 264 is harsh.

If you are under investigation for rape or face rape charges, people often assume you are guilty based on the charges alone.

You need a lawyer on your side who knows how to handle tough cases.

Criminal defense lawyer Kerry L. Armstrong and his team with the Law Offices of Kerry L. Armstrong, APLC, are widely recognized and respected for their commitment to seeking justice for their clients.

No matter how bad the allegations are, Kerry and his team will be by your side fighting for you.

What Is Rape?

Penal Code section 261 defines the crime of rape as sexual intercourse without the consent of the victim in certain circumstances.

Those circumstances include sexual intercourse:

  • Completed with a person other than your spouse knowing that the victim cannot consent because of mental or physical incapacity;
  • Committed against the will of another by means of force, threats, violence, menacing, duress, or fear of immediate bodily injury to the victim or another person;
  • Committed with a person incapable of consenting because of intoxication or anesthesia;
  • Occurring with an unconscious person;
  • Committed by a person fraudulently inducing—by pretense, artifice, or concealment—the victim’s belief that the assailant is someone known to the victim other than the assailant;
  • Occurring against the victim’s will after the assailant threatens to retaliate against the victim or another person in the future unless the victim relents; or
  • Committed by a public official or someone claiming to be a public official who uses threats of incarceration, arrest, or deportation against the victim or another to overcome the will of the victim.

Under Penal Code section 263, any penetration of the sex organ or anus is rape, even if the penetration was only slight.

Moreover, a person could face prosecution for spousal rape under any of the circumstances, except if the person has a mental disease.

Spousal rape used to be covered under Penal Code section 262, which has since been repealed.

Now, spousal rape is prosecuted under Penal Code section 261 and is treated in largely the same manner as any other rape.

What Is the Penalty for Rape?

The punishment for rape includes a period of incarceration in state prison because rape is a felony. So-called “adult rape” is punished by either three, six, or eight years in prison.

The punishment could increase dramatically if the victim died or sustained serious bodily injury.

The penalty for rape increases significantly if the victim is a minor.

The penalty for rape in Penal Code section 264 increases to either 7, 9, or 11 years in prison if the victim is a minor but older than 14. 

The penalty increases to either 9, 11, or 13 years if the victim is 14 years old or younger. 

Aiding and Abetting Rape Penalties

Acting alongside with—or aiding and abetting—another person to commit rape carries a state prison sentence of 5, 7, or 9 years.

However, you face 7, 9, or 11 years for aiding and abetting rape if the victim is a minor and is older than 14.

The potential prison time would increase to 10, 12, or 14 years if the victim was 14 years old or younger. 

Other Crimes Often Associated with Rape

Aggravated sexual assault of a child occurs when the victim is 14 years old or younger and at least seven years younger than the assailant.

Under Penal Code section 269, aggravated sexual assault includes crimes like:

  • Rape;
  • Rape in concert with another;
  • Sodomy;
  • Oral copulation; and
  • Sexual penetration.

The penalty ranges from 15 years to life in prison.

Kidnapping is a felony under Penal Code section 207 and is another crime commonly associated with rape.

Kidnapping is punishable by a state prison sentence of 3, 5, or 8 years. The penalties increase to 5, 8, or 11 years if the victim is 14 years old or younger. 

Sexual penetration is akin to rape in that penetration, however slight, of a person’s genital or anal opening is the essence of the crime under Penal Code section 289.

Sodomy under Penal Code section 286 and oral copulation under Penal Code section 287 are other offenses that carry up to 11 years or more in prison, depending on the victim’s age. 

Statutory Rape

Statutory rape is a crime because the victim is not old enough to legally consent. Their willingness to participate is irrelevant. 

According to Penal Code section 261.5, statutory rape is called unlawful sexual intercourse. The penalty depends on the age of the participants.

The age of consent in California is 18. Statutory rape when the age of the participants differs by three years or less is a misdemeanor punishable by up to six months in jail.

An age difference of more than three years is a “wobbler” offense that can be prosecuted as either a misdemeanor or felony.

The punishment is up to one year in jail if prosecuted as a misdemeanor. A felony prosecution could result in serving a one-year sentence in jail instead of prison.

The judge could order the person to serve a split sentence or a suspended sentence as well. 

Any person 21 years of age or older found guilty of statutory rape of a minor under 16 is guilty of a misdemeanor or felony.

The person could serve up to one year in jail or up to four years in prison.

Life Sentence or Capital Punishment for Rape

California law allows life sentences or the death penalty for rape in a few instances.

According to Penal Code section 288.7, a person 18 or older could receive a sentence of 25-years to life for having sexual intercourse with a child 10 years old or younger.

A person 18 or older who commits oral copulation or sexual penetration on a child 10 years old or younger could receive a sentence of 15 years to life.

Penal Code section 187 and 189 are California’s first-degree murder statutes.

Under Penal Code section 189, a person commits murder in the first degree if they kill someone while perpetrating or attempting to perpetrate rape and other sexual offenses.

These other acts include lewd and lascivious acts, sexual penetration, sodomy, or oral copulation. The punishment for first-degree murder is death, life without parole, or life with parole. 

Additional Consequences of a Rape Conviction

A person convicted of rape will face additional consequences beyond incarceration.

First, if convicted of rape, you must register as a Tier 3 sex offender for the rest of your life. This limits the places where you are allowed to live, among other things.

Also, any person who is not a citizen of the United States could face deportation, removal proceedings, exclusion from the United States, or denial of naturalization rights.

Once released from incarceration, you will likely also lose your right to vote, to possess firearms, and many occupations will be closed to you.

Get the Legal Help You Need

San Diego criminal defense attorney Kerry L. Armstrong and his associates have tried over 100 cases before juries in California.

Kerry’s extensive experience has earned him numerous awards and distinctions, including certification as a legal specialist in criminal law from the State Bar of California.

If you’ve been charged with rape, he and his staff with the Law Offices of Kerry L. Armstrong, APLC, are available immediately to help.

Contact them today by calling 619-234-2300. 

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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