The historical definition of rape is the unlawful intercourse by a man against a woman who is not his wife by force or threat and against her will. This is, of course, outdated, since both men and woman can be forced to have sexual intercourse against their will and the assailant can be either male or female.


The definition of rape has since evolved and falls under the broader spectrum of sexual assault. In California, rape is defined as the act of sexual intercourse that occurs without consent of at least one of the participants. Cal. Penal Code 261-269, et. seq. The lack of consent is key to determining whether rape has occurred. Consent cannot be procured through fraud, misrepresentations, duress, threats, or force.

**Consent can be withdrawn at any time during a sexual act; to continue after withdrawal of consent is rape.


There are different types of rape, such as:

Spousal rape – spouse does not consent to the sexual act.
Date rape – nonconsensual intercourse between people who are/were dating or voluntarily spending time together.
Statutory rape – intercourse between an adult (18 years or older) and a minor (under 18 years) irrespective of consent. This is a misdemeanor or felony if there is an age gap of three years or more, but civil penalties will still be assessed even if the age gap is less than three years.

Rape may also occur if the alleged victim was, for example:

Prevented from resisting due to alcohol or drug intoxication.
Incapable of providing legal consent due to a mental disorder, developmental disability, or physical disability about which the assailant knew or reasonably should have known.
Threatened by the assailant’s status as a public authority or public official, e.g. through threat of deportation or incarceration.

Rape is usually a felony punishable by imprisonment and/or fines. We have seen fines of up to $25,000 and state imprisonment for up to 14 years.

There are several defenses to a rape charge. A solid attorney may argue that the alleged victim consented or made a false accusation, or that no sexual intercourse occurred.

For additional information, contact Capozzi Law, a reputable law firm, at (559) 374-2012.