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CALIFORNIA Legislation
Cal. Pen. Code § 261
Rape; “Duress”; “Menace”
(a) Rape is an act of sexual intercourse accomplished under any of the following circumstances:
(1) If a person who is not the spouse of the person committing the act 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. This paragraph does not preclude the prosecution of a spouse committing the act from being prosecuted under any other paragraph of this subdivision or any other law.
(2) If 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) If a person is prevented from resisting by an intoxicating or anesthetic substance, or a controlled substance, and this condition was known, or reasonably should have been known by the accused.
(4) If 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 any 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) If a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
(6) If 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) If 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) For purposes of this section, the following definitions apply:
(1) “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 the victim’s relationship to the defendant, are factors to consider in appraising the existence of duress.
(2) “Menace” means any threat, declaration, or act that shows an intention to inflict an injury upon another.
Amendment History:
1889 Amendment:
Substituted “fourteen years” for “ten years” in subd 1.
1897 Amendment:
Substituted (1) “sixteen years” for “fourteen years” in subd 1; and (2) “great and immediate” for “immediate and great” before “bodily harm” in subd 4.
1913 Amendment:
Substituted (1) “eighteen” for “sixteen” in subd 1; and (2) “the” for “a” before “belief” in subd 6.
1970 Amendment:
(1) Deleted former subd 1 which read: “1. Where the female is under the age of eighteen years;”; and
(2) redesignated former subds 2–6 to be subds 1–5.
1979 Amendment:
Substituted (1) “person not the spouse” for “female not the wife” in the introductory clause; (2)
“any” for “either” in the introductory clause; (3) “a person” for “she” wherever it appears in subds 1, 3, 4, and 5; (4) “a person resists, but the person’s” for “she resists, but her” in subd 2; and (5) “the victim’s spouse” for “her husband” in subd 5.
1980 Amendment:
In addition to making technical changes, (1) substituted subd 2 for former subd 2 which read: “2. Where a person resists, but the person’s resistance is overcome by force or violence;”; and (2) deleted “threats of great and immediate bodily harm, accompanied by apparent power of execution, or by” after “resisting by” in subd 3.
1981 Amendment:
(1) Substituted “the” for “such” after “induce” in subd (5); and (2) added subd (6).
1983 Amendment:
Amended subd (1) by (1) substituting “because of mental disease, defect, or disorder or because of physical disability, of giving consent, and this is known or reasonably should be known to the person committing the act” for “through lunacy or other unsoundness of mind, whether temporary or permanent, of giving legal consent”; and (2) adding the second sentence.
1984 Amendment:
(1) Substituted “or anaesthetic substance, or any controlled substance” for “, narcotic, or anaesthetic substance,” in subd (3); and (2) added subd (7).
1985 Amendment:
Added “legal” after “of giving” in the first sentence of subd (1).
1986 Amendment:
(1) Substituted “disorder or developmental or” for “disease, defect, or disorder or because of” wherever it appears in subd (a); and (2) added “, violence,” in subd (2).
1990 Amendment:
(1) Added subdivision designation (a); (2) redesignated former subds (1)–(7) to be subds (a)(1)–(a)(7); (3) added “duress, menace,” in subd (a)(2); and (4) added subds (b) and (c).
1993 Amendment:
(1) Added the introductory clause of subd (a)(4); (2) added subds (a)(4)(A)–(a)(4)(C); and (3) deleted “hardship,” after “danger,” in the first sentence of subd (b).
1994 Amendment:
Substituted “and this condition was known, or reasonably should have been known by” for
“administered by or with the privity of” in subd (a)(3).
2002 Amendment:
Added subd (a)(4)(D).
2013 Amendment:
(1) Added “any” in the second sentence of the introductory paragraph of subd (a)(4); and (2) substituted “someone known to the victim other than the accused” for “the victim’s spouse” in subd (a)(5).
2021 Amendment (ch 626):
Substituted “If” for “Where” throughout the section; deleted “with a person not the spouse of the perpetrator,” following “accomplished” in the introductory language of (a); in (a)(1), substituted “a person who is not the spouse of the person committing the act is incapable” for “a person is incapable” and added the third sentence; in (a)(3), substituted “an intoxicating” for “any intoxicating” and “a controlled” for “any controlled”; deleted “any” preceding “artifice” in (a)(5); added (b); redesignated former (b) and (c) as (b)(1) and (b)(2); in (b)(1), substituted ‘Duress’ means” for “As used in this section, ‘duress’ means” and “the victim’s relationship” for “his or her relationship”; and in (b)(2), substituted “Menace means” for “As used in this section, ‘menace’ means” and “act that shows” for “act which shows”.
Source: LexisNexis