Under the common law of England, there was no rape of a woman unless it was without the consent of the woman. Early statutory law in both England and California extended rape to include sexual intercourse with a child under the age of 10, with our without consent since a 10 year old was deemed to young to be able to give consent. Since then the trend in California and other states has been to reduce the age of consent.

       Also, under common law, a man could not be convicted of raping his wife, even if she did not consent. The reasoning was that the matrimony was a contract whereby the wife gave consent to her husband and she did not have the power to retract the consent. However, a husband could be convicted of rape if he helped another man to rape his wife.

What is Rape in California?

       Over the years, California has expanded the definition of rape such that a female can rape a male. Additionally, the following circumstances are qualifying elements of rape:

1). When the person 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 perpetrator;
2). When it is accomplished by means of force, duress or fear of immediate and unlawful bodily injury on the person or another;
3). Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;
4). Where a person is at the time unconscious of the nature of the act, and this is known to the accused;
5). Where a person submits under the belief that the person committing the ct is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
6). Where 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; or
7). Where the act is accomplished against he 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.

Punishment

       The punishment for rape is three, six or eight years in state prison. It is both a "serious" and a "violent felony" (see Three Strikes Law) with the perpetrator considered a "Sexual Violent Predator".

Statutory Rape

       Statutory rape is considered a misnomer. It is not rape but is based on the idea that certain people cannot consent to sexual intercourse. Although it originally started out as under the age of 10, over time, as girls were maturing at an earlier age, in contrast, the age of consent was moved to a later age. The current age of consent is 18. Thus, under the Penal Code §261.5, it is illegal to have consensual sex at the junior prom and the senior prom. If the accused is under the age of 21, then it is a misdemeanor. If the accused is more than 3 years older than the minor, then it can be charged as a felony.

       For more information about protecting you and your family, the Attorney General of California maintains a web site that offers advice to parents and teenagers concerning How to Protect Yourself and Your Family. Visit "Victim's Rights" for information, if you or your family were victims of these crimes.