Santa Clara University

Wellness Center

California Law

Under California law, rape is an act of sexual intercourse against the will of the victim that can occur under a variety of circumstances, including when:

  • the victim is prevented from resisting due to alcohol or drug intoxication.
  • the assailant uses physical force or the threat of force to over-power and control the victim.
  • the victim fears that she or he or another will be injured if the victim does not submit.
  • the victim is at the time unconscious of the nature of the act, and this is known to the assailant.
  • the victim is incapable of giving legal consent due to a mental disorder or developmental or physical disability, and this is known or reasonably should be known to the assailant.
  • the act is accomplished by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another person.
  • the assailant uses duress, such as a direct or implied threat of hardship or retribution, to coerce the victim.
  • the assailant uses force, fear, or threats to accomplish sexual intercourse against the will of the spouse. (This provision of the law is known as the "spousal rape law.")

***Consent can be withdrawn at ANY TIME during a sexual act. If one partner withdraws consent and the other continues, this is RAPE!

Acquaintance rape and date rape are terms used by society to differentiate between stranger rape and rape between acquaintances. These are not legal terms; therefore, the rape law applies in the same manner whether or not the rapist is known by the victim.

Rape is punishable by imprisonment in the state prison for three, six, or eight years.

Sexual Assault:
Sexual assault is broadly defined as engaging or attempting to engage in unwanted sexual activity.
There are many forms of sexual assault including:

  • rape (forced sexual intercourse)
  • sodomy (forced anal intercourse)
  • oral copulation (forced oral-genital contact)
  • rape by a foreign object (forced penetration by a foreign object, including a finger)
  • sexual battery (the unwanted touching of an intimate part of another person for the purpose of sexual arousal).

**Sexual assault is basically the umbrella term for all forms of sexual violence.

California Law states that sexual battery occurs when:
"Any person touches an intimate part of another person, when the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse...As used in this subdivision, "touches" means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim."

Sexual battery is a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.

The complete California rape law is contained in Section 261 of the Penal Code. The spousal rape law is set forth in Section 262.


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