| Generally, this list includes some definitions of sexual crimes in the State of California. However, this list is not meant to be inclusive of ALL sexual crimes. Additionally, each element to every crime is not listed in this list. Do not rely on this list in any legal matter or proceeding. This list is simply for some broad, general information as to the type of sex crime cases that the firm can handle. Being accused of and charged with a sexual offense is a very serious matter. The punishment can be very severe. The specific punishment varies in every case depending on the specific charge and the specific circumstances surrounding the alleged crime. Some factors that may increase or decrease punishment of the defendant, include, but are not limited to the following: (1) The age of the alleged victim (2) The difference in age between the alleged victim and the defendant (3) Whether the alleged victim and defendant were married (4) The type of act allegedly committed by the defendant (rape, sodomy, oral copulation, unlawful sexual penetration, or lewd and lascivious acts, etc.) (5) Whether the alleged crime was committed by means of force, fear, duress, menace, etc. (6) Whether the act alleged was committed by more than one perpetrator. RAPE IN GENERAL: Penal Code §261 defines Rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a 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 person committing the act. (2) Where 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) Where a person is prevented from resisting by any 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. As used in this paragraphs, "unconscious of the nature of the act" means incapable of resisting because the victim meets 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) Where a person submits under the belief that the person committing the act 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. 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) Where 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. SUFFICIENCY OF PENETRATION REQUIRED FOR A RAPE TO OCCUR Penal Code §263 states that “any sexual penetration, however slight, is sufficient to complete the crime” of rape. RAPE OF SPOUSE: Penal Code §262 States that, in certain situations, a person may be convicted of raping his or her own spouse. Penal Code §261.6 defines "consent" as positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue.” Further, Penal Code §261.7 provides that, when consent is an issue in a case, evidence that the alleged victim suggested, requested, or communicated that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient evidence alone to constitute consent. Penal Code §261.5 defines statutory rape as an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age. Further, Penal Code §261.5(b), states that any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. While Penal Code §261.5(c) says that any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. Penal Code §261.5(d) says that any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years. Additionally, there may be many fines and civil penalties imposed on a defendant convicted under this section. Penal Code §286 provides that sodomy is sexual contact consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however, slight, is sufficient to complete the crime of sodomy. Penal Code §288a provides that oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. Penal Code §288 provides that any person who willfully and lewdly commits any lewd or lascivious act, including all those described above, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony. HARMFUL MATTER SENT WITH INTENT OF SEDUCTION OF MINOR: (a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony. (b) Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet, or a commercial online service, any harmful matter, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony. (c) It shall be a defense to any prosecution under this section that a parent or guardian committed the act charged in aid of legitimate sex education. (d) It shall be a defense in any prosecution under this section that the act charged was committed in aid of legitimate scientific or educational purposes. (e) It does not constitute a violation of this section for a telephone corporation, as defined in Section 234 of the Public Utilities Code, a cable television company franchised pursuant to Section 53066 of the Government Code, or any of its affiliates, an Internet service provider, or commercial online service provider, to carry, broadcast, or transmit messages described in this section or perform related activities in providing telephone, cable television, Internet, or commercial online services. CONTACT OF MINOR WITH INTENT TO COMMIT SEXUAL OFFENSE: (a) Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit a sexual offense specified in minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense. CONTINUOUS SEXUAL ABUSE OF A CHILD: (a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, or three or more acts of lewd or lascivious conduct with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. SEXUALLY ASSAULTING OF ANIMAL: Penal Code §286.5 provides that any person who sexually assaults any animal for the purpose of arousing or gratifying the sexual desire of the person is guilty of a misdemeanor. BIGAMY: Penal Code §281 provides that every person having a husband or wife living, who marries any other person, is guilty of bigamy, with the following exceptions: (1) any person by reason of any former marriage whose husband or wife by such marriage has been absent for five successive years without being known to such person within that time to be living. (2) any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judgment of a competent court. MARRYING THE HUSBAND OR WIFE OF ANOTHER: Penal Code §284 provides that every person who knowingly and willfully marries the husband or wife of another, in any case in which such husband or wife would be punishable under this chapter, is punishable by fine of not less than $5,000 or by imprisonment in the state prison. INCEST: Penal Code §285 provides that person within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison. INDECENT EXPOSURE AND LEWD OR OBSCENE CONDUCT: Penal Code §314 provides that every person who willfully and lewdly, either: 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or, 2. Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor. Every person who violates subdivision 1 of this section after having entered, without consent, an inhabited dwelling house, or trailer coach, or the inhabited portion of any other building, is punishable by imprisonment in the state prison, or in the county jail not exceeding one year. Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison. PIMPING: Penal Code §266h provides that any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. Further, any person who does the act described above, when the prostitute is a minor, is guilty of pimping a minor, a felony. |
| RAPE AND SEXUAL CRIMES |
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| PUNISHMENT FOR SEXUAL CRIMES |
| RAPE |
| CONSENT AS A DEFENSE |
| UNLAWFUL INTERCOURSE WITH A MINOR OR |
| SODOMY |
| ORAL COPULATION |
| LEWD OR LASCIVIOUS ACTS |
| OTHER SEXUAL OFFENSES INVOLVING MINORS |
| OTHER VARIOUS SEXUAL OFFENSES |
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| (858) 444-5256 |
| LAW OFFICES OF BRIAN R. MASON |
A CRIMINAL DEFENSE LAW FIRM |
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