Introduction

Regardless of whether the victim is an adult or a minor, there is no more egregious sex crime than Rape/Forcible Rape, which is codified at California Penal Code section 261.

Rape is virtually always charged as a Strike Offense (California Penal Code section 667(a)&(b)) and California Penal Code section 1192.7 because it is classified as a “Violent Felony” under California’s so-called “Three Strike Law”. So if you’ve previously been convicted of a Strike offense, you can expect significant sentencing enhancements.

Indeed, a Forcible Rape conviction will often be charged as a “Super Strike”, meaning possible life imprisonment upon conviction. California Penal Code § 667.5 (“Violent Felony” – Strike).

And regardless of the specific type of Rape charge, a conviction will also result in lifetime registration as a sex offender (see below).

One exception to the foregoing involves so-called “Statutory Rape”, i.e., Unlawful Consensual Sex with a Minor (California Penal Code section 261.5). While this involves “consensual” sexual intercourse, because the victim is a minor and is therefore incapable of legally consenting – even if you, too, were a minor at the time – then it’s commonly known as statutory rape.

Note regarding new DA’s Special Directives re Sex Crimes – Rape & Forcible Rape -- “Strikes”

On December 7, 2021, George Gascón became LA County’s new District Attorney, ending Jackie Lackey’s toxic eight-year-tough-on-crime tenure. He immediately issued a number of “Special Directives” – i.e., mandates to the county’s frontline prosecutors. See: latimes.com.

The most controversial of these was “SD 20-08”, which required that they dismiss all currently pending Strike charges and proceed with only the underlying felony charge. In addition, prosecutors were prohibited from seeking sentencing enhancements, including Strikes, on any future cases absent extraordinary circumstances (which would have to be approved by a special committee set up for just this purpose). See: georgegascon.org.

Unfortunately, because of the intense blowback from these same Deputy DAs, Mr. Gascón felt compelled to issue an Amendment to SD 20-08, which explicitly stated that an exception thereto would be made for such heinous crimes as Forcible Rape. See: da.lacounty.gov.

In other words, if you’re being charged with Forcible Rape – and perhaps even for “non-forcible” Rape – then you can still expect to be charged with the Strike enhancement.

California Statutes – Sex Crimes – Rape & Forcible Rape

California Penal Code section 261 -- Rape/Forcible Rape

The strict definition of this crime is sexual intercourse without legal consent and without someone who is your spouse. Pen. Code § 261(a).

For example, a person who is physically or mentally disabled cannot give legal consent, so if you knew or should have known he/she was so disabled, then you having sexual intercourse with him/her can be charged as rape. Pen. Code § 261(a)(1).

The “forcible” aspect comes into play when you (allegedly) used force or threats of imminent violence. Pen. Code § 261(a)(2).

You can also be charged with Rape if you knew, or reasonable should have known, the victim was too intoxicated or drugged to give legal consent, or if he/she was asleep or unconscious at the time. Pen. Code § 261(a)(3) & (4).

So, too, if you used fraud or deceit to commit the act (e.g., you pretended to be the victim’s spouse). Pen. Code § 261(a)(5). And if you use reasonably-believable threats of retaliation in the future against the victim. Pen. Code § 261(a)(6).

California Penal Code section 264.1 -- Rape/Forcible Rape in Concert

This is commonly referred to as “gang rape”, which entails you and at least one other person engaging in sexual intercourse with the victim under any of the above-described conditions.

California Penal Code section 262(a)(2) -- Spousal/Marital Rape

According to this statute, you can be charged with Rape if you have sexual intercourse with your own spouse if you did so by using force, threats (including of future retaliation), alcohol or drugs, or when he/she was unconscious or asleep.

California Penal Code section 261.5 -- Unlawful Consensual Sex with a Minor (“Statutory Rape”)

This crime involves “unlawful” intercourse with a minor who is not your spouse. Penal Code section 261.5(a).

Unlike any other “rape” charge, if you were not more than three years older than the victim at the time, you will only be charged with a misdemeanor. Penal Code section 261.5(b). If that’s the case, your maximum sentence will be one year in the county jail.

Sex Crimes Convictions – Rape & Forcible Rape

California Penal Code section 261 -- Rape/Forcible Rape

A conviction for Rape or Forcible Rape will get you low, mid, or high prison terms of 3, 6, or 8 years, excluding any enhancements. California Penal Code section 264(a).

However, if the victim was 13 years or younger, the range will be nine, eleven, or thirteen years. Penal Code section 264(c)(1).

If he or she was 14 through 17 years old, then the range is seven, nine, or eleven years. Pen. Code section 264(c)(2).

California Penal Code section 264.1 -- Rape/Forcible Rape in Concert

If the victim was an adult at the time, the range for this felony conviction will be 5, 7, or 9 years – again, excluding any enhancements. Penal Code section 264.1(a).

If the victim is 13 years old or younger, the range is ten, twelve, or fourteen years. Pen. Code section 264.1(b)(1).

If he or she was 14 through 17 years old, the range is seven, nine, or eleven years. Pen. Code § 264.1(b)(2).

California Penal Code section 262(a)(2) -- Spousal/Marital Rape

This felony conviction will result in low, mid, or high prison terms of 3, 6, or 8 years. Penal Code section 264(a): https://codes.findlaw.com/ca/penal-code/pen-sect-264.html

California Penal Code section 261.5 -- Unlawful Consensual Sex with a Minor (“Statutory Rape”)

If you were at least three years older than the victim at the time, then – pursuant to Penal Code section 261.5(c) -- the prosecutor has the discretion to charge you with either a felony or a misdemeanor – something that’s known as a “Wobbler” (California Penal Code section 17(b)).

If you’re charged and convicted of a felony under these circumstances, you’ll be sentenced under California Penal Code section 1170(h)(1), which provides a range of 16, 24, or 36 months in the county jail

There are numerous other sentencing variations relating to this specific offense which are discussed in greater detail in another article on the website.

Sex Crimes – Rape & Forcible Rape -- Registration Requirements

California’s Sex Offender Registration statute, California Penal Code section 290classifies most Rape convictions involving a victim who was an adult at the time of the incident as a “Tier-Two” registerable offense, which means that you’ll have to register all of your personal information with your local police or sheriff’s department every year (within five days of your birthday) for the next two decades.

Failure to do so will result in a separate felony charge. See: Sex Offender Registration Act: Penalties for Violation (California Penal Code section 290.018).

This means that during those twenty years, anyone – including prospective employers or neighbors – can instantly look you up on the state’s Megan’s Law website

However, if you’re convicted of Forcible Rape (California Penal Code section 261or Spousal/Marital Rape with Force or Threats (California Penal Code section 262(a)(1)), you’ll have to register as a Tier-Three offender, which means lifetime registration.

There is obviously a great deal of additional information regarding the three tiers that sex-crime convictions fall under, but those are discussed at length in another article on this website.

Defenses to Sex Crimes Charges – Rape & Forcible Rape

According to the Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”), the following are viable defenses (or, alternatively, to mitigating) the foregoing Rape charges:

  1. You didn’t actually penetrate the victim with your genitals (e.g., despite the purported victim’s mistaken belief to the contrary, you were too drunk to do so);

  2. The victim legally consented to intercourse and didn’t change his/her mind at any time during the act;

  3. You didn’t use force, violence, threats, or reasonably believable threats of future retaliation to commit the act, either against the victim or against a third party, such as his/her relative (mitigation – i.e., you’ll almost certainly be charged with a lesser crime);

  4. You did not willfully act in concert with the main perpetrator (e.g., he/she threatened to stab you with a knife if you didn’t participate);

  5. You did have intercourse with the purported victim while he or she was intoxicated or high on drugs, but he/she achieved that state voluntarily and was not so intoxicated or high that he/she was incapable of giving consent or resisting your “advances”;

  6. Alternatively, you didn’t know – nor should you have reasonably known – that he or she was so intoxicated or high that he/she was incapable of giving legal consent or resisting;

  7. You weren’t legally married to the victim at the time (not necessarily mitigation as you will almost certainly be charged with another – and perhaps an even more egregious – crime);

  8. The purported victim was not actually unconscious, asleep, or suffering from a mental disorder or physical disability at the time of intercourse;

  9. He/she was suffering from said disorder or disability at the time, but not to the extent where he/she was incapable of giving legal consent;

  10. At no time did you pretend to be the purported victim’s spouse -- or otherwise use fraud or deceit – to convince him/her to have intercourse with you.

See CALCRIM number 1000 (“Rape or Spousal Rape by Force, Fear, or Threats -- Pen. Code § 261(a)(2), (6) & (7)”);

CALCRIM number 1001 (“Rape or Spousal Rape in Concert -- Pen. Code § 264.1”);

CALCRIM number 1002 (“Rape of Intoxicated Woman or Spouse -- Pen. Code, §§ 261(a)(3), 262(a)(2)”);

CALCRIM number 1003 (“Rape of Unconscious Woman or Spouse -- Pen. Code, §§ 261(a)(4), 262(a)(3)”);

CALCRIM number 1004 (“Rape of a Disabled Woman -- Pen. Code § 261(a)(1)”); and

CALCRIM number 1005 (“Rape by Fraud -- Pen. Code § 261(a)(5)”).

Sex Crimes – Forcible Rape -- Example of a Celebrity Case

Porn “superstar” Ron Jeremy

From 1996 through 2020 (a seventeen-year period), adult film star Ron “the Hedgehog” Jeremy (whose birth name is Ronald J. Hyatt) allegedly raped and otherwise sexually assaulted dozens of girls and women, ages fifteen to thirty-eight at the time of the alleged incidents.

The DA’s Office alleges the following specific examples:

In Oct. 1996, Hyatt (then age 43) allegedly raped a young woman (nineteen) during the shooting of a porn film in – where else? – the San Fernando Valley.

Exactly one year later, he allegedly raped another woman (twenty-six) at an LA nightclub.

In or about 2003, he allegedly sexually assaulted another adult female (age unknown) at a “gentleman’s lounge” in the City of Industry.

In 2008, he allegedly raped a female minor (seventeen) at a private residence in Woodland Hills.

In 2010, he allegedly sexually assaulted another woman (age unknown) after she came over to his residence (location unknown).

In Jan. 2013, he allegedly sexually assaulted another woman (thirty-eight) at one of his favorite bars in West Hollywood.

Seven-and-a-half years later, in June 2020, Hyatt was charged with numerous sex-crime felonies. The criminal complaint pending against him was amended four months later (late Oct. 2020) to add additional charges relating to additional victims. As a result, Hyatt was now facing the following charges:

Eleven counts of Forcible Rape (California Penal Code section 261);

8 counts of Sexual Battery by Restraint (California Penal Code section 243.4(a));

Half-a-dozen counts of Oral Copulation by Force (California Penal Code section 287);

5 counts of Forcible Sexual Penetration with a Foreign Object (California Penal Code section 289);

a single count of Sodomy (California Penal Code section 286);

a single count of Assault with Intent to Commit Rape (California Penal Code section 220(a)(1));

a single count of Assault with Intent to Commit Forcible Sexual Penetration with a Foreign Object (California Penal Code section 289);

a single count of Sexual Penetration with a Foreign Object of an Unconscious or Sleeping Victim (Penal Code section 289); and

Lewd Acts with a Minor Child (California Penal Code section 288).

If a jury convicts Hyatt of all charges, he could be sentenced to more than three centuries in prison.

See: da.lacounty.gov.

A Sampling of Sex Crimes Cases -- Rape/Forcible Rape -- Handled by the Los Angeles Defense Attorney Law Firm (LADALF)

The so-called “South Bay Rapist”, who was facing two life sentences, is proved innocent

The People v. Corey Stewart: Young Corey Stewart had wasted away in the Men’s Central Jail in downtown LA for almost fifteen months awaiting trial on two life-sentence charges of Forcible Rape, pursuant to California Penal Code section 261.

To make horrible matters even worse, the local media outlets splashed his photo on their front pages and labeled him as the “South Bay Rapist” – i.e., a serial predator who traveled around in a specially-equipped SUV to rape unsuspecting women at gunpoint.

But that was before he hired Ninaz Saffari to defend him. After their first meeting, she believed his claims of absolute innocence and embarked on an intensive investigation into the allegations. She was first able to prove that his second accuser had mistakenly identified him as the perpetrator who had raped her when she was a minor. (She had done so after seeing Corey splashed across the evening news.)

But that still left Ninaz to deal with his primary accuser – a young woman who had met Corey online then met up with him at a motel for an entirely consensual encounter. Afterwards, however, Corey enraged her by his disinterest in continuing the relationship. As a result, she called police and falsely claimed that he had abducted her, trapped in a specially constructed SUV that allowed him to lock her in, then forcibly raped her at gunpoint.

Her story was so elaborate, and filled with so many vivid, lurid details, that sex crimes detectives – and the assigned Deputy DA – immediately believed her. But Ninaz never did – and neither did Corey’s beloved parents, family members, and friends, who had known him as a gentle, loving person who had never been in trouble before.

First, Ninaz was able to prove that the woman was a pathological liar who conned lonely men out of money through online personal ads. But she saved the best for trial – on the first day of jury trial, she announced that she would be presenting no less than six expert witnesses to prove she had been lying the entire time.

The main piece of exculpatory evidence concerned GPS location records that proved the accused was nowhere near the scene of the supposed crime at the time of the alleged incident. On the contrary, it proved she had been at the motel where the tryst occurred. This explosive evidence caused the prosecutor to halt the proceedings to re-interview the accuser with help from the sex crimes detectives.

When confronted, she provided an entirely different set of lies. Immediately realizing they had been duped, the authorities immediately dismissed all charges against Corey. He went home a free man that day, and remains in contact with Ninaz to this day.

And guess what happened to the accuser? Nothing. The DA’s Office never prosecutes accusers when their allegations prove completely false, despite the fact that they have committed Perjury (California Penal Code section 118).

A second client is proved innocent of Forcible Rape and other false charges – felonies dismissed

People v. J.C.: “Joel”, a young adult, and five of his closest friends (three young adults and two juveniles) were prosecuted for the following felonies:

Gang Rape” (Forcible Rape in Concert) (California Penal Code section 264.1(a));

Aggravated Kidnapping – Robbery, Rape, Other Sex Offenses (California Penal Code section 209(b));

Oral Copulation by Force or Fear (California Penal Code section 287); 

Oral Copulation in Concert (California Penal Code section 287(d); and

Forcible Sexual Penetration with a Foreign Object (California Penal Code section 289).

As a result, he and the other three young men were facing multiple life sentences. The charges stemmed from – once again – entirely false allegations made by their accuser. In this case, she was a sixteen-year-old girl who had ran away from home to “party” with them all weekend.

However, in order to cover her tracks with her parents, she completely fabricated claims that she had been kidnapped and gang-raped. But then Joel hired Ninaz. As always, she immediately embarked on an intensive, turn-over-every-rock investigation with the help of her favorite P.I.

The first thing Ninaz learned was that the accuser had made similar false claims in the past, resulting in one of her former lovers being convicted of a felony and sent to jail. The second thing she discovered is that someone close to one of the co-defendants had a huge secret – something which Ninaz strongly suspected but which would take weeks of convincing to produce: a video taken of the key incidents that occurred during the fateful weekend.

Ninaz waited until the preliminary hearing to drop her bombshell: the video proved that the accuser had lied about virtually every single criminal allegation. But Ninaz waited to play it in court until after she had the accuser repeated every one of her lies while testifying on the stand – not just about Joel, but about all five co-defendants.

As a result, the Deputy DA dropped all felony charges against Joel and the other five defendants. Everyone went home to their families the next day.

Following two jury trials for Forcible Rape, client gets misdemeanor plea with zero jail time

People v. R.T.: “Robert” was facing almost five decades in a state penitentiary after being prosecuted for two counts of Forcible Rape, which is codified at California Penal Code section 261.

This was a particularly challenging case for Ninaz because Robert had made numerous incriminating statements to sex crimes detectives during interrogation. Based on that alleged “confession”, the DA’s Office thought there was no way they could lose. Conversely, however, Robert insisted he was innocent (which he was), and insisted from day one that he would never accept a plea to anything.

Ninaz, of course, was only too happy to take the case to trial, which she did – twice. The first ended in an equally split hung jury after she convinced half the jurors that the accuser had been lying about her allegations. Ninaz was able to do this by pointing each and every discrepancy and contradiction in the various statements the accuser had made to the police and Deputy DA.

Notably, while testifying at the second trial, the accuser also contradicted what she had testified to in the first, which, of course, Ninaz was able to exploit to great effect. This time, the prosecutor didn’t want to wait for the jury’s verdict and offered a plea that even Robert couldn’t resist – a single misdemeanor with no jail time. He went home that same day.

The Los Angeles Defense Attorney Law Firm (LADALF)

There is simply no other attorney in all of LA County who can match LADALF founder Ninaz Saffari’s exemplary criminal defense track record in defending individuals against Rape and Forcible Rape charges. Indeed, she has been defending clients against serious sex crime prosecutions for 16 years (as of March 2021), including while working as a Deputy Public Defender for LA County for four of those years after graduating from law school and passing the Bar exam.