PETER F. IOCONA: ORANGE COUNTY CRIMINAL DEFENSE LAWYER

Penal Code § 261 defines rape as the use of force, threats, or fraud to have non-consensual sex with another person. It is a felony usually and punishable by many years in prison depending on the circumstances and registration as a sex offender pursuant to Penal Code Section 290.

Penal Code 261 defines rape (“sexual assault”) as having sexual intercourse with someone who does not consent to it. “Sexual intercourse” means any penetration, no matter how slight, of the vagina or anus by the penis. Sodomy often comes with additional charges or enhancements depending on the circumstances of the rape or sexual assault.

Ejaculation is not necessarily required; but the absence of physical evidence, such as DNA, is a factor to be considered in the defense against such charges.

Rape or sexual assault comes in many different forms, such as "date-rape" and forcible rape; but rape or a sexual assault can occur through fear, coercion, fraud, duress or trickery, to name a few, not just direct physical force, commonly referred to as "violent rape", for obvious reasons.

 A key element of rape under California Penal Code 261 is that the alleged victim does not "consent" to having sex or consent to having sex in the manner in which the sex occurred. This is a question of fact, did the alleged victim "consent" to the sexual encounter and/or the manner in which the sex occurred is a paramount factor in the equation. 

For instance, did the partner decide mid-intercourse that they want to stop despite initially consenting to the sexual intercourse? Did they communicate in a way that makes it a rape or sexual assault. This question of fact becomes especially difficult where people enter into relationships where "role playing" and/or BDSM are part of the sexual relationship. If a partner requests to be tied-up or similarly restrained, bound, gagged, roped, hogtied, or even strangled or asphyxiated during sex, where is that line between consensual versus non-consensual sex? The same holds true for those who desire to be whipped, belted, paddled, and/or otherwise humiliated during sexual intercourse . Where is the line? When was it crossed? And was it effectively communicated? These are all important questions that an experienced Orange County Sex Crimes Lawyer needs to evaluate in fashioning your defense against sex crime charges.

Penal Code § 261.5 defines "statutory rape" as having sexual intercourse with anyone who is under 18 years old, the age of consent in California. It does not matter if the minor willingly participated or initiated the sex because they are legally incapable of "consenting" to sex due to their age. Surprisingly, the crime of Statutory Rape does not typically come with the requirement to register as a sex offender pursuant to Penal Code Section 290.

The most common defense to statutory rape charges are that you honestly believed that the minor was at least 18 years old, which is a "mistake of fact" defense that is commonly referred to as the "mistake of age" defense; but the person's appearance is not in and of itself a defense as it also depends on other factors, such as whether the person was in an environment that you would not expect a person over the age of 18 to be present. Thus, the reason why the mistake of fact or mistake of age defense is most often applied to situations where the minor was in a bar or other type of location where the person must be over 21 years of age and his or her age was presumably checked at the door by staff at the establishment. This defense is made much more complicated in situations where there would be hybrid, like a college party where some students could still be expected to be under the age of 18 or persons under the age of 18 may still be present despite the fact that the party occurred on a college campus where there is an expectation that the persons there are all over the age of 18. This is presumably one of the reasons why the punishment for statutory rape often depends on the age difference between the participants and how age was determined by the person accused of statutory rape.

Another common defense to this sex crime, of course, is that no sexual act or acts occurred, which is a defense to rape or sexual assault generally.

If you are facing statutory rape charges in Orange County, you need an experienced Orange County Sex Crimes Lawyer to defend you against the Orange County sex crime charges.   

Penal Code § 261.5 defines "statutory rape" as having sexual intercourse with anyone who is under 18 years old, the age of consent in California. It does not matter if the minor willingly participated or initiated the sex because they are legally incapable of "consenting" to sex due to their age. Surprisingly, the crime of Statutory Rape does not typically come with the requirement to register as a sex offender pursuant to Penal Code Section 290.

The most common defense to statutory rape charges are that you honestly believed that the minor was at least 18 years old, which is a "mistake of fact" defense that is commonly referred to as the "mistake of age" defense; but the person's appearance is not in and of itself a defense as it also depends on other factors, such as whether the person was in an environment that you would not expect a person over the age of 18 to be present. Thus, the reason why the mistake of fact or mistake of age defense is most often applied to situations where the minor was in a bar or other type of location where the person must be over 21 years of age and his or her age was presumably checked at the door by staff at the establishment. This defense is made much more complicated in situations where there would be hybrid, like a college party where some students could still be expected to be under the age of 18 or persons under the age of 18 may still be present despite the fact that the party occurred on a college campus where there is an expectation that the persons there are all over the age of 18. This is presumably one of the reasons why the punishment for statutory rape often depends on the age difference between the participants and how age was determined by the person accused of statutory rape.

Another common defense, of course, is that no sexual act or acts occurred, which is a defense to rape or sexual assault generally.  

Committing lewd acts on a minor is a serious violation of a sex crime law. The legal definition states that the crime is committed when a child is touched anywhere on his or her body for sexual purposes. This means that sexual organs do not have to be touched in order for this to be considered a crime, and the touching can take place over clothes.

California Penal Code Sections 288, 287, 288.2, 288.3, 288.4, 288.5, 288.7, 647.6, and even 261.5 referenced above primarily define the litany of child molestation or sexual assault crimes against a minor or child. The term “minor” is generally defined to mean a person under 18 years of age; however, lewd acts with a child, commonly referred to as child molestation, is a more serious crime that it is defined as any touching of a child under the age of 16 when done for sexual gratification purposes; however, there are more serious child molestation charges for lewd acts with a child under 14 years of age, which is much more severally criminalized and prosecuted, especially when there is a significant age disparity between the adult and the child, whether under 16 or years of age or under 14 years of age. There are additional punishment enhancements when the child is under the age of 10, which can lead to sentences of 30 years to life in prison depending on the circumstances.

A conviction for any of the offenses listed above, excepting Penal Code Section 261.5, all require sexual registration pursuant to Penal Code Section 290; thereby increasing the need for an experienced Orange County Sex Crimes Lawyer to defend you against Orange County sex crime charges.

You may be charged with solicitation of a minor if you:

• Knowingly persuade, entice or coerce minors to travel across borders to participate in sexual activity, or attempt to do so
• Knowingly transport a minor across borders to engage in sexual misconduct
• Travel across borders with the intent of engaging in sexual misconduct with a minor