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What Constitutes Rape Under California Law?

Under California Penal Code section 261, the legal definition of “rape” is when an individual engages in sexual intercourse with a person not his or her spouse against his or her will. To qualify as rape under one of the detailed subsections of the statute, the rape must have occurred either because:

  • The person could not give consent due to a known disability, intoxication or unconsciousness;
  • The individual used physical force or violence;
  • The individual took advantage of the victim’s fear of bodily harm or retaliation;
  • The individual used certain kinds of fraud; or
  • The individual pretended to be a married person’s spouse.

Because the law was codified in 1872, some of these provisions are complex and may contain loopholes in favor of defendants. However, in January 2013, California State Senator Noreen Evans has put forth new legislation, SB 59, which replaces the word “spouse” in the law with “sexually intimate partner,” in the existing provision that addresses rapes in which a defendant has pretended to be a married person’s spouse. Under the new law, all cohabitants, including domestic partners, single women and men, and gay, lesbian, bisexual or transgender pairs, can qualify as victims of this particular type of rape.

Other code sections provide for additional forms of sex crimes such as statutory rape, oral copulation by force, sexual battery, lewd or lascivious acts with a child, spousal rape, date rape, and forcible penetration with a foreign object.

A criminal defense attorney with experience in handling rape cases can help you make sense of the charges under any of these complicated provisions, and raise many defenses on your behalf. These include: arguing that there was no clear statement of “no” on the part of the alleged victim, demonstrating that the sexual acts at issue were consensual, showing that the alleged victim suffers from a mental imbalance, demonstrating that the accuser is after revenge or is otherwise improperly motivated, demonstrating mistaken identity, or demonstrating that there is no admissible evidence that sexual intercourse took place.

Rape Crime Penalties in California

The penalties for a rape conviction are severe. You may be sentenced to 3, 6, or 8 years in California State Prison. If the alleged victim was a minor you face a minimum sentence of 7 years and a maximum sentence of 13 years. If the alleged victim sustained great bodily injury, an additional 3-6 years in prison may be added to your sentence. A maximum fine of $10,000 may be imposed.

You are also eligible for a strike under California’s Three Strikes law, and the requirement that you register for your entire life as a sex offender. If you are convicted and must register as a sex offender, you are required to provide the authorities with a DNA sample. If you don’t provide this, you will face a separate criminal charge that is punishable with either a fine or a one-year jail sentence. In addition, even after you have served your sentence, it can be difficult to find work or housing with a rape conviction on your record, and the stigma may follow you around for a lifetime.

Expert Defense Against Sex Crimes Charges

If you have been accused of rape, criminal lawyer in Sacramento at Wing & Parisi can help. We have successfully defended against many sex crimes charges, and will use our knowledge as former prosecutors and experienced criminal defense attorneys to defend you and restore your standing in the community. We are sensitive to your side of the story and will work hard to protect your life and reputation. For a confidential consultation, call our Sacramento office at (916) 441-4888 today.

Child Pornography

Consequences for possessing child pornography are severe. A conviction for a child pornography offense such as possession or distribution threatens both your reputation and your freedom. It can change your life forever. Penalties include a criminal record, fines, prison, and lifetime registration as a sex offender. In California, as in other states, child pornography charges can be brought both in federal and state court.

Because of the ease of obtaining child pornography on the Internet, many people do not realize that how severe the consequences can be for possessing, selling, or distributing child pornography. Further, whether a state or federal conviction results from child pornography charges can make a huge difference with respect to sentencing. It is wise to consult an established criminal defense attorney with experience handling sex crimes cases as soon as you become aware that you are being investigated for a child pornography offense.

How is Child Pornography Defined Under the Law?

The California Penal Code defines child pornography as material that depicts minors under the age of 18 years old simulating or engaging in sexual conduct. Under state law, child pornography does not include artwork or those films that are rated by the Motion Picture Association of America, nor live or recorded telephone messages when they are transmitted, distributed, or disseminated as part of a commercial transaction.

Federal law prohibits transactions relating to child pornography. By its nature, most Internet traffic related to child pornography crosses state lines and is subject to federal prosecution. Federal sentencing guidelines differentiate between production, distribution, and purchasing or receiving child pornography, and also vary the severity of the punishment based on the age of the child involved in the materials. Pornographic images of an actual minor are “legally obscene”—meaning, there is no First Amendment defense to a criminal charge, as there might be in the instance of realistic images of someone who looks like a minor but is not, or pornographic drawings.

As to the latter, the PROTECT Act of 2003 also criminalized visual material such as a “drawing, cartoon, sculpture or painting that … is, or appears to be, of a minor engaging in … sexual intercourse … and lacks serious literary, artistic, political, or scientific value.”

What Happens During a Child Pornography Investigation and Trial?

You may first become aware that you are being investigated in connection with a child pornography offense if police conduct a search of your premises and your computer. Once items are seized, it may take a while for the police to conduct forensic examination to determine whether to arrest you.

If you are arrested for possession of child pornography, a District Attorney will decide whether to charge your case as a misdemeanor or a felony based on the number of photos or videos on your computer, including any photographs or videos in the “cache.” If he or she decides to press charges, a District Attorney in California must prove the following elements beyond a reasonable doubt in order to convict you for the possession of child pornography:

  • That you possessed obscene matter;
  • That when you acted, you knew the character of the matter; and
  • That when you acted, you knew that the matter showed a person under the age of 18 years who was personally participating in or simulating sexual conduct.

There are a number of defenses an experienced criminal defense attorney can assert on your behalf including innocence, entrapment, or mistake. Sometimes defendants do not even know that they have possessed pornographic material because they surfed a page that included it. Sometimes defendants could not have known that the images were of minors.”

Penalties for Child Pornography Conviction

If convicted of a child porn offense in California state court, you are subject to sentencing that may include fines, incarceration for three years, and Penal Code 290 registration as a sex offender. These penalties vary depending on whether you possessed, produced, sold, or distributed child pornography.

Possession of child pornography may be punished by up to a year in county jail and a fine of up to $2,500, whereas selling, distributing, or advertising for the sale of child pornography may be punished with 360 days in county jail and a fine of up to $10,000. The penalties increase substantially if you have a prior sex crime on your record.

More significantly than these punishments, if you are convicted of either misdemeanor level or felony level child pornography offenses, you must register as a sex offender. This can affect your ability to find a place to live, can make it difficult to find a job, and can ruin your reputation.

Moreover, if passed, a new bill in California, SB 145, may increase penalties for those convicted of child pornography offenses. SB 145 increases the potential sentence to seven years of incarceration. It would also create a new classification in California law of “aggravated possession” of child pornography, and allowing judges increased discretion to hand down longer sentences to these offenders. “Aggravated possession” under this bill means such things as possession of over 600 images, including at least 10 images of a child under 12 or a prepubescent child or possession of images with the intent to use them to “groom” children to engage in sexual activity.

When a case winds up in federal court, a defendant who is convicted of child pornography possession faces a five-year mandatory minimum sentence in prison. A charge of distribution of child pornography comes with a ten-year mandatory minimum prison term. The assistance of a skillful criminal defense attorney is critical to responding to charges of this nature.

Whether you or a loved one is being investigated for or already faces charges for a child pornography offense, contact the experienced Sacramento criminal defense attorneys at Law Office of Wing & Parisi to fight these charges. We have criminal defense experience in both state and federal court. Call us at (916) 441-4888 for a consultation or contact us online.

Sex with a Minor

Statutory rape or sex with a minor is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.

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 (California Penal Code Section 261.5). An alleged offender can be charged with a felony or a misdemeanor for this offense. There is no need of force to be shown to be charged with this offense. In California, there are many laws determining penalties for statutory rape; the age difference is a key factor as to the gravity and seriousness of the offense. Below are some examples of those types of laws.

California law 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.” However, “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.”

Further, “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.

Sex with a minor is a serious offense. It is recommended that alleged offenders employ a reliable defense attorney to represent them in the court of law. It is also advisable that an alleged offender speak with his or her attorney before discussing the case with anyone else.

There’s no substitute for a strong Sacramento criminal lawyer, call the Law Office of Wing & Parisi at (916) 441-4888.

Contact us online or call at (916) 441-4888 for a free and confidential initial consultation, available in Spanish. We appear in state and federal courts in the Sacramento and Davis communities as well as throughout Placer and San Joaquin counties.

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If you have been arrested and charged with a crime, contact the Law Office of Wing & Parisi for free consultation.




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