Sexual Assault in California
Prevalence of Rape in California
In California in 2006, more than 9,000 incidents of forcible rapes were reported to the police. However, the actual number of rapes is probably much higher, since only 41% of rape and sexual assault victims report their victimization to the police. In addition, more than 6,000 cases of statutory rape were referred to prosection.[1]
Definition of Sexual Assault
California law prohibits sexual assault, which includes any sexual contact without consent. Consent is defined as “positive cooperation in act or attitude pursuant to an exercise of free will.”[2] Consent requires that the person acted “freely and voluntarily and [had] knowledge of the nature of the act or transaction involved.”[3]
California defines rape as sexual intercourse with any person, accomplished under one of several different circumstances, including:
  • Against the person’s will with the use of force or violence, or threats of force or violence,
  • The use of false or fraudulent misrepresentation; or
  • Where the victim lacks mental capacity or is otherwise unable to give valid consent.[4]
Marital and Date Rape
Under California law, consent is not assumed simply because the victim and the attacker were, or currently are, dating or married. A person can still be convicted of rape if the victim is his wife or girlfriend. [5] California law penalizes marital and date rape the same as any other form of rape. California also punishes any unwanted or non-consensual sexual penetration of any kind by up to eight years in prison.[6]
Penetration and Resistance
“Sexual intercourse” can include any act of penetration, however slight. The California statute states that “the essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.”[7] Although it is a defense that the act of sexual intercourse occurred due to a reasonable belief that the victim consented,[8] the victim “need only make such resistance as will reasonably manifest her refusal to consent to the act.”[9]
Sexual Battery
In addition to outlawing rape, the California Penal Code establishes a separate crime of “sexual battery.” Sexual battery consists of “touching an intimate part of another person” either against that person’s will or when that person does not have the capacity to give informed consent.[10] “Touching” can include contact through the victim’s clothing. Intimate touching of someone against their will is a misdemeanor offense.[11] The crime is graded more harshly if the victim is restrained, unconscious, or otherwise without capacity to consent. [12]
Statutory Rape
California also criminalizes sexual or oral intercourse with a minor, even if the minor agrees to the intercourse. A minor is anyone who is under 18 years of age.[13] The law treats a minor as being unable to give valid consent because of her age. If the minor is less than three years younger than the person, then the crime is a misdemeanor. If the minor is more than three years younger, the perpetrator will be charged with a felony.[14]
Sex Offender Laws
California maintains its own sex offender database. Under the Sex Offender Registration Act, there are four categories of sex offender registration, ranging from public disclosure of the offender’s home address to an exemption from any public disclosure. According to Penal Code § 290.46, the amount of information on the sex offender that must be listed on the public database varies based on the sexual offense committed and other factors, such as previous sexual offense convictions.


[1] 2008 Report: Research on Rape and Violence, California Coalition Against Sexual Assault (2008).  See also: 2009 Report: Selected Findings:Recent Research on Sexual Violence.               
[2] California Penal Code § 261.6.
[3] California Penal Code § 261.6.
[4] California Penal Code § 261, § 262.
[5] California Penal Code § 261.6.
[6] California Penal Code § 289.
[7] California Penal Code § 263.
[8] See People v. Guthreau, 162 Cal. Rptr. 376, 378 (Ct. App. 1980).
[9] People v. Hunt, 139 Cal. Rptr. 675, 676 (Ct. App. 1977).
[10] California Penal Code § 243.4
[11] Id.
[12] Id.
[13] California Penal Code § 261.5.
[14] California Penal Code § 261.5, § 288(a).