Jamahl Kersey June 9, 2016 No Comments

California Law: What Is Needed to Be Charged with 2nd Degree Rape?

Every state has its own laws surrounding sexual assault and rape. California is no exception, having its own requirements for 2nd degree rape charges. Whether you believe you may be facing such charges or you simply want to be informed of the laws in your state, understanding the difference between different types of sexual assault can be helpful.

What Is Rape in California?

Generally, rape is a form of sexual assault that typically includes forced penetration. This is no different in California, except that there are different degrees of the crime.

In California, rape is considered sexual penetration by means of force, violence, duress, injury, menace, or fear. In addition to sexual penetration, this also applies to oral copulation and sodomy. This crime is considered a felony in the first degree, but the second degree varies between misdemeanor and felony.

What is 2nd Degree Rape in California?

Second degree rape and first degree rape differ in the type of violence or duress that occurs before or during the act. In fact, there are also different types of crimes that may qualify as 2nd degree rape. Each circumstance may be examined differently from another.

In California, you may be charged with 2nd degree rape if you engage in intercourse with an individual under the age of 18 and you are less than three years older than this person. In this case, the crime is often considered a misdemeanor. This type of case, often called “statutory rape,” commonly affects young couples when one party is over 18 and the other is still a minor.

If you are more than three years older than the individual under 18, you may be charged with a misdemeanor or felony depending on the court’s decision.

If you are age 21 or older and engage in sexual intercourse with a minor under the age of 16, the crime may be considered a misdemeanor or felony.

Evidence of 2nd Degree Rape

One of the first things that prosecutors will look for in any rape case is evidence of freely given consent. If there is doubt that the consent was given freely, evidence of such will be shown in court.

First, the court will look at the age of the victim. Legally, minors are not generally considered able to provide consent for sexual interaction. The court also considers the mental and physical capacities of the victim. If the victim is considered disabled, he or she may not be able to provide consent according to the law either.

The court will also look at the relationship between the victim and the defendant. For instance, a person in a position of power could be considered intimidating to an employee.

It is not necessary for the threat of violence or force to be explicit in 2nd degree rape. For instance, a teenager may experience duress from the suggestion of intercourse by an adult in a superior position. The court will examine the way in which the circumstances came about.

Additionally, a prior existing relationship does not deter the court from pressing charges of 2nd degree rape.

Second Degree Rape Charges Are Serious

Punishments for 2nd degree rape include up to one year in jail and up to four years in prison. This is for the first offense, but additional offenses can lead up to eight years in prison. On probation, the offender may be required to pay for counseling for the victim as well.

The best way to deal with charges is to hire a defense lawyer. Plus, the laws do occasionally change. Do you need a lawyer in a sexual assault case? Contact us to learn more about your options.