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Cal. Penal Code § 261 (2026)

✓ current as of May 2026
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(a)Rape is an act of sexual intercourse accomplished under any of the following circumstances:

(1)(A)If a person is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. A person with a mental disorder or developmental or physical disability shall not be presumed to be unable to give legal consent to sexual intercourse due to that disability. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code) or the absence of voluntary supports as described in Division 11.5 (commencing with Section 21000) of the Welfare and Institutions Code, except subdivisions (a) and (b) of Section 21000, the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. This paragraph does not preclude the prosecution of the person committing the act under any other paragraph of this subdivision or any other law.

(B)In determining whether the person is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, both of the following shall be considered, as applicable:

(i)Any mitigating measure in place, as defined in subdivision (n) of Section 11065 of Title 2 of the California Code of Regulations, as that regulation existed on January 1, 2025.

(ii)Any voluntary supports in place, as described in Division 11.5 (commencing with Section 21000) of the Welfare and Institutions Code, except subdivisions (a) and (b) of Section 21000.

(2)If it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

(3)If a person is prevented from resisting by an intoxicating or anesthetic substance or a controlled substance, and this condition was known, or reasonably should have been known by the accused.

(4)If a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:

(A)Was unconscious or asleep.

(B)Was not aware, knowing, perceiving, or cognizant that the act occurred.

(C)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

(D)Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

(5)If a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

(6)If the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

(7)If the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

(b)For purposes of this section, the following definitions apply:

(1)“Duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and the victim’s relationship to the defendant, are factors to consider in appraising the existence of duress.

(2)“Incapable, because of a mental disorder or developmental or physical disability, of giving legal consent” means that a person is at the time of the intercourse either of the following:

(A)Unable to understand the nature of the act or transaction involved due to a mental disorder or developmental or physical disability.

(B)Unable to act freely and voluntarily due to a mental disorder or developmental or physical disability.

(3)“Menace” means any threat, declaration, or act that shows an intention to inflict an injury upon another.

Notes of Decisions
Cited in 947 cases (224 in the last 5 years), 1933–2026 · leading case: United States v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. 2011).
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United States v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. 2011). · cites it 13× “Because we agree with the district court that a conviction for forcible rape under California Penal Code § 261(a)(2) is categorically a “crime of violence” as defined by the Sentencing Guidelines, we hold that the district court correctly imposed a 16-level sentencing…”
People v. Tassell, 679 P.2d 1 (Cal. 1984). · cites it 6× “Code, § 207), rape (Pen. Code, § 261, subds. (2), (3)), and forcible oral copulation (Pen.”
People v. Perez, 591 P.2d 63 (Cal. 1979). · cites it 4× “Both the People and defendant appeal from a judgment imposing consecutive sentences entered on verdicts of guilty of forcible rape (Pen. Code, § 261, subd. 3), first degree robbery (Pen.”
People v. Mayberry, 542 P.2d 1337 (Cal. 1975). · cites it 8× “Code, § 207), rape by means of force and threat (Pen. Code, § 261, subds. 2 & 3), assault by means of force likely to produce great bodily injury (Pen.”
Ivan Valdez Amador v. Merrick Garland, 28 F.4th 72 (9th Cir. 2022). · cites it 12× “In particular, section 261(a)(4) encompasses sexual intercourse obtained by fraud in the inducement: when the perpetrator “fraudulent[ly] represent[ed] that the sexual penetration served a professional purpose when it served no professional purpose,” Cal. Penal Code § 261…”
People v. Albillar, 244 P.3d 1062 (Cal. 2010). · cites it 2× “Defendants Albert Andrew Albillar, Alex Albillar, and John Madrigal stand convicted by a jury of forcible rape while acting in concert (Pen. Code, §§ 261, subd. (a)(2), 264.1), forcible sexual penetration while acting in concert ( id.”
People v. John Z., 60 P.3d 183 (Cal. 2003). · cites it 6× “Landau and Alison Beck, Boston, MA, for the Victim Advocacy and Research Group, the National Crime Victim Law Institute, the California Coalition Against Sexual Assault and the National Sexual Violence Resource Center as Amici Curiae on behalf of Plaintiff and Respondent.”
United States v. Candelario Silvestre Beltran-Munguia, 489 F.3d 1042 (9th Cir. 2007). · cites it 5× “There, we were asked to decide whether a defendant's prior rape conviction under California Penal Code section 261(a)(3) qualified as an "aggravated felony" within the meaning of 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.”
Larry David Davis v. Jeanne S. Woodford, Warden, of California State Prison at San Quentin, 384 F.3d 628 (9th Cir. 2004). · cites it 2× “4); (5) assault of Holman with intent to commit sodomy (CaLPenal Code §§ 261(a)(2), 286); and (6) assault of Suzanne H.”
People v. Balcom, 867 P.2d 777 (Cal. 1994). · cites it 4× “FACTUAL AND PROCEDURAL HISTORY Defendant was charged by information with rape (Pen. Code, § 261, subd. (2)) and related offenses of burglary and robbery.”
People v. Geier, 161 P.3d 104 (Cal. 2007). · cites it 2× “Defendant Christopher Adam Geier was convicted by a jury of the forcible rape of Erin Tynan (Pen.Code, § 261, subd. (a)(2)), the murder of Erin Tynan (Pen.”
Morris v. Slappy, 461 U.S. 1 (1983). · cites it 2× “[1] Respondent was charged with rape, Cal. Penal Code Ann. § 261, subd. 3 (West 1970); forcible oral copulation, Cal.”
Show all 947 citing cases →
— Cal. Penal Code § 261(1) — 2 cases
People v. Chapman, 185 P.2d 424 (Cal. Ct. App. 1947).
People v. Lewis, 248 P.2d 461 (Cal. Ct. App. 1952).
— Cal. Penal Code § 261(2) — 7 cases
Lawtis Donald RHODEN, Petitioner-Appellant, v. James ROWLAND; Attorney Gen. of the State of California, Respondents-Appellees, 172 F.3d 633 (9th Cir. 1999).
Lawtis Donald Rhoden v. James Rowland, Dir., California Dep't of Corr., 10 F.3d 1457 (9th Cir. 1993).
Payton v. Woodford, 258 F.3d 905 (9th Cir. 2001).
Thompson v. Calderon, 109 F.3d 1358 (9th Cir. 1996).
Thompson v. Calderon, 86 F.3d 1509 (9th Cir. 1996).
— Cal. Penal Code § 261(3) — 2 cases
People v. Tollack, 233 P.2d 121 (Cal. Ct. App. 1951).
Frank v. Yates, 887 F. Supp. 2d 958 (E.D. Cal. 2012).
— Cal. Penal Code § 261(A)(4) — 1 case
(HC) Arevalo v. Campbell (E.D. Cal. 2023).
— Cal. Penal Code § 261(a) — 1 case
Kistler v. Atchley (S.D. Cal. 2023).
— Cal. Penal Code § 261(a)(1) — 3 cases
Juan Albino v. Lee Baca, 747 F.3d 1162 (9th Cir. 2014).
Drew v. Scribner, 252 F. App'x 815 (9th Cir. 2007).
(HC) Johnson v. Kernan (E.D. Cal. 2024).
— Cal. Penal Code § 261(a)(2) — 29 cases
United States v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. 2011). “Because we agree with the district court that a conviction for forcible rape under California Penal Code § 261(a)(2) is categorically a “crime of violence” as defined by the Sentencing Guidelines, we hold that the district court correctly imposed a 16-level sentencing…”
Larry David Davis v. Jeanne S. Woodford, Warden, of California State Prison at San Quentin, 384 F.3d 628 (9th Cir. 2004). “4); (5) assault of Holman with intent to commit sodomy (CaLPenal Code §§ 261(a)(2), 286); and (6) assault of Suzanne H.”
United States v. Gomez-Gomez, 547 F.3d 242 (5th Cir. 2008).
Larry David Davis v. Jeanne S. Woodford, Warden, of California State Prison at San Quentin, 333 F.3d 982 (9th Cir. 2003).
United States v. Bolanos-Hernandez, 492 F.3d 1140 (9th Cir. 2007).
— Cal. Penal Code § 261(a)(3) — 6 cases
United States v. Candelario Silvestre Beltran-Munguia, 489 F.3d 1042 (9th Cir. 2007). “There, we were asked to decide whether a defendant's prior rape conviction under California Penal Code section 261(a)(3) qualified as an "aggravated felony" within the meaning of 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.”
Samson Dubria v. G.A. Smith, Warden, 197 F.3d 390 (9th Cir. 1999).
Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000).
(HC) Mendoza v. Cate (E.D. Cal. 2021).
United States v. Bertan-Manguia (9th Cir. 2007).
— Cal. Penal Code § 261(a)(4) — 4 cases
Ivan Valdez Amador v. Merrick Garland, 28 F.4th 72 (9th Cir. 2022). “In particular, section 261(a)(4) encompasses sexual intercourse obtained by fraud in the inducement: when the perpetrator “fraudulent[ly] represent[ed] that the sexual penetration served a professional purpose when it served no professional purpose,” Cal. Penal Code § 261…”
United States v. James Bruguier, 735 F.3d 754 (8th Cir. 2013).
Witten v. State ex rel. Mississippi Dep't of Pub. Saf. & Crim. Info. Ctr., Sex Offenders Registry, 145 So. 3d 625 (Miss. 2014).
Rogers v. Giurbino, 619 F. Supp. 2d 1006 (S.D. Cal. 2007).
— Cal. Penal Code § 261(a)(6) — 1 case
Nathan D. Alexander, Ii, & Amy Gepfert v. Joseph Deangelo, 329 F.3d 912 (7th Cir. 2003).
— Cal. Penal Code § 261(a)(l) — 1 case
Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000).
— Cal. Penal Code § 261(b) — 4 cases
United States v. Gomez-Gomez, 547 F.3d 242 (5th Cir. 2008).
United States v. Gomez-Gomez, 493 F.3d 562 (5th Cir. 2007).
United States v. Herrera, 647 F.3d 172 (5th Cir. 2011).
United States v. Gomez-Gomez, 493 F.3d 562 (5th Cir. 2008).
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