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I have personally tried more than 10 sex crimes cases in three different counties.  In addition, I have handles almost fifty other sex crimes cases in more than 13 years of criminal defense experience if you have been arrested for a sex crimes case do not hesitate to call today. 

There are seval different types of cases that fall under sex crimes cases.

Penal Code section 262 PC “spousal rape”

Date Rape

Penal Code section 261.5 “statutory rape”

“Oral copulation by force”

Penal Code section 289 “Forcible Penetration with a Foreign Object”

The punishment penalties, and stigma of a Sex Crimes conviction can be severe

However rape cases involve a number of evidentiary issues both emotional and physical.

A skilled and experienced Attorney is needed to investigate and possilble obtain the best expert witnesses.

Below I will discuss several issues as to Rape cases.

1. Overview of Rape Law

2. How does the prosecutor prove that I am guilty of Rape

3. The penalties and punishments for Rape.

4. How do I fight a California Rape Charge

5. Rape and related offenses.

1. Overview of California Rape Law

As per Penal Code section 261 Pc rape occurs when an individual engages in sexual intercourse with another person when the sexual act is accomplished 1. Against tha persons will 2. without that person’s consent and by means of



duress duress can be an express or implied threat  which would coerce a reasonable person to perform an act which he or she would not otherwise have performed/ or

2. Agree to an act which he or she otherwise would not have submitted. Convincing an alleged victim that he or she will be arrested, incarcerated, or deported, for example.

Fear of Bodily Harm to oneself is or to another (that the alleged victim’s fear must be actual and reasonable under the circumstances. 

Also, if the alleged victim

1. To intoxicated to consent to the activity

2. Unable to give consent due to a mental disorder or physical disability which the accused knows or reasonably should know about, or

3. Unconscious about the nature of the act (either because he/she is asleep, unconscious, or fraudently induced into having sexual intecourse and the accused know or reasonably should know that this is the case.


2. How does the prosecutor Prove that I am guilty of Rape

in order to prove that you are guilty of Rape the prosecutor must prove four facts

1. That you engaged in sexual intercourse with another person (any penetration will suffice, regardless of how slight). 

2. That you were not married to the other person ( that is a seperate crime known as spousal rape)

3. That the intercourse was against the will of the other person

4. That you accomplished the act by one of the means above.

It is the third element that raises the most issues so we will look at that.


Agains the will and consent

Simply put against the will and consent. means without the other persons consent.  but what is meant by consent.

Consent means positive cooperation in an act or attitude as an excercise of free will.  A person who “consents to sexual intercourse does not freely and voluntarily with knowlege of the true nature of the sexual act.  There are three important things to consider in understanding consent

1. The fact that the alleged victim are or where in a dating relationship does not in-and of-itself constitute consent without the alleged additional evidence of consent.

2. The fact that the alleged victim asked you to use a condom does not in and of itself constitute consent

3. The fact that the alleged victim initially consented to and participated in the sexual intercourse does not in and of itself prove consent.

Resistance is not an element of Rape

The prosecutor does not need to prove that the alleged victim tried to resist in order to prevail at trial. 

Under the old rape law if a women froze during an attack then the defendant would be found not guilty because there was not sufficient resistence.

However, that is not the law today.

California Rape law applies to both men and women


3. Penalties, Punishments and Sentencing for California Penal Code section 261 Rape

Rape is a Felony if convicted you could face

Formal Probation

Prision for 3, 6, or 8 Years.

and the Lifetime registration requirement.

If there is Great Bodily Injury and additional 3,4, or five years.



To accuse someoene of Rape requires little or no evidence ; however, for the person to be convicted there must be proof beyond a reasonable doubt.

False Accusation

Someone may accuse you of rape out of Jelousy, anger, or any other reasons


If the person consented then they cannot be Raped.

Insufficient Evidence

If the alleged victim does not see medical attention there may be no physical evidence to corroborate her statements.  Also, if no one sees or hears the incident than a similiarly there is no evidence. 

Mistaken Identity

Mistaken Identity can happen for a variety of reasons

poor lighting

faces masks

prejudicial in person lineups or photographic lineups.

Penal Code Section 261.5 Statutory Rape

Statutory Rape takes place when an adult has sexual intercourse with an individual under 18, referred to as a minor. 

If you have been arrested for or investigated for any of the offenses listed above call us immediately. 





Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704 View Map
Phone: 559.441.1418