California Penal Code § 261

Under California Penal Code § 261, California Penal Code § 261 defines rape as an act of sexual intercourse accomplished without legal consent — including where the victim is incapable of consenting or where force, threat, or fraud is used. The same conduct can also support a civil lawsuit for damages, independent of any criminal case.

Reviewed against the current statutory text at leginfo.legislature.ca.gov. This page is legal information, not legal advice.

Exact Statute Text

Read the full, current section at the official source: Cal. Penal Code § 261 (leginfo).

In Plain English

• Criminal definition: § 261 sets out the circumstances that make sexual intercourse rape under California law.
• Civil parallel: the same act can ground a civil claim for damages — a criminal conviction is not required to sue.
• Referenced for civil deadlines: § 261 is among the offenses that define “sexual assault” for the civil statute of limitations in CCP § 340.16.
• Lower civil burden: a civil claim is proved by a preponderance of the evidence, not beyond a reasonable doubt.

Key Terms Defined

Rape (Penal Code § 261)

Non-consensual sexual intercourse accomplished under the circumstances listed in the statute.

Legal consent

Freely and knowingly given agreement; a person incapacitated by disability, unconsciousness, or intoxication cannot legally consent.

Civil claim

A separate lawsuit for money damages based on the same conduct, independent of the criminal case.

Purpose & Context

Section 261 is the criminal definition of rape. For survivors, it also matters civilly: it identifies the conduct that supports a civil claim and helps define the deadlines under California’s civil sexual-assault statutes.

Real-World Example

A person is sexually assaulted while too intoxicated to consent. Even if prosecutors never bring criminal charges under § 261, the survivor may pursue a civil claim for damages under California’s civil statutes, which use a lower burden of proof.

Penal § 261 — criminal vs. civil

Related California Statutes

• CCP § 340.16 — civil deadline for adult sexual assault
• Civil Code § 1708.5 — sexual battery
• Penal Code § 289 — forcible penetration

Why 261 Matters

For injured people & families

You do not need a criminal conviction to hold an assailant accountable — the same conduct defined in § 261 can support a civil claim for compensation. See our California sexual abuse lawyer page.

For defendants

Civil exposure exists independently of the criminal outcome, and is decided under the lower preponderance standard.

Frequently Asked Questions

Can I sue for rape if there was no criminal conviction?

Yes. A civil claim is separate from the criminal case and does not require a conviction under Penal Code § 261.

What is the civil deadline?

For adult survivors, generally CCP § 340.16 (the later of 10 years or 3 years from discovery); for childhood abuse, CCP § 340.1 (no time limit).

What is the burden of proof in the civil case?

A preponderance of the evidence — lower than the criminal ‘beyond a reasonable doubt’ standard.

Does intoxication affect consent?

A person too intoxicated to understand or resist cannot give legal consent under California law.