Cal Pen Code § 261 (2004)
§ 261. Rape; "Duress"; "Menace"
(a) Rape is an act of sexual intercourse accomplished with a
person not the spouse of the perpetrator, under any of the following
circumstances:
(1) Where a person is 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.
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), 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.
(2) Where 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) Where a person is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the accused.
(4) Where 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 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) Where a person submits under the belief that the person
committing the act is the victim's spouse, and this belief is induced by any
artifice, pretense, or concealment practiced by the accused, with intent to
induce the belief.
(6) Where 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) Where 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) As used in this section, "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 his or her relationship to the defendant, are factors to
consider in appraising the existence of duress.
(c) As used in this section, "menace" means any
threat, declaration, or act which shows an intention to inflict an injury upon
another.