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The difference between Rape and Sexual Assault

Posted by Courtney Pilchmann | Jun 14, 2016 | 0 Comments

Recently in the news we have been hearing about Brock Turner, the Stanford University student swimmer who was convicted of sexual assault. The judge in Mr. Turner's case sentenced him to 180 days in county jail despite the request of six years in state prison by prosecutors. This judicial decision has caused a huge outcry from public who feel this punishment does not fit the crime. Further, headlines are calling Mr. Turner a rapist? and most people who are posting and blogging on the topic are using that term as well. However, under the laws of California, Mr. Turner is not in fact a rapist.

What is the definition of Rape?

California Penal Code Section 261 defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator. Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis.  California Penal Code, § 263. So, because Mr. Turner did not penetrate the victim with his penis, he could not be liable or guilty of rape. Further, sexual crimes against same sex individuals cannot be classified as a rape because as previously stated, the genitalia of a man and woman must be involved.

What is the definition of Sexual Assault?

Sexual Assault is not defined under California law as a single act but rather a group of acts can be classified as sexual assaults. Think of sexual assault as an umbrella under which other crimes fall. Essentially any unwanted physical contact of a sexual organ or breasts of a person can be considered a sexual assault. So, rape, sexual battery, sexual penetration by a foreign object, sodomy and oral copulation are all considered sexual assaults. So, rape is considered a sexual assault however, a sexual assault is not necessarily considered a rape.

Whether a person is guilty of rape or another sexual assault crime, the punishment is very similar. Most sex crimes require registration as a sex offender pursuant to Penal Code Section 290 regardless if the crime is a felony or misdemeanor. In addition, most sexual assault crimes carry significant prison sentences and depending upon the circumstances, some sexual assault crimes are what we call one strike sex offenses.

What is a One Strike Sex Offense?

In order to be classified as a one strike sex offense, the offense has to be one of the following pursuant to Penal Code 667.61(c): rape, spousal rape, lewd or lascivious acts, sexual penetration, sodomy, oral copulation, and continuous sexual abuse. In addition, the offense has to include one or more circumstances described in PC 667.61(d) or two or more circumstances specified in PC 661.61(e).

PC 667.61(d) circumstances include:

  • Previous conviction of a crime listed in PC 667.61(c);
  • Kidnapping victim;
  • Inflicting mayhem or torture on victim;
  • Offense was committed during a first degree burglary;
  • Inflicting great bodily injury;

PC667.61(e) circumstances include:

  • Defendant used a dangerous or deadly weapon;
  • Kidnapped victim;
  • More than one victim;
  • Committed during a residential burglary;
  • Defendant engaged in tying or binding of the victim;
  • Defendant administered a controlled substance;

As you can see, sex crimes can be very complicated to understand. It is always important to speak to a criminal defense attorney who thoroughly understands the law and consequences of such crimes. We have offices in Orange County, Los Angeles County and San Bernardino County and have experienced sex crime criminal defense attorneys to assist you. Call for a free consultation.

About the Author

Courtney Pilchmann

Courtney Pilchman is a certified criminal law specialist who was a Deputy District Attorney for over six years prior to becoming a criminal defense attorney. She was a member of some of the most elite prosecution units including crimes against children, family violence, and sexual assault. She pr...

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