California Penal Code

§ 261

PEN § 261 Effective Jan 1, 2026Title 9 · Part 1 · Ch. 1

Statute text

(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:

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Legislative history

Amended by Stats. 2025, Ch. 599, Sec. 1. (SB 258) Effective January 1, 2026.