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California Penal Code § 261
California retains the force requirement for rape, but as in New Jersey, its courts have largely interpretated the term "force" to be met by the act of unwanted penetration itself.
In reading the statute below, focus instead on the other subsections that consider those incapable of giving consent. These subsections are often described as "legal consent" rather than "actual consent." Some of the below are familiar, such as intoxication or unconsciousness. But each of them has surprising nuances that you should try to identify. For subsection 1, what concern does the last sentence adress? For subsection 3, why does the subsection not use the term "incapable" and instead use the term "resistance"?
Finally, we will not consider duress or menace in any detail, but notice that subsection 2 can be accomplished by means other than force; consider examples of what those situations might look like.
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