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Rape by Intoxication

Penal Code 261(a)(3) PC - Rape of an Intoxicated Woman

California Penal Code 261(a)(3) PC is the statute defining the crime of rape of an intoxicated woman, often called “date rape,” as it can occur when a couple is on a date where they are highly intoxicated by alcohol or drugs and then engage in sexual intercourse.

Penal Code 261 PC rape is an act of non-consensual sexual intercourse under different circumstances, such as when a victim 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 defendant.

California Penal Code 261(a)(3) PC - Rape of an Intoxicated Woman
It's a felony to rape an intoxicated woman when they are unable to give sexual consent.

Having sexual intercourse with someone while they are intoxicated and do not resist does not mean the act was consensual. By law, if someone is so drunk or high that it impacts their ability to give sexual consent, then they could potentially face criminal charges for violating California's PC 261 rape laws.

Simply put, raping an intoxicated woman is defined as having sexual intercourse with them under circumstances where they cannot consent or resist due to their level of intoxication while you know about their physical condition.

In the eyes of the law, you took sexual advantage of a woman who was not in any condition to give consent or resist sexual advances, while you should have at least known they were highly intoxicated. It's considered having sexual intercourse with someone without their permission.  

Drunk sex is not consensual sex. Sexual Intercourse means penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. Still, the district attorney must be able to prove that you knew the woman was too intoxicated to resist or give permission.

Penal Code 261 PC says, “(a) Rape is an act of sexual intercourse accomplished under any of the following circumstances:

(3) If a person is prevented from resisting by an intoxicating or anesthetic or controlled substance, and this condition was known, or reasonably should have been known by the accused.

This means she was unable to give sexual consent with sound judgment due to their intoxicated state. The jury is responsible for determining whether she was able to consent based on the circumstances and case details, including the amount of alcohol or drugs that were consumed, level of maturity, and other factors.

What is Date Rape?

As noted, this form of rape falls under the category of "date rape." Consent is critical in any sexual intercourse between two people, including when a couple may know each other and decide to go out on a date.

Date rape is a term often used to describe sexual assaults that occur within social or dating situations. Sometimes, during the date, the couple might decide to have some alcoholic drinks and smoke some marijuana, causing them to be drunk or “high.”

Thus, date rape refers directly to non-consensual sexual intercourse with a victim who is incapable of giving legal sexual consent. PC 261(a)(3) PC, rape with intoxication means engaging in sexual intercourse with a woman who is unable to give legal consent due to their high level of intoxication, which could be the result of being:

  • Under the influence of drugs,
  • Prescription drugs,
  • Controlled substances,
  • Marijuana,  
  • Alcohol or
  • Any other intoxicating substance that impairs their ability to resist or comprehend the nature of the sex act. 

California Penal Code 261(a)(3) PC covers a rape scenario under the following conditions:

  • The woman is prevented from resisting by an intoxicating or anesthetic substance or a controlled substance and  
  • The defendant knew or should have reasonably known their condition.

Notably, the law covers a scenario where the defendant is accused of either intentionally intoxicating the woman or becoming willingly intoxicated.

The primary factor is whether the level of intoxication rendered the victim incapable of giving voluntary consent to have sexual intercourse with the defendant. This means giving informed, free, and voluntary consent to sexual acts.

Suppose a defendant knew his date had too much to drink but still decided to have sex with her. Suppose he was also intoxicated. In either case, he could be charged with PC 261 rape even if she did not offer any resistance. 

Simply put, under these circumstances, he cannot claim she gave consent to sexual intercourse. Consent by adults means two people agree to have sexual intercourse. Minors under the age of 18 cannot give sexual consent.

What Factors Must Be Proven to Convict? 

To convict you of rape under PC 261(a)(3), the district attorney must prove all the elements of the crime beyond a reasonable doubt, such as the following:

  • You engaged in sexual intercourse with someone,
  • The other person was under the influence of alcohol or some other anesthetic drug at the time of sexual intercourse,
  • Their level of intoxication prevented them from resisting and
  • You knew, or should have reasonably known, they were too intoxicated to consent.

California law says that consent is affirmative action. This means you cannot claim she consented because she did not resist. For consent to be present, two adults must have agreed to engage in sexual intercourse. 

What Are Related Crimes?

Several California laws are related to PC 261(a)(3) rape with intoxication, including the following:

  • Penal Code 261(a)(1) rape of disabled person. This is when a victim 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 by the defendant.
  • Penal Code 261(a)(2) rape by force or fear. This is when sexual intercourse is accomplished against a victim's will using force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another.
  • Penal Code 261(a)(4) rape of an unconscious person. This occurs when someone is unconscious at the time of the sex acts and does not know of the nature of the act. This means the victim was incapable of resisting because they were asleep, threatened, unconscious, etc.  
  • Penal Code 261(a)(5) PC rape by fraud or artifice. This means the person consented under the belief that the person committing the act is someone known to the victim, induced by pretense or concealment.
  • Penal Code 261 PC rape. This is defined as using force, threats, or fraud to have non-consensual sexual intercourse with another person.
  • Penal Code 261.5 PC statutory rape. This law covers sexual intercourse with a minor under the age of 18, regardless of sexual consent.
  • Penal Code 243.4 PC sexual battery. This law covers the act of touching another person's intimate parts without consent for the purpose of sexual gratification, arousal, or abuse.
  • Penal Code 289 PC forcible penetration with a foreign object. This law covers nonconsensual and forcible penetration of a victim's vagina or anus with a foreign object by use of force or threats.
  • Penal Code 287 PC oral copulation by force or fear. This law covers nonconsensual contact between the mouth of one person with the penis, vagina, or anus of another person.
  • Penal Code 286 PC sodomy. This law covers nonconsensual contact between the penis of one person and the anus of another.

What are the Penalties?

California law does not distinguish between date rape and other forms of rape. The penalties and consequences are the same. If the victim was unable to consent, whether they were physically forced or too intoxicated, then any non-consensual sex is considered felony rape.

A conviction for violating PC 261 (a)(3) can result in the following punishments:

  • Three, six, or eight years in state prison, and you must serve at least 50% of your time before parole consideration.
  • Registration as a sex offender, possibly for tier-three life.
  • A "strike" under California's 'Three Strikes" law.
  • A third strike includes 25 years to life in prison.
  • Increased punishments if you have prior convictions or
  • Increased penalties if there were multiple victims.

What Are the Defenses?

If you are accused of raping an intoxicated woman, our California criminal defense attorneys can use different strategies, such as the following:

  • Consent from the alleged victim,
  • Lack of knowledge of intoxication,
  • Mistaken identity.

Perhaps we can argue there was sexual consent or that she was not too intoxicated to give consent. Intoxication by itself is insufficient to convict you of rape.

Rape Defenses

Instead, the prosecutors must prove beyond a reasonable doubt that her intoxication was such that she was incapacitated and unable to give consent, which is often challenging to prove. 

Perhaps we can argue there was a lack of knowledge. Maybe we can say that you were genuinely unaware that she was too drunk or high to consent and that you reasonably assumed she agreed to have sexual intercourse.

Perhaps we can argue mistaken identity or that the allegations are false. Maybe we can say she misidentified you as the rapist due to her level of intoxication. Perhaps we can negotiate for reduced charges, case dismissal, or persuade the district attorney not to file formal criminal charges (DA reject).

Contact our law firm for more information. Cron, Israels & Stark is based in Los Angeles, CA.

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