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How to Defend Accusations of Raping an Unconscious Person?

Posted by Ronald D. Hedding | Jun 02, 2022

This happens a lot in Los Angeles, California, when people go out and drink.  Many of these dates are first dates set up on the internet, and they end up having sex with the other person.

Then, somehow, that person, the next day, decides that they were taken advantage of, and now you're being accused or charged with having sex with an unconscious person.

Raping an Unconscious Person Defenses

So, how can you defend yourself if you're accused of raping an unconscious woman?  Of course, this is a serious crime.  You'd be looking at a lifetime registration as a sex offender

Your photograph will be on the Megan's Law website and people could find you.  It's a horrific result if someone is convicted of having sex with an unconscious person.

The punishments for a California Penal Code 261 PC rape case can vary widely. I've handled many rape cases, and I've seen prosecutors seek penalties from prison time to probation, believe it or not.

I've also had cases where the client received no time in jail. It depends on the circumstances of the alleged rape, their criminal record, and if the person has a defense. In some rape cases, the defendant has a defense, such as it's their word against the alleged victim's word, and the prosecutors realize they can't prove the case.   

If they think they can lose but still believe the person is guilty of rape, they may well make a probationary offer.  Our California criminal defense lawyers will review this topic further below.

What Are the Rape Laws in California under Penal Code 261 PC?

California Penal Code 261 PC defines the severe felony crime of rape as follows:

  • “the act of sexual intercourse is accomplished with someone not the perpetrator's spouse without consent.”

In other words, rape is sexual intercourse without the consent required from both parties. Further, somebody who initially permitted sexual intercourse can change their mind in the middle of having sex and withdraw their initial consent.

Rape Laws in California under Penal Code 261 PC

Those differing ways in which someone can accomplish non-consensual sexual intercourse and Penal Code 261 has several types of rape charges, including:

  • Rape by force or threat – Penal Code 261(a)(2) PC;
  • Rape of the mentally disabled – Penal Code 261(a)(1) PC;
  • Rape of one incapable of consent – Penal Code 261(a)(3) PC;
  • Statutory rape – Penal Code 261.5 PC;
  • Rape by fraud or artifice – Penal Code 261(a)(5) PC;

Several related crimes can be charged in addition to the underlying offense, such as:

What Are the Penalties for Rape?

You have to look at the facts and circumstances surrounding the rape case and whether or not the person has a defense.  Penal Code 264 PC lays out the penalties for rape:

  • three, six, or eight years in state prison,
  • felony probation.

The penalties will increase to seven, nine, or eleven years for the rape of a minor age 14 or older and to nine, eleven, or thirteen years for the rape of a minor under 14.

If the victim suffered a great bodily injury (GBI) during the commission of the rape, an additional 3 to 5 years would be added to the sentence. You will receive a “strike: under California's three-strikes law and be ordered to register as a sex offender under California Penal Code 290 PC.

What Are the Defenses for Rape Charges?

So, you start thinking about the potential defenses you could use to defend yourself.  A lot of times, both parties are drunk. Both parties are using drugs or alcohol and have sex, and nobody is really at fault.  That is a viable defense in these cases where both parties are drunk.

What Are the Defenses for Rape Charges?

Also, during the night you are with this person, other people see you together and see you happy, and in a position where you are both consensually kissing each other, hugging each other – in other words, it's a date-type situation. 

Those people are potential witnesses in a case where you're being charged with non-consensual sex. 

The problem is, the other party will claim that they passed out at some point and you had sex with them, and they passed out because they were way too intoxicated, and you should have seen that and known that they weren't consenting to it. 

But again, if leading up to that point, there is consensual foreplay between the two of you, to then say all of a sudden when things turn to sex – hours or even days after – that it was not consensual is a real problem. 

What are Pretext Phone Calls by Police Detectives?

Law enforcement tries to get around that problem by having the alleged victim pretext call the individual they are claiming raped them, challenge them, and say hey, look; you took advantage of me. 

You knew that I was drunk and couldn't consent, yet you had sex with me anyway.  Depending on what that person answers, they may be able to defend themselves with their answer or dig themselves into a deeper hole.

For example, if someone calls you and tells you that you did not have non-consensual sex with them, your answer should be, what are you talking about?  You agreed to it.  You were kissing me, and it happened, but it was consensual.  We were both drunk.  We were both kissing. 

So, that type of answer will be a real problem for the police and prosecutors in trying to use the statement against the person for having sex with somebody unconscious. On the other hand, if your answer is, I'm so sorry.  I don't know what I was thinking. You're tacitly admitting to doing something wrong. 

But, the problem is, when they get confronted like that, many people want the other person not to be mad at them, so they try to say things to placate that person, even though they might not necessarily be true.

Why Do You Need a Criminal Attorney?

The key is, at this point, that you need to hire an attorney right away.  I would not talk to the other party anymore.  I would not speak to law enforcement.  I would get an attorney.

California Sex Crimes Defense Lawyer

I have you come in, and we go over everything.  Give me honest, straightforward details so I can help you, and then we'll put a plan together moving forward, no matter where you are.

Whether it's in the investigative phase, you've already been arrested, and you have a court date pending, or maybe the prosecutors have already charged you, no matter what situation you find yourself in.

I worked for the district attorney's office in the early 1990s and then for a superior court judge, so I have a well-rounded approach to these severe cases.  I've been a criminal defense attorney, defending people like you for three decades.

So, pick up the phone now.  Ask for a meeting with Ron Hedding.  I stand at the ready to help you. The Hedding Law Firm offers a free case consultation by phone, or you can use the contact form.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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