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The Difference Between Date Rape and Consensual Sex

Posted by Ronald D. Hedding | Oct 22, 2021

Date rape is generally described as nonconsensual sexual intercourse between two people dating or spending some time together.

However, date rape and the standard rape charge are the same and are defined under California Penal Code 261 PC.

This is a vast question running rampant now, especially with the advent of the internet and dating.  Many people are meeting people, going out, having one-night stands, sex on the first date.

Difference Between Date Rape and Consensual Sex

Alcohol is involved, and sometimes drugs are involved, and then the female feels that they were taken advantage of after the fact.  Maybe the person didn't text them to make sure they got home okay; perhaps they were rude to them. 

Maybe they didn't call them again, and they won't get back together again, and the person feels that they were taken advantage of and not treated right. 

The next thing you know, there's a date rape investigation, and the man says, wait a minute, it was consensual. She agreed. How can she possibly call it date rape?

The serious felony offense of rape is described as non-consensual sexual intercourse using force, threats, or fraud. Rape cases do not always involve someone using physical strength.

Our California sex crime defense attorneys are reviewing the laws below to give readers a better understanding.

What is the Definition of Rape?

California Penal Code 261 PC defines the several forms of rape crime and provides a legal definition:

  • “an act of sexual intercourse accomplished with someone not the spouse of the perpetrator without lawful consent.”

Put, PC 261 rape prohibits sexual intercourse without the consent of both parties, and it should be noted that someone who initially gave permission can change their mind during sex and withdraw consent.

For a prosecutor to prove a rape case, full penetration of the victim is not required, and it doesn't matter if ejaculation occurred.

The Issue of “Consent” in Date Rape Cases

I'm getting a lot of those calls. That's why you've got to be careful when you meet up with people you don't know. 

You think everything's okay, but once you throw alcohol in the mix, people tend to start making arguments that they were taken advantage of, and I hear the men say, wait a minute.  I was drinking as well.  Everything seemed consensual

We were consensually kissing. The next thing you know, sex occurs, and the woman claims something wrong happened the next day. Weird texts are coming across. Bizarre phone calls are coming across, and now the man doesn't know what to do.  

I get those calls. That's why I think it's imperative, especially when you're talking about a potential sex crime. You've got to get an attorney right away and start making smart moves from the beginning.  

You've already put yourself in jeopardy. Don't compound that by handling it yourself, trying to figure it out yourself. The next thing you know, you're in trouble. 

Example of Date Rape

I'll give you a perfect example. I just gave you the scenario:

People get together, one-night stand the first time they meet, alcohol involved, and then the woman makes a phone call, basically saying that the man took advantage of her.

This allegation occurs even though the man may not have taken advantage; even though the man is saying everything was consensual, I thought you agreed. 

We were both drinking, but the woman had him on the phone.  Sometimes the police will cause the woman to do that, and now the man is talking, and a lot of times, you have a temptation to apologize because you want to alleviate the other person when you aren't guilty.

But that apology is evidence of guilt.  That's a tacit acknowledgment of responsibility.  Or they send you a text message, and you text them back. 

Preparing a Defense Strategy to Fight the Rape Allegations

As soon as you know you may be accused of some sex crime, pick up the phone and call me.  I've been doing this for almost 30 years.

Preparing a Defense Strategy to Fight the Rape Allegations

I know how to handle these cases because there's a lot on the line.  You think you can talk yourself out of it.

You think you can explain things.  You think you can apologize, and everything will be okay. 

The reality is, that is not the case.  Because once the police get involved, once you have a scorned woman, you're now in a position where you're potentially looking at having:

  • to register as a sex offender,
  • having to go to jail,
  • having to go to prison, and
  • having your life turned upside down.

So, why would you try to handle that yourself?  You may say or do something used to incriminate yourself, and you're innocent.  That's the crazy thing about it.  I can't tell you how many times I've seen that happen.

Limitations on Attacking an Alleged Victims Credibility in a Sex Crime Case

This is a big question because many people who are charged with sex crime cases want their attorney, during the cross-examination of the alleged victim, to attack them and make the argument that they are somehow responsible for what happened and they should not be charged with a crime.

Unfortunately, recently, the California legislature has enacted Evidence Code Section 1103.  Basically, that attempts to protect the alleged victim in a sex crime case. 

For example, that Code Section indicates that typically where you can attack the manner of dress of the victim, you are no longer permitted to do so. 

California Evidence Code Section 1103(c) prohibits defendants from introducing evidence of how the accuser was dressed as evidence of consent. 

In other words, you can't say I went on a date. Furthermore, she was dressed provocatively, so she consented to me having sex with her. Therefore, her argument that I raped or attacked her while unconscious is irrelevant.

Handcuffing the Defense

This attempts to put handcuffs on the defense against sex crimes.  I can tell you that I've been practicing criminal defense and doing sex crime cases for the past 30 years. I've seen all sorts of laws enacted that I deem unfair because they allow a bunch of conduct evidence against the defendant. 

For example, if you have a prior conviction or even a prior accusation that you committed some sex crime, and now you have a new offense pending in criminal court, the prosecutors, under Evidence Code Sections 1108 and 1109, are usually going to be able to bring in those prior offenses.  That's how they're getting all of these people because they:

  • stack a bunch of prior offenses,
  • bring in a bunch of victims that aren't even charged, and
  • then use that to make their new weak sex crime case.

On the flip side, as I'm indicating, you're not allowed to attack the alleged victim about some of her actions.  So, it does seem like a double standard here, but the legislature and our society are putting it out there.

Experienced Sex Crime Defense

So, if you or a loved one is charged with a sex crime, you'd better get the best sex crime defense attorney you can find – someone who will be honest with you.  I've worked with the district attorney's office. 

I've worked for a superior court judge, so I have an idea of how the other side handles these matters, how a judge might deal with these matters, and of course, since the early 1990s, I've been defending those people charged with sex crimes.

The bottom line is that you've come to the right place if you need the best. So pick up the phone now.  Ask for a meeting with Ron Hedding. 

We'll discuss some new limitations, specifically regarding being unable to argue how the alleged victim was dressed to say they consented to whatever you're being charged with. Finally, we will look at your case in detail and discuss the best options for you moving forward.

Prefiling Intervention In Sex Crime Cases

So, the bottom line is in a date rape situation where you're saying it was consensual, get an attorney involved right away.  People tell me that they might think I'm guilty if I get an attorney. 

Who cares what people think?  The issue is what they can prove and what evidence they can bring to bear that you did something wrong versus consensual things. 

So, what the police think doesn't matter.  It's what can be proved.  I can't tell you how often I've had cases where the police take it to the prosecutors, and the prosecutors look at them and say, we're not filing this case. 

We're not going to be able to prove this.  Ron Hedding is their attorney.  He will destroy us in court because you didn't get the evidence you should have called. 

You should have done a pretext phone call and got him to apologize or admit they did something wrong.  You should have found other witnesses.  It would help if you got video evidence.

Prefiling Intervention in California Sex Crime Cases

There are many things the police can do to investigate a sex crime properly.  But if they don't do that or if you don't help them, then they will have a problem sometimes proving the case.

This is especially true if it's the man's word against the woman's word and vice versa, especially when alcohol is involved, especially when things look like the woman is consenting with you. 

She's going back to your place, having a lot of drinks, and there are sexually explicit texts back and forth, whatever the case may be.

So, if you're in a situation where you were involved in consensual sex and the woman is saying it was not consensual sex, but you raped her, pick up the phone immediately. 

We'll set up a meeting.  We'll get me retained prefiling to advise you properly, and you can be prepared when the police come knocking.

It might be possible to negotiate with the prosecutor by showing them mitigating factors to prevent the formal filing of criminal charges before the court. Hedding Law Firm is located in Los Angeles County, and we offer a free case evaluation.

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.

Contact Us Today

Hedding Law Firm is committed to answering your questions about state or federal sex crime issues in California and throughout the United States.

I'll privately discuss your case with you at your convenience. All consultations are free, discreet, and confidential. Contact us today to schedule an appointment.

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