How Can You Be Charged with Rape Under California Penal Code 261 PC of an Unconscious Person if She Agreed?
This crime comes up a lot where people get together, whether they know each other or they meet online, social media, any of the apps on the internet.
They hook-up for a date and go and have drinks and then ultimately, they end up going back to someone's place or getting intimate in a vehicle and sex occurs.
Perhaps some sort of a sex act and later the woman feels as though somehow, she was taken advantage of because she drank a lot and she would never get intimate with somebody the first or second time she meets them, whatever the case may be.
Allegations of Too Intoxicated To Give Consent
Then you find yourself in a position of either the woman accusing you or law enforcement accusing you of raping an unconscious person and the theory is that she was too drunk to consent. So, you get yourself in a position, for example:
- both people drink,
- you and the girl,
- you're kissing and one thing leads to another, and
- some sort of sexual activity takes place.
You're asking yourself, if she's willingly kissing me and we end up having sex, we're both drunk, I believe it's consensual — how could I possibly be charged with rape. This is how these guys are proving the case.
Defense of Consensual Sex in PC 261 Rape Allegations
So, you can start to get a feel for these charges in Los Angeles county when someone is charged with rape unconscious person.
First off, there's usually some angry text exchange between you and the woman, where she is accusing you of certain things. Then the question becomes, what is your response?
I can't tell you how many clients are being accused of raping and taking advantage of a woman and instead of them saying, what are you talking about?:
- It was consensual,
- You were kissing me,
- You agreed,
- We were both drunk,
- How can you possibly now try to blame it on me?
The response is, I'm sorry. I shouldn't have done that. I don't know what came over me. You can't have that response if you're going to say that you're innocent of raping an unconscious person.
Pretext Phone Call By Law Enforcement
Then when the police get involved, they will have the woman make what's called a pretext phone call where she's going to call you.
They're going to record the conversation which they're allowed to do if they're investigating a potential rape case, and they're going to give her questions to ask you and statements to make.
For example, the police are probably going to tell her to say, I can't believe you took advantage of me in that way. Why would you do that? I didn't want to have sex with you.
I've also seen the police say, I don't know what happened through the woman. Did we have sex? In other words, now they're trying to say the woman was drunk, intoxicated and couldn't possibly consent to the sex. There's the key right there.
Taking Advantage of an Intoxicated Person
If someone agrees to have sex with you there's not a problem, but when that person doesn't agree there is a problem. But what about that middle ground where the person was so drunk, they couldn't consent.
They were passed out five to ten drinks deep or some sort of drug, whatever the case may be, and then you have sex with them.
That's where the rape of an unconscious person comes in because the person was so drunk and so passed out and blacked out that they couldn't consent.
So, obviously, the argument is going to be from the prosecutors is that you took advantage of that person, and therefore, that's why they're charging you with rape of an unconscious person and you're going to find yourself in one of the 38 courts in Los Angeles county.
Criminal Defense for California Rape Charges
Most of the time when it comes to these rape cases, you're going to be going to the jurisdiction where the alleged rape occurred and you'll have to deal in that court.
I've been doing this now for over 27 years. I've worked for the DA's office. I've worked for a Superior Court Judge and I've been a criminal defense attorney handling these types of rape of an unconscious person cases since 1994.
So, you've come to the right place. Take the first step towards protecting your freedom, your rights, your ability to not have to register for a sex offender for the rest of your life, your job and a whole host of other things.
Ask for a meeting with Ron Hedding. We'll sit down and talk about everything and I'll put my experience to work for you to help you get through this very difficult time.
Hedding Law Firm is a top-rated criminal defense law firm located at 16000 Ventura Blvd #1208 Encino, CA 91436.
We serve clients in Southern California courts, including LA County, Orange County, Santa Barbara County, Ventura County, Hollywood, Santa Monica, Simi Valley, Riverside, and San Bernardino.
Contact us for a free case evaluation at (213) 542-0979.