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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 defines the crime of rape of an intoxicated woman. It is often called “date rape,” as it sometimes occurs after a couple goes out and has some drinks, gets too intoxicated or high on drugs, and then have sexual intercourse.

However, having sex while intoxicated does not mean the act was consensual. Under the law, if someone is so drunk that it impacts their ability to consent sexually, their partner could be charged with rape under PC 261. 

Penal Code 261(a)(3) PC - Rape of Intoxicated Woman
PC 261(a)(3) PC makes rape a crime when they are unable to consent due to intoxication.

Rape of an intoxicated woman is defined as having sexual intercourse under certain circumstances, such as having no ability to consent or resist due to intoxication. At the same time, you knew or should have known of their condition.

Simply put, PC 261(a)(3), raping an intoxicated woman is a crime as it's considered having sexual intercourse with someone without their consent. Still, it must be proven that you knew they were 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 the victim could not give sexual consent with sound judgment due to their intoxicated state. The jury must determine whether they were able to give consent based on the circumstances and case details, including the amount of alcohol or drugs that were consumed, their level of maturity, etc.

This felony sex crime carries up to eight years in state prison, mandatory sex offender registration, and a strike under California's three strikes law.

What is “Date Rape” in California?

Consent is a crucial factor in any sexual activity between two people. This includes a situation where the couple knows each other well and decides to go out on a date and then have some alcoholic drinks or smoke marijuana, etc.

“Date rape” refers to non-consensual sexual intercourse with a victim who is incapable of giving legal consent. In the context of Penal Code 261 (a)(3) PC, rape with intoxication refers to engaging in sexual intercourse with someone unable to give legal consent due to intoxication. 

This can occur if the victim is under the influence of drugs, alcohol, or any other intoxicating substance that impairs their ability to resist or comprehend the nature of the sex act. PC 261 (a)(3) covers a rape scenario when:

  • 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.

This includes situations where the defendant is accused of intentionally intoxicating the victim, or they became intoxicated willingly. The crucial factor is whether the level of intoxication rendered the victim incapable of giving voluntary consent to have sexual intercourse.

Suppose you knew she had too much to drink, but you decided to have sex with her anyway. In that case, you could be charged with rape. You cannot claim the victim gave consent because there was no resistance. 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 for a Conviction?  

To convict you of rape with intoxication as defined under Penal Code PC 261 (a)(3), prosecutors must prove beyond a reasonable doubt all the elements of the crime, including the following:

  • You engaged in the act of sexual intercourse with another person,
  • At the time, the other person was under the influence of alcohol or some other anesthetic drug,
  • The level of intoxication of the other person prevented resistance or ability to consent and
  • You knew or should have reasonably known, that the other person was too intoxicated to give sexual consent.

What Are Related Sex Crimes?

Several California crimes are related to Penal Code 261 (a)(3) PC rape with an intoxicated woman, such as the following:

  • Penal Code 261 PC - rape is defined as using force, threats, or fraud to have non-consensual sexual intercourse with another person.
  • Penal Code 261(a)(1) PC - rape of the mentally disabled means sexual intercourse with someone incapable of consenting due to a mental disorder or developmental or physical disability.
  • Penal Code 261(a)(5) PC - rape by fraud or artifice means the person consented under the belief the person committing the act is someone known to the victim induced by pretense or concealment.
  • Penal Code 261.5 PC - statutory rape is sexual intercourse with a minor under the age of 18, regardless of sexual consent.
  • Penal Code 264.1 PC - rape in concert means raping someone along with another person, often called “gang rape.” 
  • Penal Code 243.4 PC - sexual battery is 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 is the 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 is nonconsensual contact between the mouth of one person with the penis, vagina, or anus of another person.
  • Penal Code 286 PCsodomy is nonconsensual contact between the penis of one person and the anus of another.

What are the Penalties for PC 261(a)(3)? 

Under California law, rape is a felony offense, including when the victim is unable to consent due to intoxication or unconscious. If convicted, the penalties include the following:

  • Three, six, or eight years in state prison, and you must serve at least 50% of your time before being considered for parole.
  • Register as a tier-three sex offender for life.
  • A "strike" under California's three strikes law. 

Notably, the penalties could increase if you have prior convictions or there were multiple victims.  A third “strike” means facing a penalty of 25 years to life in prison. 

What Are the Defenses for PC 261(a)(3)?

The term date rape refers to sexual assaults that occur within social or dating situations. Thus, rape with intoxication falls within this category because it often involves people known to each other and where intoxicants are commonly involved. 

California law does not distinguish between date rape and other forms of rape. The penalties and consequences are the same. If you have been accused of any form of rape, our California sex crime lawyers can use different strategies to obtain the best outcome, such as the following:

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

Perhaps we can argue the alleged victim was not too intoxicated and gave consent to sexual intercourse. Intoxication alone is not sufficient evidence to convict you of rape.

The District Attorney must prove the intoxication was so severe that the alleged victim was incapacitated and unable to give consent. If we can cast doubt on the crucial issue of consent, there is a chance of reduced charges or a case dismissal.

Perhaps we can argue there was a lack of knowledge. Maybe we can say you were reasonably unaware that the alleged victim was too drunk or high to consent to sex, and you justly assumed they agreed to have sex. 

Perhaps we can argue that you are the victim of mistaken Identity. Maybe the victim misidentified you as their rapist because they were too intoxicated. Possibly you have an alibi to prove you are not guilty of rape.

Perhaps we can negotiate with the prosecutor prefiling to avoid the formal filing of criminal charges, called a “DA reject.” Contact our law firm for more information. The Hedding Law Firm has offices in Los Angeles, CA.

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