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Rape of an Unconscious Woman or Spouse

Posted by Ronald D. Hedding | Jan 25, 2019 | 0 Comments

When it comes to this particular rape charge, which is covered under California Penal Code Section 261(a)(4) and Penal Code Section 262(a)(3), obviously the prosecutors and judge will take it seriously in Los Angeles County.

They're going to assign a special sex crime prosecutor no matter which courthouse the case is pending.  Each branch in Los Angeles County has their own special sex crime prosecutor who deal with these type of cases.

CALCRIM 1003 – Jury Instructions

In order for the prosecution to prove this type offense, they have to meet certain elements.  These elements are laid out in the Jury Instructions, Cal. Crim. 1003 which talks about what the prosecutors have to prove and what the judge is going to read the jury at the end of the case as far as the instructions and the law is very telling for purposes of trying to defend this type of a case and whether or not it's the type of a case where some sort of a resolution should be worked out.

The judge will tell them if the defendant is charged with Penal Code Section 261 or 262 and in order for the People of the State of California to prove this crime, they must show:  number one, the defendant had sexual intercourse with a woman.

See, now this is one of the issues because a lot of times they can't prove that somebody had sexual intercourse, either because they don't have DNA, there's no semen, the person was so drunk they don't even know what happened, so they'll go and talk to the person who is a target of the crime and they'll start talking to them and then the defendant will give them element #1 and say, oh yeah, I had consensual sex with that person.  I don't know what she's talking about.

Elements of the Crime

But now they've given him element number one.  That's one of the reasons you never talk to the police. Don't give them elements because when they're investigating a sex crime, especially a serious sex crime where someone is supposedly being rape who's unconscious — either by some drugs or some other reason — they're going to try to do everything they can to get the evidence and too convict the person.

So, the question becomes why would you just give them the information that they want and talk to them about it, instead you should get to an attorney as quick as possible.

Element number two is he and the woman were not married to each other the time of the intercourse.  So, obviously, this is one of the things that they're going to be looking at.  They're typically not charging a husband with raping their wife, at least under this Code Section.

Certainly, if you're married and if your wife says no, I don't want to have sex with you, you can't force sex on them or you would be charged likely under another Code Section, but this is one of the elements for these particular Penal Code Section.

The third element is, the woman was unable to resist because she was unconscious of the nature of the act.  So, this is basically someone who is passed out — for example, maybe they just had way too much to drink, maybe they had drugs or a combination of alcohol and drugs; maybe they're claiming that they drank a drink laced with Rohypnol and so, they were out of it and couldn't consent.  That's their state of unconsciousness.

So, the prosecution is going to have to prove this element.  The question is, why were you unconscious?  What happened?  Did you get drugged?  Did you drink too much.  Maybe while you were so drunk you actually consented to it, because a lot of people are waking up claiming they don't know what happened.

Well, if you don't know what happened, maybe you shouldn't be so quick to accuse somebody of rape unless you've got some sort of injuries or there's other surrounding circumstances that make you think that you might have been raped.

A lot of times they don't have and that's not really fair to a defendant because how is that person supposed to defend themselves when someone just say, well I don't know what happened but I think the person raped me.  So, that's element number three.

Element number four is, the defendant knew that the woman was unable to resist because she was unconscious of the nature of the act.  This is a big element because a lot of times people — maybe the defendant in a case is drunk.  So, now you have two drunk people that are attracted to each other.

They have sex with each other and then one of the drunk people wakes up.  Maybe that person has a boyfriend, they feel guilty, they don't know what happened.  Who knows whatever is in that person's mind.

Now, all of a sudden, they're accusing the other person of rape because they're both naked and because the other person can actually remember having sex, but maybe that defendant thought based on the circumstances, based on how the person was acting, based on prior connections with that person — maybe they thought that that person consent to it and that is a legitimate defense and that's something that can be used to block number four.

Definition of Sexual Intercourse

Another issue that I see come up is what is what constitutes sexual intercourse, and the jury instruction explains it.  It says, sexual intercourse means any penetration no matter how slight of the vaginal or genitalia by the penis.  Ejaculation is not required.

So, if you try to have sex with the person and you're unable to but you slightly go into them, that's going to be enough for purposes of sex and intercourse for purposes of this Penal Code Section.

Then the question becomes, when is a woman actually unconscious for purposes of this Penal Code, and the instruction says a woman is unconscious of the nature of the act if she is unconscious or asleep, not aware that the act is occurring.

Also, not aware of the essential characteristics of the act because the perpetrator tricked, lied to her, concealed information from her, not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the sexual penetration served a professional purpose when it's served in no professional purpose.

So, right there at the end, they're talking about professionals who are touching women — maybe it's a doctor, chiropractor.  It could be anybody — a masseuse and they're touching a person saying it's okay, and then the person's in a bad situation and they don't realize it.

Then they realize later that they've been taken advantage of and they go to the police.  As you can see from this particular section here in the jury instruction, there's all sorts of criminal behavior that can be captured relevant to this particular crime, but there's also all sorts of room for, maybe this person didn't get tricked.

Maybe they think they did.  All kinds of people come up with crazy things trying to blame things on people when they really didn't do anything wrong.

So, one of the key things that I do is, I'm getting your version of events across to the prosecutor, the judge and a jury if necessary.  And if your version of events is that you're not guilty, we're going to get that across.

If you did something wrong, we need to talk about that honestly and figure out a way to resolve the case in the best possible way for you. Pick up the phone.  Make the call now so I can help you.

Related Resources:

Unlawful Sexual Penetration with a Foreign Object

California Rape Laws

Sexual Intercourse Law and Legal Definition

Facing California PC 261 Rape Charges When There Was Consent

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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