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Rape of an Unconscious Woman or Spouse

Posted by Ronald D. Hedding | Jan 25, 2019

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), 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 its own special sex crime prosecutor who deals with these cases.

For the prosecution to prove this type of 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 resolution should be worked out.

The judge will tell them if the defendant is charged with Penal Code Section 261 or 262, and 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. 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 severe sex crime where someone is supposedly being raped 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 to convict the person.

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

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

Indeed, if you're married and 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 someone who is passed out — for example; maybe they just had way too much to drink, perhaps they had drugs or a combination of alcohol and drugs; perhaps 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 consented to it because many 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 injuries or other surrounding circumstances that make you think that you might have been raped.

Often, they don't have, and that's not fair to a defendant because how is that person supposed to defend themselves when someone says, 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 significant element because many times, people — the defendant in a case are drunk.  So, now you have two drunk people attracted to each other.

They have sex with each other, and then one drunk person 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 remember having sex. Still, maybe that defendant thought based on the circumstances, based on how the person was acting, based on prior connections with that person — perhaps they felt that person consented 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 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 unconscious for purposes of this Penal Code, and the instruction says a woman is out of the nature of the act if she is unconscious or asleep, not aware that the show 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 crucial attributes of the show because the perpetrator fraudulently represented that the sexual penetration served a professional purpose when it's done in no professional sense.

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- they're feeling 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, all sorts of criminal behavior can be captured relevant to this specific 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 people when they didn't do anything wrong.

So, one of the critical things that I do is get 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.

How to Get the Best Result in Rape of an Unconscious Person Case?

These are severe crimes.  People often go out – they'll even meet for the first time, go out drinking, use drugs – the next thing you know, they're kissing, and sex occurs. Then the woman wakes up in the morning and indicates that she has been raped or talks to somebody later and decides that she has been raped.

There are defenses to California Penal Code 261 PC rape crimes.  To get the best result, you have to look at the situation realistically and use your common sense, which is done by meeting with an attorney with experience dealing with these cases. 

The bottom line regarding this type of charge is that if a person is unconscious, they cannot consent to have sex with them. So, if the individual engages in sexual intercourse, it will be rape.  If someone is unconscious and an individual engages in any sexual contact with that person, then they could be charged with sexual assault.

Review of the Case Details

These are serious crimes.  You'd face registering as a sex offender for the rest of your life and possibly a lengthy prison sentence. 

You want to ensure you handle the case correctly, starting with getting the right attorney to represent you. What I have you do is come and sit down with me.  We go over the case step by step and look at what it takes to get the best result in this type of matter.  That takes hard work.  It takes investigation.  It takes figuring out what our roadmap will be from the beginning:

  • Are we going to fight the case all the way?
  • Do the preliminary hearing?
  • Attack the witnesses and do a trial in the end?

Prepare a Mitigation Package

Is it a better scenario for us to try to mitigate the case and work out a resolution because they've got evidence against us? I can't tell you how many times people get involved in this scenario, and then the person who supposedly has been raped goes to the police. 

The police tape records the conversation between the two parties. So now you've got somebody apologizing because they're getting attacked by the alleged victim accusing them of something.

They've got that pretext phone call and will use that against the person to prove the case, arguing who would apologize if they didn't do something wrong.  So, you don't want to put yourself in that position.

You want to hire a lawyer as quickly as you can. Then, let the lawyer dictate how you handle things with the police and otherwise.  So, if you need the best, if you're charged or being investigated for having sex with somebody unconscious, pick up the phone now.  Set up a meeting with Ron Hedding.  I stand at the ready to help you.

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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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