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Rape with Intoxication

Rape with Intoxication in California - Penal Code 261(a)(3) PC

In the minds of some people, alcohol, drugs, and sex may be seen as going together, especially in a dating situation, such as when a couple goes out, has a few drinks, or gets high, and concludes the date with sex.

But what you may not know is that under California law, drunk sex is not consensual sex. If the other party becomes so intoxicated that it affects their ability to consent to sex or to resist your advances, you could be charged with rape under Penal Code 261(a)(3) PC. 

Rape with Intoxication in California - Penal Code 261(a)(3) PC
Penal Code 261(a)(3) PC defines the crime of rape with intoxication from alcohol or drugs.

This crime often falls under the broader category of "date rape." If someone alleges that you raped them while they were intoxicated and you are convicted of a crime as a result, you could face up to eight years in prison. 

You would also be required to register as a sex offender under Penal Code 290 PC, and your conviction could count as a "strike" under California's "Three Strikes Law," all for making the wrong decision to engage in sex with someone who was technically too intoxicated to consent.

Simply put, under PC 261(a)(3), raping an intoxicated woman is a crime. The law defines rape as having sexual intercourse with someone without their consent. Raping an intoxicated woman is a felony in California with severe penalties.

This means you could face charges under PC 261(a)(3) if you have sex with a woman who cannot consent or resist due to an intoxicating substance, but it must be proven that you knew the victim was intoxicated. 

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.”

What is Rape of an Intoxicated Woman? 

In the context of California law, rape with intoxication refers to engaging in non-consensual sexual intercourse with someone unable to give legal consent due to intoxication. 

This may occur if the individual is under the influence of drugs, alcohol, or any other intoxicating substance that impairs their ability to resist or comprehend the nature of the act.

Rape of an Intoxicated Woman

Specifically, PC 261(a)(3) defines this situation as rape if she is prevented from resisting by an intoxicating or anesthetic substance or a controlled substance, and the condition was known or reasonably should have been known by the defendant.

It should be noted that this law is not limited to situations where the accused intentionally intoxicated the alleged victim. It also applies even if the person became intoxicated willingly

The critical factor is whether the intoxication rendered them incapable of giving informed, free, and voluntary consent to the sexual act. In other words, you could still potentially be charged with rape simply because the other person had too much to drink, and you chose to have sex with them anyway.

California law outlines that consent is affirmative action. Thus, you cannot claim that the victim consented because she did not resist. Further, for consent to be present, two people must have agreed to engage in sexual intercourse. The legal age of consent is 18 years. The law says that both parties must be of sound mind when agreeing to engage in sexual intercourse.

What Are the Elements of the Crime?

To convict you of rape under PC 261(a)(3), prosecutors must prove the following elements of the crime beyond a reasonable doubt:

  • You engaged in sexual intercourse (i.e., involving penetration) with another person,
  • The other person was under the influence of alcohol or some other anesthetic drug,
  • The level of intoxication was such that the other person was prevented from resisting and
  • You knew or should have reasonably known, that the other party was too intoxicated to consent.

What is Date Rape with Intoxication? 

Date rape is a term often used to describe sexual assaults that occur within social or dating situations. Rape with intoxication often falls under this category because it frequently involves individuals who are known to each other and where intoxicants are commonly involved. 

However, the California legal system does not distinguish between date rape and other forms of rape. The penalties and consequences remain the same regardless of the circumstances or relationship between the parties involved.

What Are Related Crimes?

Several California laws are related to Penal Code 261 (a)(3) PC rape with intoxication, including the following:

What are the Penalties for a Conviction?

California law does not distinguish different types of rape as far as penalties are concerned. However, if the victim was unable to consent (whether physically forced, too drunk to consent, unconscious, etc.), any non-consensual sex is considered rape, which is a felony offense. 

If you're convicted under PC 261(a)(3) rape with intoxication, you could face the following penalties:

  • A sentence of three, six, or eight years in prison. You must serve at least 50 percent of your time before being considered for parole.
  • A requirement to register as a sex offender (possibly for life).
  • A "strike" penalty according to California's 'Three Strikes" law.
  • Mandatory DNA submission.

Note that these penalties could increase if you have prior convictions, or if there were multiple victims, etc. If this offense counts as your third "strike," you could even face 25 years to life imprisonment.

What Are the Common Legal Defenses?

While any rape charge, including intoxicated rape, should be taken very seriously, an experienced California criminal defense attorney can still employ specific defense strategies to counter the charges. These include, but are not limited to:

  • Consent (i.e., Not Too Intoxicated): Intoxication alone is not enough to convict you of rape; prosecutors must prove that the victim's intoxication was such that they were incapacitated and unable to give consent. The charges may be dismissed if your attorney can provide evidence that consent was legitimately given and that the other party could consent.
  • Lack of Knowledge: Your attorney may argue that you were honestly unaware that the other party was too drunk to consent and that you reasonably assumed they agreed to the act.
  • Mistaken Identity: Your attorney may contend that the victim has misidentified you as their rapist, possibly due to their state of intoxication. This defense is most effective with a provable alibi.

If you need more information and a case review, contact our law firm via phone or the contact form. Eisner Gorin LLP is based in Los Angeles, CA.

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