In California a drunk night that ends in a sexual encounter can very well turn into lifetime sex offender registration and up to 8 years in prison.
Many Californians are unaware of California Penal Code section 261 (a)(3), which reads:
Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
What are intoxicating, anesthetic, and controlled substances?
Alcohol falls under an “intoxicating” substance. An anesthetic substance is usually a “rape drug” like Rohypnol, Gamma-Hydroxybutyrate (GHB), or Lysergic Acid Diethylamide (LSD). However, other drugs qualify such as ecstasy, MDMA, or Barbiturates. Controlled substances include all substances that are regulated by the government. Review the lengthy list published by the DEA on March 28, 2018 here.
What does “prevented from resisting” mean?
If the party is so intoxicated that he or she cannot give legal consent, he/she is “prevented from resisting.” In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.
This means, if the other party says “yes, yes, yes,” both before and during sexual intercourse, you could still be charged with rape.
The court will look to circumstantial evidence that shows the party was so intoxicated they could not give legal consent.
How do I know if someone is not able to give legal consent?
The courts in California have found the following conduct shows that someone was too intoxicated to consent:
- If the victim passed out at some point or had trouble walking on their own; (People v. White (App.4 Dist. 2015) 191 Cal.Rptr.3d 299)
- People at the party agreeing that the victim needed to “sleep it off”;
- Putting the victim in a shower for cleanup after vomiting; and
- So drunk the victim is vomiting and hit the wall. (People v. Braslaw (App.1 Dist. 2015) 183 Cal.Rptr.3d 575)
How can I be charged with rape after having sex with a drunk person?
If a person is drinking alcohol and demonstrates indicators of being intoxicated as discussed above, and you have sex with that person, if he/she decides to report it to the authorities then you can be charged with rape. It is that simple.
What if I was drunk?
Being drunk and too intoxicated to consent yourself is not a defense to rape. A lot of crimes require what is called “specific intent” which means that you intended to commit a crime. But rape does not require the defendant intend to commit rape or any crime for that matter. Instead, rape is a general intent crime, which means, if you did it you are guilty, even if you did not know it was rape. Many people who get charged with this code section had no idea that it was a crime to have sex with someone when they are drunk.
Even if you are drunk you could still be charged with rape.
Are there any defenses to having drunk sex with someone who cannot give legal consent?
If a defendant actually and reasonably believed that the victim was capable of consenting to sexual intercourse, even if that belief was wrong, then they are not guilty of rape. (CALCRIM. No. 1002)
This requires two things: one, that the defendant actually believed the victim could consent; and two, that it was reasonable for the defendant to believe that the victim was capable of consenting.
An example of an effective use of this defense would be if the defendant never saw the victim throw up nor knew about it. Additionally, if the defendant had never seen the victim drunk before and did not think that the victim was drunk. The court would look at the evidence in the case, including witnesses’ statements before determining whether or not it would allow the defense instruction to be read to the jury. If the indicators described above were observed by the defendant, then this instruction would likely not be given to the jury.
What are the punishments for a conviction of California Penal Code section 261 (a)(3)?
Rape by an intoxicating substance is a felony offense which carries a prison sentence of 3, 6, or 8 years. Additionally, you will be a convicted felon and a sex offender which results in social and career consequences. You will have to register as a sex offender under Penal Code section 290 for the rest of your life. In 2021, there will be new tiers of sex offender registration and this crime falls under lifetime registration.
