Guide to navigating rape by intoxication

What is rape by intoxication? 

Sex and alcohol is risky business.  Having sex with a person who is unable to give consent due to being intoxicated is a crime under Penal Code 261, subdivision (a)(3). Rape is a form of sexual assault. Below is a guide on how to handle the criminal justice system when accused of rape.

Rape: If the defendant knows the person could not say “no” because that person was under the influence and could not resist the sexual intercourse, then the defendant is guilty of rape.  Unable to say “no” means the person cannot provide consent.

Consent is when a person can exercise legal judgment.  In other words, the person can think and understand what is going on and thus respond appropriately. 

Now, it gets tricky when both parties are under the influence.  If the defendant is also under the influence and initiates sex with someone just as intoxicated, the case is more nuanced.  Every case needs to be evaluated by a fact by fact basis.  

Example when both parties are intoxicated and they both have sex

Here is an example: The defendant and the alleged victim are roommates.  They and a few other friends take shots and drink alcohol into the early morning hour.  They are all hammered and drunk.  The friends leave around 4 a.m. to go home.  The alleged victim wakes up to the defendant inside her, fully penetrating her with his penis, essentially having sex with her.  She screams and the defendant gets off her. 

Both parties here are both blacked out drunk.  But, the critical factor is whether the intoxication rendered the girl completely incapable of giving consent to the sexual intercourse.  If she is so blacked out she could not give consent or agree to the sexual acts of the guy/roommate, the guy/roommate is guilty of rape. 

However, one might observe – they are both blacked out drunk.  What if she initiated the sex first, one thing lead to another, and in her wakefulness believes she is being raped?   These cases are very nuanced and need to be analyzed on a case by case basis, and having a skilled attorney familiar with the sexual assault law in California is key to having success in your case. 

Typical outline of what happens if you are accused of rape by intoxication

Once accused of rape and the police get involved, the victim sometimes gets a rape kit done at the hospital, if reporting is done early enough.  If defendant is not arrested, the police will routinely ask the victim or friend of victim or maybe even a family member to call the defendant.  This is called a “covert” or “pretext” call.  The purpose of this call is for the police to get the defendant’s statements/admissions.  So, if you are reading this and you believe you are being accused of rape, be aware that this court happen to you. 

What if I am arrested for rape by an intoxicated person? 

As soon as you get wind that you are being investigated for rape, get an attorney immediately.  You may be tempted to talk to the police when they arrest you to give your side of the story. Most of the time this does not help you.  It actually hurts you.  If you have an attorney, your attorney can step in for you and talk to the police.  Your attorney can also get an investigator for you early, to interview the alleged victim and possibly get a statement favorable for you to provide to the DA to persuade them not to file charges against you. 

Penalties for rape with intoxication

If you are convicted under PC 261, subdivision (a)(3), you could be looking at three, six, or eight years in prison.  You would be required to register as a sex offender.  And, you will have a “strike” in California.  

Goals in resolving an accusation of rape by intoxication

Most people do not want to plea to a “sex charge” because of the collateral consequences (290 registration) and stigma.  There is sometimes a lot of room for negotiation based on the facts of the case, the victim’s cooperation (or lack thereof), positive psych evaluation, etc.  False imprisonment (PC 236), battery (PC 242), or aggravated battery (PC 243(d)) could be other charges one could plea to in lieu of PC 261, subdivision (a)(3).  Talking to an experienced attorney who can understand the nuance of your case is important to get the best result!