While most people are aware that a person’s consent to sexual activity can be invalid if he or she was under the influence of alcohol or other drugs at the time, many people are likely unsure of whether that rule applies in reverse. In other words, can a person defend against a charge of rape if he or she was drunk at the time he or she supposedly committed the crime?

Our knowledgeable sex crimes defense attorneys have more than 35 years of experience successfully defending clients accused of rape, and we hear this question often. Let our attorneys explain what you need to know.

Intoxication is Not a Defense to Rape Charges in California

California is an affirmative consent state, which means that all persons involved must provide consent to sexual activity. Under California Penal Code Section 261, it is rape to engage in sexual intercourse with a person who does not consent. Rape is also if you engage in sexual intercourse with someone who:

  • Is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance; or
  • Is unconscious of the nature of the act. Under PC 261, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
    • Is unconscious or asleep; or
    • Is not aware, knowing, perceiving or cognizant that the act occurred

Does this mean that every person who has consumed any amount of alcohol or used any drug cannot legally consent to sex? Of course not. In order for the intoxication to rob someone of the ability to consent, the victim must have been “prevented from resisting” the sexual activity or is “unconscious of the nature of the act.” So, a person who voluntarily drinks alcohol but has not consumed enough to impair his or her ability to consent can legally consent to sex.

What happens if you are intoxicated and did not realize the other person never gave you consent to sexual intercourse? Generally, your voluntary consumption of alcohol or drugs does not create a defense to any crimes you commit while under the influence. However, your skilled sex crimes attorney may have a valid legal defense to rape charges if your consumption of alcohol or a drug was involuntary, such as having your non-alcoholic beverage “spiked” without your knowledge.

The influence of alcohol or other drugs may make proving a rape accusation more difficult because both the accused and the alleged victim may have difficulty remembering what happened. That is why you should contact our experienced rape defense attorneys at Wallin & Klarich if you are accused of this serious crime.

Contact the Rape Defense Attorneys at Wallin & Klarich Today

Rape charges are serious accusations and a conviction carries devastating punishments. If you are accused of rape, you should speak to an experienced sex crimes defense attorney as soon as possible. At Wallin & Klarich, our skilled sex crimes attorneys have more than 35 years of experience successfully defending clients accused of rape. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich rape defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no-obligation phone consultation. We will get through this together.

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