February 18, 2019 By Stephen Klarich

Most people in the general public have a broad perception that rape is a crime that involves sexually forcing yourself upon a person without their consent. Although this may be true in some circumstances, rape is legally defined in California as an act of sexual intercourse with a person – who is not the spouse of the perpetrator – under circumstances that do not necessarily involve the use of force, but can involve a lack of valid consent from the person due to fraud or incapacity (Penal Code 261).One particular set of circumstances that can lead to a rape charged (even if no significant use of force was used) is when the victim was “prevented from resisting by any intoxicating or anesthetic substance” (Penal Code 261(a)(3)). It is also required in this section that the accused either knew or should have known of the person’s intoxicated state at the time of the sexual encounter.

The court in People v. Giardino (2000) 82 Cal.App.4th 454 set forth the law concerning rape of an intoxicated woman. In analyzing Penal Code Section 261(a)(3), the court laid out two central foundations:

  1. When interpreting the phrase “prevented from resisting,” the jury must determine whether, as a result of intoxication, the victim lacked the legal capacity to give valid consent based on a reasonable and informed use of judgment.
  2. “In deciding whether the level of the victim’s intoxication deprived the victim of legal capacity to give consent, the jury must consider all of the circumstances, including the victim’s age and maturity.”

In short, a case involving the alleged rape of an intoxicated woman requires a determination of whether her intoxication prevented her from exercising reasonable judgment and a consideration of all the circumstances to determine whether the victim’s mental impairment was so great that it deprived the victim of the ability to exercise reasonable judgment – merely being “tipsy” is not enough.

Rape under Penal Code Section 261 is a serious felony offense that can lead to a three, six, or eight-year sentence in state prison. Since it is a sex crime, a conviction will also impose the obligation to register as a sex offender in California pursuant to Penal Code Section 290.

If you or someone you love is being accused of rape, it is imperative that you seek the legal counsel of an experienced criminal defense attorney. At Wallin & Klarich our attorneys have been in practice for over 30 years and can help you overcome your rape allegation. Call us today at (877) 466-5245 or visit us online at www.wksexcrimes.com. We will be there for you when you call.

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