Is It Rape to Have Sex with Someone Who is Drunk? (PC 261)

You go out on a date with a beautiful woman. Trying to impress her, you order a fine bottle of wine. Before you know it, your date has had several glasses. When you take her home, she asks you in. You know what that means.

It appears that she is a willing participant in sexual relations, but you’re not quite sure. Can she legally give consent to sex if she is drunk? Could you be charged with rape if you engage in sexual intercourse with her?

Intoxication Prevents Consent (PC 261)

Like many other states, California’s rape laws account for situations where the victim is too intoxicated to resist or be aware of the sexual activity. Under Penal Code Section 261, rape includes:

• 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,
• Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
  • Was unconscious or asleep.
  • Was not aware, knowing, perceiving, or cognizant that the act occurred.

Does this language in California’s rape law mean that every person who has consumed any alcohol (or used any drug) cannot legally consent to sex?

The answer to that question is no. The law states that 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.

If you are accused of rape and the alleged victim voluntarily consumed alcohol, the evidence will need to determine that the victim was too drunk to consent in order to convict you. However, a person who becomes involuntarily intoxicated – such as from a drink that was spiked without his or her knowledge – is not legally able to give consent to sexual activity.

What If There is Prior History Between the Victim and Accuser?

What if you have a sexual history with the alleged victim? If you’ve had sexual intercourse with that person before or are engaged in a relationship with that person, could you still be accused of rape? The answer is yes.

California Penal Code Section 261.6 addresses this question. It states, in part,

“A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution…”

This means that it is not a defense that your partner has never turned you down before. Each and every time you and your partner have sex, the consent must be given again, and if your spouse had too much to drink, he or she cannot legally give consent.

Call the Rape Attorneys at Wallin & Klarich Today

When people overconsume alcohol, they often do things they regret. In some cases, this may lead to charges of rape. If you are accused of rape, you face severe consequences. You need to act right away. Contact our skilled and knowledgeable attorneys at Wallin & Klarich. We have been successfully defending clients accused of rape for more than 35 years. 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 lawyer 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 phone consultation. We will get through this together.