Consent or permission from the other party is critical when two individuals are engaging in sexual contact, even when they know each other. One of the crimes that falls under nonconsensual sexual intercourse statutes in California is date rape. The offense happens when there is nonconsensual sexual contact between individuals who are or were dating or willingly spending time together, and the victim is unconscious, intoxicated, or unable to consent to the act because of any other reason. Below are the date rape statutes highlighted in detail.

Understanding California Date Rape

California PEN 261(a)(3)-(4) defines date rape as nonconsensual penetrative sex where the victim is your significant other, a friend or acquaintance. For example, you and your new girlfriend are making out consensually, but then you force sex on her despite her resistance. Under the circumstances, you will face date rape charges. Another example is calling a friend on a date and then spiking her drink with Rohypnol before taking her to a hotel room and having sexual intercourse when she is passed out.

There are several ways in which date rape happens. It can occur in an innocent way when your sexual partner, friend, or acquaintance is deemed to be too intoxicated to give consent to the intercourse. Also, date rape can occur sinisterly when your partner is unconscious because of intoxication or a medical reason. If an individual is passed out, the law deems them unable to consent to sexual contact legally, and this is how you find yourself with charges for date rape.

A date rape crime sounds more casual than a rape charge. However, you should know that the two are the same and attract punishment under PEN 261. The term “date rape” is not legal jargon, and the prosecutor must prove it like any other rape crime. 

Sadly, your intimate partner can falsely accuse you of date rape because they are angry at you for having an affair, breaking up with them, or neglecting their needs. If you believe your partner has reported you or intends to report you to the authorities for date rape, you must talk to a criminal defense attorney right away.

The police will try to trick you into making self-incriminating statements, so be very careful from the moment someone hints they are accusing you of rape. The only party you should speak to about the incident is your attorney.

Also, if you are convinced you are a rape victim, you should report the issue to the police and go for a medical examination immediately. The evidence gathered can help you bring a personal injury claim against the defendant.

How Police Gather Date Rape Evidence

Most date rape cases are based on word of mouth from the accuser and accused. The words of the alleged rape victim are not sufficient to make an arrest or file criminal charges. Therefore, the police usually request that the victim record a pretext phone call secretly. The authorities records the victim's call to you. The accuser makes the call accusing you of rape so that you can acknowledge it on record or trick you into making a self-incriminating statement that will bolster their allegations. Your reaction to the accuser’s claims helps the officers know if the woman is making false allegations or you committed the crime.

Do not fall for the bait. The only party you should talk to about the accusations is your attorney. If you end up apologizing to the accuser after making the allegation, the authorities will consider this admission of guilt and can use it as evidence against you. Therefore, do not converse with the accuser or authorities until your attorney is present. You should remain silent and wait for legal guidance from your counsel.

However, if you have already had a conversation with the accuser and a pretext call is available, and it is not clear whether you committed the rape or not; your attorney will explain your statement and defend you against the charges.

Another trick authorities use to gather evidence of date rape is having you admit or confess to the crime. Once the accuser reports the allegations, the police can decide to do further investigations by confronting you in your home, workplace, over the phone, or at the station and pressure you into admitting to engaging in date rape.

Do not fall for tricks used by authorities. Instead, you should talk to your attorney immediately. An attorney will protect your rights and offer legal guidance to ensure you do not confess to the crime. If an attorney is not present during interrogation, remain silent until they are present. Any statement you make without the presence of your attorney will help the prosecutor and not strengthen your case.

Date Rape Elements

Date rape and rape are prosecuted under PEN 261, and the penalties are the same. The elements of the crime are also provided under the same statute. When the prosecutor charges you with date rape, they must demonstrate the following facts:

  • You participated in penetrative sex with another party, even when the penetration was slight.
  • You were not in a marital union with the alleged accuser at the time of the sex crime.
  • There was no consent or permission on the victim’s part before or after the penetrative sex.
  • An intoxication, anesthetic, or controlled substances prevented the accuser from resisting.

The various terms used in the crime’s facts that you must understand are:

Sexual Penetration or Intercourse

Any penetrative sexual contact, however slight, amounts to sex intercourse in date rape cases. The prosecutor does not have to prove that there was ejaculation at the end of the act.

Consent

Rape is nonconsensual sexual contact with someone else. California statutes define consent as when an individual positively cooperates in an act, either freely or voluntarily. When a person gives consent, they understand the nature of the act and engage in it by free will.

However, you should know that just because you are married to a person or have previously engaged in sexual intercourse does not automatically imply consent. Previous sexual relations with the victim do not indicate consent unless there is additional evidence. Nevertheless, the court can consider the previous sexual intercourse encounter as a fact when deciding whether there was consent or not.

PEN 261 is explicit that every penetrative sexual act must be consensual, which is why, under PEN 262, if you engage in sexual penetration with your spouse without their permission or consent, you risk spousal rape charges.

Additionally, if the victim of the date rape is under 18, you will face statutory rape charges even if the victim engaged in the sexual act voluntarily. The law deems underage persons as legally unable to consent to sexual acts, which is why you face charges even when the act was consensual.

The date rape offense has several issues when it comes to consent in social situations. Voluntary intoxication can negate consent. The DA will charge you with date rape even if the alleged victim voluntarily consumed excess alcohol or drugs, making them unconscious or unable to consent to the penetrative sex. However, the trier of facts must evaluate the circumstances of your case to determine if you were aware or ought to have known that the accuser was overly intoxicated to agree to the conduct.

For example, Carol and Peter go on a date. After dinner, they come to Peter’s place for a few drinks. Carol voluntarily drinks excessive alcohol until she passes out. While unconscious, Peter pulls down Carol’s pants and engages in sexual intercourse with her. When Carol later discovers what happened and formally reports the matter to the police, Peter can face date rape charges because, even though Carol was voluntarily intoxicated, she was too unconscious to give consent, making the sexual act nonconsensual.

Also, involuntary intoxication will disaffirm consent. When you or another party secretly spikes the accuser’s food or drink with date drugs like alcohol or controlled substances to make them unable to resist the sexual encounter or to make them unconscious for the sexual intercourse, you will face date rape charges.

You were Not Married to the Victim

You risk conviction if the DA demonstrates that, at the time of the nonconsensual penetrative sex, the victim was not your spouse. If you were married, the offense would change from date rape to spousal rape.

Date Rape Penalties

A violation of PEN 291(a)(3)-(4) is a felony that is harshly punished. The severity of your legal penalties depends on your criminal history, the sexual assault’s nature, and whether you inflicted bodily harm on the victim.

In terms of imprisonment, a guilty verdict for date rape will result in a state prison incarceration of 36, 72, or 96 months in prison. Nevertheless, when aggravating circumstances exist in your case, like the use of a lethal weapon to accomplish the rape, causing substantial bodily harm, or having a prior record, the court will significantly enhance your penalties. You face an additional 36 to 60 months in prison and a monetary fine of, at most, $10,000 if the victim sustained substantial bodily injuries. Again, you risk a strike on your record.

Alternatively, the court can sentence you to formal probation instead of prison incarceration. The conditions you must abide by during probation are compulsory counseling, restraining orders, and regular meetings with your probation officer. However, you must know that probation is no longer an option in rape cases, as the legislature amended the law providing for probation because it was deemed lenient. Therefore, when you are convicted of rape, probation is no longer an option if the victim of the rape was unconscious, passed out, or too intoxicated to grant consent.

What does this mean for you if you face date rape charges? A conviction will result in prison incarceration without the option of formal probation.

Additionally, the court can sometimes instruct you to pay restitution to the accuser as reimbursement for physical, emotional, and financial damages stemming from the rape.

Lastly, after completing your prison sentence, you are required to register as a sexual predator.

Sex Predator or Offender Registration

The most severe punishment for date rape is the sex offender registration obligation that normally lasts for a lifetime under PC 290. Date rape is a sex crime that falls under Tier 3 of the sex predator registration. If the court instructs you to enlist under this tier, your name will appear on the Megan’s Law site for a lifetime. You will have to live forever with the stigma that comes with the registration, impacting your career, family, and social life. It is because of these lifelong consequences that you should consult with a profound sex crimes defense attorney whenever you are accused of date rape or any other sex crime.

When the accuser is 18 or older but unable to consent to sexual contact because of mental, physical, or developmental incapacity, the law requires you to enlist as a sexual offender under tier or level two. The registration duration under the tier is 20 years.

The obligation to register takes effect within five working days of:

  • Your sentence if the court did not impose prison incarceration.
  • Your discharge from custody.
  • Discharge from a mental institution or medical facility.

When the court imposes the obligation to register, it notifies the justice department, which monitors your compliance. Therefore, once you can reintegrate into the community, you must visit the local law enforcement to register your name and address.

After registration, you must update your details annually within the first five days of your birthday.

Additionally, any time you change locations or move to a new place, you must inform the local police. And when moving out of state, the new state will require you to register afresh under their laws.

However, when you lack a permanent address or live in transient, you must notify the local authorities in the area you are in of your presence every thirty days. If you have not stayed in one location for over five days, you must notify the police station within reach.

The obligations that come with registration can significantly affect many aspects of your life, pushing some offenders to fail to register. Refusing to register is a felony; a conviction can lead to severe consequences.

Many sex offenses, including date rape, are based on false allegations. One can accuse you of the offense with little or no evidence to back their accusations. A person can falsely accuse you of date rape for revenge or out of jealousy. You need an experienced defense attorney to investigate the case and uncover the events leading to the allegations and formal charges. That way, you can demonstrate your innocence and avoid a conviction.

Fighting Date Rape Allegations

Whether you will successfully defend against your date rape charges hinges on your case’s circumstances and the ability of your defense attorney to disapprove of the elements of the crime. It is advisable to have an attorney on your side because you can easily be convicted of date rape counts even when there is little or no proof. The defense strategies your attorney will apply to contest the charges are:

  1. False Accusations

Many people behind bars for date rape were wrongfully convicted based on false accusations. Most accusers or victims are ex-spouses or romantic partners seeking revenge or acting out of anger. If you are not as careful as the accused, you could be wrongfully convicted for a crime you never committed. However, with a profound attorney, you can demonstrate that the offense never happened. Your attorney can use DNA test results to have the case dismissed.

  1. The Victim Gave Consent

You cannot face date rape charges if the victim understood the nature of the sexual act and agreed to it. Therefore, your attorney can claim that the sexual penetration was consensual and that the accuser acted on free will and gave clear and voluntary consent. Nevertheless, for the defense to hold, the consent must have been precise, unambiguous, and granted without manipulation.

  1. Lack of Knowledge

Your attorney can also assert in your defense that you did not know the victim could not consent to the sexual act. If the victim did not appear too intoxicated during the act, you can maintain that you had no reason to believe the alleged victim could not consent to the act.

  1. Insufficient Proof

Most rape cases hold in court if the victim seeks medical evidence immediately and the evidence is preserved. If your accuser never went for a medical checkup, there will be no proof the crime happened. Also, if there were no witnesses, the whole case would be based on the victim’s word, making it easy for your attorney to argue insufficient proof and have the charges thrown out.

Suing for Date Rape

The victim of the date rape can file a lawsuit against you, seeking compensation for damages stemming from the sexual assault. They file this lawsuit even when you are yet to be convicted of the rape in the first place. The accuser can bring the claim before the authorities complete investigations and file formal charges. The damages the victim seeks in the claim are:

  • Medical expenses.
  • Lost wages.
  • Pain and anguish.
  • Loss of earning potential.
  • Psychological counseling.

In particular cases, the court can even award the victim punitive damages.

Find a Competent Sex Crimes Attorney Near Me

If you are under investigation for or face a date rape charge, you should contact an experienced and aggressive attorney immediately to review your case. At the Los Angeles Criminal Attorney, we have the experience you need for a favorable outcome. Also, if you are the victim of the rape, we can help you file a claim to seek compensation for the assault. Contact us at 424-333-0943 to arrange a meeting.