Let's review the best defense strategies if you're charged with California Penal Code 261 PC rape of an unconscious person.
PC 261 PC is the statute that defines rape as using force, threats, or fraud to have non-consensual sex with someone. A conviction is a felony typically punishable by three to eight years in prison and registration as a sex offender.
Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis, and ejaculation is not required. Some people are not capable of legally consenting to sex because they are severely intoxicated, have mental disorders, or they are unconscious or asleep.
Judges will review the circumstances of each case to determine whether consent existed. It is unnecessary that your partner physically resists or ﬁght back to communicate a lack of consent to you.
More and more, people are being charged in these dating situations with rape of an unconscious person, and the expeditious answer to the question is you're facing many years in prison if you are convicted of this particular crime because you're taking advantage of another person while they obviously cannot defend themselves if they're unconscious.
Drugs or Alcohol
Usually, I see these scenarios coming up when somebody goes on a date, whether from a social media app, a website or even just meeting somebody.
They get intoxicated, either from alcohol or drugs or a combination of both; sex occurs, and then the other person wakes up and says they were raped. Then I've seen text messages going back and forth between the parties.
The one person being accused of raping the other person apologizes or says something that makes it clear that they're guilty of whatever it is, or there's a pretext phone call where the person goes to the police. The police tape records a conversation between the alleged victim and the person being accused of having sex with the consent of another.
What Are Some Mistakes People Make?
There are some mistakes people make when they are charged with rape of an unconscious person. Most of the time, we see cases where somebody goes out on a date. There are drinks. There might even be drugs involved. Both people become intoxicated. One thing leads to another, and they have sex.
Then the woman wakes up in the morning and believes that she was raped and does not believe that she consented to the sex. Now, the client is facing a grave sex crime, which, if he is convicted of, he will be facing a lifetime of sex registration and several years in prison, depending on the facts and circumstances of the case and prior criminal record.
You want to hire an attorney right away and not make any statements to anyone because of how these cases are investigated. The person goes to the police, a lot of times, the police are going to try to do a pretext phone call where they will have the alleged victim call you and start asking you a bunch of questions and get you to admit on tape that you're sorry; that you know you did something wrong. That will be the best piece of evidence they use against you in the prosecution of the case.
The standard mistake number is talking to the alleged victim after you know you're being accused of something. I can't tell you how many clients have apologized to the alleged victim, even though they didn't do anything wrong because they felt bad and they wanted the person not to be accusing them anymore; but, this looks like you're guilty when you do that.
I have you come in. We talk about everything. We figure out exactly what happened, and then we can figure out what we can do investigatory-wise to be ready for potential criminal prosecution and if the police do contact you. I will deal with them by discussing the case, finding the accusations, and figuring out a game plan moving forward.
Another common mistake that people make in these types of scenarios where the police come and try to scare you – maybe they handcuff you – and now they want to talk to you about what happened. Often, people will admit certain things that they don't have to accept, and that will be one of the boxes that need to be checked by the police to arrest you, make you post a large bail, and send the case to the prosecutors for review.
That's another thing I see – text messages where my client is apologizing for whatever happened the night before – and again, that appears that you're guilty. Why would somebody apologize if they didn't do anything wrong? So, don't do that.
Don't communicate with the police or the alleged victim; let the attorney guide you regarding handling things. Trying to investigate the case yourself would be a foolish move as well. You want to let your attorney do that. You don't want to make any moves to put yourself in any worse of a position that you already find yourself already being investigated for rape of an unconscious person or being prosecuted and having a court date pending.
Review of the Case Details
First, we have to see exactly where we stand. What happened? What are the accusations? Then, sometimes, there's a defense. Sometimes the accused person was also intoxicated, and there was consensual activity between the two parties before this alleged rape occurred, and we can prove it.
That would be something we would undoubtedly be mitigating. It may even be something we can use to defend the entire case. So, we need to see what we're up against, what the allegations are, and what evidence we might have on our side to defend the case.
We certainly don't want the person dealing with the police themselves. We don't want the client talking to the alleged victim about what happened. We want to be able to deal with the case on our terms once we know that somebody is either being investigated or has been arrested for having sex with an unconscious person.
We need to make the right moves going forward so we don't jeopardize ourselves – we don't make things worse or exacerbate the situation.
I would recommend a phone call. We can set up a meeting face to face and go over the facts and circumstances and then make a decision on how to proceed forward.
If you need the best – if you're charged with a sex crime – you're charged with having sex with somebody against their will or consent, and you're charged with having sex with an unconscious person—pick up the phone now. Make the call. Set up a meeting. I stand at the ready to help you.
If you find yourself in this situation or have a loved one arrested for having sex or raping an unconscious person, pick up the phone. Make the call now so we can start helping you.
My name is Ron Hedding. I've been doing this now for over 30 years. I started out working for the District Attorney's office, then a Superior Court judge, and finally, in the early 1990s, I've been defending people charged with sex crimes throughout my career.