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When is a Person Too Drunk to Consent to Sex? Rape and Alcohol Facts (PC 261)

Wednesday, December 6, 2017 12:49
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Under California Penal Code Section 261, the crime of rape is defined as “non-consensual sexual intercourse accompanied by means of threat, force, or fraud.”

One of the most confusing elements of this crime is the concept of consent. Even if someone has verbally expressed a desire to engage in intercourse, it does not necessarily mean you have the consent of that person. That is why California law says a person is unable to consent if he or she is:

  • Too intoxicated to consent
  • Unable to provide consent due to a mental disorder or physical disability that you knew about or reasonably should have known about, or
  • Unconscious of the nature of the act

While the last two items listed above are clear, the first one is not. Let’s explore when a person is considered too intoxicated to consent to sexual intercourse by answering some questions our lawyers are often asked regarding this topic.

Is All Sex Nonconsensual if Your Partner Has Been Drinking?

Alcohol affects a person’s ability to communicate and lowers inhibitions. That is part of the reason why sexual acts may occur after one or both parties involved in the act have been drinking. However, it doesn’t mean you are automatically guilty of rape if you have sex with someone while you and/or your partner have been drinking.

California law states that someone is too intoxicated to legally provide consent to sex if the person is prevented from resisting or unconscious of the nature of the sex act. If you engage in sex with someone after he or she has been drinking alcohol, you can run the risk of being accused of rape.

Is it Rape if Both Parties are Drunk?

A sexual act can be considered rape even when multiple parties are intoxicated.

For example, let’s say you and a date are drinking at a party. After a few hours of drinking, you both head to your place. You get into bed, and your date quickly passes out. In the morning, both of you wake up naked and your date’s vagina is in pain. It is likely that you had sex with her after she passed out.

In this case, it does not matter that you were too drunk to recall exactly what happened. You could be charged with rape if the prosecutor believes that the facts show you had non-consensual sex with your date.

What if She Consented to Sex Earlier?

Our rape attorneys are presented this scenario often: In the morning, you’re talking to your girlfriend about your date later that night. You ask her if tonight will be the night she wishes to have sex and she says “Yes.” Then, the date comes and both of you have been drinking alcohol. Your girlfriend becomes heavily intoxicated, and you take her home and have sex with her.

Your girlfriend’s “yes” from earlier in the morning doesn’t necessarily carry over into consent at night, especially if you both have been drinking. You could be charged with rape under these circumstances.

Does Sexual History Matter in a Rape Case? (PC 261.6)

California Penal Code Section 261.6 states that being in a current or previous relationship, whether through dating or marriage, is not a defense to a rape charge.

Contact the Rape Attorneys at Wallin & Klarich Today

If you or someone you love is facing rape charges, you should speak to an experienced rape attorney immediately. At Wallin & Klarich, our skilled criminal defense lawyers have over 35 years of experience successfully defending clients facing rape charges. Let us help you now.

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

Call our office today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.

The post When is a Person Too Drunk to Consent to Sex? Rape and Alcohol Facts (PC 261) appeared first on Wallin & Klarich.



Source: https://www.wklaw.com/person-drunk-consent-sex-rape-alcohol-facts-pc-261/

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