“Date rape” is a colloquial term used to describe nonconsensual sex (rape) between two people who are in a dating relationship.
For example: David and Julie are in a dating relationship. David and Julie have had sex many times, but on one occasion, Julie passes out from drinking too much alcohol and David decides to have sex with Julie while she is unconscious. In this situation, David may be charged with date rape under California penal code 261(a)(4) [Rape of Unconscious Person].
Non-Consensual Sex: The two main components of any date rape crime is the fact of sexual intercourse and the lack of consent by one of the parties to the sexual intercourse.
Sexual Intercourse: For purposes of date rape crimes, sexual intercourse can mean anal sex (sodomy), sexual penetration by foreign object, sexual intercourse (vaginal sex), or oral sex (oral copulation).
For example: David and Julie, who are in a dating relationship, regularly have sexual intercourse (vaginal sex), but on one occasion, David has anal sex (sodomy) with Julie when Julie is too drunk (intoxicated) to resist David’s aggressive sexual behavior. Result: David may be charged with date rape under PC 286(i) [Sodomy of Intoxicated Victim].
Non-Consensual Definition: A person can only consent to sexual intercourse if he or she is aware of all the facts to which he or she freely assents, and only where the parties to sexual intercourse are otherwise legally capable of consenting.
For example: David and Julie are in a dating relationship. David is eighteen (18) years of age and Julie is sixteen (16) years of age. David and Julie engage in sexual intercourse before Julie reaches the age of eighteen (18). Result: David may be charged with date rape under PC 261.5(b) [Misdemeanor Statutory Rape].
Note: A person under the age of eighteen cannot legally or validly consent to sexual intercourse. Therefore, any person who is eighteen (18) years of age older, who engages with another person under the age of eighteen (18), may be charged with a date rape sex crime, even if the defendant and the victim (minor) are in a dating relationship and the minor does not object to the sexual intercourse.
For example: David, who is eighteen (18), is dating Julie, who is sixteen (16). David and Julie regularly engage in oral copulation with one another (i.e., “blowjobs” and cunnilingus). Julie does not object to oral sex with David, and in fact, Julie often instigates the oral sex. Nevertheless, in this situation, David may be charged with date rape under PC 287(b)(1) [Oral Copulation Against a Minor]
Rape v. “Date Rape”
Under California law, there is no distinction between rape and “date rape.” However, the term “date rape” is used to describe a situation where the parties to sexual intercourse are familiar with one another, usually in a dating relationship, and where the issue of consensual sex is more difficult to ascertain.
For example, David and Julie are in a dating relationship. David and Julie have consensual sexual intercourse on a regular basis. While at a party, David, and his friend John, both have sexual intercourse with Julie while Julie is heavily intoxicated. In this situation, even though David and John are both possibly guilty of date rape, David will more likely be able to defend a date rape criminal charge than John, because David and Julie regularly engage in consensual intercourse.
Common Date Rape Crimes: Date rape crimes usually accompany an allegation that the victim is either unconscious, intoxicated, threatened, forced, or underage. However, any type of rape charge can constitute a date rape crime when the parties are in a dating relationship. These common date rape crimes include:
PC 261(a)(2) Rape by Force or Fear of Bodily Injury
PC 261(a)(3) Rape of intoxicated victim (Common "Date Rape" Allegation)
PC 261(a)(4) Rape of Unconscious Victim
PC 261.5(b) Statutory Rape: Charged when a person engages in an act of unlawful sexual intercourse with a minor who is not more than 3 years younger than defendant
PC 261.5(c) Statutory Rape: Charged when a person engages in an act of unlawful sexual intercourse with a minor who is 3 years or more younger than defendant
PC 261.5(d) Statutory Rape: Charged when a defendant, who is at least 10 years older than a minor, engages in an act of unlawful sexual intercourse with the minor, and the minor is at least 16 years of age.
PC 286(b)(1) Statutory sodomy against a minor aged 16 or 17
PC 286(c)(2)(A) Sodomy by force or fear
PC 286(f) Sodomy of unconscious person
PC 286(i) Sodomy of intoxicated victim
PC 287(b)(1): Statutory oral copulation with minor under the age 18
PC 287(c)(2)(A) Oral copulation by force
PC 287(f) Oral copulation of unconscious person
PC 287(i) Oral copulation of intoxicated victim (Common “Date Rape” Allegation)
PC 289(a)(1)(A) Sexual penetration with object by force
PC 289(d) Sexual penetration by object by force on unconscious victim
PC 289(e) Sexual penetration by object on intoxicated person (Common “Date Rape” Allegation)
PC 289(h) Sexual penetration by object on minor under 18 years old without force, fear, or threats (Common “Date Rape” Allegation).
PC 220(a) Sexual Assault Crimes
Intoxication Cases: In date rape cases, where the victim is “involuntarily intoxicated,” such as by way of a date rape drug, the defendant may not claim that the victim was not intoxicated to the point where he or she did not understand the nature of sexual act and voluntarily assent to that act.
However, where the intoxicated of the date rape victim is due to the alleged victim himself or herself, then the issue of consent to sexual intercourse becomes an issue of reasonable belief of the alleged victim’s ability to voluntarily consent despite his or her intoxication level.
Note: The fact that a person engages in sexual intercourse while under the influence of drugs or alcohol does not mean that the person with whom he or she engages in sexual intercourse is committing a crime. The issue is the degree of intoxication of the alleged victim and the reasonable belief of the defendant that that the alleged victim voluntarily consents to sexual intercourse (See Defenses to Date Rape).
Date Rape Penalties
The penalties for date rape depend on what type of underlying sexual intercourse crime was committed, and the classification of crime (i.e., felony or misdemeanor violation).
For example, date rape by force or fear (PC 261(a)(2)) is always classified as a felony and a conviction of which carries up to an eight-year prison sentence. Whereas date rape by statutory rape is usually charged as a misdemeanor (PC 261.5(c)) and carries up to a three-year jail sentence.
Prison Sentence: As stated, every date rape crime is different, therefore, the range of possible prison sentence related to a date rape crime varies from case to case. With that said, most felony date rape crimes in general, where the alleged victim is not a minor (under the age of eighteen (18)), carry up to an eight-year state prison sentence maximum (per conviction).
Misdemeanor Sentencing: Some date rape crimes may be charged as either a felony, or alternatively as a misdemeanor. In these situations, when the date rape crime is charged as a misdemeanor, the defendant is more likely to serve a jail sentence maximum of up to one year in jail, or even a probation sentence (See Probation Sentence).
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail or prison sentence. Most felony date rape crime are ineligible for probation sentences. However, felony statutory date rape crimes, and most misdemeanor date rape crimes may be eligible for probation in some circumstances.
Note: For exact jail or prison sentencing structure related to any date rape charge, contact our sex crimes criminal defense attorneys for a free consultation.
Suspended Sentence: Most felony date rape crimes are ineligible for “suspended” or “split” prison sentencing. A “suspended” prison sentence is a prison sentence that is not served subject to some conditions of the criminal court. A “split” prison sentence is a prison sentence that is served partially out of prison on work release. In any event, as stated, most felony date rape crimes do not qualify for suspended or split prison sentencing (PC 1170).
Sex Offender Registration: Sex offender registration is a requirement after every conviction of any type of date rape crime other than statutory date rape crimes (i.e., statutory rape, statutory oral copulation, statutory sexual penetration by foreign object, and statutory sodomy).
Note: Sex offender registration may be for ten (10) years, twenty (20) years, or for life, depending on the exact date rape crime for which the defendant is convicted. For more information, see California’s Three Tier Sex Offender Registration System.
CIMT: Felony date rape crimes are classified as crimes involving moral turpitude (CIMT). CIMT carries direct and indirect penalties related to military service, immigration status, and professional licensing status.
Civil Lawsuits: Any type of date rape allegation can be followed by civil lawsuits against the defendant. These civil lawsuits are in addition to any criminal penalties. Civil lawsuits are intended to restore the date rape victim to the position he or she enjoyed financially before the defendant’s conduct. A civil lawsuit for sex crimes can also include monetary penalties that are intended to punish the defendant’s sex conduct against a victim.
Additional Penalties: In addition to the penalties already listed, any date rape conviction may lead to court fines and fees, restitution for sex crimes victims, criminal protective orders (CPO) against the defendant and in favor of the date rape victim, loss of scholarships, loss of reputation, loss of employment, loss of child custody and child visitation, and more.
Defenses to Date Rape
Every date rape allegation is supported by different facts. A defense to any date rape allegation is crafted to meet the facts of the allegation. In some situations, this simply means to rely on the lack of prosecution evidence required to show that the defendant is either the perpetrator of sexual conduct against the victim, or that the defendant acted without the honest belief that the alleged victim consented to sexual intercourse.
Mistake of Fact: A reasonable mistake of fact as to the alleged victim’s consent is a defense to a date rape allegation. This defense does not apply where the defendant’s belief is not both subjectively and objectively reasonable.
For example: David and Julie are in a dating relationship. David and Julie have consensual sexual intercourse on a regular basis. One night, while David and Julie are having sexual intercourse, Julie decides she does not want to continue having sex with David; however, Julie does not expressly or impliedly let David know that she wants to stop having sex. Result: David will likely have a defense of Mistake of Fact because he reasonably believed that Julie continued sexual intercourse with consent, and any reasonable person would assume the same.
False Allegations: In some situations, the defendant may be able to defend a date rape allegation by showing that he or she either did not engage in sexual intercourse with the alleged victim, or that he or she engaged in consensual sexual intercourse with the alleged victim, but that the alleged victim is falsely reporting lack of consent.
To show these “false allegations” the defendant might show motive to fabricate on the part of the alleged victim (i.e., gain advantage in child custody proceedings, civil lawsuit for damages against a wealthy defendant, motive to exact revenge on the defendant, etc.).
Note: Prior consent by the alleged victim to sexual activity is not a defense to a date rape crime. Similarly, evidence that the defendant and the alleged victim are in a dating relationship is not a defense to a date rape crime (PC 261.6 Abbrev.).
Statute of Limitations: The statute of limitations is a period under which the district attorney must file criminal charges against the defendant or forever lose the opportunity to file those criminal charges.
The statute of limitations in date rape cases is complicated and every date rape crime carries a different statute of limitations. With that said, the statute of limitations in date rape crimes is usually very long (8 years to life in most cases depending on the circumstances and regardless of misdemeanor or felony classification), and usually three (3) years in statutory date rape crimes filed under PC 261.5(c). For more information, see Statute of Limitations for Sex Crimes.
He Said / She Said Cases: Keep in mind that many date rape allegations are supported by the alleged victim’s statement only (i.e., “he said, she said” cases). Even when there is scientific evidence of sexual intercourse, such as seminal fluid (semen), saliva, small bruises, serology (blood evidence), etc., the forensic evidence does not prove lack of consent to sexual intercourse.
In fact, even a defendant’s confession or statement that he or she engaged in sexual intercourse with the alleged victim, does not prove lack of consent. Therefore, “he said / she said” evidence, without more, might be insufficient to prove the defendant committed a crime (depending on the circumstances).
Important: A criminal suspect, or criminal defendant, should never speak to anyone, other than an attorney, about an allegation of date rape. This includes, but is not limited to, not speaking to the alleged victim or anyone involved in any type of law enforcement.
Keep in mind that when an alleged victim contacts a date rape suspect to accuse him or her of such, it is very common that that communication is monitored and recorded by law enforcement, and that the purpose of that monitoring is to get the defendant to confess, usually by way of an apology to the alleged date rape victim. This is especially true in “he said, she said” date rape cases.
Additional Defenses: In addition to the common defenses related to date rape crimes listed above, other defenses include lack of ‘proper’ Mirandizing (reading of Rights to the defendant before questioning by law enforcement), illegal search and seizure of evidence, coerced confession, insufficient evidence to prove a crime, lack of proper court jurisdiction, improper collection, testing, or storage of forensic evidence (i.e., blood, semen, saliva, fingerprints, etc.), and more. For more information, see Defense to Sex Crimes.
If you have been charged with any sex crime, including any PC 261 Crimes, or any sex crime commonly referred to as “date rape,” (No Consent Sexual Intercourse), contact our highly experienced sex crimes criminal defense attorneys today for a free consultation. In many cases, we can visit local jails to handle consultations for a small fee.
Our team of award-winning sex crimes defense attorneys, including winning trial attorneys, defend all misdemeanor and felony sex crimes, including sexual battery (PC 243.4), indecent exposure (PC 314), lewd and lascivious act on a child under 14 (PC 288(a)), continuous sex abuse of a child (PC 288.5), annoy or molest a child (PC 647.6), possession of child porn (PC 311.11), failure to register as a sex offense (PC 290), and more. Call today!
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