PC 261(a)(3) Rape of Intoxicated Person: Criminal Defense Lawyers Explain CA Penal Code 261(a)(3)

Information on the crime of rape of an intoxicated person (victim) is found at California penal code section 261(a)(3), Calcrim 1002, and other various California and federal codes and cases (Caselaw).

This article summarizes the law, penalties, and common defenses related to PC 261(a)(3) [rape of intoxicated person], including post-conviction issues related to penal code 261(a)(3).

For further information, please contact our California sex crimes criminal defense lawyers.

PC 261(a)(3) Law

Per California law, rape of an intoxicated person is ‘an act of sexual intercourse with a person [victim] who is prevented from resisting sexual intercourse with the defendant because of an intoxicating substance or drug, and the victim’s intoxicated condition was known, or reasonably should have been known by the defendant [PC 261(a)(3) Abbrev.].

Note: The defendant in a PC 261(a)(3) case does not have to be the person who provides the intoxicant to the victim he [defendant] may be found guilty.

Example: Jane becomes heavily intoxicated at a party to the point where she can barely stand on her own. David sees that Jane is heavily intoxicated and he takes her to a bedroom to have sex with her.

Result: David may be charged with rape of an intoxicated person under penal code 261(a)(3). This is true even if David is not the person who provided drugs or alcohol to Jane to make her intoxicated.

In the above example, if David provides alcohol and/or drugs to Jane for the purpose of getting Jane drunk or high so that David can have sex with an otherwise unwilling Jane, and David has sex with Jane while she is heavily intoxicated due to David’s conduct, then David may be punished more severely (See PC 261(a)(3) Penalties).

Sexual Intercourse Defined: Sexual intercourse means ‘any penetration, no matter how slight, of the vagina or genitalia by the penis.’ [PC 263. Ejaculation is not required to prove sexual penetration [Calcrim 1002].

In criminal law practice, even the mere touching of the penis to the vagina (skin to skin) may constitute “penetration” for purposes of rape of intoxicated person and attempted rape or intoxicated person allegations under penal code 261(a)(3) and 664/261(a)(3), respectively.

Voluntary v. Involuntary Intoxication

Rape of an intoxicated person can occur regardless of whether the victim is voluntarily or involuntarily intoxicated. However, a PC 261(a)(3) violation does not automatically occur simply because the female is heavily intoxicated.

Example 1: Jane and David are in a relationship; they both like to have sex with each other while they are extremely high on drugs. In this example, Jane becomes high on drugs for the purpose of having more enjoyable sex with David. Therefore, Jane consented to have sexual intercourse with David while Jane is heavily intoxicated, and Jane gave this voluntary consent to have sexual intercourse with David before Jane became intoxicated. Result: No violation of PC 261(a)(3).

Example 2: Jane is extremely intoxicated, but Jane is an alcoholic and to the average person, Jane appears to be only mildly intoxicated. David has sex with Jane while David believes Jane has the present ability to object to sexual intercourse with David is she so chose.

Result: Daivd is not guilty of penal code 261(a)(3) because to him [David], and to the average person, Jane does not reasonably appear to so intoxicated that she cannot resist sexual intercourse with David.

Example 3: Jane and David are legally married as husband and wife. Jane becomes heavily intoxicated. David has sexual intercourse with Jane while Jane is heavily intoxicated because he [David] knows Jane cannot physically resist him [David] when Jane is so heavily intoxicated.

Result: David has committed a violation of PC 261(a)(3). This is true even though Jane and David are married (i.e., Spousal Rape [PC 261(a)(3) and formerly PC 262]).

Use of Anesthetic: A defendant who has sexual intercourse with a woman who is under an anesthetic may be charged under penal code 263(a)(3) even if the victim is not “intoxicated” with drugs or alcohol, so long as the defendant knew, or reasonably should have known, that the woman could not resist sexual intercourse due to the anesthetic.

Level of Intoxication: The level of intoxication required of a woman for PC 261(a)(3) allegations to apply is different in every situation. The test for whether the level of intoxication of a woman has impaired her ability to grant voluntary consent to engage in intercourse is gaged by whether the woman is reasonably aware of the nature and qualify of her act, and whether she acts freely and voluntarily when she consents to sexual intercourse [Calcrim 1002 Extropolated].

Per PC 261.6(a), consent to engage in sexual intercourse means ‘positive cooperation in act or attitude to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved [PC 261.6(a) regarding definition of consent to engage in sexual intercourse under California law].

Example: David knows that Jane becomes extremely intoxicated with very little alcohol. David also knows that Jane suffers from “brown out” or “black out” when she is extremely intoxicated. Regardless, David initiates sexual intercourse with Jane after Jane has several alcoholic beverages.

Result: David is in violation of penal code 261(a)(3) because Jane’s ability to reasonably object to sexual intercourse is overcome due to her intoxication.

Note: A current or previous dating or marital relationship is not sufficient to constitute consent if consent is at issue in a prosecution under Section 261, 286, 287, or 289…, [PC 261.6(b) Abbrev.].

Victim’s Request for Contraception: A PC 261(a)(3) victim does not imply consent to sexual intercourse when she requests or suggests that the defendant use a condom, or other conception, during sexual intercourse (PC 261.7 Abbrev.).

Example: David administers local anesthesia to Jane. The anesthesia does not render Jane “intoxicated,” but it does render Jane unable to physically resist sexual advances by David while she [Jane] is under anesthesia. David begins to have nonconsensual sex with Jane while she is under anesthesia. In response, Jane asks David to use a condom during the nonconsensual sex.

Result: David has committed rape of an intoxicated person per PC 261(a)(3).

Victim’s BAC not Controlling: There is no “blood alcohol concentration” limit, or BAC, that must be met before a person is considered sufficiently intoxicated under PC 261(a)(3). Rather, the test is whether the woman is sufficiently intoxicated to the point that she cannot freely give consent to sexual intercourse, or whether she is sufficiently intoxicated that she cannot physically resist sexual intercourse.

Also, the type of alcohol, drug, controlled substance, or anesthetic that causes victim’s intoxication is not relevant in a prosecution for rape of intoxicated person except in terms of the substance’s relevant toxicology and pharmacological effect on the victim.

In other words, it does not matter what type of drug, legal or illegal, or what type of alcohol renders the victim intoxicated to the point that she cannot freely and voluntarily consent to sexual intercourse in a PC 261(a)(3) prosecution.

However, a toxicology report of the victim’s blood could be important to a defense lawyer in ascertaining whether the victim likely underwent a pharmacological effect from the alleged intoxicating substance.

Example: Jane is a light drinker; she becomes heavily intoxicated to the point of not being able to resist sexual advances of David after she drinks only two beers. David is charged with rape of intoxicated victim after Jane accuses David of him having sexual intercourse with her [Jane] while she was too intoxicated to resist David’s sexual advances.

Result: The fact that beer is legal for Jane to drink, and the fact that Jane only has two beers (low BAC) is not a defense against David’s PC 261(a)(3) criminal charges. However, David’s criminal defense lawyer may still request Jane’s toxicology report as part of his defense because David could allege that Jane had no alcohol in her system at all during the alleged rape of intoxicated person event.

In sum, to prove that the defendant is guilty of the crime of rape of a woman while she is intoxicated per penal code 261(a)(3) and Calcrim 1002, the district attorney must prove all of the following beyond a reasonable doubt:

• The defendant had sexual intercourse with a woman,

• The effect of intoxicating or controlled substance (i.e., alcohol or drugs, or a combination of alcohol and drugs) prevented the woman from resisting the defendant, or the woman did not know the nature of the act of sexual intercourse because of her intoxicated state, and

• The defendant knew or reasonably should have known that the effect of alcohol or drugs, or a combination of alcohol or drugs, prevented the woman from resisting (Calcrim 1002 Modified).

Note: The district attorney has the burden of proving, beyond a reasonable doubt, that the defendant did not actually and reasonably believe that the woman could consent to sexual intercourse [Calcrim 1002] (See PC 261(a)(3) Defenses).

Closely Related Offense: If the intoxicated victim was fully asleep at the time of sexual intercourse, or the victim was unconscious at the time of the sexual intercourse, the defendant will face similar charges known as “rape of unconscious person.” [See “Rape Crime”].

PC 261(a)(3) Penalties & Sentence

Felony Classification: The crime of rape of intoxicated person is charged as a felony. There is no misdemeanor version PC 261(a)(3). [i.e., rape of intoxicated person is not a “wobbler” offense in California.

Prison Sentence: Conviction for the crime of rape of intoxicated person under PC 261(a)(3) will subject the defendant to either a three (3), six (6), or eight (8) year prison sentence, depending on the presence or absence of any mitigating or aggravating factors in the circumstances of the case.

Mitigating and Aggravating Factors: When the judge sentences a defendant after his conviction for PC 261(a)(3), the court will consider the length of the defendant’s prison sentence (i.e., either three (3), six (6), or eight (8) years in CA state prison), with consideration of any mitigating or aggravating factors that were present at the time of the defendant’s crime.

Example: David is convicted of rape of intoxicated victim per PC 261(a)(3). The judge may sentence David to either three (3), six (6), or eight (8) years in a California state prison. In consideration of David’s length of prison sentence, the judge considers a few of the following mitigating and aggravating circumstances that were present when David committed his crime:

• David has no criminal history (Mitigation)

• David took advantage of a position of trust (Aggravation)

• David confessed early in the case (Mitigation)

• David showed no remorse for his crime (Aggravation)

• The defendant… was induced by others to participate in the crime (Mitigating)

Note: There might be many mitigating and aggravating factors that are considered by a judge when sentencing the defendant to a particular length of jail, prison, or probation in a rape of intoxicated person case. Mitigating and aggravating factors are found at California rules of court 4.423 and 4.421, respectively.

No 1170(H) Sentencing: When a defendant is convicted of rape of intoxicated person under PC 261(a)(3), he must serve his prison sentence in a California state prison, as opposed to a local county jail.

In addition, no part of the defendant’s prison sentence after a conviction for PC 261(a)(3) may be “split” (served partially out of prison on post-release community supervision, or felony probation, or “suspended” (not served subject to future violation of a condition of suspended sentence, aka “joint suspended sentence”).

Probation Sentence Ineligible: A conviction for rape of intoxicated person (victim) is not eligible for a felony probation sentence. This means the defendant must serve some level of prison sentence in a California state prison if he is convicted of penal code 261(a)(3) [i.e., either three (e), six (6), or eight (8) year prison sentence depending on the presence of absence of any mitigation or aggravating circumstances related to the crime and the defendant (see above).

Sex Offender Registration: A conviction for violating PC 261(a)(3) [Rape of Intoxicated Person] will result in a mandatory lifetime sex offender registration with local law enforcement (PC 290 “Tier Three (3) Sex Offender Registration). For more information on sex offender registration requirements after conviction for PC 261(a)(3), see PC 290 Requirements.

Good Conduct Credits: A conviction for rape of intoxicated person is eligible for either fifty percent (50%) good conduct credits, or fifteen percent (15%) good conduct credits, depending on the defendant level of culpability at the time of his offense.

Defendant who are found to have “intended” to render the victim intoxicated will receive only fifteen percent (15%) good conduct credits.

Example 1: David slips Jane a “date rape drug” (i.e., Rohypnol ("Roofies"), GHB ("Liquid Ecstasy"), or ketamine ("Special K")). After Jane is “intoxicated” with the date rape drug, David has sexual intercourse with Jane.

Result: David “intended” to render Jane intoxicated for the purpose of raping her. Therefore, David must serve no less than eighty-five percent (85%) of his prison sentence. This is true even if David serves his prison sentence with “good behavior” (i.e., maximum of fifteen percent (15%) good conduct credits).

Alternatively, in the above example, if David is convicted of PC 261(a)(3), but without the intent to render Jane intoxicated for the purpose of having sex with her (i.e., Jane was already severely drunk when David met Jane), then David may receive up to fifty percent (50%) off his prison sentence if he serves his prison sentence with “good behavior.”

Violent and/or Serious Offense: All PC 261(a)(3) convictions are considered “serious” offenses, as that term is defined in the California law at penal code 1192.7.

If the defendant “intended” to render the victim intoxicated so that he can rape the victim, such as when the defendant uses a “date rape” drug on a rape victim, then defendant will also suffer a “violent” offense conviction, as that term is defined under PC 667.5.

Three Strikes Sentencing Law: Both “serious” and “violent” crimes, including rape of intoxicated victim offenses, are considered “strike” offenses under California’s Three Strikes Sentencing Law.

As such, a conviction for any penal code 261(a)(3) offense will carry harsher post-conviction consequences, including longer jail and prison sentences for subsequent crimes, reduced parole opportunities (for violent offense version of PC 261(a)(3)), and mandatory ineligibility for probation sentences for any subsequent felony conviction.

Immigration Consequences: The crime of rape of intoxicated person, and “attempted rape” of intoxicated person (PC 664/261(a)(3)], is considered a “violent” offense under federal law (different definition of “violent” offense under federal law as compared to California state law), a crime involving moral turpitude, and a “deportable” offense under federal immigration law.

This means that any non-United States citizen convicted of convicted of rape of an intoxicated person (or “attempted rape” of intoxicated person, will suffer severe immigration consequences, including, denial of entry into the U.S., denial of citizenship and/or naturalization, and deportation from the United States).

Crime Involving Moral Turpitude: PC 261(a)(3) crimes are classified as “crimes involving moral turpitude,” or CIMT. A crime involving moral turpitude is a crime that involves immoral conduct or involves deceit.

Crimes involving moral turpitude, including the crime of rape of intoxicated person, carry both direct and indirect consequences, including immigration consequences (see above), professional licensing consequences (denial or revocation of professional license), and impeached character in subsequent civil and criminal proceedings.

Lifetime Firearm Prohibition: A conviction for rape of intoxicated victim will result in a lifetime firearm ban for the defendant. This lifetime ban includes a prohibition from the defendant owning, or possessing, any firearm, ammunition for firearms, or body armor.

Additional Consequences: In addition to the penalties, prison sentence, and other punishments listed above, if found guilty of penal code 261(a)(3) [Rape of Intoxicated Person], the defendant may suffer civil lawsuits, criminal protective orders (CPO) in favor of victim and her family, restitution to restore victim’s financial loss related to the rape crime, penalty fines, court security fees, loss of reputation, loss of the right to adopt a child, and more.

Defenses to PC 261(a)(3)

Each penal code 261(a)(3) allegation is different; therefore, the defense to a PC 261(a)(3) will change from case to case. The following is a summary of the most common defenses used by criminal defense lawyers in rape of intoxicated person cases.

Insufficient evidence: Before a defendant may be found guilty of penal code 261(a)(3), the district attorney must prove, beyond a reasonable doubt, all of the following:

• the defendant and the alleged victim had sexual intercourse,

• that the alleged victim was unable to physically resist the defendant’s sexual intercourse, or the alleged victim could not appreciate the nature or consequences of the sexual intercourse due to intoxication, and

• the defendant knew or should have known that the woman was intoxicated to the point that she could not resist sexual intercourse or know the nature and qualify of her conduct due to her level of intoxication.

The defendant might defend against a PC 261(a)(3) allegation in any of the above areas.

Example 1: The lack of corroborating scientific evidence, such as the presence of seminal fluid or DNA that would otherwise be expected to be found in the woman’s vagina during a post-sexual intercourse physical exam (i.e., “rape test kit”), might impeach the woman’s testimony that sexual intercourse occurred. This defense correlates to a false accusation claim by the defendant, or an alibi defense.

Note: With false allegations of rape of intoxicated person cases, impeachment of the alleged victim’s character for trustworthiness and honesty is usually examined.

Example 2: During sexual intercourse, the alleged victim might have been intoxicated to the point of not being able to resist the defendant, or even understand the nature of the act of sexual intercourse with the defendant, but the alleged victim’s appearance to the average person (objective test), and the defendant himself (subjective test), under the surrounding circumstances is that the alleged victim is not intoxicated to the level described in penal code 261(a)(3) [Rape of Intoxicated Person].

Note: A defense that surrounds the defendant’s reasonable mistake as to the fact of the alleged victim’s level of intoxication will usually require a defense witness to testify on behalf of the defendant, such as a person who can testify as to the alleged victim’s mental and physical appearance near the time the defendant and the alleged victim had sexual intercourse.

Remember, “the defendant is not guilty of PC 261(a)(3) if he actually and reasonably believed that the woman was capable of consent to sexual intercourse, even if that belief was wrong [Calcrim 1002].

Illegal search and seizure: Essentially, prosecutors may only use evidence against a criminal defendant if that evidence is collected within legal authority to do so (i.e., not in violation of the defendant’s Constitutional Rights).

An illegal search and seizure defense might apply in a penal code 261(a)(3) case where the defendant’s clothing or DNA was collected for evidence, but it was collected without a legal warrant based on Probable Cause that is otherwise required to collect the evidence.

Miranda Violations: A “Miranda” violation is the taking of the defendant’s voluntary statement by law enforcement while under law enforcement interrogation, but without the defendant’s advisal by law enforcement that he has the right to remain silent and that anything he says may be used against him in court (“Miranda” Rights Abbrev.).

A Miranda Rights Violation defense might occur in a rape of intoxicated person case (PC 261(a)(3)) where the defendant makes self-incriminating statement during police interrogation, such as a confession, but the defendant was not properly Mirandized before making that self-incriminating state.  

Coerced Confession: A coerced confession occurs where the defendant is properly Mirandized (see Above), but where the atmosphere surrounding the defendant’s statement, or the style of the law enforcement interrogation itself, is unduly coercive and led to either a violation of the defendant’s “Messiah” Rights or led to a false confession, in part or in whole.

Note: Illegal Search and Seizure laws, Miranda Rights, Coerced Confessions laws, and Messiah Rights are complex legal topics. Possible defense application of the laws related to these legal topics, as applied to a PC 261(a)(3) allegation, should be further discussed with a criminal defense lawyer.

Jury Nullification: Jury Nullification occurs where the jury believe, beyond a reasonable doubt, that the defendant is guilty of the alleged crime, but the jury votes to acquit the defendant nevertheless (i.e., find the defendant “not guilty” of the alleged crime).

Note: Jury nullification is not legal defense pursued by criminal defense lawyers in PC 261(a)(3) cases. Rather, jury nullification occurs in a PC 261(a)(3) case where the jury nullifies, or renders void, the prosecutor’s rape of intoxicated person’s case, by finding the criminal defendant “not guilty” even if the jury actually believes that the defendant is guilty of raping a woman while she is intoxicated.

In PC 261(a)(3) cases, a jury nullification sometimes occurs because the jury does not want to find the defendant guilty. The reasons for the jury’s decision to vote “not guilty” when the jury otherwise believe the defendant is guilty, usually comes down to either dislike for the alleged victim for some reason, a favorable impression of the defendant, or a belief that the punishment is too harsh for the defendant’s alleged conduct in that PC 261(a)(3) case.

Statute of Limitations: The statute of limitations is a law (statute) that limits the amount of time the district attorney has to bring a criminal charge against the defendant. If the district attorney does not file criminal charges within the crime’s relevant statute of limitations, then the district attorney is forever barred from filing those criminal charges.

In a rape of an intoxicated person case filed as a penal code 261(a)(3) violation, the statute of limitations changes depending on several factors, including the age of the alleged victim at the time of the alleged rape. Under normal circumstances, where he alleged rape victim is eighteen (18) years of age or older at the time of the alleged rape, the statute of limitations is ten (10) years from the date of the alleged offense.

Note: Many exceptions apply to the statute of limitations that might extend the limitations period in a penal code 261(a)(3) case, such as the defendant’s flight from the jurisdiction. For more information, see Statute of Limitations for CA Sex Crimes.

Plea Bargain as Defense: In some rape of an intoxicated person cases, the defendant will enter into a plea bargain, whereby either the criminal charge is reduced (charge bargaining), the prison sentence related to the criminal charge is reduced (sentence bargaining), or both.

A “plea bargain” is not a true defense to a PC 261(a)(3) criminal charge in the sense that the defendant is found not guilty of allegations, or the criminal charges are dismissed for some legal or technical reasons.

Rather, a plea bargain is commonly entered into by the district attorney and a criminal defendant in many PC 261(a)(3) cases, whereby both the district attorney and the criminal defendant (through his attorney) agree to guaranteed terms of a criminal conviction, rather than either party facing the uncertainty that comes with the outcome of a criminal trial.

Example: David agree to plead guilty and avoid a criminal trial, but only if the district attorney agrees to reduce the rape of intoxicated person charge to and “attempted” rape of intoxicated person charge (PC 664/261(a)(3)), and only if the district attorney agrees to an eighteen (18) months prison sentence (i.e., a lowered prison sentence is available to David under a lowered charged of PC 664/261(a)(3) “attempted rape of intoxicated person”).

In the above example, David enters into both a “charge” plea bargain (alternate criminal charge), and a “sentence” plea bargain (lighter sentence than the maximum associated with the new criminal charge).

The strength of the bargaining position for the criminal defendant in a penal code 261(a)(3) case boils down to the strength of the evidence against the defendant and the experience of the defendant’s criminal defense attorney.

Note: A criminal defendant does not have to a plea bargain with the district attorney, but most PC 261(a)(3) cases involve the district attorney and the criminal defense lawyer at least attempting to resolve the case by way of plea bargain, unless there is some patent technical or procedural defense upon which the defendant relies in hopes of his case dismissed by the district attorney or the court.

Post-Conviction Options: Post-conviction options for a criminal defendant convicted of rape of intoxicated person (victim) [PC 261(a)(3)] include: appeal the felony conviction, 2) withdraw his guilty plea (PC 1018), 3) petition the court for an expungement of the criminal charges (PC 1203.4), or 4) petition the governor of California for a pardon or clemency.

Note: An expungement of PC 261(a)(3) convictions does not relieve the defendant from the duty to register as a sex offender pursuant to PC 290 or restore the defendant’s firearm rights.

If you are charged with rape of an intoxicated person, or California penal code 261(a)(3) PC, contact our sex crimes criminal defense lawyers today for a free case evaluation. Our highly experienced and successful criminal defense lawyers, including winning trial lawyers, have successfully defended countless misdemeanor and felony sex crimes criminal charges in the Inland Empire and we can help you too.

Important: Time is of the essence when it comes to successfully defending rape crime, including allegations of penal code 261(a)(3). Never wait until your first court date to retain an experienced criminal defense lawyer who has deep experience in defending rape charges and never talk to anyone about your case without a lawyer by your side, especially law enforcement officers or the alleged rape victim. Call today!

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Closely Related Crimes

Oral Copulation of Intoxicated Person

Sexual Penetration of Intoxicated Person

Sodomy of Intoxicated Person

Attempt Rape (Intoxicated Person) 664/261(a)(3)

Rape in Concert (Gang Rape) PC 264.1

PC 261(a)(3) Rape of Intoxicated Person: Criminal Defense Lawyers Explain CA Penal Code 261(a)(3).