PC 261(a)(4) Rape of Unconscious Person: Sex Crimes Criminal Defense Lawyers CA Penal Code 261(a)(4) Law, Sentence & Criminal Defense
- sexcrimesdefensela
- 7 days ago
- 13 min read
Updated: 5 days ago
Rape of an unconscious person is the act of sexual intercourse with a person who cannot voluntarily consent to sexual intercourse because the person is either unconscious (i.e., head injury, intoxicated, coma, etc.), asleep, or otherwise not aware of the fact that sexual intercourse is occurring to the victim (PC 261((a)(4)).
This article summarizes the laws, punishments and common defenses related to the crime of rape of an unconscious person, including legal definitions, court procedures, prison sentencing, sex offender registration, immigration consequences, statute of limitations, common defense strategies, and more.
For further information, please contact our California sex crimes criminal defense lawyers.
PC 261(a)(4) & Calcrim 1004 Law
Per PC 261(a)(4), rape of an unconscious person is defined as ‘sexual intercourse with a person who, at the time of sexual intercourse, is unconscious of the nature of the act (sexual intercourse), and this fact is known to the criminal defendant (PC 261(a)(4) Sum.).
“Unconscious” Defined: “unconscious of the nature of the act” as used in penal code 261(a)(4), means incapable of resisting because the victim meets any one of the following conditions:
(A) Was unconscious or asleep (usually through head trauma, head injury, or severe intoxication due to alcohol, drugs, or sleeping aids).
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred (i.e., rape victim is awake, but he or she does not know that sexual intercourse with the defendant has occurred for some reason).
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact (sometimes related to rape victims who are awake during sexual intercourse, but who believe vaginal penetration was by medical device related to medical diagnosis or treatment).
Note: total unconsciousness of the victim is not required to prove the defendant has violated penal code 261(a)(4) [Boro v. Superior Court (1985) 163 Cal.App.3d 1224].
Example I: At a party, Denise has completely “blacked out” due to severe intoxication. As such, Denise cannot voluntarily consent to have sexual intercourse with anyone. David knows that Denise unconscious and he uses the opportunity to have sex with Denise.
Result: David has committed a violation of penal code 261(a)(4) [Rape of Unconscious Victim].
Example II: Diana agrees to be tied up and blindfolded by before sexual intercourse with her boyfriend, David. However, after David ties up and blindfolds Diana, David allows his friend, Darrel, to have sex with Diana because both David and Darrel know that Diana will not be able to tell the difference between David and Darrel and Diana would not otherwise agree to have sex with Darrel.
Result: Both David and Darrel have committed a violation of rape of an unconscious victim (PC 261(a)(4)). Both David and Darrel may also be charged with conspiracy to commit rape (PC 182/261), and the more severe criminal charge of rape in concert [Aka “Gang Rape”] (PC 264.1).
Example III: Dr. David has Diana remove her clothing and lie down on an exam table with the pretense that he [Dr. David] needs to inspect Diana’s vagina for medical diagnosis. When Diana is on the medical table, Dr. David secretly exposes, and then rubs, his penis on Diana’s Vagina for a few seconds before he [Dr. David] inserts a speculum into Diana’s Vagina as part of his medical diagnosis.
Result: David has committed rape of an unconscious woman per PC 261(a)(4). This is true even though Diana is not totally unconscious while Dr. David commits rape. It is the fact that Diana is unaware that sexual intercourse is occurring that allows penal code 261(a)(4) in this situation.
Note: The fact that Dr. David only rubs his penis on Diana’s vagina for a few seconds in the above example will not help Dr. David avoid PC 261(a)(4) criminal charges because ‘penetration, no matter how slight, of the defendant’s penis into the woman’s vagina, may constitute sexual intercourse’ for the purpose of penal code 261(a)(4) crimes (See below at “Sexual Penetration Defined").
Unconsciousness Causation: The unconsciousness of the victim does not have to be caused by the criminal defendant for PC 261(a)(4) criminal charges to apply. However, if the defendant is found to have intentionally caused the victim’s unconsciousness, and then the defendant has sexual intercourse with that unconscious person, more severe penalties will apply, including possible life sentencing per PC 667.61(d)(6).
Example: David assaults Denise by punching Denise in the head. Denise falls to the ground and becomes unconscious. Thereafter, David rapes Denis while she is unconscious.
Result: David is facing PC 261(a)(4) criminal charges [Rape of Unconscious Person], and David may also face a life sentence penalty enhancement of PC 661.61(d)(6) [Infliction of Severe Injury (i.e., sexual intercourse) to Victim During Sexual Assault].
Sexual Intercourse Defined: Sexual intercourse is defined as ‘any penetration of a man’s penis, into a woman’s vagina, no matter how slight the insertion of the man’s penis into the woman’s vagina (PC 263 Sum.).
Note: Ejaculation is not required to prove sexual penetration in penal code 261(a)(4) cases (Calcrim 1004).
District Attorney’s Burden: To prove that the defendant is guilty of the crime of rape of an unconscious person per penal code 261(a)(4), the district attorney must prove all the following elements:
The defendant had sexual intercourse with a woman,
The woman was unable to resist because she was unconscious of the nature of the act, and
The defendant knew that the woman was unable to resist because she was unconscious of the nature of the act.
Advanced Consent Issues
Logically, a woman cannot express consent to sexual intercourse while she is either unconscious or unaware that sexual intercourse is occurring. But what about a situation where the defendant claims a woman previously consented to have sexual intercourse with the defendant during her subsequent unconsciousness?
Example I: At a party, Diana tells David that she [Diana] is going to get ‘intoxicated to the point that she passes out drunk (i.e., unconscious), but Diana agrees, before she is intoxicated, to allow David to have sex with her [Diana] while she is passed out drunk. Thereafter, David has sex with Diana while she is passed out drunk (i.e., unconscious).
Result: David has committed a violation of penal code 261(a)(4). This is true because Diana’s loses her freedom of choice to change her mind during sexual intercourse when she in unconscious.
Defendant’s Awareness of Victim’s Unconsciousness
Both the “objective” and “subjective” test are used for determining whether the defendant knew, or should have known, that the victim was unconscious within the meaning of penal code 261(a)(4).
Objective Test: The "objective" test, also known as the "reasonable person" test, means that if the average person, who was in the same or similar circumstances as the defendant at the time the defendant had sexual intercourse with the victim, would have concluded that the victim was unconscious, or unaware of sexual intercourse, then the defendant is guilty of rape per 261(a)(4).
Note: The objective test will incorporate the defendant's level of intoxication, if any, when assessing whether the defendant acted reasonably.
Subjective Test: The "subjective" test used in penal code 261(a)(4) cases refers to whether the defendant honestly and truly believed that the victim was conscious and aware of the fact that sexual intercourse is occurring. If the defendant did not honestly and truly believe that the person was conscious and aware of the fact that sexual intercourse was occurring, then the defendant has violated PC 261(a)(4).
The district attorney only needs to prove that either the objective test or the subjective test was not met by the defendant in a PC 261(a)(4) prosecution.
Consent Defined: Consent to engage in sexual intercourse is defined as ‘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)].
In PC 261(a)(4) cases, a victim is robbed of her exercise of free will to consent due to her unconscious state, or the fact that she is conscious, but not aware of the fact that sexual intercourse is occurring.
If a woman is conscious and aware that sexual intercourse is occurring, the woman must still freely and voluntarily consent to sexual intercourse. Otherwise, the defendant could face criminal rape charges similar to PC 261(a)(4), such as statutory rape [unlawful sexual intercourse], rape by force or fear (PC 261(a)(2)), rape of mentally disabled person (PC 261(a)(1)), and more.
Closely Related Offenses Attempted Rape of Unconscious Woman. Pen. Code, §§ 663, 261(a)(4), & Rape of intoxicated Woman (PC 261(a)(3)).
PC 261(a)(4) Punishment
Felony Classification: The crime of rape of an unconscious person is always charged as a felony; there is no misdemeanor version of PC 261(a)(4).
Probation Sentence: A probation sentence is a period of supervision instead of jail or prison. A probation sentence is not available in penal code 261(a)(4) cases. This means that a defendant who is convicted of rape of an unconscious person must serve some level of incarceration.
Prison Sentence: A prison sentence after a conviction for PC 261(a)(4) will result in a prison sentence of either three (3) years, six (6) years, or eight (8) years, depending on the presence of any mitigating or aggravating circumstances in the underlying facts of the case.
Example: After trial, David is convicted of rape of an unconscious person. At sentencing, the criminal court judge must sentence David to either three (3) years, six (6) years, or eight (8) years in prison. The judge considers that David has no criminal history before his PC 261(a)(4) conviction (mitigating factor); therefore, the judge sentences David to the low term of three (3) years in prison.
Compare: In the above example, if David had used a high degree of sophistication to commit his crime (aggravating factor), then the judge would likely sentence David to the high term of eight (8) years in prison.
Aggravating and mitigating factors used to determine whether the judge should choose the low term (three years), mid-term (six years), or high term (eight years) as a prison sentence after a conviction for PC 261(a)(4) are listed in California Rules of Court at sections 4.423 (mitigating factors) and 4.421 (aggravating factors).
No Suspended Sentencing: A suspended sentence, also called a “joint suspended sentence,” is not available after a conviction for penal code 261(a)(4). This means that no part of the defendant’s prison sentence may be placed on hold, or split (partially served in prison and partially served on probation) [PC 1170(H)].
Serious Offense: The crime of rape of an unconscious victim is considered a “serious” offense, as defined at PC 1192.7. A “serious” offense is a considered a “strike” offense under California Three Strikes Sentencing Law. In turn, a “strike” offense, including PC 261(a)(4), will lead to increased penalties for subsequent criminal convictions and reduced “good behavior credits” that might otherwise apply.
PC 4019 & 2933.1 Credits: A prison sentence related to a PC 261(a)(4) conviction may be reduced by up to fifty percent (50%) if the defendant serves his prison sentence with “good behavior.”
Example: David is convicted of rape of unconscious woman in violation of penal code 261(a)(4). David is sentenced to the upper term of eight (8) years because David had a long criminal history before his PC 261(a)(4) conviction. Per PC 4019 and 2933.1, David’s eight (8) year prison sentence will be reduced to four (4) years if David serves those first four (4) years with “good behavior” (aka “good conduct”).
Sex Offender Registration: A conviction for the crime of rape of unconscious victim will subject the defendant to lifetime sex offender registration under CA penal code 290 (tier 3). This lifetime registration requirement cannot be reduced via Petition to Terminate Sex Offender Registration; however, in some situations, the defendant might be excluded from the sex offender website pursuant to PC 290.046.
Sexually Violent Predator (SVP): Before the prisoner is released from prison after conviction for PC 261(a)(4), the prisoner will be evaluated by a prison psychologist who will determine whether the prisoner should be transferred to a mental hospital or be released from prison.
If the prison psychologist determines the prisoner is likely to reoffend if he is released from prison, then the prisoner will be transferred to a mental hospital for treatment as a sexually violent predator (SVP). For more information, see Sexually Violent Predator Status.
Firearm loss for life: A conviction for the crime of rape of unconscious person will result in a lifetime ban from owning or possessing firearms, firearm ammunition, or body armor (PC 29800(a)(1)).
Moral Turpitude Crime: All rape crimes, including PC 261(a)(4), rape of an unconscious person, are considered crimes involving moral turpitude (CIMT). A crime involving moral turpitude is any crime that involves immoral conduct, deceit, or fraud.
Crimes involving moral turpitude carry direct and indirect penalties that are above and beyond prison sex offender registration and fines, such as loss of immigration status (i.e., denial of entry of deportation from the United States), loss of a professional license (i.e., doctor, dentist, lawyer, nurse, etc.), and loss of military status (denial of entry of dishonorable discharge from the United States Military).
Additional Penalties: In addition to the direct and indirect penalties listed above, if found guilty of PC 261(a)(4), the defendant will face criminal protective orders (CPO) that protect the rape victim from further contact by the defendant, penalty fines, court security fees, civil lawsuits, loss of scholarship, and more.
PC 261(a)(4) Defenses
The facts that support a PC 261(a)(4) allegation differ from case to case; therefore, the defense that best fits a penal code 261(a)(4) allegation will differ from case to case.
The following is a summary of the most common defenses used by criminal defense lawyers in a rape of an unconscious victim case.
Insufficient evidence: Before a defendant may be found guilty of penal code 261(a)(4), the district attorney must prove, beyond a reasonable doubt, that the defendant 1) had sexual intercourse with the victim, 2) the victim was unconscious or unaware that sexual intercourse occurred, and 3) the defendant knew victim was unconscious or unaware that sexual intercourse occurred.
Illegal search and seizure: Essentially, prosecutor attorneys may only use evidence against a criminal defendant if that evidence is relevant to the case and it is collected without violating the defendant’s Constitutional Rights against unreasonable search and seizure (Fourth Amendment Rights).
Illegal Search and seizure laws, and their procedural applications for defense options in PC 261(a)(4) cases, are numerous and complex. For a clearer understanding of how illegal search and seizure might apply as a defense to a criminal charge of rape of an unconscious person, please contact our sex crimes criminal defense lawyers for consultation.
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 [defendant] has the right to remain silent and that anything he says may be used against him in court.
A Miranda Rights Violation defense might occur in a rape of unconscious woman case (PC 261(a)(4)) where the defendant makes incriminating statement during police interrogation, such as a confession, but where the defendant was not properly Mirandized before making that self-incriminating state.
Note: The application of "Miranda Rights," or 5th Amendment Right against Self-Incrimination and 6th Amendment Right against Law Enforcement Interrogation Outside the Presence of Counsel, are complex legal topics. Application of these laws to the defense of penal code 261(a)(4) allegations may be further discussed without sex crimes criminal defense lawyers during a free consultation.
Coerced Confession: A coerced confession occurs where the defendant is properly “Mirandized” before law enforcement interrogation (see Above), but the atmosphere surrounding the defendant’s statement, or the style of the law enforcement interrogation itself, is unduly coercive, and that coercive atmosphere or style of police questioning leads to the defendant's false confession or an incriminating statement, in whole or in part (“Messiah” Rights Violation).
Jury Nullification: Jury Nullification in a PC 261(a)(4) occurs where the jury believe, a juror believes, beyond a reasonable doubt, that the defendant is guilty of rape of unconscious woman, but where the jury, or a juror, votes to acquit the defendant nevertheless (i.e., find the defendant “not guilty” of the alleged crime).
Statute of Limitations: The statute of limitations (SOL) is a law (statute) that limits the amount of time the district attorney has to file a criminal charge against the defendant. If the district attorney does not file a criminal charge within that crime’s relevant statute of limitations, then the district attorney is forever barred from filing those criminal charges.
In a rape of an unconscious woman case filed as a violation of PC 261(a)(4), the statute of limitations changes depending on several factors, including the age of the victim at the time of the alleged rape or when the rape is discovered (i.e., sometimes a rape of an unconscious person is not discovered for many years, which will extend the statute of limitations).
Under normal circumstances, where the alleged rape victim is eighteen (18) years of age or older at the time of the alleged rape, and the victim discovers she was raped while unconscious withing a short time after the rape occurred, then the statute of limitations is ten (10) years from the date of the alleged offense (PC 799-805).
Note: The statute of limitations might extend beyond the period otherwise called for under PC 261(a)(4) and PC 799-805. This occurs for various reasons, including when the defendant has intentionally removed himself from the criminal court's jurisdiction (i.e., "fugitive status"), and other reasons.
For more information, see Statute of Limitations for Sex Crimes in CA.
Plea Bargain as Defense: In some rape of an unconscious woman cases, the defendant will enter into a plea bargain with the district attorney or the judge, whereby the defendant pleads guilty (as opposed to proceeding to trial), in exchange for a guaranteed reduced prison sentence (i.e., "sentence bargaining") or a guaranteed reduced criminal charge (i.e., "charge bargaining"), or both.
A “plea bargain” is not a true defense to a PC 261(a)(4) criminal charge in the sense that the defendant is found "not guilty" of criminal allegation or the criminal charge is dismissed for some legal or technical reason(s).
The strength of the bargaining position for the criminal defendant in a penal code 261(a)(4) case boils down to the strength of the evidence against the defendant and the experience of the defendant’s sex crimes criminal defense attorney.
Note: A criminal defendant does not have to enter into a plea bargain with the district attorney, but most PC 261(a)(4) cases involve the district attorney and the sex crimes 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 being dismissed completely.
Post-Conviction Options: Post-conviction options for a criminal defendant convicted of rape of unconscious woman (victim) [PC 261(a)(4)] include: 1) appeal the felony conviction, 2) withdraw a guilty plea, or 3) petition the governor of California for a pardon or clemency.
Note: A California Governor's Pardon of a PC 261(a)(4) conviction does not relieve the defendant from the duty to register as a sex offender pursuant to PC 290 unless the California governor specifically grants clemency from that requirement.
For more information on the crime of rape of unconscious person, or penal code 261(a)(4), contact our award winning and deeply experienced sex crimes criminal defense lawyers without delay for a free consultation.
Our sex crimes criminal defense lawyers defend all misdemeanor and felony sex crimes criminal charges, including PC 261.5 (Statutory Rape), PC 647.6 (Annoy or Molest minor), PC 311 (Possession of Child Porn), PC 288 (Lewd Act w/ Child), PC 288.5 (Cont. Sexual Abuse of Child), PC 243.4 (Sexual Battery), PC 647(b) (Prostitution), PC 287 (Oral Copulation), PC 289 (Sexual Penetration), PC 288.2 (Harmful Matter), & more.
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