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“Date Rape” Crimes, Penalties & Defenses: PC 261, 264 & 287, CA Criminal Defense Lawyers Explain “Date Rape” Crimes in California

“Date Rape” is colloquial term used to describe a sex crime that is committed during a dating relationship. The term “date rape” does not actually exist in legal text other than as a reference to the term as a colloquialism. Rather, California law simply refers to the sex crime committed, regardless of the presence of a dating relationship between the defendant and the alleged victim.


For example, Mike and Janet are in a dating relationship. The couple regularly have consensual vaginal sexual intercourse, but Mike wants to have anal sex (sodomy) with Janet. Janet does not want to have anal sex with Mike, so Mike sodomizes (anal sex) Janet when she is heavily intoxicated.


Result: Mike may be charged with sodomy against an intoxicated victim (PC 286(i)). This is true even though Janet regularly consents to sexual contact with Mike because every incident of sexual contact between two people must be consensual and in the above example, Janet is too intoxicated to give voluntary consent and Mike knows that Janet does want to have anal sex with Mike.


Notice that in the above example, the crime charged against Mike is not called “date rape.” Also notice that Mike does not commit the crime of rape, which is defined as the sexual penetration of a man’s penis into a woman’s vagina. Nevertheless, under the example, presented above, Mike is considered to have committed “date rape” against Janet.


Common “Date Rape” Crimes: The most common “date rape” crimes include the following:



Intoxication Can Vitiate Consent: Consent to sexual interaction is a common defense to “date rape” allegations because the dating partners might regularly engage in consensual intercourse, and the defendant might believe he or she has implied consent to sexual future sexual interaction based on prior consent; however, a dating partner must voluntarily consent to sexual conduct every time the couple engage in sexual interaction.


The issue of consent in date rape allegations usually arises in the context of intoxication of the alleged victim. If a partner to sexual interaction is too intoxicated to give voluntary consent, then that intoxicated person’s consent is vitiated (voided).


For example, Diana and Bob are in a dating relationship. Diana and regularly consents to Bob performing cunnilingus (oral copulation) Dianna. However, one night, Diana is heavily intoxicated, and Bob performs oral copulation on Diana. Diana is too drunk to resist Bob even if she would not have otherwise resisted if she were not drunk. Also, Diana is too drunk to understand the nature of what is happening (i.e., that her boyfriend is performing oral sex on her).


Result: Bob may be charged with oral copulation of an intoxicated person (PC 287(i)). This is true even though Diana regularly consents to Bob performing oral sex on Diana because every sexual interaction between two or more people requires voluntary consent and a person cannot consent to sexual conduct if they are unaware of the circumstances of their conduct.


Notice that in the above example, Bob is not charged with “date rape.” Rather, he is charged a crime that is often referred to as “date rape” because of his dating relationship to Diana.


Intoxication of the alleged victim is a very common theme is date rape crime, including the common sex crimes:



Note: Sexual interaction with an unconscious person is also another common “date rape” crime, including the crimes of sexual penetration by object by force against unconscious person, sodomy against unconscious person, oral copulation upon unconscious person, and rape by force or fear against an unconscious person.


Minor Unable to Consent: “Date rape” is a serious of sex crimes between two or more adults who are in a dating relationship. “Date rape” does not generally refer to sex crimes against minors who are in a dating relationship with the defendant.


For example, the crime of statutory rape (unlawful sexual intercourse), is not usually referred to as a “date rape” crime because consent to sexual intercourse is not valid regardless of whether the minor otherwise “consents” to the sexual intercourse. Rather, “date rape’ refers to crimes where the alleged victim is capable of consent, but that consent is not granted (force sexual interaction), or the consent is vitiated (voided due to involuntariness because of the alleged victim’s severe intoxication or unconsciousness).


The following misdemeanor sex crimes against minors are not considered “date rape” crimes even if the minor and the alleged perpetrator are in a dating relationship and even if the alleged victim otherwise “consents” to sexual intercourse with the defendant:



Dating Relationship Not Required


As stated, a dating relationship is not required for any of the above-mentioned crimes to be committed. Rather, the dating relationship between the alleged sex crime victim and the defendant is what makes the issue of victim’s consent to sexual contact, or lack thereof, difficult to establish by the district attorney.


Penalties for “Date Rape”


Every date rape crime is different; therefore, the penalties for any particular “date rape” crime is different from case to case. However, most date rape crimes carry similar penalties and punishments, including sex offender registration requirements (PC 290), state prison requirements, ineligibility for probation, enhanced penalties for subsequent criminal conduct, and criminal protective orders that restrict personal contact between the defendant and the alleged victim.


For specific penalties related to particular “date rape” crimes, see the following:



Defense to “Date Rape”


Every “date rape” crime is different; therefore, a defense to any date rape crime is different from case to case. With that said, common defenses to date rape crimes usually include consent to sexual conduct, reasonable mistake of fact (as to consent to sexual conduct), coerced confessions, lack of proper Miranda Rights reading, insufficient evidence required to prove sexual conduct or lack of consent, and more.


For example, Manual and Maria are in a dating relationship. Both Manual and Maria regularly engage in consensual intercourse. One night, during sex, Manual inserts his finger into Maria anus (sexual penetration). Maria did not consent to Manual’s action, but she does not verbally object to Manual’s action.


Result: Manual may defend against allegations of sexual penetration by force against Maria because he reasonably believed that Maria consented to his sexual penetration when Maria did not object and they were already engaged in sexual intercourse.


Important: Most people who are in a dating relationship do not expressly consent to sexual intercourse. Rather, consent to sexual conduct of any kind between two persons who are dating (or married), usually occurs impliedly. The implication of consent is valid so long as both parties to sexual interaction are capable of consenting (adults), that consent is not vitiated (intoxicated or unconsciousness of victim), and the person is fully aware of the circumstances and nature of his acts and voluntarily consents (voluntary consent).


Note: Adults who are in a dating relationship might also have sexual consent voided ab initio (from the beginning), but these crimes are not referred to as "date rape" because the dating itself is illicit, and therefore voided. These crimes included incest (PC 285) (sexual interaction between persons who are related to within a certain degree of consanguinity (blood relationship)), sex with an inmate or prisoner who are in a "dating" relationship, but not married, prostitutes who provide sexual services to their "dates," (PC 647(b)), and more.


For more detailed analysis of defense to a particular date rape crime, see the following:



For further information on “date rape” crimes, including PC 261(a), & 286, 287, & 289, contact our CA criminal defense lawyers for a free consultation. Our highly experienced criminal defense lawyers have represented thousands of defendants against hundreds of different misdemeanor and felony crimes in the Inland Empire


Our team of skilled criminal defense lawyers, including winning trial lawyers, represent all criminal suspect and criminal defendant in the cities and courts of Redlands, Fontana, San Bernardino, Riverside, Rancho Cucamonga, Victorville, Rialto, Yucaipa, Banning, Highland, Hesperia, and more. Call today!


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"Date Rape" Crimes, Penalties, & Defenses

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