Rape of an intoxicated victim
Information on the crime of rape of an intoxicated victim is found at California penal code section 261(a)(3).
PC 261(a)(3) Law (Abbr.)
PC 261(a)(3) Where a person is prevented from resisting sexual intercourse due to any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the defendant, then the defendant is guilty of PC 261(a)(3) Abbr.).
Sexual intercourse is any penetration, no matter how slight, of the penis into the vagina. Ejacultation is not required to prove sexul penetration.
PC 261(a)(3) Sentence & Punishment
Probation Sentence: A probation sentence is period of supervision instead of a prison sentence. Probation sentences carry conditions of probation, or terms of probation, that must be followed in order to avoid further punishment, including an actual prison sentence. A probation sentence for PC 261(a)(3) is called felony probation and is supervised and monitored by a felony probation officer. Probation sentences are allowed for PC 261(a)(3) crimes but only in special circumstances. Whether or not a probation sentence is available in any particular PC 261(a)(3) case depends largely on the facts of the case and the defendant's criminal history.
Sex Offender Registration: If found guilty of lewd and lascivious acts on a minor under 14 (PC 288(a)), the defendant will be ordered to register as a sex offender pursuant to PC 290. For more information please see sex offender registration requirements.
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, “consent” shall be defined to mean positive cooperation in act or attitude pursuant 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.
A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.
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PC 261(a)(3): Rape of an intoxicated victim defense
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