This is a classic scenario where people are dating. Maybe it's their first or second date — and both parties are drinking alcohol and get drunk. Then, some sort of a sex act occurs and then later on one of the parties believes that they were taken advantage of because they were drunk.

Rape charges are defined under California Penal Code 261.

Rape of Unconscious Person

So, then the police come and arrest the defendant and they charge him with basically, rape of an unconscious person. This has to do with someone who either took drugs or alcohol and then somebody takes advantage of that person and has sex with them. See CALCRIM 1047 jury instructions sexual penetration of an intoxicated person.

But sometimes there is an argument by the person who has been arrested who say, listen we were both drunk and I thought that she consented.  The best I remember, she was okay with it.  I didn't force her to do anything.

So, that is a potential defense in a sex crime case.  Not so much because someone can say well, I was drunk so I shouldn't have charged with a crime because voluntary intoxication is not a defense in California to many crimes.

In some crimes it can mitigate it down.  In specific intent crimes, it can be used as a defense, but in general — especially for general intent crimes — voluntary intoxication can't be used as a defense in California. Learn the difference between rape and consent in California.

Potential Valid Defense Strategy

That being said, if the scenario is such that two parties have sex, both are intoxicated with alcohol and the one party who's claiming that the other person took advantage of them.

However, they can't remember a lot of what happened, and the person who allegedly took advantage of them can't remember a lot of what happened, that's a situation — in my opinion — that's ripe for a defense. You need to avoid making mistakes if accused of a sexual related crime.

In other words, it's just like a rape case where everybody's sober.  If two people have sex and they both agree to it, then there's no crime there.  Just because somebody has regressed afterwards doesn't all of a sudden turn it into a crime.  So, you're going to have to look at the surrounding facts and circumstances.

Usually in sex crimes cases — especially in a rape case — someone's going to get a SART exam done, which is a sexual assault exam to see whether or not there's any DNA.

To see whether or not they have injuries that are consistent with being raped. Tears to the vagina and other such evidence, and then the SART nurse and doctor would usually give an opinion as to whether or not they felt that person had been forcibly raped.

In scenarios where two people are drunk and they have sex, again, just because somebody has regressed later that doesn't mean that it was rape.  Usually, where I see the police prosecuting the case or giving it to the prosecutors to prosecute is when one party's drunk and one party's sober. Then the sober party takes advantage of the drunk party and rapes that person.

Obviously, rape of an unconscious person is a very serious crime in Los Angeles and throughout California.  So, if you're charged with this crime you want to get an attorney immediately.  Answer no questions from law enforcement and let the attorney guide you through the process.

Retain a Lawyer To Guide You Through Court process

But when you really get down to evaluating whether two drunk people can be involved in some sort of a sex crime. What it's going to boil down to is logic, common sense and surrounding circumstances of whatever happened.

If the average person, after hearing the story would say, well wait a minute, you can't get somebody for rape under those circumstances.  That starts to sound like you have a good defense there.

If, on the other hand, an average person would say, well wait a minute, this looks like somebody took advantage of another person here, now you've got a problem.  So, a lot of this stuff you really have to evaluate.  You have to look at all the evidence in a case.

Sometimes when the police do the investigation in these sex crime cases, they don't look at everything.  They only look at one side of the story.  They don't look at the other party's side of story.

Obviously, that's where your sex crime defense attorney comes in to show the facts and circumstances most favorable to you. To see if either the prosecutor will dismiss the case, not file the case in the first place or prove to a jury that you're innocent.