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Defenses to Rape of Unconscious Person


This is a very common crime, especially with a lot of internet dating going on. People just meeting each other for the first time and then one or both parties are getting extremely intoxicated, end up having sex and then one of them, usually the woman, wakes up in the morning and decides that she didn’t consent to the sex.

Our California criminal defense attorneys are providing a detailed review below on rape charges and how to defend against charges or raping an unconscious person.

Rape Charges under California Penal Code 261

When it comes to this particular sex crime charge, rape is covered under California Penal Code 261, obviously the prosecutors and judge will take it seriously in Los Angeles County. They’re going to assign a special sex crime prosecutor no matter which courthouse the case is pending. Each branch in Los Angeles County has their own special sex crime prosecutor who deal with these type of cases.

She goes to the police.  They have her get a SART exam where she’s checked out by a nurse.  They run a bunch of tests on her and now all of a sudden a person is getting investigated for having sex with an unconscious person (CALCRIM 1003).

She’s claiming that she doesn’t remember having sex with an individual but feels that sex did occur.  Now the police are going to the person and asking him question, putting him in a very difficult position because if you had consensual sex with the person there’s really nothing wrong with that, but if she’s saying that it wasn’t consensual and you admit to having sex with the woman then you’ve already proved 50% of the case for the prosecutors.

Key Factor of Consensual Sex

Now the only question is going to be whether it was consensual, whether or not under the circumstances the person couldn’t consent with having sex with you.  This is a very common thing that I’m seeing more and more in today’s society. Defenses to Rape of Unconscious Person in California

People are hooking up and not actually dating for a long period of time and then making a decision as to whether or not to have sex.  So, you have to really decide in these situations whether or not you want to actually talk to the police and give a statement.

I usually suggest that you don’t, because the police are not aimed at proving you not guilty.  They’re aimed at proving you guilty.  Why would you hand them something and give them information?  They may characterize what you have to say.

They may put you in a position where you say something that you don’t want to say, if you had spoken to an attorney and discussed it with him regarding the case.

So, a case for the crime of having sex with an unconscious person are very difficult to defend, so you obviously want to make sure to protect yourself and get a defense attorney right away and let that attorney discuss with you some of the common defenses, some of the common tactics that the prosecutors take in these cases so you can have the most successful result.

Police Investigation Tactics

One big thing that I see law enforcement doing is having the alleged victim call the person and try to get the person to admit that they did something wrong, and it’s usually something along the lines of, you did something wrong to me.  I would have never done that, and then the person feels bad.

They don’t want the other party to be angry with them, so they end up saying that they’re sorry, even if they didn’t do anything wrong or anything criminal.  But if you’re saying sorry in the fact of somebody telling you that you had non-consensual sex with them, you’ve now given the second part to the prosecutors.

This means now you’ve admitted doing something wrong.  And if you admit having sex with them, you put yourself in a very difficult position.

Prefiling Intervention in Sex Crime Cases

So, if you’re being investigated for a sex crime — and I do a lot of these prefiling case, especially where someone’s claiming they were unconscious, meaning they were too drunk.

We think of unconscious as someone just passed out, but someone could just be too drunk,, taken drugs, alcohol, all sorts of things and not really been in a position to consent or not consent  You end up having sex with them.

What about the defense that you were drunk as well and you both were not in a position to make an informed decision of having sex but you both ended up having sex with them?

So, you really have to sit down with an attorney.  Don’t give the police anything.  Don’t give the prosecutors anything.  Don’t answer any calls.  Don’t answer any questions .  I get you right in.  We start talking about it.  I put my 26 years of experience to work for you so you can end up with the best possible result.

Hedding Law Firm is a criminal defense law firm located at 16000 Ventura Blvd #1208 Encino, CA 91436. We also have an office at 633 West Fifth Street Los Angeles, CA 90071. Contact us for a free case evaluation at (213) 374-3952.

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Ronald D. Hedding, ESQ.

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