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Difference Between Rape and Consent


It’s a very fine line in some of these cases that are coming out recently because people are using all of these social medial apps to meet and there’s a lot of inferences and innuendos going on between the parties on the dating app before they meet.

So, a lot of times men are coming into these meetings thinking they’re going to get involved with sex based on what the women are saying.  The next thing you know, something happens.

There’s alcohol involved; maybe drugs involved; some type of sex and the after the fact, the woman all of a sudden is all sad and upset about what happened, so then the police are calling people and trying to investigate them.

Obviously, this is when you’re going to need to get an attorney involved immediately because sex crime charges are serious. Our California criminal defense lawyers are providing an overview below.

Is Consent a Reasonable Claim in PC 261 Rape Cases?

The difference between rape (Penal Code 261) and consent is a very close-call sometimes and a very fine line.  Usually, you’re looking at reasonableness.  In other words, if somebody tells you no, I don’t want to have sex with you and then you proceed to have sex with them anyways, you’re going to put yourself in a real bad position.

And if you get involved with somebody off of one of these dating apps and the person gets real drunk or high on some other substance and you end up taking advantage of that person and having sex with them, and they wake up in the morning and claim that you did not have permission to have sex with them, you’ve now put yourself in a real bad position.Difference Between Rape and Consent in California

So, this line between raping somebody (CALCRIM 1000) and them consenting to have sex with you is a real tricky area of the law, especially if somebody’s getting real drunk.  Because if somebody’s real drunk, the question becomes can that person even consent to have sex with you.

If they’re so drunk, you’re going to be accused of raping an unconscious person (CALCRIM 1002).  Then they’re going to go and get one of those SART exams where they’re checked.

They’re going to see if there’s any type of injures in their vagina consistent with somebody forcibly having sex with them, and that can occur as we know from just having rough sex with somebody that the person consents to.

You will think in your head that nobody’s going to claim that somebody raped the when they really didn’t rape them.  The problem is you don’t realize that it’s happening every single day of the week.  That’s the problem.  That’s what people don’t realize.

Women are not afraid, especially in this whole “me too” movement age to say that a man raped them even if the person put themselves in position to have sex with another person and is just crying sour grapes after.  It’s crazy.

It can be as little as all the person did was not call to check on the other individual to make sure they got home safely.  Now that individual is hurt.  Now they start back-tracking and thinking, wait a minute, I didn’t agree to any of that.  That person took advantage of me.  The next thing you know, you’re being investigated or even accused of raping another individual.

Dating Apps and Meeting People Online

It’s gotten to the point where people are saying I’ve got to get the other party to sign a consent agreement before I can have sex with them.  I don’t think it’s gotten that far but I do think that these dating apps and meeting people online and then trying to have sex with them the first time you meet them is a situation that is ripe for problems.

Now if you’ve dated the person for a long time and the next thing you know they’re trying to accuse you of some sort of a rape charge, that starts to give you an argument — wait a minute.  We were together.  We’ve had sex before.

Just because this person decided to drink a bunch and I thought it was okay because we had sex before and they were seemingly okay with it.  What you have to realize when you’re using these dating apps and you’re meeting the person for the first time that night and within ten minutes of meeting him you’re having sex with them, that already smacks of a non-consensual encounter.

That’s the problem.  You’re starting off on a bad foot.  You’re putting yourself in a bad position.  So, don’t have sex with somebody the first time you meet them, especially if the person is extremely intoxicated.  You put yourself in a real bad position.

You’re really just gambling with your future because that line between consent and non-consent, when it comes to a rape case in Los Angeles county, is a very blurry line nowadays.

Don’t Make Statements to Law Enforcement

So, if you’re being accused of some non-consensual rape with another person, you better get an attorney immediately.  I wouldn’t speak to law enforcement because a lot of times what law enforcement does is thy claim you said something that you didn’t say or they claim you said something in a certain way that you didn’t mean to say.

The point is, speaking to the police very rarely yields you anything of benefit, but it certainly can yield you something that puts you in a worse position than if you just had kept your mouth shut.

That’s why attorneys say, be quiet, especially in these sex crime cases because people think they’re going to out-smart the police and a lot of times I have people saying, oh yeah, I didn’t have sex with the person because they’re trying to protect themselves, and then the police are like, well we have DNA.

Oh, well I did have sex with the person but — See, now you’ve already put yourself in a bad position because you’ve lied.  Now they have the combination of you having sex with somebody after meeting them for an hour and on top of that you’re lying about it.

Retain a Criminal Defense Lawyer

So, the point is, don’t make any statements.  Hire an attorney immediately.  Let the attorney act as the buffer between you and the police, and if you’re being accused of some date rape charge related to the internet or other circumstances, you better discuss the whole thing with your attorney and then you can really figure out whether you have a good consent argument or not.

A lot of these consent arguments are jut reasonableness under the circumstances.  Was it reasonable under the circumstances for you to believe that it was okay to have sex with that person?

And the way they’re going to try to catch you is that person is going to tart texting you and accusing you of things or call you and start accusing you of things and the next thing you know the police are looking at those text messages and then they’re using your responses — you say you’re sorry about what happened against you as admissions that you had non-consensual sex and raped that person.

Hedding Law Firm is a criminal defense law firm located in the San Fernando Valley area of Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436. We are also located 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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