“Date rape” is a term commonly used to describe nonconsensual sexual intercourse that takes place between people who (1) are or were dating, or (2) are voluntarily spending time together. While date rape sounds more casual than a typical rape charge, the two are, in fact, one and the same. Both are prosecuted and punished under Penal Code 261 PC, California’s rape law1.
Unfortunately, it is possible for a woman to make false accusations of rape, and date rape in particular, against her boyfriend or romantic partner. She may be angry at him because she feels he is cheating on her, neglecting her, rejecting her, or about to break up with her. She retaliates by going to the police and accusing him of date raping her.
What should I do if I am accused of rape?
If you have any hint that someone may be accusing you of date rape, consult with a criminal defense attorney immediately. Don’t engage in any further conversations with the accuser or the police.
The authorities will likely have her make a secretly-recorded “pretext call” to try to trick you into making some sort of incriminating statement. Don’t take the bait. The only person you should be speaking with about the situation is a lawyer.
If, on the other hand, you believe you have been the victim of rape you should contact the police immediately. You may also wish to contact a caring California personal injury lawyer to help protect your rights during what is an extremely difficult time.
Below we will discuss some issues that are more prevalent in California acquaintance rape cases — such as issues that relate to consent in “social” situations.
Voluntary intoxication may negate consent
If you have sex with an individual who voluntarily consumes enough alcohol and/or drugs to the point where he/she is unable to resist the sexual encounter, prosecutors could charge you with Penal Code 261 PC date rape.
Example: Tom and Jody go out on a date and later back to Tom’s place for drinks. Jody gets so drunk that she passes out. While she’s passed out, Tom pulls down her pants and begins having sex with her. Under these circumstances, Tom could be charged under California’s date rape laws.
In individual cases, it’s up to the judge or jury to determine whether…under the circumstances…the accused knew or reasonably should have known that the alleged victim was, in fact, too intoxicated to consent to the activity.
Involuntary intoxication (e.g. “roofies”) will negate consent.
Involuntary intoxication will definitely negate consent
If you or someone else secretly provides an individual with alcohol or drugs (commonly referred to as “date rape drugs”) that renders him/her unable to resist or consent to sexual intercourse…and you then engage in sexual intercourse with that individual…prosecutors could charge you with California date rape.
Example: Richard, while staying at a hotel, goes downstairs and meets Rachel at the hotel bar. While Rachel looks away, he slips the drug Rohypnol in her drink. As she loses consciousness, he assists her to his room and engages in sexual intercourse with her. Under these circumstances, Richard can be charged with date rape (along with battery and other criminal charges).
Even if you and the alleged victim have had sex before, consent may still be an issue
Just because you and the alleged victim have previously engaged in sexual intercourse doesn’t mean that he/she necessarily consented on the occasion in question. This fact does not in-and-of-itself constitute consent without additional evidence of consent2. However, it is a fact that can be considered in determining whether consent was given.3
California rape law holds that every act of sexual intercourse must be consensual. This is why even a married individual can be convicted of raping his/her spouse under Penal Code 262 PC spousal rape4.
And on that note, even if you and the alleged victim are dating, if the alleged victim is under 18, you may face prosecution under Penal Code 261.5 PC – California statutory rape laws. This is the case even if the alleged victim freely participated in the sexual act because minors are deemed unable to give legal consent to sexual intercourse.
A date rape conviction will result in a lifetime duty to register as a sex offender pursuant to California Penal Code 290
One of the penalties for a date rape conviction includes a “tier three” lifetime duty to register as a sex offender pursuant to California Penal Code 290.5 This is one of the reasons why it is critical to consult with a California sex crimes defense attorney as soon as someone accuses you…or even threatens to accuse you…of this very serious offense.
Note that when the victim is at least 18 and is incapable of giving consent due to a mental disorder or developmental or physical disability, rape is only a tier two offense carrying just a twenty-year registration requirement. (California Senate Bill 384 recently created the three-tier sex registration system.)
As top Los Angeles criminal defense lawyer John Murray explains6, “California date rape…like many other sex offenses…is often falsely charged. Since an individual can accuse another person of date rape with little or even no evidence, people frequently accuse others of this charge out of jealousy, anger, and even revenge.”
Most people convicted of date rape in California can expect to serve time in state prison
At one time, felony (formal) probation rather than a state prison sentence was a possibility in rape cases that did not involve force or fear.
But in 2016, in response to public outrage over a lenient sentence for Brock Turner (a Stanford student convicted of several sexual assault charges), the California legislature changed the law. As of January 1, 2017, probation is not an option–and state prison time is mandatory–in rape cases where the victim was asleep, unconscious, or too intoxicated to give consent.7
This means that most people convicted of date rape in California can expect to serve time in state prison and will not have the option of probation.
A skilled California sex crimes defense attorney knows how to investigate and uncover the facts that are necessary to either acquitting or…at the very least…reducing your date rape charge to a less serious offense.
Suppose you have additional questions about California date rape charges, or you would like to discuss your case confidentially with one of our California sex crimes defense attorneys. In that case, we invite you to contact us.
We have local criminal law offices in Los Angeles, San Diego, Riverside, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you.
You may also find helpful information in our related articles on California Penal Code 261 PC Rape, Penal Code 262 PC Spousal Rape, Penal Code 287 PC Oral Copulation by Force, and Penal Code 261.5 PC Statutory Rape.
When Can Someone Sue for “Date Rape” in California?
Victims of acquaintance rape have the right to sue for sexual assault in California. It is not necessary to secure a criminal conviction first. In fact, charges do not even need to be filed.
Possible compensatory damages for a victim of acquaintance rape can recover include:
- Medical bills,
- Psychological counseling,
- Lost wages,
- Lost earning capacity, and
- Pain and suffering.
In particularly reprehensible cases, a victim may even be entitled to punitive damages.
Alcoholic Beverage Control Act
All California bars and nightclubs carrying Type 48 licenses must post signs informing patrons that there are drug-testing kits available. This law is geared for people who want to test their drinks for common date rape drugs such as rohypnol and GHB (“roofies”). AB 1013 (2024).
Legal References:
- California Penal Code 261 PC – Rape, defined. (“(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act…(2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused [which is the most common circumstance for a California date rape charge]. (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions: (A) Was unconscious or asleep. (B) Was not aware, knowing, perceiving, or cognizant that the act occurred [both “a” and “b” are also common ways for a California date rape charge to arise]. (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact. (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose. (5) Where a person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief. (6) Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death. (7) Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (b) As used in this section, “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. (c) As used in this section, “menace” means any threat, declaration, or act which shows an intention to inflict an injury upon another [which could possibly include a threat to destroy someone’s reputation in a California date rape case].”)
- California Penal Code 261.6 — Consent; current or previous dating or marital relationship…(“A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Penal Code Section 261 PC [California date rape], 262, 286, 287, or 289.”)
- California Evidence Code 1103 – Character evidence of crime victim. (“(c)(1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Penal Code Section 261 [California date rape], 262, or 264.1 of the Penal Code, or under Section 286, [Penal Code 287 PC oral copulation by force], or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness’ sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness… (3) Paragraph (1) shall not be applicable to evidence of the complaining witness’ sexual conduct with the defendant.”)
- California Penal Code 262 – Spousal rape prohibits the same conduct described above under California’s rape and date rape law in endnote 1 above when the alleged victim is the perpetrator’s spouse.
- California Penal Code 290 – Lifetime duty to register as a sex offender – the “Sex Offender Registration Act”. (“(c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation…paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261 [any of which could form the basis of a California date rape prosecution]”).
- Los Angeles criminal defense lawyer John Murray represents clients accused of California sex crimes, including date rape, in Los Angeles, the South Bay, and Orange County. Please contact us for more information about Mr. Murray’s exemplary defense record.
- See AB 2888 (Penal Code 1203.065 PC).