Date Rape

Rape is defined in California Penal Code section 261. There are many acts that classify as rape, but it is basically an act of forcible, nonconsensual sex with another individual. "Date rape" is an act committed by an acquaintance and usually involves one individual dulling the senses of another to the point that the latter is incoherent or unconscious, and then engaging in nonconsensual sex. Before Senate Bill 1182 was passed into law by Gov. Brown, possession of date rape drugs was classified as a misdemeanor. Now, possession of these drugs without a prescription is a felony.

Things to know:

  • Date rape drugs include ketamine, gamma hydroxybutyric acid (GHB), and flunitrazepam. Possessing these drugs with intent to commit sexual assault is a felony and may result in up to 3 years in prison.
  • People convicted of date rape have to register as sex offenders for the rest of their lives. According to CA Penal Code 290, this is a permanent consequence of date rape.
  • If a person has sex with somebody who has consumed so much alcohol that she or he can't give clear consent, it is grounds for a date rape charge.
  • Being too drunk prevents people from giving clear consent, and this falls under the umbrella of date rape - and so alcohol can also be used to commit the offense.
  • Date rape can occur even between parties who have previously had consensual sex.

Watch my friend, David Shapiro, explain:

Related case summaries

People v. Fleming
Defendant was properly convicted of digital penetration by artifice or concealment where he snuck into bed and penetrated his friend’s unconscious wife.Defendant, an invited guest, knowing his friend was asleep in the living room, entered a bed where his friend’s wife was asleep and digitally penetrated her vagina without her knowing consent but without resistance. He argued the evidence didn’t support his conviction for sexual penetration by artifice, pretense or concealment under Penal Code section 289, subd.(f). However, the jury could find concealment due to defendant’s multiple acts to refrain from disclosing his identity.id: 25811
25 Cal.App.5th 783 (5th Dist. 2018)

Related categories:

Sufficiency of Evidence (Sex Offenses) (170)
People v. Lyu
The evidence did not support the convictions for penetrating an unconscious person where the victim was not unconscious but merely laying on her back and unaware. Defendant was convicted of sexual penetration of an unconscious person and oral copulation of an unconscious person. The victim was laying face down when defendant inserted a finger in her vagina, and she told him to stop. He thereafter put his mouth on her vagina and she again protested. The evidence was insufficient to support either conviction because it did not show the victim to be unconscious. That she was unaware that the attack was coming did not establish a lack of consciousness.id: 22621
203 Cal.App.4th 1293 (2nd Dist. 2012)

Related categories:

Sufficiency of Evidence (Sex Offenses) (170)

About Pat Ford

Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.

Case of the Day

The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.

People v. Meza
Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850
Case number B318310 (4/3/2023)

Related categories:

Exclusionary Rule, generally (good faith exception) (310)
Overbreadth/Staleness (368)