College Sexual Assault Charges, Defending Rape Charges in CaliforniaDefending rape charges in CA has been in the news as of late given the publicity surrounding the University of California’s “yes means yes” standards for sexual assault claims on their college campuses.  There may come a time in a person’s life in many instances a young male with no prior record where they have to face accusations of sexual assault.   Such accusations can lead to criminal charges and in the case of a college student to being expelled from school.   The new “Yes means Yes” bill signed by Governor Brown of California last month makes it harder to defend accusations of sexual assault when alleged against a college student  (see  The new bill clarifies that no verbal actions or failure to say no does not mean that a person is consenting to sexual contact.   As such, this may apply in many situations including dating relationships where persons have sexual intercourse but one partner does not specifically say “yes” prior to the sexual contact.  In many instances the lack of communication regarding “yes” can involve situations where heavy alcohol use is involved.   Regardless if you are a college student where the “yes means yes” standard applies, any actions involving non-consensual sexual activity can lead to serious criminal charges.


Rape Charges in California

To be found guilty of rape under California Penal Code section 261, et. seq., prosecutor must prove beyond a reasonable doubt that:

a.       The defendant had sexual intercourse with a woman;

b.      The defendant and woman were (not married/married) to each other at the time of the intercourse;

c.       The woman did not consent to the intercourse; and

d.      The defendant accomplished the intercourse by

1.       force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else;

2.       threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat.  A “threat to retaliate” is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury or death.

An experienced criminal defense attorney in California is adept at defending rape charges whether the case be one of defending a college student or a celebrity and will make sure that a prosecutor meets their burden of proving all of these elements beyond a reasonable doubt.   In terms of the “consent to intercourse” element this issue often arises in a date rape situation and in many times on college campuses.  However, the “yes means yes” higher standard in college cases cannot be used to prove lack of consent in a criminal case.  However, as discussed below, a high level of intoxication can be used to show lack of consent.

Date Rape in California – Lack of Consent

Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator when a person is at the time unconscious of the nature of the act, and this is known to the accused. Penal Code Section 261(a)(4).  “Unconscious of the nature of the act” means incapable of resisting because the victim was unconscious or asleep, or was not aware, knowing, perceiving, or cognizant that the act occurred.” Penal Code Section 261(a)(4)(A),  Penal Code Section 261(a)(4)(B). Similarly, Penal Code Section 288a(f), the crime of Oral Copulation of an Unconscious Person,  requires that the victim is unconscious of the nature of the act and this is known to the person committing the act.

In many cases involving rape on college campuses or in other date rape situations, a prosecutor will present evidence of the victims high level of intoxication which may include testing of blood alcohol level and testing for positive signs of any “date rape” drugs including “albuterol.”  If evidence is presented that a defendant actually provided a victim a date rape drug without their knowledge or consent such intoxication can vitiate any claim of consent.  If both parties admit to drinking alcohol, it may be more difficult to show lack of consent due to intoxication depending on the facts of each case.

Necessity of retaining an experienced California criminal defense attorney when facing accusations of sexual assault:

Rape including date rape in California is a serious crime to can lead to a substantial sentence of state prison in California.  There are however many elements that a prosecutor must prove to secure a conviction of rape and when charged with such crime, one should immediately consult with and/or retain a criminal defense lawyer to protect your rights and to properly defend against all charges of sexual assault.

Additional Resources:

Los Angeles Sex Crimes Defense Attorney Information