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On 20 July 2000, the state court of appeal for the Fourth District announced its opinion in People v. Giardino, 82 Cal.App.4th 454 (2000), holding that Penal Code section “261(a)(3) proscribes sexual intercourse with a person who is not capable of giving consent because of intoxication.” Id. at 462.[1] Thus, it was perfectly clear as of July 2000 that actual capitulation and agreement is not a defense in a rape case if the victim is intoxicated or unconscious or otherwise incapable of exercising free will, because they lack the capacity to legally .  No competent attorney could have thought otherwise.[2]  Accordingly, attorneys who as of that date suggested otherwise fell below the standard set forth in Strickland.

This was not the case in the proceeding complained of herein. It was ineffective to not tell the client about the clarification in law and that he had no defense.

consent

Notes:

[1] All counsel needed to do was read this paragraph, toward the beginning of Giardino, to know that any defendant situated like the facts of these cases did not have a defense of “consent”.  It was literally that easy, and the Giordino decision that clear:

 

“By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had “sufficient capacity” to give that consent. (See People v. Mayberry (1975) 15 Cal.3d 143, 154 [125 Cal.Rptr. 745, 542 P.2d 1337]; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Decency and Morals, § 774, p. 873.) For example, if the victim is so unsound of mind that he or she is incapable of giving a legal “go ahead,” the fact that he or she may have given actual consent does not prevent a conviction of rape. (People v. Griffin (1897) 117 Cal. 583, 585-587 [49 P. 711], overruled on others grounds by People v. Hernandez (1964) 61 Cal.2d 529, 536 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092].) Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent.”

 

82 Cal.App4th 454, 460.

 

[2] No reasonable practitioner of criminal law could read Giardino, supra, and conclude the defense of actual acquiescence could be used in the instant case  Two years later, on 13 September 2002, while the present trial was still pending, the court in People v. Dancy, 102 Cal.App.4th 21 (2002), reiterated that a victim cannot legally agree to sex when she is severely intoxicated. A man’s reasonable belief that a woman has consented or would have consented to unconscious sex is irrelevant because a woman must always be able to “withdraw her consent to a sex act even after the initiation of sexual intercourse.” Id. at 36-37. Dancy is entirely consistent with and has the same holding as in Giardino and a reasonably competent attorney would have known so.  To fail to know the basic law of the case falls below the Strickland standard.  On the issue of rape and consent, see also People v. Roundtree (January 21, 2000) 77 Cal.App.4th 846.

 

 

Here are portions of Giordano that explain the issue in detail:

Reasoning that lack of consent is an element of rape, or conversely that consent is a defense, the defendant contends that the trial court should have defined consent in accordance with section 261.6 and instructed the jury that lack of consent is an element of the offenses of rape by intoxication and oral copulation by intoxication. [ ] He is mistaken. Giardino, 82 Cal.App.4th 454, 459.

In the context of rape and other sexual assaults, “consent” is defined as the “positive cooperation in act or attitude pursuant to an exercise of free will.” (§ 261.6.) To give consent, a “person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (Ibid.; accord, CALJIC No. 1.23.1.) In short, that definition describes consent that is actually and freely given without any misapprehension of material fact. We shall refer to this as “actual consent.” (82 Cal.App.4th 459, 460.)

By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had “sufficient capacity” to give that consent. [citations] For example, if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape. [citations] Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent. (Id. At 460.)

We conclude that, just as subdivision (a)(1) of section 261 proscribes sexual intercourse with a person who is not capable of giving legal consent because of a mental disorder or physical disability, section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication. In both cases, the issue is not whether the victim actually consented to sexual intercourse, but whether he or she was capable of exercising the degree of judgment a person must have in order to give legally cognizable consent. (Id at. 462.)

 

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6 Comments

  • butt plug says:

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  • Coralie says:

    My spouse and that i happen to be now delighted that Albert could carry out his research thanks to the ideas he had by your website. It is actually now and again perplexing to just generally be giving freely actions which some individuals might have been

  • sean says:

    State law establishes an alternate punishment for rape when less than three years separate the ages of the defendant and the victim. For this crime, the prosecutor may pursue either a misdemeanor charge or a felony charge. The consequences of a conviction may be a term ranging from 1-3 years in county jail. The state can also consider the defendant’s prior or current criminal record in deciding whether to pursue enhanced sentencing.

    Defenses

    The most common defense to rape is consent. If the defendant can prove that sexual intercourse did not violate the victim’s will, due to the other person’s consent or permission, the prosecutor may be unable to establish the elements of rape. Consent often becomes a controversial defense, however, because the argument may require evidence of the victim’s sexual history. When the rape victim is a child or an individual lacking mental capacity, consent is not an available defense.

  • sc says:

    In general, California state laws punish a conviction of rape with a sentence of imprisonment in state prison for 3, 6 or 8 years. The potential sentence can increase when:

    The rape victim is a minor who is over fourteen years of age (7-11 years)
    The victim is a child under the age of fourteen (9-13 years)
    The defendant acted in concert with another person to rape the victim
    California state laws also set fines from $2,000 to $25,000 as civil penalties when an adult engages in sexual intercourse with a minor.

  • Winstonrency says:

    Statutes
    California Penal Code Section 261 (general definition of non-spousal rape)

    California Penal Code Section 261.5 (definition of statutory rape)

    California Penal Code Section 262 (definition of spousal rape)

    California Penal Code Section 264 (punishments for rape crimes)
    Possible Penalties

  • 79Fredric says:

    Rape laws criminalize sexual intercourse that happens without the consent of at least one of the participants. Rape falls under the broader category of sexual assault (which includes offenses such as groping and other unwanted sexual contact). If an individual has sexual intercourse with someone, the crime of rape may occur under the following scenarios described by California state laws:

    The defendant used physical force, intimidation, duress, or threats;
    The victim reacted due to fear of immediate bodily injury or injury to another person;
    The victim lacked capacity to consent (developmental delay, physical disability, intoxication);
    The victim was unconscious, asleep, or otherwise unaware that sexual intercourse was happening;
    The defendant induced sexual intercourse by making a fraudulent representation
    State law also defines the rape of minors when an adult engages in sexual intercourse with a minor (18 and younger in California). The severity of the charge depends on the age of the victim and the age difference between the defendant and the victim. When sexual intercourse happens between an adult and a minor, the act itself may be enough for a prosecution as the minor, by law, is not able to provide lawful consent. In these cases, a prosecutor does not need to show that the defendant engaged in any threatening, violent, or otherwise unlawful conduct that can sometimes describe rape between adults.

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