The case is all over the news: a college student is caught in the act of sexually assaulting an unconscious woman behind a dumpster. The jury found him guilty of three felony charges, but the judge gave him just six months in county jail, although he could have received years in prison.
Everyone has an opinion about the case, but many people have questions, too. What exactly is the difference between sexual assault and rape under California law?
Most people’s basic understanding is that rape means having sex with someone against their will. But we also understand that someone can feel violated by other sexual behavior that they did not consent to. How do you know what is a crime and what is not?
To make it even more confusing, the legal definitions of rape vary from state to state. Legal definitions can also change over time to reflect what society sees as right and wrong. For example, many laws used to say that rape was an act against a woman. The law simply didn’t acknowledge that men could be victims of rape, and society didn’t talk about it, either.
What rape means in CA law
The basic definition of rape is very narrow in California: rape is an act of sexual intercourse against someone’s will, using force or threat of force. If the victim was unconscious or not mentally capable of giving consent, they don’t have to prove that any force was used. If they couldn’t give their consent, it was against their will.
When the FBI collects statistics about crime from around the country, it uses a broader definition to determine what qualifies as rape: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
Sexual assault/Sexual battery
Under California law, some of those actions would be considered sexual battery (also called sexual assault). California defines sexual battery as touching an intimate part of another person against their will for the purpose of sexual arousal, gratification, or abuse. The victim is unlawfully restrained, or can’t consent because they are unconscious or unable to understand what exactly is happening to them. In the case above, the defendant penetrated the victim with his finger while she was unconscious, which is a crime of sexual battery.
Setting the standards for consent
California colleges are now required to set campus policies that establish an even higher standard for what consent is (and therefore, what is considered rape). Rather than only stopping if your partner says “no,” partners should get an affirmative “yes” (or non-verbal body language) that indicates that sex truly is consensual. Someone who is too drunk, or even passed out cold, can’t knowingly give their consent. They can’t say no to stop it, but they can’t say yes if they don’t know what they are doing.
When you need an attorney
Although school policies can have serious consequences for students (such as being expelled or losing a scholarship), they are not the same as California criminal law—and that’s what can land you in jail. Sexual battery and rape are both very serious crimes in California. Sexual battery can land you in state prison for up to four years. Rape can put you there for eight years. If you used a gun or other deadly weapon, you can receive a longer sentence.
If you are facing rape or sexual assault charges in Southern California, contact top criminal defense attorney Dan E. Chambers today by calling 714-760-4088, emailing dchambers@clfca.com, or sending a message via the Chat box at the bottom right of this page.
