Is there a difference in punishment if the victim of a rape is unconscious as opposed to being awake? (Penal Code section 261)

By: Wallin & Klarich

The short answer is “no”. Unconscious victims in rape cases usually entail “date rape” victims involving the use of “date rape” drugs such as GHB or Rohypnol drugs laced into a victim’s drink by the perpetrator resulting in the victim losing consciousness or being in and out of consciousness. It may also include instances of alcohol intoxication where the victim is so drunk that she is unconscious or unaware of the nature of the act and then sexually assaulted against the victim’s will or lack of consent.


“Date rape” is non consensual intercourse between people who are dating or are together as acquaintances and spending time together willfully. The offense is prosecuted under Penal Code Section 261, the California rape law.

Penal code section 261 is a felony offense and punishment includes the following:

A sentence of 3, 6 or 8 years in state prison if convicted and fines imposed and also imposition of a “strike” offense. Penal Code 290 sex offender registration is also imposed as a consequence of a California rape conviction.

The law offices of Wallin & Klarich have over 30 years of experience dealing with countless types of rape cases. Our team of experienced and professional Southern California Sexual Assault Lawyers can work with every type of defendant in every type of case. If you or a loved one is facing rape charges (California Penal Code Section 261), please call our offices at 1-888-280-6839. We will be there when you call.

Posted In: Sex Offenses