Rape of Intoxicated Victim: Degree of Intoxication
September 28th, 2015

People v. Smith (2011) 191 Cal. App. 4th 199, 204-05, held that CC 1002 correctly incorporates the law of rape of an intoxicated woman as set forth in People v. Giardino (2000) 82 Cal. App. 4th 454, 472. “The instruction sufficiently describes the degree of intoxication required for the crime of rape of an intoxicated woman by stating that the woman must be “so intoxicated that she cannot give legal consent.” The other language of the instruction that provides that the woman must be “able to understand and weigh the physical nature of the act, its moral character, and probable consequences” sets a sufficient standard for intoxication. A woman who exercises poor judgment is still exercising judgment in deciding whether to have sexual intercourse “so long as the woman is able to understand and weigh the physical nature of the act, its moral character, and probable consequences.”


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