@Bay, have you read SB 967?
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967
I took a couple of classes on business law …nothing on criminal law. I was taught law is interpretive so the idea that we have to interpret the law on various cases doesn’t seem far fetched to me. But I’m not a lawyer. 
Having said this… I think SB 967 is not good for the Stanford guy.
I’ve read about it, dstark. That law is not about criminal prosecutions, its about college funding.
They’re supposed to decide by looking at the presented case, and making up their minds, same as they do for all other crimes. Don’t act as if this is the only situation where the jury might have difficulty seeing if the law applies to the fact pattern of the case. Some cases are hard. Drawing the legal line in the wrong place is not a solution to this problem.
And that’s different from other crimes how? In the LAPD-LASD document, the study authors interviewed police officers and prosecutors. Both of those groups acknowledge that in deciding whether to proceed, they look at how sympathetic the victim is. Unattractive and unappealing accusers don’t have their cases go to trial, even though an appealing victim in the exact same situation would have her case go to trial.
@Bay, Hmmm…that’s true. I guess Stanford doesn’t have to worry.
What’s the California law involving sexual assault?
Is sexual penetration using fingers considered rape?
It’s a different crime, not rape. It’s California 289, Sexual Penetration of an Unconscious Woman.
The Stanford guy was not charged with that crime. He was charged with rape and attempted rape. The prosecutor may have evidence we don’t know about.
Yes…
http://www.shouselaw.com/forcible-acts.html
I don’t know why the Stanford guy wasn’t charged with 289.
He admitted he fingered her, but (1) that doesn’t necessarily imply penetration and (2) he could argue that she was still conscious then.
Hmmmm…I don’t really want to read the complaint again…I guess I could.
I think he is charged under pc 289.
@“Cardinal Fang” : attempt is always a specific intent crime in CA. See penal code s 21a. That’s true in every other state as well, so far as I know.
The case you cited regarding reasonable mistake is interesting, thanks for posting it. I will hopefully have some time tonight to look into it (if still relevant to the discussion).
@dstark: he is charged with 289d and 289e, in addition to the two rape charges (261(a)(3) and (4)) and the assault charge (220).
@Demosthenes49, thanks.
You’re right. He was charged with, inter alia, sexual penetration by a foreign object of an unconscious woman and sexual penetration by a foreign object of an intoxicated woman. Those are both 289.
Right, but then how is Attempted Rape a lesser included offense for Rape, when Rape is a general intent crime?
I guess my question is, for someone to be convicted of attempted rape, do they have to have the specific intent to rape, or do they merely have to have the specific intent to do something that, if they did it, would be rape?
So, for example, suppose someone was arrested for trying (thankfully, unsuccessfully) to have sex with a three-year-old. They defend themselves by saying that they didn’t intend to rape; they thought the three-year-old was consenting. Suppose they were able to offer persuasive evidence of that belief. (Yuck.) They say they didn’t have the specific intent to rape and therefore are not guilty.
If the person actually succeed in having sex with the child, they’d be convicted in a millisecond, because rape is a general intent crime. Do they get acquitted because their attempt was thwarted?
@“Cardinal Fang” : attempted rape is not a lesser included offense. See People v. Braslaw, 233 cal.app.4th 1239 (2015).
In answer to your hypothetical, age is a strict liability crime so the requisite intent would only be trying to have sex with the minor. Consent is not an element, so defendant’s belief that there was consent is irrelevant. Had the victim been of age, however, it gets trickier.
Belief of consent is a defense to attempted rape. The belief must be both subjective, resulting from some evidence of equivocal conduct, and objective, formed under objectively reasonable circumstances. See People v. Sojka, 196 cal.app.4th 723 (2011). Even ignoring the strict liability issue, it’s hard to see how your hypothetical defendant would satisfy either prong. Conviction likely.
Tomorrow night at 11pm on HBO, VICE is airing an expose into one college’s sexual assault case. It shows the hearing for a student reporting her assault and they went undercover and set up hidden mics and cameras on the girl so we can actually see what one of these hearings look like. I figured some of you would be interested in that 
I thought these were the jury instructions for Rape of Unconscious Woman:
https://www.justia.com/criminal/docs/calcrim/1000/1003.html
Note at the bottom:
Consent is not an element for rape of intoxicated person or rape of unconscious person either.
Suppose that the jury concludes that the Stanford guy actually had sex with the unconscious woman. They believe him that he didn’t intend to rape her, but they don’t think his beliefs about her consent and her ability to consent were reasonable. They would then convict him of Rape of Unconscious Person.
But suppose the same facts, except that he was trying to have sex with her, but was interrupted. The jury believes he didn’t tend to rape her, but they don’t think his beliefs about her consent and her ability to consent were reasonable. Would he be acquitted of Attempted Rape of Unconscious Person because he didn’t intend to rape her, or would he be convicted because if he had succeeded, it would have been rape?
@“Cardinal Fang” : you’re absolutely right that the jury instructions list it as a lesser included offense. It used to be one, based on a few CA supreme court decisions, but it stopped being so a while ago when the Court recognized the difference in intent. See People v. Rundie, 43 cal.4th 76 (2008).
As a general rule, attempt is a lesser included offense of completion. That is not the case where there is a different culpable mental state, as there is for rape. I do not know why the jury instructions say otherwise, but the courts trump the instructions. Maybe someone just forgot to update them, or maybe there is something I’m missing.
I’m a CA lawyer but I don’t do criminal work of this sort anymore, so I won’t claim to definitively know the answer. Still, the courts seem pretty clear that attempted rape is not a lesser included offense of completion.
Eta:
You’re right to correct me. I meant capacity to consent but I am taking shortcuts because I’m writing on my phone. I shouldnt do that, and thank you for clarifying the point. I have a meeting but I will turn to your hypotheticals when I get the chance.
@HarvestMoon1 Yes I do think we should be asking whether it is ok for guys too. For me, this is just bad behavior for anyone, because it leads to a lot of problems, including hurt feelings, pregnancy, diseases, bad reputations, romantic dramas and confusion, and even sexual assault accusations in some cases. But as an outsider, you can’t really moralize and demand that young people practice abstinence or that they find healthy happy relationships (they may not be able to at that point), so we have to accept that there will be lots of mistakes made. Still, if a boy put himself in that position, getting smashed drunk and randomly hooking up with anyone who crossed his path, he would technically be eligible to file rape charges agains any girl who slept with him while he was incapacitated. I’m just pointing out that most males would never dream of doing that, due to the difference in social expectations for males and females. If that is changing significantly and girl-shaming is decreasing, I think that is a good thing, though I don’t really support anyone practicing those risky behaviors. And the idea of allowing a bunch of underage and barely-of-age kids to regularly get so drunk that they are deemed no longer able to be considered adults capable of giving consent, and then put a stipulation on their activities such that any sex that occurs while they are in this incapacitated state is labeled rape (when said law is selectively invoked) is bizarre in the extreme to me. Why don’t we just state it plainly: Binge drinking is reckless and terribly dangerous, and many horrible outcomes are likely and occur with predictability, including automobile deaths, alcohol poisoning deaths, and regrettable sexual encounters. I’d like to see a breakdown of the percentage of rapes that fall into fuzzy gray areas vs rapes that are clear-cut and pre-meditated. Sorry, but as a female who went through this, I am painfully aware that “rape” is perhaps too severe a label in a lot of these cases. And yet I also know that a female can binge drink, end up in some weird and undesirable sexual situation, and feel acutely violated and used the next day. Consent can be given and forgotten, or it can be given one moment and retracted the next moment. This is all very slippery territory for boys to navigate. They need to show up to these encounters with a video camera, breathalyzer and lie-detector test. And they need to get all this exactly right, while totally wasted themselves. Yikes! Abstinence is starting to look really good. 