It was supposed to be a nice dinner between two good friends at FIG in Santa Monica. A woman excused herself to the restroom, where she received a shocking revelation. “Hey, um, this is kind of weird, but, uh, we saw the guy you were with put something in your drink,” a stranger entering the bathroom told her. Security footage from the restaurant revealed that her dinner companion did, indeed, procure a small vial and dump its contents into her drink. In this case, someone was able to warn the woman preventing her from becoming one of the more than 300,000 annual victims of rape and sexual assault in the United States.
Not everyone is so lucky. Others must seek justice with the aid of a date rape attorney after enduring rape. But what if you don’t have the footage? What if it’s your word against the perpetrators? How can you prove your story in court? Working with an experienced attorney can help you build a substantial case and pursue justice against your rapist, even if they were someone you knew and trusted.
How to Tell If You’ve Been a Victim of Date Rape
Date rape drugs are used by assailants to make it easier to rape or sexually assault a victim. Drugs or alcohol can cause someone to lose consciousness and awareness about what’s going on around them, leaving them unable to defend themselves against a sexual attack. According to the Office on Women’s Health, nearly 11 million women in the United States have been raped while drunk, drugged, or high.
If you suspect you’ve been a victim of date rape you may exhibit some or all of the following signs:
- feeling drunk despite not having drunk any alcohol
- feeling confused or disoriented
- losing consciousness
- not remembering how you got somewhere
- being unable to remember anything after drinking
- waking up feeling confused, hungover, or unable to recall the night before
- genital or urinary pain and difficulty remembering what happened
- torn clothes
If you’ve been a victim of date rape, it is not your fault. Seek emergency care immediately.
What California Law Says About Consent
Many rapes go unreported due to misconceptions about consent. Over the years, the law has been clarified. SB 967 defines consent as not merely “no means no,” but as “yes means yes.” Consent is the “affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.”
Furthermore, consent is not a one-time deal, but a privilege that may be revoked at any time during an interaction. The law explicitly states: “Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.” Also, the existence of a dating relationship or past sexual relations “should never by itself be assumed to be an indicator of consent.”
Consent cannot be given when a person is:
- asleep or unconscious
- incapacitated by drugs or alcohol
- unable to communicate due to a mental or physical condition
Consent cannot be given to an adult by a person who is under 18 years of age. PC 261.5 defines this type of sexual relations as statutory rape. If the defendant is more than three years older than the victim, the crime may be classified as a felony and subject to harsher penalties.
The possession of date rape drugs is, in fact, a serious crime in itself. As of January 1, 2017, California SB 1182 made it a felony offense to possess drugs like GHB, ketamine, and Rohypnol with the intent to commit sexual assault, carrying possible prison terms of 16 months to three years. Further, probation cannot be awarded in cases where a victim was rendered unconscious and raped. Felony rape charges could result in three to eight years in state prison, with an additional three to five years in cases of bodily injury; an additional seven, nine, or 11 years in jail for victims under 18; and an additional nine, 11, or 13 years for victims under 14.
Should You File a Civil Lawsuit?
You can report the incident to police and hope the district attorney agrees to press charges against your attacker. Pursuing the matter in criminal court could result in the perpetrator serving jail time, being placed on probation, and added to a sex offender registry. However, criminal proceedings are not the only avenue open to you. You may elect to pursue legal remedies in civil court instead of—or in addition to—pressing criminal charges.
The NY Times outlines the many reasons why rape victims may decide to pursue their case in civil court:
- Victims have a sense of control as a voice in decision-making, not just a witness.
- The burden of proof is less (preponderance of evidence, not beyond reasonable doubt.)
- Civil penalties often stem from a personal sense of duty to deter future crimes.
- Third parties like school districts, dioceses, or employers can be held liable.
- Justice can be served when criminal statutes have expired.
- Hefty compensation can be secured to provide for excellent medical care.
Increasingly, rape crisis centers and victim advocates are encouraging rape survivors to pursue civil litigation as a remedy. Seeking recourse in civil court can be integral to the healing process.
How to Prove You Were Date Raped
In working with an experienced date rape attorney, you will be afforded considerable investigative muscle to help uncover what happened and how it happened. Evidence that may be admissible in court include:
- Forensic Evidence: In a perfect world, a certified medical facility would arrive at the scene of the crime within 96 hours to capture DNA from toilets, pillowcases, bedding, condoms, napkins, lubricants, cigarette butts, cups, clothing, hair, blood, semen, and saliva. In court, jurors expect to see forensic evidence. In fact, juries are 33 percent more likely to convict when DNA evidence is present.
- Medical Evidence: Instead of showering you should go to a local hospital that provides rape kits to have medical evidence collected and receive verifiable treatment for any acute injuries. You do not have to report the crime to authorities in order to receive a forensic medical exam. Unfortunately, blood and urine tests for the presence of date rape drugs are unreliable, but there are accurate tests for drinks if you have any remnants of the beverage.
- Physical Evidence: Emails, social media posts, computer screenshots, text messages, voice mails, letters, and witness testimonial can all be helpful in building a case, especially if you were being stalked or otherwise harassed.
- Circumstantial Evidence: Trace hairs, fibers, materials, fingerprints, glass, paint, soil, impression patterns, shoe prints, glove patterns, and toxicology reports can be used to verify certain details of your testimony or to disprove the defendant’s testimony.
- Testimony: In civil trials, you may provide a deposition or be asked to take the stand. Testifying might be difficult, but it is very compelling for juries to witness your brave recollection of events. Many a case has hinged heavily on victim testimony which can be enough to convict.
Contact a California Date Rape Attorney
An experienced date rape attorney can help you navigate the complexities of filing a civil lawsuit. The effects of date rape include PTSD, anxiety, and depression that can persist for several months, several years, or even decades. These effects may surface later or worsen with time; working with a date rape attorney will help you secure compensation should you need to compensate for personal damages suffered as a result of the incident.
At Lewis & Llewellyn, a civil law firm in San Francisco, we’ll listen with a compassionate ear and let you know what next steps you might take to seek justice, whether it’s pressing criminal charges, filing a civil lawsuit, or both. Our team can connect you with local resources, including rape kit centers, medical practitioners specializing in rape victims, counselors, and support groups. Your recovery is important to us.
DISCLAIMER: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog or on this website should be construed as legal advice from Lewis & Llewellyn LLP. Neither your receipt of information from this website, nor your use of this website to contact Lewis & Llewellyn LLP creates an attorney-client relationship between you and the firm or any of its lawyers. No reader of this website should act or refrain from acting on the basis of any information included in, or accessible through, this website without seeking the appropriate legal advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.
