California Supreme Court Defines What Constitutes “Force” During a Kidnapping for Rape

• Kidnapping & Movement
• Intoxication & Consent

Kidnapping for the purposes of rape applies to a victim who, because of intoxication, cannot consent to movement (209(b) P.C.). 

The victim was found unconscious and wrapped in a blanket in a Palo Alto, California, parking lot. When a responding paramedic pulled back the blanket, it was noted the victim’s underwear was partially pulled down. Officers from the Palo Alto Police Department responded. The victim had difficulty answering questions, her eyes were “glassy” and she had a dazed look. During transportation to the hospital, the victim became more coherent. She told an officer that she had been in a bar called Rudy’s the night before and had lost her cell phone. A man approached her, told her he knew someone who may have found her phone, and said that she should come with him. The stranger called someone on his cell phone, then suggested they have a drink together. The victim remembered that she drank some sort of brown liquid in a whiskey glass. Her next memory was the following day at the hospital. 

The victim told hospital personnel that she had pain in her vaginal area but “I don’t remember a single thing.” A medical exam revealed vaginal abrasions and other physical indicators consistent with intercourse. The victim’s blood-alcohol content level taken at the hospital was .18, with the presence of the drug Xanax. The victim was not prescribed Xanax and she had no memory of ever having ingested it. At trial, a forensic expert testified through BAC backtracking that the victim’s BAC at the time she left the bar was 0.35.  

Investigative follow up with the victim’s cell provider located her phone within a few yards of Rudy’s. Surveillance camera footage identified the defendant as the person who had interacted with the victim at the bar. The victim had initially gone to the bar with a date, but he left after leaving the victim with the defendant.  

Investigators interviewed the defendant. He said that he met the victim on the dance floor. He bought her two drinks. A bartender stated he would not serve her more because of her intoxication. The defendant said he offered to drive the victim home and she ....