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California law excuses accused rapists because they were too intoxicated

On Tuesday, the Los Angeles County District Attorney's Office announced that it will not charge former USC football players Osa Masina and Don Hill with raping an intoxicated woman in July 2016.

The 19-year-old woman said that, after smoking pot and drinking with the men, she was too intoxicated to consent to sex. Masina said the sex was consensual, and Hill refused to say anything at all. Los Angeles prosecutors said there was insufficient evidence.

In their report, the prosecutors concluded: "Due to the victim's description of the amount of controlled substances and alcohol consumed by the suspects, as well as Masina's statements, there is insufficient evidence to prove they knew or should have known that she was unable to legally consent."

This conclusion should raise alarm. It means that the football players got a pass because they were too intoxicated to know whether or not the woman could consent to sex. They're getting excused because they were too high and drunk.

But it's not the prosecutors' fault. Unfortunately, that's the law in California.

Penal Code § 289(e), which criminalizes sex with an intoxicated person, says that an accused rapist must have "known, or reasonably should have known" that the victim was too intoxicated to consent in order to be convicted. In other words, in the Golden State, it's not illegal to have sex with an intoxicated person who can't consent if the rapist is too intoxicated himself to know better. Said another way, a man who's coherent enough to place himself inside of an intoxicated woman who can't consent, can also be too faded to be held liable for his actions.

This isn't the case with every crime committed by an intoxicated person. When it comes to murder, an intoxicated assailant is still held responsible under California law for killing. The rationale articulated by the California Supreme Court is that the intoxicated killer should be responsible because he's negligent for voluntarily getting intoxicated -- i.e., he shouldn't have gotten drunk. While consent isn't necessarily an issue when it comes to murder, that doesn't detract from the fact that the law doesn't hold all assailants liable for their voluntary acts while intoxicated. So why doesn't California apply that same rationale to intoxicated assailants who rape someone who can't consent?

Your idea is as good as mine.

Without some justifiable rationale, this law is offensive as it stands. It communicates to women that they should either not get drunk, or, if they do, hope their assailant isn't too drunk; otherwise, he gets a pass.

Masina and Hill got a pass. That's not to say they would have been convicted but for the law. There was no physical evidence available, as the woman did not seek medical attention immediately after the alleged rape, and she didn't cooperate with Los Angeles investigators. Also, to say the football players got a pass doesn't mean they leave this situation unscathed. Both men were kicked out of USC, and Masina is still facing rape charges in Utah for allegedly assaulting the same woman on another occasion.

But until the law changes, these men and other accused assailants who claim to be intoxicated themselves, will evade responsibility in California for sex with an intoxicated person who can't consent.

Adrienne Lawrence has a B.S. and M.A. in criminal justice as well as a J.D. from The George Washington University Law School. She completed the M.A. specialized journalism program at USC Annenberg in 2015 focusing on multimedia sports journalism. She practiced law from 2008 to 2015 before joining ESPN in August 2015. Adrienne also was an informal domestic violence and sexual assault counselor for three years.