Being charged with a sexual offense is devastating. Here, probably more than any other charge, the accused is presumed to be guilty. The social stigma that comes with being accused of a sexual offense can be life altering. The prospect of having to register as a sex offender for life can produce great anxiety. And facing the possibility of a lengthy prison sentence can be all consuming.
But sex crimes can be successfully defended through a comprehensive investigation. Often, the complaining witness will have had encounters with Child Protective Services or the juvenile court system. Those records must be obtained and scrutinized because they are often a wealth of information favorable to the defense. The defense must work up a social history of the accused, the complaining witness, and possibly other family members. Frequently, numerous witnesses must be interviewed to allow the defense to gain a full understanding of the case and develop persuasive explanation of the events consistent with the client’s innocence.
Rape is generally defined as having sexual intercourse with another, without the other’s consent. Rape can be accomplished by force, fear or threats; it can be accomplished in concert with others; it can be committed against an intoxicated, unconscious, or disabled person; or by fraud. California law prohibits rape in each of those situations.
Rape Or Spousal Rape By Force, Fear, Or Threats
To be guilty of spousal rape by force, fear, or threats, the defendant must have had sexual intercourse with a woman; he and the woman were (if being charged with spousal rape) married at the time of the intercourse; the woman did not consent to the intercourse; and the defendant accomplished the intercourse by in any of the following ways: by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else; threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the defendant would carry out the threat (a threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury or death); threatening to use the authority of a public office to incarcerate, arrest, or deport someone (a public official is a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport—the woman must have reasonably believe that the defendant was a public official even if he was not)
Sexual intercourse means any penetration, not matter how slight, of the vagina or genitalia by the penis (ejaculation is not required).
To consent, a woman must act freely and voluntarily and know the nature of the act. A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent if: she communicated to the defendant that she objected to the act of intercourse and attempted to stop the act; she communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; and the defendant forcibly continued the act of intercourse despite her objection.
Intercourse is accomplished by force if a person uses enough physical force to overcome the woman’s will.
Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do or submit to something that she would not do or submit to otherwise. Whether the defendant accomplished rape by duress is determined by considering all the circumstances, including the woman’s age and her relationship to the defendant.
Retribution is a form of payback or revenge.
Menace means a threat, statement, or act showing an intent to injure someone.
Intercourse is accomplished by fear if the woman is actually and reasonably afraid (or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it).
A defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse.
Rape Of Intoxicated Woman Or Spouse
To be guilty of rape of an intoxicate woman, the defendant must have had sexual intercourse with a woman; (if being charged with rape of spouse) the defendant and woman were married to each other at the time of the intercourse; the effect of an intoxicating or an anesthetic or a controlled substance prevented the woman from resisting; and the defendant knew or reasonably should have known that the effect of an intoxicating or an anesthetic or a controlled substance prevented the woman from resisting.
A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weight the physical nature of the cat, its moral character, and probably consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.
A defendant is not guilty of this crime if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if hat belief was wrong.
Rape Of Disabled Woman
To be guilty of a rape of disabled woman, the defendant must have had sexual intercourse with a woman; he and the woman were not married to each other at the time of the intercourse; the woman had a mental disorder or developmental or physical disability that prevented her from legally consenting; and the defendant knew or reasonably should have known that the woman had a mental disorder or developmental or physical disability that prevented her from legally consenting.
Rape By Fraud
To be guilty of rape by fraud, the defendant must have had sexual intercourse with a woman; he and the woman were not married to each other at the time of the intercourse; the woman submitted to the intercourse because she believed the defendant was her husband; and the defendant tricked her, liked to her, or used an artifice or pretense, or concealed information from her, intending to make her believe they were married to each other.
Rape In Concert
To be guilty of rape in concert, the defendant must have personally committed forcible rape and voluntarily acted with someone else who aided and abetted its commission; or the defendant must have voluntarily aided and abetted someone else who personally committed forcible rape.
Our approach to sex offenses has resulted in both acquittals at trial and favorable plea bargains before trial. If you would like to have your case reviewed by a Certified Criminal Law Specialist, please call us today.
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of an attorney-client relationship.
These results are not meant to predict or guarantee a particular result in your case.