Rape

Accused of Statutory Rape, Date Rape or Forcible Rape in Northern California?

EXPERT HELP IS AVAILABLE

  • Staff Includes Former Sex Crime Unit Lead DA
  • False allegations are very common, we fight them
  • Respected Psychological and Medical Experts
  • Early and Aggressive Intervention
  • Challenge of alleged victim’s credibility
  • False allegations are very common, we fight them
  • Respected Psychological and Medical Experts
  • Early and Aggressive Intervention
  • Challenge of alleged victim’s credibility

 

Rape is one of the most serious allegation a man can face.  Too often, the frenzy around this allegations means that the justice system will judge a person guilty as soon as allegations are made.  The Santa Clara County of People v. Brock Turner has made litigation of rape allegations more urgent as the case changed mandatory sentencing and has made caused the removal of a local judge from the criminal bench.  IF YOU ARE ACCUSED OF RAPE, TIME IS OF THE ESSENCE!!!  Call us day or night for a free and confidential case review to discuss your options.

Call us today for a free and confidential case review to discuss your options.  For your convenience, we have 6 offices located throughout the Bay Area:

  • San Jose Rape Lawyer – 2570 North 1st Street, 2nd Floor, San Jose, CA 95131 (408) 333-9622
  • San Francisco Rape Lawyer – 580 California Street, 12th floor, San Francisco, CA 94104 (415) 666-2316
  • Oakland Rape Lawyer –  1970 Broadway #1145, Oakland, CA 94612 (510) 352-1450
  • Pleasanton Rape Lawyer –  6200 Stoneridge Mall Rd #300, Pleasanton, CA 94588 (925) 218-4730
  • San Rafael Rape Lawyer – 4040 Civic Center Dr #200, San Rafael, CA 94903 (415) 524-7717
  • San Mateo Rape Lawyer – 533 Airport Blvd #400, Burlingame, CA 94010 (650) 763-8766

 

 

RAPE – DEFINITIONS, PENALTIES AND ANALYSIS

 

What is rape?

Rape is an offense under Penal Code 261 in California. The crime of rape occurs when someone has sexual intercourse with another person without that person’s consent. Most people think of rape as a crime that is committed with the use of physical force. However, there are many other situations that are covered by Penal Code 261, including when someone is so drunk or under the influence of drugs that they can’t consent to sex, or when someone agrees to sex only because they are threatened.

 

Rape is considered a very serious offense, and an allegation of rape carries a very serious stigma in the community. A conviction can have grave consequences, including years in prison and the requirement to register as a sex offender for life. Further, having this kind of offense on your record can damage your employment prospects, and can pose immigration problems for non-citizens. This is why, at Summit Defense, we work to prevent charges being filed whenever possible. We have an excellent track record of negotiating these matters and achieving excellent results for our clients – if you are facing an allegation of rape, you need to call a Summit Defense attorney immediately to discuss your case, and what we can do for you.

 

Can I settle this out of court?

Yes – it might be possible for us to settle your matter out of court. How we can assist you will depend on what stage your case is at, and the exact details of the allegations against you. Whatever the situation, our goal is always the full dismissal of all charges against you.

 

For our efforts to be most effective, it is essential to contact us as soon as possible. Our attorneys include a former investigator, former police officer, and a former District Attorney from a Sex Crimes Unit. This means that we have experience in investigating and prosecuting these matters an know how the other side thinks, which makes us the most powerful and persuasive negotiators to have on your side.

 

Do I really need a lawyer?

Yes, you do. Not only is it your right, but your best chance of fighting the case against you is by having an experienced Summit Defense lawyer on your side. We have handled many cases of rape that never saw the inside of a courtroom – in Northern California, we are your best chance of ensuring your freedom and reputation are protected.

 

In a recent Alameda County case that we defended, our client called us when he was accused of raping a woman after a New Year’s Eve party. Because we were involved in the matter as soon as the allegation surfaced, we were able to immediately contact the Police and determine the exact nature of the accusations against him. Our client insisted that the sex was consensual, so we began investigations, including interviewing other people that had been at the party. We collected statements that confirmed our client’s version of events from the night, and that went directly against what the complainant had told the police. We took these statements to the police who, after further negotiations, decided to drop the case completely.

 

Our experience in rape matters is that there are often significant opportunities to negotiate and influence the outcome of the case. What the previous example shows is that it is important to contact a lawyer as soon as you can because there will often be opportunities to speak to witnesses first, and to settle or negotiate your case at the start of the matter, that won’t exist later.

 

What is the cost?

When you have your first consultation with an attorney from Summit Defense Attorneys, we will discuss the estimated cost of your case with you. Every matter is considered on a case-by-case basis, and we will always act in your best interests – which means keeping costs as reasonable as possible while defending your matter to the full. One thing is for certain though – the sooner you have an attorney involved in your case, the better. With early intervention, we can try to reach an early resolution, which also reduces your legal fees dramatically. Call one of our attorneys today to set up your first, free consultation.

 

Who can be charged with rape?

In the vast majority of cases it is men who are charged with raping a woman, and in most cases the allegations involve two people who know each other. It is important to remember, however, that there is no gender restriction in the law – this means that a man can be charged with raping another man, and even though it is very uncommon, women can be charged with rape too. Further, there is a specific offense of ‘spousal rape’, where a husband or wife can be charged with raping their spouse.

 

What should I say to the police if I am arrested or questioned?

Nothing – you only have to tell them your name and address, and show some identification if requested. Other than that, it’s best to not say anything at all to the police – your lawyer will speak for you. If you are arrested, you or your family should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.

 

In some cases, the police might try to ask you questions about an allegation without arresting you or holding you in custody. This kind of situation might occur when the police say that they ‘just want to ask you a few questions’ but you are ‘not under arrest’ – the police only have to advise someone of their rights before questioning them if they are under arrest, or otherwise not free to leave. So, if someone is free to leave at any time, then that can be a way for them to be questioned without the police having to advise them of their rights.

 

This kind of behavior by police can lead people to believe that the matter is simply a ‘misunderstanding’ that can be ‘cleared up’ with a brief explanation. However, this is never really what happens – and anything that is said, even in an informal conversation, can be used as evidence against you. This is why you should be careful to never answer any questions from the police without first getting legal advice, and why you should always have an attorney present when speaking to the authorities.

 

When you are arrested, the police are required to tell you about your rights. These include your right to silence, and your right to a lawyer. These rights are important and you should take full advantage of them.

 

Being charged and going through the arrest process can be scary and intimidating, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Your best chance of presenting a good defense is by remaining silent and consulting a lawyer as soon as you can. Summit Defense Attorneys has defended thousands of cases and it has never, ever helped someone when they’ve spoken to the police – in fact, many people have hurt their cases by doing so. The early intervention of an experienced attorney is by far your most effective defense strategy.

 

 

SECTION B – ELEMENTS & DEFENSES

 

If I’m arrested, will I go to jail?

No, not necessarily – most criminal defendants are entitled to bail. In some cases, bail is not necessary and you can be released on your own recognizance. But in more serious cases, and that includes most rape matters, bail will typically be required – and it may be set at a relatively high amount. If you are not able to immediately secure your release, we will do everything to ensure that you are released on bail as soon as possible following an arrest. Summit Defense’s first priority will be to use every effort to keep you out of custody so we can properly prepare your defense.

 

Once the charging process is complete at the police station, the amount for bail will be set in accordance with the schedule that is applicable in that county. The amount required to secure your bail will depend on the number and seriousness of the charges filed against you and, once it is paid, you will be free to leave the custody of the police.

 

In some very serious cases, or those where the defendant has a criminal history, it

 

Is rape a felony or a misdemeanor?

In California, rape is always charged as a felony. The penalties and consequences that are imposed if you are convicted of a felony are very serious, and in the case of rape can include many years in state prison and lifetime sex-offender registration.

 

What are the different kinds of rape that can be charged?

Even though all cases of rape involve an allegation of non-consensual sex, there are several different kinds of rape offenses under California Penal Code 261 and 262. These are:

  • rape by force, fear, or threats[1];
  • rape in concert (that is, where there are two or more people charged with helping each other commit the crime)[2];
  • rape of an intoxicated person[3];
  • rape of an unconscious person[4];
  • rape of a disabled person[5];
  • rape by fraud[6]; and
  • spousal rape[7].

 

We will explain each of these kinds of rape, and the evidence that the Prosecution needs to bring in each of these kinds of cases, below.

 

What evidence will the Prosecutor use to try to prove a charge of forcible rape against me?

If you are facing a charge of rape by force, fear, or threats under Penal Code Section 261(a)(2), (6) or (7), then the Prosecutor will need evidence to prove beyond reasonable doubt that:

 

  1. you had sexual intercourse with someone;
  2. the person did not consent to the intercourse; and
  3. you accomplished the intercourse by either:
    1. force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the person, or to someone else;
    2. threatening to retaliate in the future against the person or someone else when there was a reasonable possibility that you would carry out the threat; or
    3. threatening to use the authority of public office to incarcerate, arrest, or deport someone.[8]

 

Sexual intercourse

For the crime of rape to occur, intercourse must actually take place – that means that no other kind of sexual act, or number of sexual acts, is enough to support this charge. The law defines intercourse as “any penetration, no matter how slight, of the vagina or genitalia by the penis”, and ejaculation is not required.[9]

 

Did not consent

The Prosecutor must prove that the person that you had sex with did not consent. To consent simply means to “act freely and voluntarily” and to know the nature of the act that the person is participating in.[10] If that was not the case, however, then a rape may have occurred.

 

The simple definition of consent, however, does not mean that this is a simple issue – in fact, the lack of consent is the element that is at the center of the crime of rape, and it is usually the most contested issue. For that reason, the law provides guidance as to what circumstances do and do not indicate consent. For example, it is not consent just because two people were dating or otherwise in some kind of sexual relationship at the time of the incident. Also, evidence that the woman asked the man to wear a condom does not prove that she was consenting to the sex.

 

For example, consider a situation where a couple have been out to dinner, and they are then back at the woman’s house having a glass of wine together on the sofa. They start kissing and, without objection, the man unbuttons the woman’s blouse and fondles her breasts. He then puts his hand up her skirt, and she pushes it away. He tries again, and she says, “Stop it, I don’t want to have sex with you tonight”. They continue kissing for some time, he again tries to put his hand up her skirt, and she again tells him to stop. The man then says, “stop being such a tease, I know you want it, you don’t have to pretend.” He then pushes her skirt up, pulls down her underwear, and puts his penis into her vagina. At that point the woman says, “please use a condom, I don’t want to get pregnant.” But even though the woman asked the man to use a condom, that does not mean that she had changed her mind and was consenting to the sex.

 

What about the defendant, though? What if he thought that the woman was consenting, even if she later says that she wasn’t? This kind of mistake does happen, and the law provides a defense for those kinds of cases. Most of us know that sexual encounters don’t happen in a vacuum – it is ridiculous to suggest that all sex happens when one person asks “Do you want to have sex?” and the other person says “yes”. Further, the law no longer requires proof that a woman struggled, or was injured, or screamed out, to prove that a rape happened. Rather, there are many cases where two people have sex and where the man thought that the woman was consenting, but where she says that she did not. This could leave defendants in a very unfair position, so the law provides a defense of reasonable belief in consent – which we discuss in detail, below – that provides that a man is not guilty of rape if he actually and reasonably believed the woman was consenting.

 

 

 

Withdrawal of consent

It is possible for a woman to withdraw consent, even after she has started having consensual sex with the man. If the woman withdraws her consent, but the man continues to have intercourse with her against her will, he may be committing rape.

 

There are some additional elements that must be proved if the prosecution is claiming that a woman withdrew consent during sex. The intercourse is then committed without her consent only if:

  1. she communicated to the defendant that she objected to the act of intercourse and attempted to stop the act;
  2. she communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; and
  3. the defendant forcibly continued the act of intercourse despite her objection.[11]

 

Consider a similar situation to the one above, where the man and the woman have been out on a date and are back at the woman’s house having a glass of wine on the sofa. They couple begin kissing, and then removing each other’s clothes. In this scenario, though, the woman does not object – she participates willingly and, at one point, she goes to the bathroom to get a condom for the man to wear. They start having intercourse but after a short period of time the woman says, “That doesn’t feel very good, I want to stop” and tries to push the man off her. He pushes her hands away, though, and holds them down as he continues with the intercourse. In this case, the man could be guilty of raping the woman because he forcibly continued with the act of intercourse despite the woman clearly communicating – both physically and verbally – that she wanted to stop.

 

Accomplished intercourse through force

A man has intercourse with a woman without her consent by the use of force if he uses enough force to “overcome the woman’s will”[12]. A great amount of violence does not have to be used, but enough that the woman is overcome. It is important to note, though, that the law does not require the Prosecutor to prove that the woman struggled or fought the man[13] – even if the woman freezes, or otherwise does not resist at all, the man can still be found guilty of rape.

 

In a 2004 case, the court said. “in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.”[14] So the question for the jury in a case where forcible rape is alleged is “whether [the] defendant used force to accomplish intercourse with [the woman] against her will, not whether the force he used overcame [the woman’s] physical strength or ability to resist him.”[15]

 

That being said, if the woman does not resist then that evidence can be used to consider whether it was reasonable for the defendant to believe that the woman was consenting. We discuss this further in the section about the defense of reasonable belief in consent, below.

 

Accomplished intercourse through violence

While the use of force is a form of violence, this alternative element can be used more broadly in situations where some other forms of violence are used. For example, if a man beats his girlfriend to overcome her objections to having sex with him, or if a stranger overpowers a woman in an alleyway and violently assaults her before raping her.

 

Accomplished intercourse through duress

The law defines duress as “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 otherwise.”[16] If a case like this goes to trial, then the jury must consider all of the surrounding circumstances, including the woman’s age and her relationship to the defendant.

 

For example, consider a case where a defendant is alleged to have said to a woman, “If you don’t have sex with me I’m going to cut you”. Of course, the jury would need to consider things such as whether the man had a knife, whether the woman had a reasonable basis to believe he had a knife, or if he otherwise had the capacity to carry out the threat. By considering those kinds of factors, they will determine if the threat was sufficient to make the woman submit.

 

Accomplished intercourse though menace

If the Prosecutor alleges that you committed a rape by menace, they are alleging that you did something that constituted a “threat, statement, or act showing an intent to injure someone”[17]. The threat can be against the woman who is the alleged victim, or it could be made against someone else – for example, a threat to hurt a family member of the woman.

 

Accomplished through fear of immediate and unlawful bodily injury to the person, or to someone else

This element covers those cases where the defendant is not accused of actually using force or violence against the alleged victim, but where they do something that puts the woman in fear that she, or someone else, will be hurt. This includes both verbal threats and threatening physical actions – such as holding a knife to the throat of a victim.

 

 

Accomplished through a threat to retaliate in the future

This may be alleged if the defendant is said to have made a threat against the woman, or against someone else, in circumstances where there is a reasonable possibility that he would carry out the threat. Threatening to retaliate means “a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death”[18]. This means that it does not include threats of non-physical harm, such as damage to a woman’s reputation.

 

Accomplished by threatening to use the authority of public office to incarcerate, arrest, or deport someone

In cases where this is alleged, the Prosecutor must first prove that the defendant was a public official, or that the woman reasonably believed he was a public official. A public official is “a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport.”[19]

 

The Prosecutor must then prove that the defendant threatened to use their authority to incarcerate, arrest, or deport the woman if she did not have intercourse with him. For example, imagine that a police officer pulls a woman over for speeding. He runs a check on her and finds that she is an illegal immigrant. If he tells her that she has to have sex with him or else he will arrest her and inform the immigration authorities so she gets deported, then he may be guilty of rape.

 

What evidence will the Prosecutor use against me to try to prove a charge of rape in concert?

If you are charged with rape in concert under Penal Code 264.1, the Prosecutor is alleging that you participated in a rape with at least one other offender – whether or not you actually had intercourse with the victim. To prove this charge against you, the Prosecutor would need to establish the following elements beyond a reasonable doubt:

 

  1. that you personally committed forcible rape and voluntarily acted with someone else who helped you to commit the rape; OR
  2. that you voluntarily helped someone to commit a forcible rape.

 

Forcible rape

So, the first thing that the Prosecutor must prove is that a forcible rape occurred – that is, that at least one of the alleged offenders had non-consensual intercourse with the woman. This means that they must prove all of the elements of the crime of rape by force, as we have outlined above.

 

Voluntarily

All the people who are charged with participating in a rape committed in concert must have acted voluntarily. This means that they took part in the crime willingly and with knowledge of the nature of their actions.

 

Someone helped you, or you helped someone, commit the rape

If it is alleged that you committed a crime ‘in concert’, it means that the Prosecutor is alleging that you helped someone to commit the main crime, or that they helped you to commit it. Both people are guilty of the crime in these circumstances – so, in the case of rape in concert, the person who does something to help the person who actually has sex with the victim is also guilty of rape, even if they never had intercourse with the victim themselves. The law refers to this kind of help as ‘aiding and abetting’ someone.

 

To prove that someone is guilty of aiding and abetting a crime, the Prosecutor must prove:

 

  1. that the perpetrator committed the crime;
  2. that the defendant knew that the perpetrator intended to commit the crime;
  3. that before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and
  4. that the defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.[20]

 

In other words, “someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”[21]

 

An example of a rape committed in concert could be where a man asks another man to help him commit a rape. For example, imagine a scenario where one man takes a woman into a separate room, alone, at a house party. He tells one of his friends that he wants to “make sure that girl has sex with me, whether she likes it or not” and asks him to guard the door to the room so as no one else can enter or disturb them. After the man takes the woman into the room, the friend waiting outside the door hears a struggle and the woman yelling things such as “no” and “stop”. Even though he realizes that the woman is being raped, he continues to guard the door and stops other people from entering. Both the man who actually committed the rape and his friend, who guarded the door, could be found guilty of rape in concert.

 

What evidence will the Prosecutor use to try to prove a charge of rape of an intoxicated person?

If you are accused of raping an intoxicated person, under Penal Code 261(a)(3), the Prosecutor will need to bring evidence to prove these elements beyond reasonable doubt:

 

  1. that you had sexual intercourse with someone;
  2. that the effect of an intoxicating, anesthetic, or controlled substance prevented the person from resisting; and
  3. that you knew or reasonably should have known that the effect of the substance prevented the person from resisting.

 

 

 

 

Sexual intercourse

As with any form of rape, sexual intercourse must have occurred. This means that the Prosecutor must prove that there was some penetration of the woman’s vagina or genitalia by the man’s penis.

 

Intoxicating, anesthetic, or controlled substance

These include substances such as alcohol, medically administered anesthetics, and drugs, including illegal drugs and ‘date rape’ drugs like Rohypnol.

 

Effect of an intoxicating substance

It is not enough for the Prosecutor to prove that the woman had consumed, taken, or been given one of these substances – they must show that, at the time the sexual intercourse happened, she was under the effect of the substance.

 

Effect of the substance prevented the person from resisting

The law says that a person is prevented from resisting if they are so intoxicated that they cannot give legal consent – and to be able to give legal consent, a person must be able to exercise reasonable judgment.[22] This is defined as being able to “understand and weigh the physical nature of the act, its moral character, and probable consequences.”[23]

 

So, despite the use of the word ‘resisting’, this element is not restricted to considering whether or not a woman could physically resist. This offense also covers situations where, for example, the woman may have had the physical capacity to resist but she did not really know or fully appreciate what was happening because of how intoxicated she was. This element is really concerned with whether or not the woman could give consent.

 

For example, consider a situation where a man and a woman meet at a nightclub, where they are both drinking. After a few hours, the woman is obviously intoxicated – she is slurring her words and unable to walk properly. She agrees to go back to the man’s house with him, and voluntarily gets into a taxi with him. She falls asleep during the ride back to his house, but he wakes her up when they reach his house and he takes her inside. They go into his bedroom and begin kissing and taking their clothes off. At one point, the woman passes out for a short while, and then wakes back up again. She is disoriented and asks where she is. The man continues in his actions, however, and has sex with the woman. In those circumstances, a jury might conclude that the woman was so drunk that she could not have given legal consent to the sex that occurred, and that the man was guilty of rape.

 

Knew or reasonably should have known that the effect of the substance prevented the woman from resisting

It is not enough, however, for the Prosecutor to simply prove that the woman was under the effect of the substance and unable to give legal consent. They must also show that the defendant knew the effect that the substance was having, or that he reasonably should have known.

 

This element is a very important consideration in many cases. As we all know, many sexual encounters happen when alcohol is involved and when people are drunk. It is important to realize that – despite what police, prosecutors, or the media might sometimes suggest – it is not illegal to have sex with a woman who is drunk or under the influence of drugs. Rather, people who have drunk alcohol or voluntarily taken drugs have consensual sex all of the time.

 

In a recent Santa Clara County case that Summit Defense Attorneys handled, our client was accused of raping an intoxicated woman after meeting her at a party. She had agreed to get a lift home with him and, during the ride home, he had pulled the car over and they had sex in the car. He then drove her home. The next day, the woman made a complaint to the police and our client was later charged with rape.

 

Our client contacted us shortly after he was charged, and told us that he was sure that the woman had consented to having sex with him. He told us that they had been talking, dancing, and flirting at the party and then, when they were in the car, the woman had been holding his hand, and also stroking his leg and his crotch area. When he pulled the car over, she had said, “let’s get in the back seat”, and they had continued there, and had intercourse. He knew that she was drunk but judged that she was not overly drunk, and thought that she seemed to be in control of herself. He told us that at no time did she object to what was happening, or otherwise give him any sign that she was not consenting.

 

The woman, on the other hand, had told the police that she could barely remember what had happened, but that she remembered getting into the back seat and our client being on top of her in the back seat of the car. According to her, she did not want to have sex but “didn’t really know how to stop it” so she “kinda did nothing”.

 

This matter was a clear case of the defendant having a reasonable belief in the woman’s consent. We were able to take our client’s version of events to the District Attorney and persuade them that our client had done nothing wrong, that he had a valid defense, and that this was a matter that should not go to trial. In the circumstances, the DA agreed to withdraw the charges against our client.

 

What evidence will the Prosecutor use against me to try to prove a charge of rape of an unconscious person?

If you are charged under Penal Code 261(a)(4) with raping an unconscious person, the Prosecutor must prove beyond reasonable doubt:

 

  1. that you had sexual intercourse with someone;
  2. that the person was unable to resist because they were unconscious of the nature of the act; and
  3. that you knew that the person was unable to resist because they were unconscious of the nature of the act.

 

Sexual intercourse

The Prosecutor must prove that sexual intercourse – that is, some degree of penetration – actually occurred.

 

Unable to resist

As in the case of rape of an intoxicated person, this actually refers to the woman not being able to give legal consent.

 

Unconscious of the nature of the act

There are several ways in which the law says a woman could be ‘unconscious’ of the fact that the accused person was having sex with her. These include:

  • she was unconscious;
  • she was asleep;
  • she was otherwise not aware the act was occurring;
  • she was not aware of the ‘essential characteristics’ of the act because the accused tricked her, lied to her, or otherwise concealed information from her;
  • she was not aware of the ‘essential characteristics’ of the act because the accused fraudulently represented that the sexual penetration served a professional purpose when it served no professional purpose.[24]

 

So, for example, it is illegal to have sex with a woman who is sleeping or passed out. The kind of fraudulent activity, or tricking, that can also lead to charges include cases where doctors or other health professionals – such as masseuses or therapists – have lied to their patients about what was happening during a procedure, or where they have taken advantage of their patients vulnerability and convinced them that sex was actually some kind of ‘treatment’.

 

Knew the person was unable to resist

To prove this offense, the Prosecutor has to show that the defendant knew that the person was unable to consent to the sex because they were unconscious. Unlike the offense of rape of an intoxicated person, the Prosecutor must prove actual knowledge – it is not enough to show that the defendant ‘reasonably should have known’. This also means that it would be a defense to this charge if the defendant did not know that the woman was unconscious.

 

What evidence will the Prosecutor use against me to try to prove a charge of rape of a disabled person?

If you are charged with the rape of a disabled person under Penal Code 261(a)(1), the Prosecutor is required to prove the following elements beyond reasonable doubt:

 

  1. that you had sexual intercourse with someone;
  2. that the person had a mental disorder, or a physical or mental disability, that prevented them from legally consenting; and
  3. that you knew or reasonably should have known that the person had a mental disorder, or a physical or mental disability, that prevented them from legally consenting.

 

Sexual intercourse

The Prosecutor must prove that sexual intercourse – that is, some degree of penetration – actually occurred.

 

Mental disorder, or physical or mental disability, that prevented them from legally consenting

The law does not provide a strict list of the kinds of disorders or disabilities that are considered to prevent a woman from being able to consent to sex.[25] Rather, this is a matter that has to be determined on a case-by-case basis. The Prosecutor must prove not only that the alleged victim had a mental disorder, or physical or mental disability, but also that the disorder or disability prevented them from being able to consent to the sex.

 

For example, a young woman with severe cerebral palsy and a relatively severe form of autism would be very unlikely to be able to give legal consent to sexual intercourse. On the other hand, the matter might be much less clear-cut in the case of an alleged victim who suffers from the effects of a mental illness, such a bipolar disorder, where her mental state is not constant. With that kind of condition, she may have capacity to consent at some times but not at others. In that case, it would be up to the Prosecutor to prove that the woman was suffering from effects of the mental illness at the time of the incident such that she was unable to give consent.

 

Knew or reasonably should have known that the person had a mental disorder, or a physical or mental disability, that prevented them from legally consenting

To establish this element of the offense the prosecution must show that the defendant knew, or reasonably should have known, that the woman had a disorder or disability, and also that the disorder or disability prevented her from consenting.

 

This means that it is a defense to this charge if the man did not know that the woman had a disorder or disability, or if he actually and reasonably believed that the woman was capable of consenting. Consider, for example, a woman who suffers from a mental illness that causes her to have delusions and think that she is someone else. If she has sex with a man during one of those periods when she is suffering from delusions she might not be capable of legally consenting, but if the man was not familiar with her illness (or if he did not  know that she had one) then it may also be quite reasonable for the man to believe that she was able to consent. In that case, the man would not be guilty of rape.

 

What evidence will the Prosecutor use to try to prove a charge of rape by fraud against me?

If you are charged under Penal Code 261(a)(5) with rape by fraud, the Prosecutor is alleging that you somehow tricked a woman into thinking that you were her husband, and she therefore agreed to have sex with you. To prove this offense the Prosecutor has to prove beyond reasonable doubt that:

 

  1. you had sexual intercourse with the woman;
  2. you and the woman were not married at the time;
  3. the woman submitted to the intercourse because she believed you were her husband; and
  4. you tricked her, lied to her, used an artifice or pretense, or concealed information from her, intending to make her believe that you were married to each other.

 

Sexual intercourse

The Prosecutor must prove that sexual intercourse actually occurred.

 

Believed you were her husband

The Prosecutor will have to show that the woman really did believe that the defendant was her husband at the time that the sex occurred.

 

Tricked, lied, used an artifice or pretense, or concealed information

This element requires the prosecution to show some kind of dishonesty or concealment on behalf of the defendant. It is not enough, for example, for the woman to have simply been mistaken about who she was having sex with, or for her to have a mistaken belief that she was married to the man – the Prosecutor must prove that the man did something dishonest that led the woman to believe that they were married.

 

For example, consider two people who meet and get married in Vegas. If the marriage was not actually valid, but both the man and the woman thought it was, then the man has not done anything that could be considered fraud. However, if the man knows that the marriage was not valid, but lies to the woman and tells her it was so that she agrees to have sex with him, then the man may have committed the kind of fraud required to establish this offense.

 

What evidence will the Prosecutor use against me to try to prove a charge of spousal rape?

If you are charged with spousal rape under Penal Code 262, the Prosecutor is alleging that you raped your wife. To prove this charge the Prosecutor has to establish, beyond reasonable doubt:

 

  1. that you had sexual intercourse with a woman;
  2. that you were married to the woman at the time; and
  3. that the woman did not, or could not, consent to the sexual intercourse.

 

Sexual intercourse

As always, the Prosecutor must prove that sexual intercourse took place.

 

Were married

The offense of spousal rape only applies when the man and woman are legally married. It does not apply to any other kind of relationship, such as live-in partners or people who are engaged to be married.

 

Did not, or could not, consent

Even though it is listed as a separate offense in the Penal Code, spousal rape is actually the same as other kinds of rape – except that the parties are married. This means that spousal rape includes any of the following kinds of rape:

  • rape by rape by force, fear, or threats;
  • rape in concert;
  • rape of an intoxicated person; and
  • rape of an unconscious person.

 

To prove any form of spousal rape, the Prosecutor must prove all of the other elements of the offense, in addition to proving that the parties were married at the time.

 

Other offenses that are commonly charged

There are some other charges that commonly come up in cases where there is an accusation of rape. These other charges can become relevant in two ways – firstly, the authorities will sometimes charge people with other offenses because they believe that there is evidence that more than one offense was committed. For example, if a woman alleges that she was raped but that the man also forced her to perform oral sex on him, then the DA might also file a charge of ‘oral copulation by force’.

 

Secondly, in situations where the case against the accused person for the rape charge is not particularly strong – for example, the prosecution may not have very strong evidence to prove that there was actual intercourse – then, depending on the circumstances of the case, the Prosecutor may file additional charges. In some cases where there is room for negotiation they may not be willing to drop the charges altogether but they may accept a plea to a lesser charge. In those kinds of situations, however, you need a lawyer from Summit Defense Attorneys to negotiate with the Prosecutor on your behalf – we are experts in this area of law, and we can often intervene on your behalf before charges are formally filed.

 

Statutory rape

Under California Penal Code 261.5, this offense is formally known as ‘unlawful sexual intercourse’. Although the word ‘rape’ is used, this offense is usually charged in those cases where both parties agreed to have sex but where at least one person was under 18 at the time. This means that the Prosecutor does not have to deal with the issue of consent at all.

 

Depending on the age of the parties and on the other circumstances of the case, this offense can be dealt with as a felony or a misdemeanor. We provide more detailed information on the offense of statutory rape, and explain how our attorneys can assist you if you are facing that charge, here.

 

Oral copulation by force

This is an offense under California Penal Code 288a. This charge will arise in cases where the alleged victim claims that, alongside penile-vaginal intercourse, the defendant also performed oral sex on her against her will, or that she was forced to perform oral sex on the man.

 

Like a rape charge, this is also a felony and a conviction can result in many years in prison. To read more detailed information on this offense, and why you need an experienced attorney to represent you if you are facing this charge, go to this page.

 

Sexual battery

If someone touches the intimate parts of a person without their consent, for the purpose of either sexual arousal, sexual gratification, or to commit sexual abuse, they are guilt of sexual battery. This is an offense under California Penal Code 243.4 and is usually charged in cases where the Prosecutor cannot prove that full sexual intercourse took place.

 

This is a less serious charge than rape but the Prosecutor can still elect to file it as a felony, depending on the circumstances of the case. You can read more detailed information about the offense of sexual battery here.

 

Forcible penetration with a foreign object

This is an offense under California Penal Code 289 and is almost identical to rape, except that it covers situations where the penetration is performed by something other than a penis. Examples of this might include penetration by a finger, a sex toy, or some kind of surgical instrument. The Prosecutor will often file this charge alongside a charge of rape.

 

The charge is as serious as rape, and the possible penalties are the same. We provide more information about the offense here.

 

What defenses can I use to fight a rape charge?

There are several defenses that can be used to fight rape charges, and an experienced criminal defense attorney will know which ones are most suited to your case. But you should always remember that early intervention is by far your best ‘defense’ – Summit Defense Attorneys has an excellent track record in dealing with these matters before formal charges are filed, so we know that it’s best to deal with any allegations as early as possible.

 

Once formal charges have been filed, however, defending your matter can become more complex. Your best chance of success is to have Summit Defense Attorneys fighting for you – we know how the police and the prosecution work, and we know how to beat these kinds of charges. And even in cases where the evidence is strong, we are often successful in negotiating lesser charges and keeping our clients out of prison.

 

I didn’t do it!

Maybe the victim has falsely accused you, maybe you did not have sex with the victim, or maybe the police have incorrectly targeted you in their investigation – whatever the case, we will fight to clear your name.

 

Unfortunately, false allegations are not uncommon in rape cases. Summit Defense Attorneys know from experience that victims do lie, and that innocent people have been falsely accused or  wrongly convicted as a result. A false allegation of rape  can have disastrous consequences for the accused – including years in prison, lifetime registration as a sex offender, and permanent damage to your reputation. In short, a false allegation of rape can ruin your life. That is why you need the right attorney – if you have been falsely accused of rape, you need to call Summit Defense Attorneys immediately. We won’t wait until charges are filed before starting work on your case, and exposing the false allegations for what they are.

 

A recent case that a Summit Defense attorney handled demonstrates how important our investigative work in a case is. Our client was a massage and sexual therapist who was accused of rape by a former patient. She alleged that she had gone to him for treatment in relation to back pain and stress. During her consultation and massage treatments, she had told our client about some sexual difficulties that she had been having with her husband, and our client had given her some advice about those issues. The woman further alleged, however, that on one occasion our client had penetrated her vagina with his finger while massaging her and had, on a subsequent occasion, had sexual intercourse with her while treating her. Our client denied that any kind of sexual contact took place, and given the delay in the woman making a complaint to the police, there was no physical evidence of it either.

 

In our investigations into this case, we were able to show clear records of the woman attending our client’s office for further treatment at least two times after she said the sexual assaults had occurred. We were also able to speak to one patient who had been recommended to our client by the woman, and was happy with our client’s services. We took this evidence to the DA, who agreed to drop the matter after recognizing how difficult it would be to prove the case.

 

Insufficient evidence!

One of the most fundamental rules of the criminal law is that the prosecution must prove every element of a charge beyond reasonable doubt. A lack of evidence, or a lack of evidence strong enough to support a charge beyond reasonable doubt, is one of the most common defenses relied upon – including in rape cases. If the evidence that the Prosecutor is relying upon in your case is not adequate, you need an expert from Summit Defense Attorneys on your side to challenge the prosecution case and make sure that you are not unjustly convicted.

 

Unfortunately, a lack of evidence does not always stop the authorities from filing charges against someone. Our attorneys include ex-police officers and an ex- District Attorney who worked in a Sex Crimes Unit – this experience on the other side means that we know how common it is for charges to be pursued where evidence is weak, or where the case is built only on the word of the alleged victim against the word of the accused. Our experience also means that we know exactly how to dismantle those kinds of cases, and we have an excellent track record of having charges withdrawn and winning trials in rape cases in the Bay Area  – making us the right firm to fight your case.

 

Our expert attorneys will know how to raise reasonable doubt in your case. For example, many rape cases come down to the word of the alleged victim against the word of the accused – consider a case where a woman alleges that a male friend raped her in her home. She raises the allegation many weeks, or even months, later – and she never told anyone about the alleged rape at the time.

 

In that kind of case, there will probably be no physical evidence left to prove that sexual intercourse  took place. It is also very unlikely that there will be any witnesses that heard or saw anything related to the alleged rape, and if the woman didn’t make a report to a doctor or counsellor at the time there will be no one who can corroborate the woman’s version of events.

 

But we know it’s not enough to simply point these facts out to the Prosecutor or jury – we will investigate this kind of case thoroughly, and that includes investigating the accuser and their history so as to be able to attack their credibility if the matter goes to trial. Some things that we can do when investigating the accuser’s credibility include:

  • subpoenaing college, counselling, police, or medical records, where relevant;
  • subpoenaing email, Facebook, and other social network accounts;
  • interview the accuser’s friends, family, partner, colleagues, and anyone else they might have regular contact with; and
  • have the accuser’s background thoroughly checked.

 

Even with this information to hand, however, you need an attorney with expertise in dealing with evidence in the context of the rape shield laws that apply to these kinds of cases. California’s rape shield laws will prevent some evidence being put before the court – such as information about the alleged victim’s sexual history – but they should not stop a good attorney mounting a vigorous defense in your case.  We explain more about the rape shield laws, and the kinds of evidence about the victim that can still be brought up in rape cases, in this section.

 

It wasn’t me! Mistaken identity and false identification

Yes, there are rape cases where the alleged victim knows the defendant. However, there are also many rape cases where the victim was raped by a total stranger, or where there are circumstances that mean that the identity of the rapist is in question. Like any other kind of criminal matter, claims of mistaken identity and false identification happen in rape cases. Memories are notoriously unreliable and, in the case of people who have suffered a significant trauma like rape, even more so. Add to this the fact that many cases arise weeks, months, or even years after the alleged incident, and there are certainly cases where an innocent person is accused.

 

There are many things that can lead to a mistaken identification in a rape case, including:

  • poor lighting where the assault occurred;
  • the attacker covered or concealed their face;
  • the police conducted a bad line-up or photo identification procedure;
  • the victim was drunk or otherwise incapacitated and identified the wrong person; or
  • the forensic evidence links a person to the scene, but does not prove they committed crime.

 

In one well-known rape case, a man was charged with raping a woman based on circumstantial evidence. He had been seen talking to her at a bar, and the police recovered his DNA from inside her bra strap. There was also some evidence that a car that was the same model as his was seen near the woman’s house that night. The woman had been drugged and raped some time after she had left the bar, and she was not able to provide any information on her attacker. The man insisted that he had not raped the woman, had not  touched her, and had not seen her other than at the bar that night. The prosecution, however, relied heavily on the DNA being found on the inside of her bra strap, insisting that there was no other explanation for it being there unless the man had raped the woman.

 

At the trial, the defense DNA expert was able to show that there was an alternative explanation – the woman shook hands with the man at the bar when she had been introduced to him, which caused a transfer of some of his DNA to her hand, and that was then transferred to her bra strap when she touched or readjusted it afterwards.

 

This case shows just how misleading forensic evidence can be, and why every defendant needs a committed defense lawyer on his side in these kinds of cases.

 

The lawyers at Summit Defense Attorneys know how evidence can sometimes be misleading, how unreliable memory can be, and how the criminal process can negatively affect the memories of people who have suffered trauma. We are always alert to the issue of mistaken identity or false identification in a case, and we will immediately retain the services of experts in areas such as DNA and photographic identification whenever they’re necessary for the full and proper defense of your case.

 

The sex was consensual!

Sexual relationships and sexual encounters are often complex things that cannot easily be fit into boxes. People often have different expectations about how sex should happen, or how they want it to happen, but they do not always communicate their needs or wants very clearly in the moment – this can sometimes create confusion or hurt feelings after the fact and, in the worst cases, can  result in a false allegation of rape when the sex was actually consensual. In other cases, a woman might make a false allegation of rape because she is motivated by jealousy, anger, a desire for revenge, or  some perceived need to protect herself or her reputation.

 

At Summit Defense Attorneys we have dealt with many matters where our clients had consensual sex with a woman but were later wrongly accused of rape. These kinds of allegations are devastating for our clients and we work to make sure that they never have to see the inside of a courtroom.

 

In one recent case that we handled, our client was accused of forcible ‘date rape’. He told us that he had been out with the woman earlier in the evening, that they had been kissing and dancing together at a club, and that they had later had consensual sex. The woman, on the other hand, told police that she had been out for “just a few drinks” with our client. She denied that they had been kissing or dancing at the club, said that she had asked our client to take her home when she felt “a bit drunk”, and that he then raped her. We hired a private investigator to look into the activities of the couple on the evening in question and we were able to track down several witnesses who independently supported our client’s version of events. This information allowed us to raise serious questions about the complainant’s credibility and, after some negotiations we were able to persuade the DA to dismiss the case.

 

Even in matters that go to trial we continue to fight, and have an excellent record of acquittals. In one matter that we handled, our client was accused by an acquaintance of raping her when he drover her home from a barbeque at a friend’s house one weekend. Our client told us that the sex had been consensual, and that the woman had in fact offered to have sex with him. The police had evidence of an immediate report she had made, as well as a full ‘rape kit’ which proved that sex had occurred.

 

When the woman was giving evidence at trial, she was blatantly embellishing her story. Our attorney was well prepared, however, and was able to catch her out in several lies in front of the jury. The most telling was her claim that our client had retrieved a knife from under the passenger seat, threatened her with it, and cut part of her tank top open with it. Not only had she not mentioned that to the police, but we were able to get access to the tank top she had been wearing that day – and clearly show the jury that there was not a single cut or hole in it. We were also able to establish a motive for why the woman had been lying – we had police reports to prove that her boyfriend at the time was violent, and we were able to suggest to her that she had lied about the rape because her boyfriend had seen our client drop her home that day, and flown into a jealous rage. The jury acquitted our client of all charges in less than an hour.

 

I honestly believed that she was consenting!

The law very clearly provides a defense to rape if you “actually and reasonably believed that the woman consented to intercourse”. Once this belief of the defendant is raised, the burden then falls on the Prosecutor to disprove it – in fact, a jury in a rape trial will be told that, “The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty.”[26]

 

When this defense is raised, the judge or the jury must consider all of the relevant circumstances. For example, what was the woman doing at the time? If she did not physically resist, that can be taken into account. Also, were either or both of the parties drunk or under the influence of drugs? What was the relationship of the parties? Did the woman say something that was equivocal – that is, that could have been interpreted as consent?

 

For example, consider a case where a young man and a woman have been dating for a short time. They have engaged in some sexual conduct, but never actually had intercourse. One night, they go to a party together, and the man has a bit too much to drink. The woman says that the man can stay the night at her house because he is too drunk to drive home safely. They go to bed together, and they kiss and fondle in bed. The man takes the woman’s underwear off, and starts to rub his penis against her vagina. The woman lays there and doesn’t say anything, and the man says, “I’ve been wanting to do this for so long”. The woman tells him “there’s condoms in the top drawer in the bathroom”. The man puts a condom on, and has sexual intercourse with the woman.

 

In that kind of situation, it would be considered perfectly reasonable for the man to believe that the woman was consenting to sex – she did not object to the intercourse in any way, and her telling him where condoms were kept is certainly able to be interpreted as consent. Even if the woman later says that she did not want to have sex, the man would be able to raise the defense of his reasonable belief in her consent.

 

Unfortunately, there are cases where a woman might not want to have sex, or might not be sure if she wants to have sex, but she does not communicate that clearly to the man. In those kinds of cases, the law recognizes that it would be completely unjust to convict a person of rape and send them to prison for many years. However, just because you can raise that defense doesn’t mean that the police or the Prosecutor will back off – you need an experienced attorney on your side who knows how to fight, and win, these cases.

 

She consented, and I didn’t know that she changed her mind!

Even if a woman initially consents to sex, the law allows her to change her mind – this is referred to as the woman ‘withdrawing’ consent. However, before a man can be found guilty of rape in that kind of situation, there is a requirement that the woman has to have communicated that change of mind clearly.

 

In circumstances where a woman claims that a man has raped her because she changed her mind during sex, the man can only be found guilty of rape if the Prosecutor proves beyond reasonable doubt that:

 

  1. the woman communicated to the man that she objected to the act of intercourse, and attempted to stop the act;
  2. the woman communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; and
  3. the man forcibly continued the act of intercourse despite her objection.

 

In many cases where a woman claims that she withdrew her consent to sex, however, that change of mind was not clearly communicated to the man. It is not enough, for example, for a woman to ‘freeze up’ or stop enjoying the act. It is also not enough if a woman says something equivocal such as, “hurry up and finish”, “it’s hurting” or “it doesn’t feel good”. Those are not clear objections or requests to stop, and the law does not punish someone because a woman does not fully enjoy a sexual experience, or because she feels ambivalent about it.

 

If you have been accused of raping someone who initially agreed to have sex with you, we know that you probably feel confused, angry, or upset – it can seem horrendously unfair to be accused of something as serious as rape when you thought that the person you had sex with consented to it. If the woman did not clearly communicate her objection to you, though, your Summit Defense attorney will make sure that your defense is put forward and you are not unfairly convicted.

 

 

 

I thought she could consent!

If you are facing an allegation of raping a woman who was intoxicated, under the influence of a drug, or disabled, then the Prosecutor is alleging that the woman was actually unable to consent to having sex with you because of her condition. However, it is a defense to any one of those charges if you reasonably believed that the woman was capable of consenting to sexual intercourse – even if that belief was wrong.

 

If this defense is raised at trial, the jury will be told that, “The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting. If the People have not met this burden, you must find the defendant not guilty.”[27] This means that the Prosecutor has to disprove your belief.

 

If this defense applies in your case, your Summit Defense attorney will carefully establish the evidence that demonstrates your reasonable belief that the woman was capable of consenting. We will show, based on the relationship you had with the woman, and all of the surrounding circumstances, that you had that belief and that it was reasonable. In many cases, we are able to take that kind of evidence and information to the DA well before formal charges are filed, and have been successful in having charges dismissed against our clients.

 

Our attorneys have dealt with a lot of cases where alcohol and drug use are a factor – many rape allegations arise in the context of people socializing at parties, and in bars and clubs, and where people might be drinking to excess or taking illegal drugs. While those substances might influence a person’s behavior, it is important to remember that it is not illegal to have sex with someone just because they are under the influence of drugs or alcohol. Rather, the Prosecutor has to prove, firstly, that the person was so effected that they could not consent and, secondly, that man did not have a reasonable belief that the woman could consent.

 

Consider a recent case where our client attended a college party. The party was in someone’s house near campus, lots of people were there, almost everyone was drinking, and some people were using drugs. Our client met a woman at the party, and they were seen ‘making out’ by many people at the party. Our client later escorted the woman back to her dorm room, where they had sex. Our client was certain that the woman consented to sex, and he described her as “taking part in it, equally”. After they had sex she fell asleep, and he left shortly afterwards and went back to his own dorm room.

 

The following day, he texted the woman to see how she was feeling, but she did not reply. She actually made a report to the campus health care service the following day saying that she “thought she might have been raped”. The health care service urged her to make a report to the police. She reported the matter to the police and showed them our client’s text message, which they used to identify him.

 

The police made several calls to our client asking to speak to him about the matter. Fortunately, he made the right decision and contacted Summit Defense Attorneys first, and we spoke with the police on his behalf. We then began to investigate the matter further, and spoke to several witnesses from the party that confirmed the woman was with our client, and that she had asked him to take her home. That evidence, along with our client’s statement about what had happened during the time they were in the woman’s dorm room, meant that we were able to persuade the police that our client had an overwhelmingly credible defense, and they agreed to drop the matter completely.

 

Don’t the ‘rape shield’ laws make it hard for an accused person to mount a proper defense in rape cases?

No – but these special rules of evidence mean that defending a charge of rape is not always easy. To be able to present the best and most complete defense possible, you need an experienced attorney from Summit Defense who knows how to apply these rules, and knows how to make sure that evidence that is vital to your defense is still seen and heard by the jury.

 

The ‘rape shield’ laws are special rules of evidence that apply to rape cases, and some other sexual offenses. They are contained in California Evidence Code 1103 and, in general, they prevent the defendant in a rape trial from introducing evidence about the past sexual conduct of the alleged victim if that evidence will be used to try to prove that she consented in the current matter.[28] The rules also prevent the introduction of evidence about how the alleged victim was dressed at the time, if that evidence would be used to try to prove that she consented in the current case.[29] If a defendant wants to introduce this kind of evidence, there are special procedures under Evidence Code 782 that must be followed in order to seek the court’s permission to do so.

 

These rules of evidence were passed because the Legislature determined that “victims of sex-related offenses deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy”[30]. It was also believed that these laws could encourage reporting of sexual assaults “by limiting embarrassing trial inquiry into past sexual conduct.”[31]

 

Examples of the kind of evidence that these rape shield laws might stop being introduced include the following:

  • evidence that a college student had a reputation for ‘sleeping around’ on campus, used to prove that she consented to sex with the defendant, a fellow student.
  • testimony from previous sexual partners that a woman liked ‘rough sex’.
  • pictures of the mini-skirt and halter top that an alleged victim was wearing at the time of the incident, used to suggest she was being sexually provocative.

 

There are, however, situations where evidence of the woman’s sexual history or of what she was wearing is relevant – and especially important to the defendant’s case. The law does allow a very narrow leeway in those matters, and there are special provisions under Evidence Code 782 that allow for the introduction of this kind of evidence with the permission of the court. To get the permission of the court, however, the defendant needs to present a compelling argument to the judge – this permission is rarely granted, which is where the expertise of your attorney is vital.

 

Summit Defense Attorneys know how to persuade the judge to allow important evidence to go before the jury in these kinds of cases. We’ve had success in many cases, such as:

 

  • an allegation that our client raped a mildly developmentally-disabled 19-year-old woman. We were able to persuade the judge to allow us to introduce evidence that the woman had a boyfriend and had engaged in some sexual conduct with him. This was used to refute the woman’s statement to the police that she had never seen a naked man before, or engaged in any kind of sexual conduct.
  • when our client was accused of raping a woman after a party they had both attended, we were successful in our application to the court that he be allowed to bring evidence of a sexual encounter with her boyfriend earlier that day. Our client denied that he had sex with the woman, and that evidence was a way of providing the jury with an alternative explanation for the physical evidence of sexual intercourse.
  • in a case involving an allegation of rape in a toilet cubicle at a night club, we persuaded the judge to let us call witnesses to give testimony as to the clothing the complainant was wearing that night. This allowed us to call the complainant’s credibility into question by showing that she was lying about those facts.

 

 

SECTION C – PENALTIES

 

What are the penalties for rape?

The penalties for rape offenses in California will differ based on the circumstances of the case, and whether or not you have a criminal history – especially if you have previously been convicted of rape or some other kind of sexual offense. Further, when sentencing, the judge will take into account various personal factors. This means that the penalty that you receive if you are convicted of rape can vary widely, depending on the case you are able to put before the judge.

 

To put your best case forward, you should have an experienced attorney who is able to advise you and plan your strategy right from the start of your case through until the end. Early intervention is key, and at Summit Defense Attorneys, our ultimate goal is always the complete dismissal of charges against you. Even if dismissal is not possible, as the most experienced sex crime defense attorneys in the Bay Area, we will be able to help you achieve the most lenient penalty for your case.

 

A conviction for any of the various kinds of rape offenses can carry a lengthy prison sentence. The penalties can include:

  • formal probation, which involves up to a year in a country jail; or
  • a maximum sentence of three, six, or eight years in state prison; and
  • a fine of up to $10,000.

 

You should note that formal probation is usually only imposed in those cases toward the lower end of the scale, where there was no force or violence used, and where the defendant does not have a criminal record.

 

In addition to those penalties, there are certain factors that can make an offense more serious, and therefore expose the defendant to a more serious sentence. These are:

  • if the victim sustained a great bodily injury (that is, a significant or substantial physical injury), then the defendant can be sentenced to an extra three to five year in prison.
  • if the victim is a minor between the ages of 14 and 18, the maximum penalty increases to seven, nine, or eleven years in prison.
  • if the victim is a minor under the age of 14 years, the maximum penalty goes up to nine, eleven, or thirteen years in prison.

 

These are the maximum penalties that apply to a rape conviction. However, there are many cases where the expertise of one of our attorneys has resulted in a much less serious penalty being imposed. We may be able to negotiate a lesser charge with the Prosecutor, or persuade the judge to impose a much more lenient penalty in your case – for example, we are often successful in having our clients sentenced to only a period of probation. We will always strive for a result that is best for our client, and their future.

 

One case that Summit Defense Attorneys dealt with typifies this approach – our client was accused of forcible ‘date’ rape of a woman on a college campus. They both attended the same University, and had known each other for a short time. We began negotiations with the District Attorney before formal charges were filed, and were able to point out some discrepancies in the facts of the case. We were also able to persuade the DA to hold off on filing charges until the college’s internal disciplinary proceedings were completed. We helped our client to prepare for those proceedings and the final result was that he was suspended from the University. We then took the results of those proceedings to the DA, and were able to convince the DA not to file charges at all against our client. So, while he suffered the penalty of being suspended from his University, we were able to ensure that he did not sustain a criminal conviction – which, importantly, meant that he was not exposed to a possible prison sentence, or to lifetime registration as a sex offender.

 

What factors will the judge take into account when sentencing me?

Apart from the nature of the offense itself and any criminal history, in all cases the judge will consider the specific circumstances of each case before passing sentence. Some of the things that the judge will consider are known as aggravating and mitigating circumstances  – these are factors that might either increase (aggravate) or decrease (mitigate) the eventual sentence.

 

There are some common factors that can occur in rape cases – for example, if alcohol or drug use was associated with the offense, and you voluntarily enter into a treatment program, then that would be taken into account as a mitigating circumstance. On the other hand, if the victim was degraded or treated especially badly when the offense was committed, that might be considered an aggravating circumstance. However, every case is different and every defendant is unique – an experienced Summit Defense attorney will best know how to put together a positive case on sentencing that brings together as many mitigating circumstances as possible, and reduces the negative effect of any aggravating circumstances.

 

What other consequences can occur as a result of being convicted of rape?

There are two other significant consequences that can follow on from a rape conviction, other than the actual sentence imposed by the judge.

 

A strike on your record.

California has a ‘three strikes’ law, which we explain in more detail here. That is a law that affects sentencing, and means that defendants with certain offenses on their criminal record will be treated more harshly. Only certain offenses count as a ‘strike’ against the law – however, crimes of forcible or violent rape, or rape by threat, will count as a strike if you are convicted.

 

Sex offender registration

A conviction for most types of rape will mean that you have to register as a sex offender. The exceptions to this are rape by fraud, and rape by threatening to use the authority of a public figure.[32] At Summit Defense Attorneys, we recognize how debilitating lifetime registration is, and will do everything possible to help you avoid conviction and having to register as a sex offender.

 

If you are facing an accusation of rape and potential lifetime registration, you should get the help of an attorney who is experienced in the area. And even if you are convicted of a sex offense and required to register, you should be fully aware of your obligations – and also of the fact that the law does prevent other people from harassing you. We provide more information on sex offender registration here .

 

 

What consequences does registration as a sex offender have?

Registration means that you keep the authorities updated on your contact and identity details. Sex offender registration has been around for decades, however, it is only in more recent times that the information of offenders was made available to the public via the internet.  In California, a law known as ‘Megan’s Law’ dictates that certain information about some registered sex offenders must be posted on the internet, on what is known as Megan’s List. This online listing will usually record a person’s name, the details of their offense and sentence, and where they live.

 

Not all offenders have to have their information published online, however. We provide more detailed information about registration, and also ways in which you can apply to have your name removed from Megan’s List, or from the obligation to register altogether, in this section of our website.

 

One of the other significant consequences of registration is that, for some professionals, having to be registered as a sex offender will mean that their professional association will remove their license. This can occur in the case of people with doctor’s medical board licenses, nursing licenses, physical therapist licenses, and other similar professionals.

 

 

[1] California Penal Code 261(a)(2), (6) & (7).

 

[2] California Penal Code 264.1.

 

[3] California Penal Code 261(a)(3).

 

[4] California Penal Code 261(a)(4).

 

[5] California Penal Code 261(a)(1).

 

[6] California Penal Code 261(a)(5).

 

[7] California Penal Code 262.

 

[8] Judicial Council of California Criminal Jury Instructions, Instruction 1000.

 

[9] Judicial Council of California Criminal Jury Instructions, Instruction 1000.

 

[10] Judicial Council of California Criminal Jury Instructions, Instruction 1000.

 

[11] Judicial Council of California Criminal Jury Instructions, Instruction 1000.

 

[12] Judicial Council of California Criminal Jury Instructions, Instruction 1000.

 

[13] People v. Barnes (1986) 42 Cal.3d 284.

 

[14] People v. Griffin (2004) 33 Cal.4th 1015, 1027.

 

[15] People v. Griffin (2004) 33 Cal.4th 1015, 1028.

 

[16] Judicial Council of California Criminal Jury Instructions, Instruction 1000.

 

[17] Judicial Council of California Criminal Jury Instructions, Instruction 1000.

 

[18] California Penal Code 261(a)(6).

 

[19] Judicial Council of California Criminal Jury Instructions, Instruction 1000.

 

[20] Judicial Council of California Criminal Jury Instructions, Instruction 401.

 

[21] Judicial Council of California Criminal Jury Instructions, Instruction 401.

 

[22] Judicial Council of California Criminal Jury Instructions, Instruction 1002.

 

[23] Judicial Council of California Criminal Jury Instructions, Instruction 1002.

 

[24] Judicial Council of California Criminal Jury Instructions, Instruction 1003.

 

[25] Judicial Council of California Criminal Jury Instructions, Instruction 1004.

 

[26] Judicial Council of California Criminal Jury Instructions, Instruction 1000.

 

[27] Judicial Council of California Criminal Jury Instructions, Instruction 1002.

 

[28] California Evidence Code 1103(c)(1).

 

[29] California Evidence Code 1103(c)(2).

 

[30] People v Fontana (2010) 49 Cal.4th 351, 362.

 

[31] People v Fontana (2010) 49 Cal.4th 351, 370.

 

[32] California Penal Code 290.

 

 

Should have something on this in the general definitions section.

 

Link to our page on sex offender registration here.