Sex offenses Lawyer

ACCUSED OF A SEX OFFENSE? AVOID JAIL AND REGISTRATION

• Sex Registration Opt-Out Strategies
• Staff Includes Former Sex Crime Unit Lead DA
• Probationary Therapy to Avoid Jail
• Respected Psychological and Medical Experts
• False Memory and Suggestive Interview Experts
• Computer Forensics Specialists

Do not gamble with your future.  Allegations involving sex offenses can be devastating to you, your family and your career. Once an accusation is made it is critical that you have a knowledgeable expert on your side.

Summit Defense Attorneys’ legal team includes three former prosecutors, a former police officer and attorneys educated at the country’s top law schools. We fight assault sex offenses—often resulting in dismissal, acquittal or reduced charges.

Feel free to contact us at (888) 986-1338 for a Free Case Review or schedule a consultation online.

For your convenience, we have 6 offices located throughout the Bay Area:

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

SEX OFFENSES – DEFINITIONS, PENALTIES AND ANALYSIS

 

What is sexual battery?

Sexual battery is an offense under Penal Code 243.4 in California. This offense is sometimes referred to as sexual assault, and concerns the unwanted touching of a person’s ‘intimate parts’ for the purpose of sexual arousal, gratification, or abuse.

Different kinds of touching – for example, through clothing versus on bare skin – are treated with different levels of seriousness under the law. However, minor sexual battery is still regarded as a sex offense. This means that a conviction has serious consequences, and can include the requirement to register as a sex offender.

 

What is forcible sexual penetration?

Forcible sexual penetration is a crime under Penal Code 289 in California. This sex offense is very similar to rape, but instead of sexual intercourse, this offense refers to any kind of non-consensual sexual penetration that is done with a foreign object – such as with fingers, or a sex toy. This is considered a very serious offense, and a conviction exposes a defendant to penalties that are as serious as in the case of rape. This includes years in prison and the requirement to register as a sex offender for life.

 

Because they are sex offenses, having either a sexual battery or forcible sexual penetration conviction 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 a good record of negotiating these matters and achieving excellent results for our clients – if you are facing sex offense accusations, 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 case, though, our goal is always the full dismissal of all charges against you.

 

For our efforts to be most effective, it is essential to try to settle the matter as soon as possible, and preferably before charges are filed. Engaging a Summit Defense attorney will give you the best chance of settling your matter out of court because we have extensive experience in these cases – 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 and we know how the other side thinks, which makes us the most powerful and persuasive negotiators to have on your side.

 

In the case of many sex offense allegations, we are able to avoid having charges filed all together. And even in cases where the evidence against our client is strong or we cannot stop charges being filed, there is still often scope for us to negotiate with the DA to secure a favorable plea bargain or to have less serious charges filed.

 

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 sex offense cases that never saw the inside of a courtroom – we are your best chance of making sure that you can avoid court too.

 

In one recent case that we handled, our client called us when he was accused of sexual battery against one of his work colleagues. They had been at a Friday evening after-work function together, along with many other people from their office. His colleague had alleged that, when she and our client had gone outside to have a cigarette together, he had groped her breasts. Because our client called us as soon as the allegation surfaced, however, we were able to immediately get in contact with other people at the party and ask them about the events of the night. We collected statements that confirmed our client’s version of events from the night – including that, after they had come back inside from having a cigarette, the woman remained at the party for a couple more hours and was seen talking to and interacting with our client in a friendly and normal manner. These statements went directly against what the woman had told the police. We took these statements to the police who, after further negotiations, decided that the matter would not be pursued any further.

 

Our experience in both sexual battery and forcible sexual penetration cases is that there are often significant opportunities for a skilled lawyer 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 a lawyer 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 do our best to reach an early resolution and keep your case out of court, which also reduces your legal fees dramatically. Call one of our attorneys today to set up your first, free consultation.

 

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 to people believing that the matter is simply a ‘misunderstanding’ that can just 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 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 felony sexual battery and forcible sexual penetration matters – bail will typically be required. In the most serious cases, it will 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 possible that they will not be able to meet the bail set at the police station because it is too high. Alternatively, in the most serious of cases, a defendant may not have the opportunity to secure bail at the police station, but may be required to go before a judge to apply for bail. In either of these situations, your best chance of getting out of custody is to have Summit Defense Attorneys on your side. Our attorneys have the expertise and the experience to present a strong case on your behalf, and to persuade the court to grant you bail.

 

Is sexual battery a felony or a misdemeanor?

In California, there are actually two kinds of sexual battery offenses – misdemeanor sexual battery, and felony sexual battery.

 

The basic difference between the two is that in the less serious kind (misdemeanor offenses), the touching can occur through clothing, and there is no other form of violence or restraint used to commit the offense.

 

In more serious circumstances, however, the matter can be charged as a felony. This is where the allegation involves some form of restraint of the victim, and the touching involves contact with the victim’s bare skin. Also, there are certain factors that can make a sexual battery more serious – these include when the victim is confined to an institution – such as a mental hospital – or where the offender uses some kind of fraud to obtain the victim’s consent to the touching. In any of these cases, the offense is known as a “wobbler” – meaning that the Prosecutor can decide whether to file a charge as either a felony or a misdemeanor. That decision will depend on the circumstances of the alleged offense, as well as any criminal history of the defendant.

 

In either case, however, the penalties can be serious – including time in jail, and lifetime sex-offender registration.

 

Is forcible sexual penetration a felony or a misdemeanor?

Forcible sexual penetration 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 this offense can include many years in state prison and lifetime sex-offender registration.

 

 

What evidence will the Prosecutor use to try to prove a charge of misdemeanor sexual battery against me?

If you are facing a charge of misdemeanor sexual battery under Penal Code 243.4(e)(1), the Prosecutor will need evidence to prove the following elements beyond reasonable doubt:

 

  1. that you touched an intimate part of a person;
  2. that the touching was done against the person’s will; and
  3. that the touching was done for the purpose of sexual arousal, sexual gratification, or sexual abuse.

 

Touching

In the case of misdemeanor sexual battery, touching means “physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.”[1]

 

Intimate part

The law defines the ‘intimate parts’ of a person as being the “sexual organ, anus, groin, or buttocks of any person, and the breast of a female.”[2] So, if any of these parts of a person are touched against their will, then a sexual battery may have been committed.

 

Against the person’s will

Something is done against a person’s will if they do not consent to it. In order to consent to something, a person must act freely and voluntarily, and know the nature of the act. So, for example, if two people who are in a relationship are kissing and ‘making out’, then there may be consent to them touching the intimate parts of each other through their clothing. However, if a man rubs a woman’s buttocks on a crowded train for his own arousal, then that touching is clearly against the woman’s will.

 

Touching was done for sexual arousal, sexual gratification, or sexual abuse.

This element requires the Prosecutor to prove that the touching was done for some kind of sexual purpose. Accidental touching, for example, is not enough to satisfy this element of the offense.

 

Sexual arousal or gratification refers to the offender’s state of mind, in that they had the intention to achieve some kind of sexual arousal or gratification. Sexual abuse means any touching in order to cause pain, injury, or discomfort. In the case of touching done for sexual abuse, the defendant does not need to actually achieve any sexual arousal or sexual gratification.[3]

 

Examples of acts that would constitute misdemeanour sexual battery include:

  • a nurse brushing against a patient’s breasts when examining them, when done for their own arousal.
  • someone grabbing a stranger’s buttocks on the street, when done for their own arousal or gratification.
  • a man painfully squeezing his wife’s breasts, as a form of sexual abuse.

 

Keep in mind, however, that the Prosecutor must always prove all of the elements of the offense. So, if in the case of the nurse brushing against a patient’s breasts when examining them, if the Prosecutor could not prove that was any more than an accidental touching, then any charge against the nurse would fail.

 

What evidence will the Prosecutor use to try to prove a charge of felony sexual battery against me?

If you are charged with felony sexual battery, the Prosecutor will need to prove the following elements beyond reasonable doubt:

 

  1. that you unlawfully restrained someone;
  2. that, while that person was restrained, you either touched an intimate part of them, or you caused them to touch their own intimate part, or one of your own, or someone else’s;
  3. that the touching was done against that person’s will; and
  4. that the touching was done for the purpose of sexual arousal, sexual gratification, or sexual abuse.

 

Unlawfully restrained

You unlawfully restrain someone when you control their freedom of movement against their will by words, acts, or authority. So, for example, you could unlawfully restrain someone by holding them down, or by saying something like “Don’t move or I’ll really hurt you”. To restrain someone using authority could take the form of, for example, a school principal telling a student to “sit down and don’t move” even though the student has done nothing wrong and the principal has no cause to give them such an order.

 

In this offense, an accomplice of the defendant can also restrain the victim.[4] For example, if the defendant gets someone else to hold the victim’s hands behind their back while the defendant touches an intimate part of the victim.

 

It is important to note that, for the Prosecutor to prove this element, they must prove that some additional physical force was used, other than that necessary to accomplish the sexual touching.[5] So if a man gropes a woman’s breasts, for example, the groping itself is not enough to constitute ‘unlawful restraint’ – there must be some other act that controls the woman’s movement, even if only momentarily.

 

Further, it is not unlawful restraint if the person has the legal authority to restrain another person. An obvious example of this is a police officer who arrests someone and then performs a pat-down search on them – even if the police officer touches some of the person’s intimate parts during the search, no crime has been committed if the officer is properly using their authority to restrain and search the person.

 

Touching

The kind of touching that can form the basis of this offense is quite broad for felony sexual battery and includes the following:

  • the defendant touching the victim;
  • the victim touching themself;
  • the victim touching the defendant; or
  • the victim being made to touch someone else.

 

Further, the prosecution must prove that there was some contact with the alleged victim’s bare skin. This means that the defendant must have touched the bare skin of the victim’s intimate part, or the victim’s bare skin touched the defendant or someone else’s intimate part (either on their bare skin, or through their clothing).

 

Against the person’s will

Touching is done against a person’s will if they do not consent to it. In order to consent to something, a person must act freely and voluntarily, and know the nature of the act. So, for example, if two people are engaging in sexual intercourse, then there is likely to be consent to touching intimate parts of each other during the act. However, if a man and a woman have not met and are dancing next to each other on the dance floor in a nightclub, and the man puts his hand down the back of the woman’s pants and touches her bare buttocks, then the woman may not have consented to that kind of sexual touching and a sexual battery may have occurred.

 

Touching was done for sexual arousal, sexual gratification, or sexual abuse.

As in the case of a misdemeanour sexual battery, this element requires the Prosecutor to prove that the touching was done for some kind of sexual purpose. Accidental touching, for example, is not enough to satisfy this element of the offense.

 

Sexual arousal or gratification refers to the offender’s state of mind, in that they had the intention to achieve some kind of sexual arousal or gratification. Sexual abuse means any touching in order to cause pain, injury, or discomfort. In the case of touching done for sexual abuse, the defendant does not need to actually achieve any sexual arousal or sexual gratification.[6]

 

Examples of acts that could constitute felony sexual battery include:

  • pinning a woman against a wall and reaching inside her shirt to touch her bare breast;
  • a man who uses threats to force a woman to kiss his exposed penis; or
  • making someone masturbate in front of you.

 

 

What evidence will the Prosecutor use to try to prove a charge of sexual battery on an institutionalized victim?

This is an offense under Penal Code 234.4(b), and requires the Prosecutor to prove the following elements beyond reasonable doubt:

 

  1. that the alleged victim was institutionalized for medical treatment and was seriously disabled or medically incapacitated;
  2. that, while the victim was in that state, the defendant touched an intimate part of them, or caused them to touch their own intimate part, or one of your own, or someone else’s;
  3. that the touching was done against the person’s will; and
  4. that the touching was done for the purpose of sexual arousal, sexual gratification, or sexual abuse.

 

This offense requires proof of similar elements to felony sexual battery, except that in this case instead of proving that the victim was unlawfully restrained, the prosecution must prove that the victim was incapacitated in another way – by being in an institution for medical treatment and either disabled, or medically incapacitated.

 

Institutionalized

A person is institutionalized if they are a patient “in a hospital, medical treatment facility, nursing home, acute care facility, or mental hospital.”[7]

 

Seriously disabled

The alleged victim is considered to be seriously disabled if they have “severe physical or sensory disabilities”[8] – this would include things such as a disability that prevents them from being able to walk, or being deaf or blind.

 

Medically incapacitated

Someone is medically incapacitated if they are unable to function normally because of “prescribed sedatives, anesthesia, or other medication.”[9]

 

An example of a sexual battery on an institutionalized victim is where a doctor, while a patient is under anesthetic, touches that patient’s genitals directly (that is, not through their clothing), and does so to sexually arouse themselves.

 

What evidence will the Prosecutor use to try to prove a charge of sexual battery by fraudulent representation?

This is an offense under Penal Code 243.4(c). If the Prosecutor brings this charge against you, they are alleging that you tricked someone into thinking that some kind of sexual touching was actually for a valid, professional purpose. They must prove the following elements beyond reasonable doubt:

 

  1. that you touched an intimate part of the alleged victim’s body;
  2. that the touching was done for the purpose of sexual arousal, sexual gratification, or sexual abuse;
  3. that you fraudulently represented that the touching served a professional purpose; and
  4. that the alleged victim was not conscious of the sexual nature of the act because of the fraudulent representation.

 

This is also similar to felony sexual battery but in this offense, instead of the victim being unlawfully restrained, the defendant tricks them into thinking that the touching is for professional reasons, and the victim is not aware of the sexual nature of the touching.

 

For example, consider a case where a masseuse is consulting with a client prior to a massage. The client tells the masseuse which areas of their body are sore or tense, and the masseuse determines what kind of massage to perform. The masseuse gives the client false information when explaining the massage, and tells the client that it would be beneficial to massage their buttocks, when really that area has nothing to do with the client’s needs. The client believes what the masseuse tells them, however, and allows them to perform the massage, including touching and massaging their bare buttocks. The masseuse is aroused during the massage, but the client is unaware. In this situation, a sexual battery has occurred.

 

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

If you are facing a charge of sexual penetration by force, fear, or threats under Penal Code Section 289(a)(1), (2) or (g), then the Prosecutor will need evidence to prove beyond reasonable doubt that:

 

  1. you committed an act of sexual penetration with someone else;
  2. the penetration was accomplished using a foreign object, substance, instrument, device, or unknown object;
  3. the person did not consent to the act of penetration; and
  4. you accomplished the act of penetration 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.

 

Sexual penetration

For this crime to occur, the Prosecutor needs to prove that some object was used to penetrate the genitals or anus of the victim. The penetration can be very minor, but there must be actual penetration – for example, touching or fondling is not enough.

 

It is important to note that the penetration does not just have to be by the defendant of the victim. This offense also covers the following acts:

  • causing the victim to penetrate the defendant’s genital or anal opening; and
  • causing the victim to penetrate their own genital or anal opening.

 

Further, the sexual penetration must be for the purpose of sexual arousal, sexual gratification, or sexual abuse.

 

Foreign object, substance, instrument, device, or unknown object

This offense can be done with any kind of object or substance – including by an object that the victim is unable to identify. For example, a woman may report to the police that she was attacked by an unknown man and that, during the attack, she felt something penetrate her vagina but she did not know what it was. In a case like that, the defendant could still be charged with this offense of forcible sexual penetration.

 

For the purposes of this offense, a person’s finger counts as a ‘foreign object’. Further, even if the victim was actually penetrated by the defendant’s penis but they can’t be sure, then the defendant can be charged with this offense as opposed to rape (which requires penetration by the penis) – in effect, this offense allows the Prosecutor some leeway if proof of penile penetration is difficult.

 

Did not consent

The Prosecutor must prove that the person did not consent to the act of sexual penetration. To consent simply means to “act freely and voluntarily” and to know the nature of the act that the person is participating in.[10]

 

The simple definition of consent, however, does not mean that this is a simple issue – in fact, the lack of consent is an element that is often at the center of the crime of forcible sexual penetration, and it is usually the most contested issue in these cases. 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 any sexual acts.

 

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 go any further”. They continue kissing for some time, he again tries to put his hand up her skirt, and this time he manages to push her underwear aside and penetrate her vagina slightly with his finger. Just because the woman was in a dating relationship with the man, and just because she had consented to kissing and having her breasts fondled by the man, does not mean that she consented to his touching or penetrating her vagina.

 

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 some kind of sex offense happened. Rather, there are many cases where two people engage in sexual behavior – whether they have intercourse or not – 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 forcible sexual penetration if he actually and reasonably believed the woman was consenting.

 

Accomplished penetration by force

A person is sexually penetrated without their consent by the use of force if the defendant uses enough force to “overcome the person’s will”[11]. A great amount of violence does not have to be used, but enough that the person is overcome. It is important to note, though, that the law does not require the Prosecutor to prove that the victim struggled or fought the defendant[12] – even if the person freezes, or otherwise does not resist at all, the defendant can still be found guilty.

 

The law in relation to this offense of forcible penetration is the same as for the offense 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.”[13] So the question for the jury in a case where forcible penetration is alleged is “whether [the] defendant used force to accomplish [penetration] … against her will, not whether the force he used overcame [the woman’s] physical strength or ability to resist him.”[14]

 

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

 

Accomplished penetration by 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 objection to performing certain sex acts with him, or if a stranger overpowers a woman in an alleyway and violently assaults her, and the assault goes on to include an act of sexual penetration.

 

Accomplished penetration by 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 [they] would not do otherwise.”[15] If a case like this goes to trial, then the jury must consider all of the surrounding circumstances, including the alleged victim’s age and their relationship to the defendant.

 

For example, consider a case where a defendant is alleged to have said to a woman, “If you don’t let me finger you, 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 penetration by menace

If the Prosecutor alleges that you committed this offense by using menace, they are alleging that you did something that constituted a “threat, statement, or act showing an intent to injure someone”[16]. The threat can be against the alleged victim, or it could be made against someone else – for example, a threat to hurt a family member of the victim.

 

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 victim in fear that they, 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 victim, or against someone else, in circumstances where there is a reasonable possibility that they 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”[17]. This means that it does not include threats of non-physical harm, such as damage to a victim’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 victim reasonably believed they were a public official. A public official is “a person employed by federal, state, or local government who has authority to incarcerate, arrest, or deport.”[18]

 

The Prosecutor must then prove that the defendant threatened to use their authority to incarcerate, arrest, or deport the victim if they did not cooperate with the defendant. 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 he’ll forget about it if she “fools around with him” in the back of the car, and during that time forces her to masturbate herself while he watches, then he may be guilty of this offense.

 

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

If you are charged with forcible sexual penetration in concert under Penal Code 289(a)(1) and 264.1, the Prosecutor is alleging that you participated in an act of forcible sexual penetration with at least one other offender – whether or not you had actually penetrated 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 a forcible sexual penetration and voluntarily acted with someone else who helped you to commit the offense; OR
  2. that you voluntarily helped someone to commit an act of forcible sexual.

 

Forcible sexual penetration

So, the first thing that the Prosecutor must prove is that an act of forcible sexual penetration occurred – that is, that at least one of the alleged offenders penetrated the victim without their consent. This means that they must prove all of the elements of the crime of sexual penetration force, as we have outlined above.

 

Voluntarily

All the people who are charged with participating in a sexual penetration 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 sexual penetration

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 forcible sexual penetration in concert, the person who does something to help the person who actually commits the act is also guilty of the offense, even if they never penetrated 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.[19]

 

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.”[20]

 

An example of an act of forcible sexual penetration committed in concert could be where a man asks another man to help him commit an assault on a woman. 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 found a dildo in the room and he wants to “see if she can take it”, and asks him to guard the door to the room so 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 sexually assaulted, he continues to guard the door and stops other people from entering. Both the man who actually committed the attack – including any act of forcible sexual penetration with the dildo – and his friend, who guarded the door, could be found guilty of this offense.

 

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

If you are accused of committing an act of sexual penetration upon an intoxicated person, under Penal Code 289(e), the Prosecutor will need to bring evidence to prove these elements beyond reasonable doubt:

 

  1. that you committed an act of sexual penetration with someone else;
  2. that the penetration was accomplished using a foreign object, substance, instrument, device, or unknown object;
  3. that the effect of an intoxicating, anesthetic, or controlled substance prevented the person from resisting; and
  4. that you knew or reasonably should have known that the effect of the substance prevented the person from resisting.

 

Sexual penetration

As with any kind of offense of sexual penetration, actual penetration must have occurred. This means that the Prosecutor must prove that there was some penetration of the woman’s vagina or genitalia, or of a person’s anus. The Prosecution must also prove that the penetration was done for the defendant’s sexual arousal, sexual gratification, or for sexual abuse.

 

Foreign object, substance, instrument, device, or unknown object

This offense can be done with any kind of object or substance – and even by an object that the victim is unable to identify.

 

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 alleged victim had consumed, taken, or been given one of these substances – they must show that, at the time the act of sexual penetration happened, they were 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.[21] This is defined as being able to “understand and weigh the physical nature of the act, its moral character, and probable consequences.”[22]

 

So, despite the use of the word ‘resisting’, this element is not restricted to considering whether or not a victim could physically resist. This offense also covers situations where, for example, the victim may have had the physical capacity to resist but they did not really know or fully appreciate what was happening because of how intoxicated they were. This element is really concerned with whether or not the victim 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 let the man accompany her home, and voluntarily gets into a taxi with him. She falls asleep during the ride back to her house, but he wakes her up when they reach the house and he takes her inside. They go into her bedroom where they are talking, joking around, kissing, and begin 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 fully undresses the woman before using the woman’s vibrator to penetrate her vagina. In those circumstances, a jury might conclude that the woman was so drunk that she could not have given legal consent to the sexual act that occurred, and that the man was guilty of forcible sexual penetration.

 

 

 

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 engage in sexual behavior with someone who is drunk or under the influence of drugs. Rather, people who have drunk alcohol or voluntarily taken drugs engage in consensual sexual acts all of the time.

 

In a recent case that Summit Defense Attorneys defended, our client was accused of forcibly penetrating an intoxicated woman after meeting her at a party one night. She had agreed to get a lift home with him and, during the ride home, he had pulled the car over and they engaged in kissing and fondling, including the man fondling the woman’s vagina, and then intercourse. He then drove her home. The next day, the woman made a complaint to the police and our client was later charged with several offenses, including forcible sexual penetration.

 

Our client contacted us shortly after he was charged, and told us that he was sure that the woman had consented to all of the sexual acts that they had engaged in. 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, where the woman had held his hand and placed it under her skirt, and seemed to have enjoyed the sex. 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 our client being on top of her in the back seat of the car. According to her, she did not want to “do anything sexual” 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 sexual penetration of an unconscious person?

If you are charged under Penal Code 289(d) with sexual penetration of an unconscious person, the Prosecutor must prove beyond reasonable doubt:

 

  1. that you committed an act of sexual penetration with someone else;
  2. that the penetration was accomplished using a foreign object, substance, instrument, device, or unknown object;
  3. that the person was unable to resist because they were unconscious of the nature of the act; and
  4. that you knew that the person was unable to resist because they were unconscious of the nature of the act.

 

Sexual penetration

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

 

Foreign object, substance, instrument, device, or unknown object

Again, this offense can be done with any kind of object or substance – and including by an object that the victim is unable to identify.

 

Unable to resist

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

 

Unconscious of the nature of the act

There are several ways in which the law says a victim could be ‘unconscious’ of the fact that the accused person was sexually penetrating. These include:

  • they were unconscious;
  • they were asleep;
  • they were otherwise not aware the act was occurring;
  • they were not aware of the ‘essential characteristics’ of the act because the accused tricked them, lied to them, or otherwise concealed information from them;
  • they were 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.[23]

 

So, for example, it is illegal to sexually penetrate someone 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 sexual penetration was actually part of 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 sexual penetration because they were unconscious. Unlike the offense of sexual penetration 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 sexual penetration of a disabled person?

If you are charged with the sexual penetration of a disabled person under Penal Code 289(b), the Prosecutor is required to prove the following elements beyond reasonable doubt:

 

  1. that you committed an act of sexual penetration with someone else;
  2. that the penetration was accomplished using a foreign object, substance, instrument, device, or unknown object;
  3. that the person had a mental disorder, or a physical or mental disability, that prevented them from legally consenting; and
  4. 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 penetration of some degree actually occurred.

 

Foreign object, substance, instrument, device, or unknown object

This offense can be done with any kind of object or substance – and even by an object that the victim is unable to identify.

 

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 someone from being able to consent to sex acts, including sexual penetration.[24] 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 man with severe cerebral palsy and a relatively severe form of autism would be very unlikely to be able to give legal consent to any kind of sex act or sexual penetration. 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 their mental state is not constant. With that kind of condition, they 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 victim was suffering from effects of the mental illness at the time of the incident such that they were 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 victim had a disorder or disability, and also that the disorder or disability prevented them from consenting.

 

This means that it is a defense to this charge if the defendant did not know that the victim had a disorder or disability, or if they actually and reasonably believed that the victim was capable of consenting. Consider, for example, a man who suffers from a mental illness that causes him to have delusions and think that he is someone else. If he engages in sexual activity with another man during one of those periods when he is suffering from delusions he might not be capable of legally consenting to any sex act or form of penetration, but if the other man was not familiar with his illness (or if he did not  know that the victim had one) then it may also be quite reasonable for the man to believe that he was able to consent. In that case, the other man would not be guilty of sexual penetration of a person with a mental disability.

 

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

If you are charged under Penal Code 289(f) with sexual penetration by fraud, the Prosecutor is alleging that you somehow tricked a person into thinking that you were someone who was known to them, and they therefore agreed to commit an act of sexual penetration with you. To prove this offense the Prosecutor has to prove beyond reasonable doubt that:

 

  1. you committed an act of sexual penetration with someone else;
  2. the penetration was accomplished using a foreign object, substance, instrument, device, or unknown object;
  3. the victim submitted to the act because they thought you were someone else, who was known to them;
  4. you made the victim think that you were someone else by any artifice, pretence, or concealment, intending to make them believe you were someone else.

 

Sexual penetration

The Prosecutor must prove that sexual penetration actually occurred.

 

 

 

Foreign object, substance, instrument, device, or unknown object

This offense can be done with any kind of object or substance – and even by an object that the victim is unable to identify.

 

Believed you were someone else

The Prosecutor will have to show that the victim really did believe that the defendant was someone else at the time that the sexual penetration occurred.

 

Used artifice, pretense, or concealment

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 victim to have simply been mistaken about who she was having sex with – the Prosecutor must prove that the defendant did something dishonest that led the victim to believe that they were someone else.

 

For example, consider a man and a woman who have gone to bed together after a party one night, and several of the man’s friends are still socializing in the lounge room. The man and the woman are in bed together, the lights are out, and they are making out and undressing. The man gets out of bed to go to the toilet. While he is out of the room, one of the man’s friends – who is of a similar build and height to him – comes into the room. He doesn’t say anything, and gets into bed with the woman and starts kissing and touching her. He knows that the woman thinks that he is the other man, his friend, but he does not say anything or turn the light on. While they are kissing and touching, he fondles the woman’s buttocks and penetrates her anus slightly with his finger. When the other man comes back into the room, he turns the light on, and the woman is shocked to discover who is in bed with her. In this situation, the second man may have committed the kind of fraud required to establish this offense.

 

What is the difference between forcible sexual penetration and sexual battery?

The basic difference between these two offenses is that, to prove any charge of sexual penetration, the prosecution has to establish that some kind of penetration of the victim’s genitals or anus took place. That is not so in a sexual battery case, which simply requires some touching of intimate parts. This makes forcible sexual penetration the more serious of the two offenses.

 

It is common, however, for both of these offenses to be charged together, especially in cases where the Prosecutor might want to ‘cover all their bases’. Further, there is often a fine line between the kinds of acts that will constitute a felony sexual battery and sexual penetration. For example, the victim might accuse the defendant of putting his hand inside her underwear and fondling her. If proved, such an act could be sexual battery, but the prosecution might also charge forcible sexual penetration if the victim suggests that the defendant penetrated her in any way with his fingers.

 

 

What is the difference between rape and forcible sexual penetration?

Both rape and forcible sexual penetration are very serious offenses, and the law treats them as being basically equivalent in gravity. The difference between the two offenses is only the question of what was used to penetrate the victim.

 

In a rape case, the Prosecutor must be able to prove that the defendant had sexual intercourse with the victim – that is, that he penetrated the victim with his penis. In a sexual penetration matter, however, the Prosecutor only has to prove that some kind of penetration occurred, no matter what the object or substance used. It is common for both of these charges to be filed together, and it also means that the charge of forcible sexual penetration will be relied upon in those cases where sexual intercourse did not occur, or where the victim is not sure whether it did or not.

 

What defenses can I use to fight a sexual battery or sexual penetration charge?

There are many different defenses that can be used to fight sexual battery and sexual penetration 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 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.

 

Many of the defenses available can be used for either kind of charge, but some are specific only to a charge of sexual penetration – as we will explain below.

 

I didn’t do it!

Maybe the victim has falsely accused you, maybe you did not  have any sexual contact 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 sex offense 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 sex offense accusation 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 can ruin your life. That is why you need the right attorney – if you have been falsely accused of any sex offense, 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 early investigative work in a case is. Our client was a massage and sexual therapist who was accused of rape and forcible sexual penetration 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, was happy with our client’s services, and made no allegation of unwanted sexual contact.

 

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 sex offense matters. If the evidence that the Prosecutor is relying upon in your case is not adequate, you need an expert lawyer 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 the 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 record of having charges withdrawn and winning trials in sex offense 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. In these kinds of matters, the case often comes 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 committed a sexual battery or forcibly sexually penetrated her in her home. Even if she raises the allegation shortly after she says the incident happened, there will probably be no forensic evidence. This is because, in a lot of these cases, you would not expect there to be – if no intercourse is alleged, then there will probably be no sperm. This means that the chances of finding any DNA at all are very small, or  non-existent depending on the details of what is alleged. The woman might not have been injured in any visible way, and there are probably no witnesses who saw or heard anything relevant to the accusations. There really is nothing to prove that anything happened, apart from that woman’s word.

 

Unfortunately, this means that it is incredibly easy for someone to make a false allegation. And, instead of these cases rarely resulting in charges being filed, we know that the prosecution will still often go ahead and file. This means that it’s not enough to simply point out the lack of evidence 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 – this is because those laws also apply to cases where forcible sexual penetration is alleged. 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 evidence about the victim that can still be brought up in forcible penetration cases, in this section.

 

It was an accident! There was no sexual intent!

To prove any of the sexual battery or sexual penetration offenses, the Prosecutor must prove that the defendant’s actions were sexually motivated. That is, they must prove that when the defendant touched or penetrated the alleged victim, they did so for the purposes of sexual arousal, gratification, or abuse.

 

There are, however, many cases where some kind of physical contact occurs between two people that was either accidental, or where the contact was not sexual. Don’t forget that the prosecution has to prove every element of an offense beyond reasonable doubt – so, if they cannot prove that the defendant was sexually motivated, then any of these charges will fail.

 

Consider an example of two people on a crowded bus or train. There is a lot of jostling around as people try to fit, and when they stop, people bump into each other. If a man was rubbing up against the backside of another passenger, a woman, during that time, that might upset or offend the passenger – but it was very likely that, in the crowded circumstances, the man couldn’t help it! In that kind of situation, the man would have a defense to any sexual battery allegation – the contact with the woman passenger was accidental, and there was no sexual intent behind his actions.

 

This defense also applies to allegations of sexual penetration. For example, consider a case where a doctor or nurse is giving someone an examination around the genital or buttocks area. If they have to perform some kind of penetration to properly complete the examination, then he or she has not committed any crime. Even if the patient is later upset about it, the penetration was not done with any sexual intent, so the professional has a defense to any accusations.

 

It wasn’t me! Mistaken identity and false identification

Yes, there are sex offenses that occur where the victim knows the defendant. However, there are also many cases where a total stranger attacked the victim, or where the circumstances mean that the identity of the attacker is in question. Like any other kind of criminal matter, claims of mistaken identity and false identification happen in all sex offense cases. Memories are notoriously unreliable and, in the case of people who have suffered a significant trauma like a sexual assault, 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 sex assault 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.

 

Several of our clients have, tragically, been the subject of false accusations. For example, in one case that we handled, our client was a suspect in a series of sexual battery offenses that were committed in shopping malls. The police were investigating the case of a man who had, on several occasions, followed women around inside clothing and department stores and groped them. This happened several times in one weekend at one particular department store, and the in-store security personnel alerted the police. CCTV footage was examined, but the identity and features of the man were hard to discern because the footage was grainy, he kept his head down, was wearing a baseball cap and sunglasses, as well as a jacket and scarf. The descriptions given by the victims were all very vague.

 

In the week or so following these reported incidents, in-store security was obviously on high alert. Another incident was reported by a young woman the following weekend and, on that day, our client was in the department store. He was apprehended by in-store security as fitting the description of the man. The police attended the store, and took our client to the police station where he was charged in relation to all of the attacks. Our client said nothing to the police, but called us immediately from the police station.

 

Our client told us that he had not committed these offenses and that, moreover, he had been out of town visiting his brother the previous weekend. We immediately obtained a statement from his brother to prove that, and were able to examine the CCTV footage of all of the attacks. While our client was dressed in a similar way to the attacker, we were able to subpoena the footage covering the whole of the store from the time of the incidents – and, upon viewing that, could show that our client was elsewhere in the store when the incidents occurred. Without our intervention, however, it is unlikely that the police would have bothered to watch those hours of footage from all of the other cameras!

 

This case shows just how misleading evidence can be, especially when the police pick and choose which parts to look at. And this is why every defendant needs a committed defense lawyer on their 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 sexual activity 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 when the sexual activity was actually consensual. In other cases, someone might make a false allegation because they are motivated by jealousy, anger, a desire for revenge, or  some perceived need to protect themselves or their reputation.

 

At Summit Defense Attorneys, we have dealt with many matters where our clients had engaged in consensual sexual activity with someone but were later wrongly accused of an offense. These 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 defended, our client was accused of ‘date rape’ and had charges filed against him that included rape and forcible sexual penetration. 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 gone back to her house where they engaged in sexual activity, including 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”. She alleged that, back at her house, our client had penetrated her with his finger, and 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. Further, there was no forensic evidence that supported the woman’s complaint. 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.

 

I honestly believed that she was consenting!

The law very clearly provides a defense to charges of sexual penetration if you “actually and reasonably believed that the woman consented” to the act. Once this belief of the defendant is raised, the burden then falls on the Prosecutor to disprove it – in fact, a 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 other person consented. If the People have not met this burden, you must find the defendant not guilty.”[25]

 

When this defense is raised, the judge or the jury must consider all of the relevant circumstances. For example, what was the alleged victim 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 victim 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 because the woman has made it clear that she didn’t want to yet. 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 are kissing and touching each other. The man takes the woman’s underwear off, gets on top of her, and starts to rub his penis against her vagina. The woman says “stop it, you know I don’t want to have sex.” The man, instead, uses his finger to penetrate the woman’s vagina. The woman says nothing further, and doesn’t try to move his hand away.

 

In that kind of situation, it could be considered perfectly reasonable for the man to think that while the woman was refusing to have intercourse with him, she was okay with other acts that they had done together before. Even if the woman later says that she didn’t want to engage in any sexual activity at all, the man would be able to raise the defense of his reasonable belief in her consent.

 

Unfortunately, there are cases where someone might not want to engage in sex acts with another person, or might not be sure if they want to, but they do not communicate that clearly to the other person. In those kinds of cases, the law recognizes that it would be completely unjust to convict a person of forcible sexual penetration 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.

 

I thought she could consent!

If you are facing an allegation of forcibly penetrating someone who was intoxicated, under the influence of a drug, or disabled, then the Prosecutor is alleging that the person was actually unable to consent to the act because of their condition. However, it is a defense to any one of those charges if you reasonably believed that the person 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 defendant is not guilty of this crime if [he or she] actually and reasonably believed that the person was capable of consenting to the act, even if the defendant’s belief was wrong. 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.”[26] 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 other person was capable of consenting. We will show, based on the relationship you had with that person, 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 sex offense cases 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 was out at a gay nightclub. The club was crowded, almost everyone was drinking, and some people were using drugs. Our client met a man there, and they were seen talking and dancing together by many people at the club. Our client later went back to that man’s house, where they had a few drinks and took some cocaine, and as our client described it, “mucked around a bit”. The man told our client that he thought he was bisexual, but that he’d never had sex with a man before. They did not have intercourse, but our client penetrated the other man with his fingers. Our client was certain that the other man had consented to the activity, and he described him as “taking part in it, equally”. After some time the man fell asleep, and our client left shortly afterwards and went back to his house.

 

The following day, the other man texted our client and wrote “I can’t believe you did that to me – I was high, and you took advantage of me!” The man also made a report to the police saying that when they were in his house together, our client had “forced himself” on him. The man also told police that he was not gay, and that he had made that clear to our client, and that he was just being friendly.

 

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 club that confirmed the man had been talking to and dancing with our client, and that they had happily left the club together. That evidence, along with our client’s statement about what had happened during the time they were in the other man’s home, meant that we were able to persuade the DA that our client had an overwhelmingly credible defense, and they agreed to drop the matter completely.

 

Do the ‘rape shield’ laws apply in sexual battery or forcible sexual penetration cases?

Those laws do not apply in sexual battery cases, but they do apply in cases where sexual penetration is alleged.

 

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

No – but these special rules of evidence mean that defending a charge of forcible sexual penetration 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 actually apply to not only rape cases, but also other serious sex offenses – including forcible sexual penetration. The rules are contained in California Evidence Code 1103 and, in general, they prevent the defendant in a trial for a sexual penetration charge from introducing evidence about the past sexual conduct of the alleged victim if that evidence will be used to try to prove that they consented in the current matter.[27] 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 they consented in the current case.[28] 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”[29]. It was also believed that these laws could encourage reporting of sexual assaults “by limiting embarrassing trial inquiry into past sexual conduct.”[30]

 

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 sexual activity with the defendant, a fellow student.
  • testimony from previous sexual partners that a woman liked certain sexual activities.
  • 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 person’s sexual history or of what they were 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 lawyers know how to persuade the judge to allow important evidence to go before the jury in these cases. For example, consider the example outlined above where our client was accused of sexually penetrating another man, who later claimed that he did not consent and that he was not gay. In that case, we had obtained evidence that demonstrated that the alleged victim had, in fact, engaged in same-sex sexual activity previously. We were able to show that evidence to the DA in our negotiations, and they agreed that the evidence would probably be allowed if the matter had gone to trial. It was yet another piece of evidence that helped us to resolve that matter in our client’s favor.

 

 

SECTION C – PENALTIES

Early intervention is key, and at Summit Defense Attorneys, our ultimate goal is always the complete dismissal of charges against you. 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. And 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.

 

What are the penalties for sexual battery?

The penalties that apply in sexual battery cases will differ depending on whether the conviction is for a misdemeanor sexual battery, or for a felony matter. The judge will also take into account the particular circumstances of the case, and whether you have any criminal history at all.

 

If you are convicted of a misdemeanor sexual battery, the maximum penalties include:

  • up to six months in jail;
  • a fine of $2,000, or $3,000 if the victim is your employee;
  • informal/summary probation, of up to five years.[31]

 

The penalties for felony sexual battery are more serious, and can apply to sexual battery where there was unlawful restraint, or where the victim was institutionalized, incapacitated, or disabled, or where there was some fraud used. The maximum penalties include:

  • formal probation;
  • up to two, three, or four years in state prison;
  • if the victim sustains a great bodily injury, a possible additional three to five years in state prison; and

– a fine of up to $10,000.

 

What are the penalties for forcible sexual penetration?

The penalties for sexual penetration 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 some kind of sex 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 sexual penetration can vary widely, depending on the case you are able to put before the judge.

 

A conviction for any of the various forcible sexual penetration offenses can carry a lengthy prison sentence. The penalties can include:

  • a maximum sentence of three, six, or eight years in state prison; and
  • a fine of up to $10,000.

 

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 is a minor between the ages of 14 and 18, the maximum penalty increases to six, eight, or ten years in prison.
  • if the victim is a minor under the age of 14 years, the maximum penalty goes up to eight, ten, or twelve years in prison.

 

These are the maximum penalties that apply to a sexual penetration 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.

 

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 the case of sex offenses – 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 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 sexual battery or forcible sexual penetration?

There are two other significant consequences that can follow on from a sex offense 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 sexual penetration can count as a strike if you are convicted.

 

Sex offender registration

A conviction for most types of sexual penetration by force, as well as a felony sexual battery conviction, will mean that you have to register as a sex offender.[32] At Summit Defense Attorneys, we recognize how debilitating lifetime registration is, and will do everything possible to help you avoid having to register as a sex offender.

 

If you are facing an accusation of felony sexual battery or sexual penetration, and potential lifetime registration, you should get the help of an attorney who is experienced in the area. And  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 243.4(e)(2).

[2] California Penal Code 243.4(g)(1).

[3] Judicial Council of California Criminal Jury Instructions, Instruction 935.

[4] Judicial Council of California Criminal Jury Instructions, Instruction 935.

[5] Judicial Council of California Criminal Jury Instructions, Instruction 935.

[6] Judicial Council of California Criminal Jury Instructions, Instruction 935.

[7] Judicial Council of California Criminal Jury Instructions, Instruction 936.

[8] Judicial Council of California Criminal Jury Instructions, Instruction 936.

[9] Judicial Council of California Criminal Jury Instructions, Instruction 936.

[10] Judicial Council of California Criminal Jury Instructions, Instruction 937.

[11] Judicial Council of California Criminal Jury Instructions, Instruction 937.

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

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

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

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

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

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

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

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

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

[21] Judicial Council of California Criminal Jury Instructions, Instruction 1047.

[22] Judicial Council of California Criminal Jury Instructions, Instruction 1047.

[23] Judicial Council of California Criminal Jury Instructions, Instruction 1048.

[24] Judicial Council of California Criminal Jury Instructions, Instruction 1048.

[25] Judicial Council of California Criminal Jury Instructions, Instruction 1045.

[26] Judicial Council of California Criminal Jury Instructions, Instruction 1047.

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

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

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

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

[31] California Penal Code 243.4(e)(1).

[32] California Penal Code 290.