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Forcible Rape, Statutory Rape, Sexual Battery

Few criminal offenses can be more damaging to your reputation and your future than an alleged sex crime. Even a false allegation can result in severe consequences, including being fired even before you’ve even had your day in court.

If you’ve been arrested and charged with forcible rape, statutory rape or sexual battery or are under investigation, below is what you need to know about your charges, the consequences of conviction and defense strategies that could work in your case.

If you have any questions after reading this, or just want to get some advice, get in touch for a free consultation. Before I devoted myself full-time to criminal defense, I worked as a successful prosecutor with a high conviction rate and handled many sex crime prosecutions. Today I employ both my understanding of law enforcement investigative procedures and my insider’s knowledge of prosecutors’ litigation to successfully defend my clients against these same crimes.

Forcible Rape

What the Law Says

Rape is defined under Penal Code Section 261 as non-consensual sexual intercourse that is accomplished by force, threat or fraud. As this implies, forcible rape is much broader than many people realize. Many people presume it’s a product of one partner physically forcing sexual intercourse upon the other. However, Penal Code Section 261 does not require any resistance by the victim nor does it require any physical force by the accused person.

In these cases, the San Diego County prosecutor must establish by proof beyond a reasonable doubt a number of specific elements, including:

  • Penetration (no matter how slight)
  • Against the victim’s will (no consent)
  • Accomplished by use of force, fraud or threat

Regardless of the manner in which a forcible rape is carried out, the key determining factor in many rape cases is whether or not the victim gave consent or the act was against the complaining witness’ will. This doesn’t necessarily mean that the rape victim must struggle or physically fight off the sexual advances. Some common examples of forcible sexual intercourse that is not the product of consent might include the following:

  • Use of force, violence, duress, or threat of retaliation or to inflict injury
  • Employing fraud or deceit (such as tricking someone into believing that you’re not married)
  • Victim was unable to consent because of intoxication, mental impairment or lack of consciousness

The key element is that a reasonable person in the accused person’s shoes must have been able to determine that the complaining witness was not giving consent. If the person alleging rape initially gives consent but then changes his or her mind, they must communicate this withdrawal of consent in such a fashion that a reasonable person would know that consent was no longer being given.

Consequences of Conviction

A rape conviction can result in a maximum of 8 years in county jail or state prison. If certain specific circumstances apply, such as serious injury to the complaining witness, the term of incarceration can be even longer.

Defense Strategies

Although a rape charge is very serious, I successfully employ a number of defense strategies to obtain positive results. The most common is that the sex was consensual and that the complaining witness failed to communicate lack of consent in a way that a reasonable person would have understood.

Consent cannot simply be implied by the relationship between the parties—for example, by proof that they have had a prior sexual relationship. However, this information may be relevant to whether or not a lack of consent was communicated effectively. The victim does not need to physically resist the alleged rape, but his or her behavior is relevant to whether refusal was effectively communicated.

Other defense strategies include challenging the complaining witness’s identification of the perpetrator given that it may have been made in a poorly lit environment, while the witness was in a state of voluntary intoxication, and/or under extreme pressure and stress. Sometimes these allegations are also the product of jealousy, bitterness or ulterior motives; sometimes the rape charges are being used to gain a tactical advantage in divorce or child custody litigation.

I may also examine whether your constitutional rights have been violated and challenge the police investigation and the sufficiency of the prosecutor’s evidence.

The bottom line is if you’re facing a serious criminal charge like forcible rape, get legal advice from an experienced attorney immediately.

Statutory Rape

What the Law Says

This crime differs significantly from forcible rape because it doesn’t matter whether the complaining witness consented. The California Penal Code defines statutory rape as an adult engaging in sexual intercourse with someone under the age of 18. Penal Code Section 261.5 is also frequently referred to as “unlawful sex with a minor.”

In some respects, what the prosecutor must prove to establish statutory rape is similar to the above, except that consent is irrelevant if the purported victim meets the stated age requirement. The prosecutor does have to prove the ages of the alleged perpetrator and victim.

Consequences of Conviction

A conviction of statutory rape in San Diego under Penal Code Section 261.5 can result in harsh penalties, which vary depending on whether you are charged with the misdemeanor or felony offense. Some of the penalties for statutory rape include:

  • Misdemeanor Penalties

    • Maximum term of one year in county jail
    • Fine up to a maximum of $1000 plus applicable court fees
    • Informal probation
  • Felony Penalties

    • Minimum term of 16 months to a maximum term of four years in county jail or state prison
    • Fine up to a maximum of $10,000 plus applicable court fees
    • Formal probation

Defense Strategies

The most common and effective defense in statutory rape cases is that you honestly and reasonably believed the complaining witness was 18 or older. When defending my clients, I carefully examine the facts of your case to determine whether there is enough evidence to support your reasonable belief that the complaining witness was old enough to consent under the law, including such evidence as a false ID, minor drinking in a bar, statements made by the minor, or other evidence that would justify the honest belief the complaining witness was 18 or over.

Statutory rape is a “wobbler” under California law, which means it can be charged as a misdemeanor or a felony. If you’re fewer than three years older than the alleged victim, the crime will typically be charged as a misdemeanor, but if you’re more than three years older, it will typically be charged as a felony. If you are 21 or older and the complaining witness is 16 or under, the sex offense will be charged as a felony.

Sexual Battery

What the Law Says

If you’re charged with sexual battery (sometimes referred to as sexual assault) under Penal Code Section 243.4, you may be charged with either a misdemeanor or a felony. Under the California Penal Code, sexual battery involves touching the intimate parts of another against the complaining witness’ will or where consent was obtained by fraud. The offense also requires that your purpose for touching the purported victim is sexual arousal and/or gratification or to commit child abuse.

The felony version of sexual battery involves not only the requirements stated above but also that the contact be with the skin of the intimate parts of the complaining witness. A felony charge also involves the following scenarios:

  • Restrained victim
  • Victim tricked into believing the contact is for a legitimate professional purpose
  • Unconscious victim
  • The alleged victim is physically or mentally incapacitated

Consequences of Conviction

Whether you’re charged with a misdemeanor or felony, you face very serious penalties, including:

  • Misdemeanor Penalties

    • Maximum six-month term in county jail
    • Fine up to $2,000, or $3,000 if the purported victim was an employee, plus applicable court fees
    • Registration as a sex offender under Penal Code Section 290
    • Informal probation for up to 5 years
  • Felony Penalties

    • Maximum 4-year sentence in county jail or state prison
    • Formal probation
    • Maximum fine of up to $10,000 plus applicable court fees
    • Registration as a sex offender under Penal Code Section 290

Defense Strategies

If you’re charged with sexual battery or any of the crimes described above, do not speak to the police or prosecutor until you’ve obtained legal advice from an experienced criminal defense attorney with a successful track record in San Diego. Whether you decide to engage me or not, I invite you to contact me for a free consultation. We’ll go over the specifics of your case, discuss your charges and explore your legal options. I’ve successfully defended people just like you charged with serious sex offenses in San Diego, Riverside, San Bernardino, Imperial, Orange and Los Angeles counties, and I’m ready to put this experience to work on your behalf.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Copyright 2014 | Benjamin Theule Website. All Rights Reserved.