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AWARD WINNING SAN DIEGO CRIMINAL ATTORNEY

San Diego Rape Attorney

Traditionally, rape was an unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Nowadays, the California Penal under section 261 defines  the concept of rape as " an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under some specific circumstances." Usually, the common sense is to think that rape is a type of offense committed by physical force, fraud or threats. However, in California if man have sexual intercourse with a person without her/his consent, he could be face a rape conviction, even if he did not use force or threat.  Further, sexual intercourse is defined as a penetration, no matter how slight it is.

Example 1:

You went out on a date with a woman, in the end of the evening you brought her home and started to making out with her. Both of you are too drunk and she passes out, then you take her clothes off and started to have sex with her. You could be charged of rape, since she was not awake to give you consent.

Example 2:

Michelle had a discussion with her boyfriend, after the discussion, she went to a bar and met David. Michelle after having some drinks, she invited him to go to her house. They started to have sex, but in the middle of the sexual intercouse, Michelle felt guilty and asked David to stop, she did not want to have sex anymore. However,  he disregarded her will and kept having sex with her.

In this case, David could be charged and convicted of rape, since he had a reasonable knowledge that Michelle did not want to have sex anymore.

The section 261 established the following situation that could lead someone of a rape conviction: 

  • Have a sexual intercourse with a person is incapable to give legal consent and the person committing the act should be known about the disability.  The prosecution must prove the disability and incapability of the victim in court.  
  • Have a sexual intercourse where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
  • Have a sexual intercourse where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
  • Where a person is at the time of the sexual intercourse have unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim is unconscious or asleep, the victim was not aware that the act occurred, the victim was not aware about the act due the perpetrator's fraudulent representation that the sexual penetration served a professional purpose.
  • Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
  • Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
  • Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

As stated above, the Penal Code establish a extent types of illegal conducts that could lead someone to commit a rape in California.

Examples of rape:

  • A man having a sexual intercourse with a woman who is passed out on drugs.
  • A police officer mandating a woman to have sex with him in order to release her.
  • A doctor enforcing a patient to have sexual intercourse in order to have the cure of her illness.
  • A man that have sex while a woman is sleeping and unaware of the situation.

Legal Definition

In order for someone being convicted of rape, the prosecution need to prove into court the following elements of the crime:

  • The defendant engaged in sexual intercourse with another person.
  • The defendant was not married to the victim at the time.
  • Lack of effective consent of the victim.

            For a better understanding let's explain with details those elements of rape.

Sexual intercourse

Sexual intercourse is defined as penetration for purpose of rape, no matter how slight is the penetration and ejacutation is not necessary to complete this type crime, so long as there was a penetration.  The statute protects the victims regarding to unlawful act of sex, even if the sexual intercourse was consent by the victim and in the middle of the relation, the woman regrets the act and terminates the sexual act, in this case, the man could still face a rape charge.

Lack of effective consent

To determine whether or not the rape and the sexual violence occurred,  the sexual intercourse, the penetration, must be without consent of the victim. However, sometimes and in several situations, the consent of the victim is ineffective, for different types of reason, the victim consented but she is incapable or disable to understand the conduct of the defendant. If the victim is incapable of consenting, the intercouse is rape in California. Inability to consent may be caused by unconsciousness, by the effect of drugs or intoxicating substances, or by the victim's mental condition. If the victim is so insane or cognitively impaired as to be incapable of giving consent, intercouse with her constitutes rape.  Furthermore, consent is defined when another person gives positive cooperation in an act or attitude as an exercise of free will. In order for a woman exercise a positive consent of the sexual intercourse, she needs to do it freely and voluntarily with knowledge of the nature of the sexual conduct. 

It is important to explain some things to consider relating to the consent requirement.  First, the fact that you used to date someone or are dating or used to be married, it does not satisfy by itself consent. Furthermore,  just because you used to have a relationship with another person, it does not mean that you have consent to pursue a sexual intercourse with this person. As the same situation, if the victim asked, suggested or communicated to the defendant to use condom or use any type of contraceptive, it does not show by itself consent of the victim, the defense need to show more strong evidence that the victim actually gave free and voluntary consent.

Nonetheless, it does not mean that those type of evidence are not going to be consider into court. For instance, the request to use condom, it does not show direct consent of the victim, however this type of evidence may be helpful to show the defendant had reasonable belief that he had consent to about the sexual intercourse.

Additionally, if a woman consented to a sexual intercourse and changed her mind during the penetration, under the law, the intercourse could be considered a rape,  if the victim communicated through words or acts to the defendant that she no longer consented to the act and a reasonable person would have understood that the victim's words, or expressed show the lack of consent, it is going to be considered rape.

The defendant was not married to the victim at the time.

Under California rules, the woman must not have been married to the man committed the act for a rape occurred. If the victim and the defendant are married, and if the defendant committed a sexual intercouse without consent of his wife, this act is going to be considered as spouse rape in California, under the Penal Code 262 Pc.

Defendant must have known that there was a lack of consent

In a rape case, the prosecution must show into court that the defendant did not actually and reasonably believe that the victim had consent to the sexual intercourse. If the prosecution cannot prove under the beyond a reasonable doubt that the defendant did not have consent, the defendant could not be convicted of rape.

California rape laws apply to both men and women

At the common law and in others states, the rape crime is just considered when the victim is a woman. However, in California the crime of rape could be applied for both men and women.   For instance,  If a woman forced a man to have sexual intercourse, she could be convicted of under rape, Penal Code 261.

Furthermore, if a woman helped a man to rape another woman, she could be guilty of rape even if she did not have sexual intercourse with the victim. In California law, if a person aid or abet someone to commit rape, the aider could be considered a principal in a criminal rape and is punishable.

Penalties

Rape is always a felony under California rules, the punishment can include a probation, or imprisonment in a State prison up to 8 years, and a fine of ten thousand dollars ($10,000), or both fine and imprisonment.  Furthermore, the conviction could count as a strike offense in California.

Additionally, if the victim had suffered great bodily injury from the defendant's conduct, there is an additional three to five years in the state prison.

However, if the victim is a minor under 18, the penalty of imprisonment is going to aggravate from 7 to 11 years in a state prison. And if the victim is a minor under the age of 14 , the imprisonment could increase up to 13 years, depending on the case.

Penalties of rape are severe in California, additionally of the felony punishment , the defendant is going to face a sex offender registration for a lifetime.

Legal Defense

San Diego Criminal Attorney fights to built a strong defense to ensure our client's right. A rape conviction could destroy the reputation of an innocent person and our team works closely and respectful with our clients that were accused of rape.  As mentioned already rape is considered a felony in California, if a person is convicted with this type of crime, she/he will going to be registered as a sex offender. If you are looking for a job and the employer does a criminal background check and there is a sex offender registration, it is likely that the employer won't hire someone with a criminal background.  If you have been charged with this type of crime, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be used to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems. 

To contest the charges of rape, San Diego Criminal Attorney would be able to use the following legal defenses, if that is the case:

  • Wrongfully accused.
  • Consent.
  • Insufficient evidence.
  • Mistake identification.

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