Rape

HOW DOES THE PROSECUTION PROVE THAT I AM GUILTY OF RAPE

Under Penal Code section 261, rape is nonconsensual sexual intercourse by means of force, threat of force, or fraud or deception.  In order to prove rape, the prosecution has to establish beyond a reasonable doubt that a) you engaged in sexual intercourse with another person; b) at the time of said sexual intercourse you were not married to the other person; c) the other person did not consent to the sexual intercourse; d) you were aware that the other person did not consent to the sexual intercourse; and e) you accomplished the sexual intercourse by one of the following: physical force, violence, duress, menace, fear of bodily harm, fear of retaliation, or fraud.

Sexual intercourse

Sexual intercourse is any penetration, no matter how slight and even if ejaculation does not occur.  Even if you quickly terminate the act after realizing that you no longer want to perform it, you have engaged in sexual intercourse for purposes of section 261.

Consent

Consent to sexual intercourse means performing the act freely and voluntarily and with full knowledge of its nature.  A lack of consent means performing the act against one’s will.   The following factors are important to consider in understanding consent: 

  • First, the fact that the accused and the alleged victim are dating, are married, or had been previously dating or been married does not mean that the alleged victim consented to the sexual intercourse. In such a scenario, additional evidence of consent would have to be presented by your defense attorney;
  • Second, the fact that the alleged victim requested, demanded, or suggested that you use a condom does not constitute consent.  But such a demand, request, or suggestion can be used by your defense attorney to argue that you reasonably believed the alleged victim consented.  Your reasonable belief that there was consent, even if that belief was erroneous, means that a crime of rape did not occur.
  • Third, rape can occur even if the alleged victim initially consented to and engaged in sexual intercourse and later withdrew that consent. In other words, consensual sexual intercourse can turn into rape if at any point the alleged victim withdraws her consent and you continue performing the act against her will. For withdrawal of consent to constitute rape, the following three things must occur: 1) the alleged victim communicates to the defendant that she objects to the sexual intercourse; 2) the alleged victim communicates this objection in a manner that any reasonable person would understand; 3) the alleged victim attempts to stop the sexual intercourse; and 4) the defendant continues the sexual intercourse regardless.

Consent under California’s Rape Shield Law

In order to protect the privacy of rape victims, California’s Rape Shield Law prohibits your defense attorney from introducing evidence of the alleged victim’s past sexual conduct or sexual reputation in order to establish that she consented to sexual intercourse with you.

Consent and an intoxicated victim

Under certain circumstances, a victim may be too incapacitated to give consent.  She might be unable to give consent due to a mental disorder or physical disability, or because she is unconscious or too intoxicated. If you knew or reasonably should have known of any such circumstances and you engaged in sexual intercourse with the victim, you can be charged with rape.

You “knew” that there was a lack of Consent

In addition to proving that the alleged victim did not consent, the prosecution must prove that you were aware of the lack of consent—i.e., that you did not actually and reasonably believe that the alleged victim consented.   For example, Joe and Jill are boyfriend and girlfriend.  Jill is interested S&M (sadomasochism) and regularly asks Joe to practice S&M during sex.  If Jill accuses Joe of rape, Joe can use Jill’s interest in S&M to argue that he actually and reasonably believed that Jill consented to the act of force during sex.

The prosecution need not show resistance

To establish rape, the prosecution need not prove that the victim tried to resist the forced act.   However, the alleged victim’s lack of resistance can be considered by the jury in determining whether the defendant actually and reasonably believed that he was engaging in consensual sexual intercourse.

PENALTIES FOR RAPE UNDER PENAL CODE 261

Rape under PC 261 is always charged as a felony.  If you are convicted of this offense, you are subject to the following: formal probation with up to a year of county jail (this sentence is typically only imposed if the alleged rape did not involve force or violence); or three (3), six (6), or eight (8) years of state prison.  You will also be subject to a maximum fine of $10,000 and a possible “strike” under California’s Three Strikes Law.  If the alleged victim sustained a great bodily injury during the commission of the rape, you will be subject to an additional (3) to (5) years of state prison.  If the alleged victim is a minor under the age of 18, then you face an increased state prison term of seven (7), nine (9), or eleven (11) years.  If the alleged victim is a minor under the age of 14, you face an increased prison term of (9), eleven (11), or thirteen (13) years.

In additional to the above penalties, a California rape conviction subjects you to the requirement that you register as a sex offender under Penal Code section 290.  This requirement applies for a lifetime and failure to abide by it is prosecuted as a separate felony.

DEFENSES TO RAPE UNDER PENAL CODE SECTION 261

Little or virtually no evidence is required to accuse somebody of rape.  For that reason, you need a zealous defense attorney who is going to explore any and all potential defenses on your behalf.  The following are some examples of legal defenses that your attorney should consider depending on the specific facts of your case:

  • You were falsely accused

A myriad of motives—including rage, jealousy, and anger—can lead a person to falsely accuse somebody of rape.  This is especially true when the alleged victim and the accused know each other or have had a sexual or romantic history together.

  • The alleged victim consented to the sexual intercourse

If the sexual intercourse was consensual, then no rape occurred.  As indicated above, the fact that the alleged victim and the accused were romantically involved does not in and of itself constitute consent.  Nor does the fact that the victim asked or suggested the accused to wear a condom during the sexual act.  However, a jury can consider these facts along with other facts to determine whether there was consent.

  • You actually and reasonably believed that the alleged victim consented to the sexual intercourse

If the alleged victim behaved in a manner that would have led any reasonable person to believe that she consented, and if you actually did believe that she consented, then you cannot be found guilty of rape.

  • There is insufficient evidence to show rape

Normally, an alleged victim’s allegations of rape, even if not supported or corroborated by additional evidence, are sufficient to warrant the filing of a rape charge.  “Corroborating” evidence in a rape case is any physical evidence showing intercourse or forced intercourse and the testimony of witnesses who may have heard or seen the act.  The lack of such evidence can be used as a bargaining tool by your attorney, as the prosecution sometimes has a difficult time proving the uncorroborated word of an alleged victim.

  • Mistaken eyewitness identification

The alleged victim may not have seen the face of her attacker and therefore may have provided erroneous eyewitness identification.

HOW NEGIN YAMINI CAN HELP YOU

Actual Case: In People v. Jesse J. (Case No. BA410402), the defendant, Mr. J., encountered his ex-girlfriend at a bar and witnessed her drink heavily.  Mr. J followed the young woman to her car and attempted to stop her from driving while intoxicated.  She resisted. According to three neutral and reliable eyewitnesses, Mr. J then picked her up against her will, took her into his car, and drove her to his trailer.  There, the two had sexual intercourse.  The following morning, Mr. J.’s ex-girlfriend left the trailer and walked into a nearby police station where she accused Mr. J. of rape. Mr. J. hired Negin Yamini to represent him.  Negin thoroughly examined the young woman’s Facebook and social media page and discovered that she had been “active” on Facebook at the precise time when she claimed she was being raped by Mr. J.  Negin used this information to undermine the credibility of the young woman’s at preliminary hearing.  Although Mr. J was held to answer to the charges, Negin artfully used said information to negotiate on behalf of Mr. J.  As a result of Negin’s relentless efforts, Mr. J received a sentence far less and more just than what he would have received otherwise.

Negin’s strategy:  Negin looks at every rape case as multilayered, with layers upon layers of fact and fiction.  Behind the alleged victim’s story is another story that remains to be discovered, and behind that story is yet another story that perhaps the cops and the prosecution did not employ the proper tactics or meticulousness to explore.  Negin employs this thoroughness and meticulousness to uncover every layer of fact and fiction in order to present to the prosecution a narrative that sheds her client in a more favorable light.

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