San Diego Criminal Attorney is a highly ranked criminal defense law firm serving clients in the San Diego area. The attorneys are experts in California criminal law. They are prepared to defend clients charged with rape. Successful defenses in rape cases often hinge on the presence or absence of rape kit/exam evidence and factors like the accuser’s relationship with the defendant, the accuser’s motivations, and the accuser’s history. San Diego Criminal Attorney has the manpower and experience to identify all salient features of each case, so defendants may know that their legal representation is of the highest caliber.

What is Rape Under California Law?​

Rape is within the category of sexual assault (which includes lesser offenses of unwanted sexual contact). California law does not define “sexual intercourse” in the context of rape, but it does identify what acts may constitute rape: all forms of nonconsensual sexual assault, or any sexual penetration. Guilt is determined in light of the outrage to the victim’s person and the feelings of the victim of the rape. An act may be defined as rape per California state law if any of the following conditions are met:

  • The defendant acted with physical force, intimidation (including threats), or duress.
  • The alleged victim responded out of fear of possible bodily injury (or fear that another person would be injured).
  • The alleged victim lacked the capacity to consent (as a result of disability or intoxication).
  • The alleged victim was sleeping, unconscious, or for some other reason unaware that intercourse was occurring.
  • Rape by deception: The defendant initiated sexual relations by fraudulently representing himself/herself.
  • 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 offender will execute the threat.
  • The act is perpetrated against the alleged victim’s will via threats to use that authority of a public official to arrest, incarcerate, or deport the alleged victim or another person, and the victim has a reasonable belief that the offender is a public official.

In addition to the most commonly understood example of rape, in which one person forces sexual intercourse on a stranger, California penal code identifies the following types of rape crimes:

Spousal/Marital Rape - In California, it is possible for someone to rape his/her spouse. This crime is a felony and punishable as harshly as other types of rape. Spousal rape falls under the state’s rape law and its domestic violence law, so multiple punishments may occur for a single act. Examples of spousal rape include: a person using physical force so his/her spouse so he/she has sexual intercourse with him, a person performing a sex act on his/her unconscious spouse, and a spouse initiating a sex act using a threat (e.g., divorce that would lead to deportment).

Acquaintance/Date Rape - When two people are dating or voluntarily spending time together, nonconsensual intercourse may be defined as rape. Consent is negated by involuntary intoxication. For example, if the defendant administered alcohol or drugs that render the victim unable to consent to a sexual encounter, the defendant can be charged with rape even if the victim did not resist. Similarly, consent may be negated by voluntary intoxication: if the victim had voluntarily reached a point of intoxication that prevents him/her from resisting, the defendant may be charged with rape.

Statutory Rape - California state law also defines rape in the case of a minor when a defendant engages in sexual intercourse with a minor (18 and younger). The severity of the charge differs depending on the victim’s age as well as the age difference between the defendant and victim. Sexual intercourse between an adult and a minor might be an act sufficient for prosecution because the minor is not able to provide lawful consent. In such cases, the prosecutor need not prove that a defendant acted in a threatening or violent manner.

Oral Copulation by Force or Fear - If the copulation occurs as the result of force, violence, duress, menace, fear, or threat, or, if it occurs when one person is unable to consent (e.g., during unconsciousness or intoxication), it may be determined to be rape under California law.

Forcible Sexual Penetration with a Foreign Object  - Also known as “forcible sexual penetration,”  this crime is defined as committing an act of sexual penetration with another person where the penetration is accomplished using a foreign or unknown object, without the other person’s consent, through the use of force, violence, duress, menace, fear of immediate and unlawful bodily injury, or a threat to retaliate.

Punishments and Related Charges for Rape

Conviction for rape in California may result in a punishment including imprisonment for three, six, or eight years. For statutory rape, punishments depend on the age of the victim, and the imprisonment sentences are generally greater; and fines ($2,000-$25,000) are accompanying civil penalties. (Similarly, if the defendant acted in concert with another person when the rape was committed, imprisonment sentences are greater.)

Spousal/Marital Rape also falls under California’s domestic violence law, so a conviction may be accompanied by additional punishment.

An imprisonment sentence for rape may be extended by five years if the alleged victim suffered great bodily injury (e.g., bruising, broken bones, or other measurable physical injury).

A rape conviction counts as a “strike” on a criminal record under California’s Three Strikes law. A defendant previously convicted of one or more “strike” crimes may face harsher penalties: one prior “strike” may mean the doubling of the sentence for rape, and two prior “strikes” can may mean an imprisonment sentence of 25 years to life.

A rape conviction would require the defendant to register as a sex offender with local law enforcement officials for as long as he/she works or attends school in California. A registered sex offender’s name and personal information may be posted on the Megan’s Law website. If a convicted rapist fails to register as sex offender, he/she could encounter separate charges per California Penal Code Section 290. Failure to register as a sex offender after a conviction of is a felony, and punishable by imprisonment for up to three years.

Regarding the serving of prison time for rape, due to the crime’s “serious and violent” designation, imprisonment sentences will not be reduced to less than 85% regardless of the prisoner’s “good behavior” status.

How Is a Punishment for Rape Decided by the Court?

Anyone convicted of rape under California law will not be granted probation as punishment. The person must be sentenced to prison for either the low term of three years, the middle term of six years, or upper term of eight years. The court will review California Rules of Court 4.421 and 4.423 when determining a felony rape sentence.

The court will consider the “circumstances in aggravation” as pertain to rape. These include whether the crime: involved any act of great violence or bodily harm, the threat of any great bodily harm, or other acts revealing intention of viciousness, cruelty, or callousness; involved a large quantity of contraband; constitutes a hate crime.

“Circumstances in aggravation” also include whether the defendant: was armed with a weapon or used a weapon in the course of the crime; induced others to participate in the commission of the crime or occupied a position of leadership of other participants; induced a minor to commit or assist in the commission of the crime; threatened witnesses, prevented/dissuaded witnesses from testifying, suborned witness perjury, or somehow interfered with the judicial process; was convicted of any additional crimes (those for which consecutive sentences might have been imposed but are punished via concurrent sentences); took advantage of a position of trust or confidence to commit the offense.

A judge will consider aggravating factors that relate to the defendant’s history, including whether the defendant: has prior convictions (received during adulthood) or received petitions (as a child in juvenile proceedings) that increase in seriousness; has served any prison term in the past; was probation or parole when the crime was committed.

Mitigating circumstances are determined in light of whether the defendant: was a passive participant or played a minor role in the crime; participated in the alleged rape under circumstances of either coercion or duress, or his/her criminal activity may be partially excusable for another reason not amounting to a defense; was induced by others, with no evident predisposition otherwise to participate in the crime; mistakenly believed that your conduct was legal; was motivated by a desire to provide necessities for your family or self; suffered repeated/continuous physical, sexual, and/or psychological abuse that was inflicted by the alleged victim of the crime, and the victim of the crime was the spouse (or the intimate cohabitant), or parent of the accused’s child (and this abuse does not constitute a defense); exercised caution to prevent harm to persons or any damage to property, or no harm was done or threatened against the victim. Mitigating circumstances are also determined considering whether the victim was an initiator of, willing participant in, or aggressor/provoker of the alleged crime, and whether the alleged crime was committed in an unusual circumstance (e.g., great provocation) that is not likely to recur.

What Must Be Proved for a Conviction of Rape

A prosecutor must prove the following four things in order for a court to convict a defendant of rape under PC 261:

  1. The defendant and the victim had sexual intercourse with each other.
  2. The defendant was not married to the victim at the time of their intercourse.
  3. The victim did not consent to the intercourse.
  4. The defendant induced the intercourse by: (a) force or fear (force, violence, menace, duress, or fear of immediate and unlawful bodily injury); (b) threat of future bodily harm (e.g., a threat to retaliate in the future against the victim or another person); or (c) threat of official action (e.g., a threat to use the authority of a public figure to incarcerate, arrest, or deport).

If the victim consented to intercourse, but later changed his/her mind, a defendant may still be charged with rape if the victim communicated to the defendant that he/she objects to the intercourse and wished to stop, the victim communicated an objection through words or actions that a reasonable person would understand as her lack of consent, and the defendant forcibly continued the act of intercourse.

Common Defenses Against Rape Charges

The right to remain silent is the first defense available to someone accused of rape. Rape prosecution relies on witness statements, including the defendant’s own statements to police and others. Unlike on television shows, DNA evidence is not a factor in a large number of real rape cases. An accused person may have the proclivity to attempt to clear his/her name by talking with the police, child protective services investigators, or any other officials. However, this can hurt a defendant more than it may help, as law enforcement can use the defendant’s words to fit their case.

Taking a polygraph (“lie detector”) test may bolster a defendant’s case. A polygraph test result is rarely admissible in court, but it is nonetheless a commonly used tool for law enforcement to establish probable cause for an arrest or search warrant. The police may use a polygraph to elicit incriminating statements instead of truthful ones. A private polygraph examiner, however, retained via a defense attorney, is more likely to conduct a fair examination that produces results that may convince law enforcement to change their aim.

Forensic experts may assist in a defense. Police collect DNA samples from the alleged victim, any of the suspects, and the scene of an alleged offense. Experts may identify defects in the collection, analysis, and storage of evidence, creating grounds for suppression of evidence or dismissal of the case. State investigators might rely on digital evidence (such as photographs, emails, and text messages) in trying to make a case. Forensic analysis of the storage devices with which investigators obtained this evidence can be a key part of a successful defense.

Consider the accuser. In rape cases, the accuser’s motives or credibility are pivotally important to the strength of a state’s case against the defendant. If an accuser has a history of accusations against others, it calls that accuser’s reliability as a witness into question. Also, the relationship between accuser and defendant is very relevant; it raises questions about whether the accuser might benefit from the criminal conviction of the defendant. A successful defense can hinge on calling an accuser’s credibility into question.

Investigate possible influence of child witnesses. Child witnesses can present particular challenges in a rape case. A defense attorney should be careful to conduct a thorough investigation of the child’s statements and their circumstances; an effective defender also considers the sympathy the jury and the public is likely to hold for a child witness. Memory and understanding challenges can affect any child’s testimony. Children are more easily susceptible to suggestion — by parents, guardians, social workers, and others — that might call the reliability of the testimony into question.

Suppress evidence that violates the law. Evidence collected by police in a way that violates a defendant’s rights (e.g., via a warrantless search), can be subject to a motion by the defense to suppress. Evidence that is damaged, contaminated, or compromised, the court should reject. A defendant has a right to confront his/her accuser and review the evidence of the state. Protecting these rights demands a smart and aggressive defense.

Establishing Accuser Motivation:

Because sexual charges are often based on the word of the accuser, the background as well as the motivations of the alleged victim are very relevant in the defense of a rape accusation. These details can generate reasonable doubt in the jurors’ minds. It’s important to properly investigate and employ psychological experts in order to uncover facts that can prove useful to the defense.

It’s important to investigate the possibility that an accuser is lying about a consensual act. In order to determine whether an accuser is making a false charge of rape to conceal the fact that the sexual intercourse was consensual, evidence should be sought regarding these questions:

  • Did unusual phone activity occur after the alleged rape?
  • Were any text messages or emails sent, or social media posts created that suggest an assault occurred?
  • Are there any photos taken after the alleged assault — evidence that indicates the alleged assault did not happen as later described?
  • Have any witnesses come forward, alleging they observed the accuser’s demeanor after the alleged assault, or having heard him/her giving any relevant statements?
  • Is there any evidence that the accused and the accuser met again (after the alleged assault)?
  • Is there evidence the accused had consensual sexual relations with the accuser prior?
  • Had the accuser sought a medical exam after the alleged assault?
  • Might there be a financial motive for accusation?

Find a San Diego Criminal Attorney Specializing in Rape Cases Near Me

In order to build a proper defense, enlist the experts at a law firm like San Diego Criminal Defense Attorney. Their staff includes experience, qualified professionals who are ready to understand the specifics of your case and create a powerful defense strategy. Your best defense starts with a great defender, one who is part of a successful team. Call us at 619-880-5474 to share your case with one of our experts. We are ready to defend you as soon as you call today!