Being arrested and convicted for rape is a very serious matter. If you or someone you know is convicted of rape you face lifetime consequences such as a lengthy state prison sentence, damage to your reputation, loss of your job and lifelong sex offender registration. The outcome of your case may depend on whether you have an experienced and aggressive criminal defense attorney to defend you. The criminal defense attorneys of Rodriguez Lewis & Kahn have over 70 years of combined experience defending those accused of rape and other sex crimes. Our knowledge and our experience give us an advantage in defending this type of case. We can put our experience to work for you. Contact our Los Angeles office today for a free, confidential consultation to discuss your legal options.

WHAT IS RAPE

Rape is sexual intercourse without the victim’s consent. Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. Only women in California may be victims of rape, which requires vaginal penetration. Forcible Sodomy is the crime that applies to men who are victims of anal penetration.

Each sexual penetration of the victim is a separate act of rape. Consent means that the alleged victim has given the defendant permission to have sex with her. A consent defense can get complicated because even in some situations when the victim said “yes,” that statement may not be enough for legal consent. If the victim agreed to have sex after being tricked, or under threat of violence, or fear of immediate and unlawful bodily injury, “consent” may not apply. The victim is also unable to legally consent if she is intoxicated, unconscious, or asleep while the intercourse is taking place. Having sex with a person under the age of 18 is rape (“statutory rape”) because the victim is not old enough to legally consent. It does not matter if the victim was a friend or spouse or even if the victim consented. It is rape is the victim is under 18 years of age and the defendant knew or should have known, that the victim was underage.

RAPE LAWS

In California, the crime of rape may be subdivided into four categories:

1) Rape - Non-Spouse

California Penal Code 261 defines rape (also known as forcible rape) as an act of sexual intercourse or penetration with a person other than the spouse of the perpetrator and done against a person’s will, under any of the following circumstances:

• The victim was incapable of giving consent because of a mental disorder or developmental or physical disability, and the defendant knew or reasonably should have known about the disability
• The act was accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another
• The victim was incapable of giving consent because of intoxication, anesthetization or being drugged, and the defendant knew or reasonably should have known about the incapacitation
• The victim was unconscious of the nature of the act (e.g., asleep, unconscious or tricked into believing that the act was not intercourse or was accomplished for therapeutic purposes.)
• The victim was tricked into believing the defendant was his or her spouse
• The defendant threatened to retaliate against the victim or another person unless the victim consented to intercourse
• The defendant threatened to incarcerate, arrest, or deport the victim or another person if the victim did not consent to intercourse, and the victim had a reasonable belief that the defendant was a public official.

2) Rape – Rape in Concert

California Penal Code Section 264.1 defines rape in concert as one person voluntarily acting in concert (together) with another person to commit rape by force, violence or against the will of the victim. This rape law covers forcible rape as well as spousal rape. This California law is intended to punish and discourage gang or group type rape scenarios. Forcible rape in concert is a separate and distinct crime from forcible rape. In order to be convicted of this crime it is not necessary that a person be personally present during the rape to be convicted or a person does not have to participate in the rape itself. Simply aiding and abetting the perpetrator of the rape is sufficient to be convicted of forcible rape in concert. Women can be convicted of rape, by acting in concert to rape a woman.

3) Spousal Rape

According to California Penal Code 262 PC, spousal rape (also referred to as “marital rape” and “wife rape”) occurs when the husband forces his wife to have intercourse without her consent. Spousal rape may be accomplished under any of the following circumstances:

• A rape occurs when it is completed against the spouse by use of force, violence, or fear of immediate injury;
• A rape occurs when the spouse cannot consent due to having been given a drug, intoxicant, or anesthesia;
• A rape occurs when the spouse is unconscious during sexual intercourse;
• A rape occurs when the spouse consents to sexual intercourse by means of a threat of retaliation;
• A rape occurs when it is accomplished by threatening to arrest or deport the spouse.

4) Statutory Rape

Statutory rape is also referred to as “unlawful sexual intercourse.” Statutory rape can be charged as either a felony or a misdemeanor, depending on the facts supporting the charge and the circumstances of the couple. According to Penal Code 261.5(a), it is a crime to engage in “an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.” A minor is anyone under the age of 18. “Consent” is not a defense to statutory rape. The law presumes that a woman under the age of 18 is incapable of consent. For statutory rape there does not need to be a showing of force, intimidation, or fraud. There are no exceptions for defendants who think that the victim is older. If the defendant has had intercourse with a minor more than three years younger or if the defendant is over 21 years old and has intercourse with a minor under 16, it can be charged as a felony (but under some circumstances will be charged as a misdemeanor). If two minors have intercourse and there is less than a three year age difference, the crime is charged as a misdemeanor.

PENALTIES AND PUNISHMENT

If you are convicted of raping someone, the severity of the penalties will be affected by a variety of mitigating and aggravating factors. Aggravating factors include whether you were on parole, probation, or have a criminal record (particularly a prior sex crime conviction), any injury sustained by the victim, her age and the victim’s relationship to you.

Rape is a felony. If convicted of Rape you could be facing the following consequences:

• Three (3), six (6), or eight (8) years in State Prison - - if the victim sustained great bodily injury the prison sentence can be increased by three (3) to five (5) years
• A fine of $10,000
• Formal probation
• Registration for life as a sex offender
• A “Strike” on your record.

Rape in concert convictions involving minors raise the state prison exposure to 14 years. The penalties for statutory rape generally depend on the ages of the victim and the defendant. Misdemeanor statutory rape can result in a sentence of up to one year in jail, up to $1,000 in fines and formal probation. Felony statutory rape convictions carry a sentence of two (2), three (3), or four (4) years in state prison, up to $10,000 in fines and either formal or informal probation.

DEFENSES

Rape charges are sometimes brought on very little evidence, other than the accusations of the alleged victim or others. Innocent people can be accused of rape. There are a variety of defenses that can be argued in a rape case. The requirements for each defense vary and may include one or more of the following components:

• There is not enough evidence to prove the rape (e.g., if the victim did not go to the hospital soon after the incident, there are no witnesses, there little or no evidence to corroborate the victim’s allegations)
• The victim consented to the sexual intercourse
• The victim falsely accused the defendant
• The victim was raped by someone other than the defendant (i.e., mistaken identity)
• The defendant’s rights were violated during the investigation (e.g., if the police investigators did not lawfully collect, preserve or test semen, blood, hair and fibers, any of the tainted evidence must be thrown out).

An experienced criminal defense attorney will have access to forensic experts, laboratory technicians, mental health professionals and other witnesses to evaluate the prosecution's case and develop the best possible defense based on the evidence discovered.

LOS ANGELES RAPE DEFENSE ATTORNEYS

Los Angeles prosecutors can be extremely tough on alleged rapists. If you or someone you know has been accused of a raping someone you should speak to an experienced criminal defense attorney immediately to learn about your rights, defense, and the criminal justice system. Contacting an attorney early is critical. Do not attempt to speak to law enforcement without hiring and attorney first. Anything you say can and will be used against you. Do not contact the victim or her family. Contacting the alleged victim can make your situation worse, and it may appear that you are trying to influence a witness. Resolution of a rape case requires a combination of effective legal counsel, thorough investigation, aggressive negotiation techniques, and willingness to go to trial to get a “Not Guilty” verdict.

At Rodriguez Lewis & Kahn, we have represented individuals facing rape charges for many years. We will aggressively protect your rights and freedom by providing you with the best legal defense available. We will provide you with accurate information, clearly communicate your options and answer your questions. Contact us to schedule a free, confidential consultation to discuss your case.