Just the mere accusation of rape can have dire consequences for your life and future. Being accused of rape, or any sex crime, is typically an emotionally charged experience to say the least. A conviction is certain to change your life forever. Both the judicial and non-judicial penalties you face if convicted of rape are severe. If convicted, you face a lengthy term of incarceration as well as being labeled a sex offender and required to register with the California sex offender registry when released.
If you have been accused of rape, one possible defense may be that the alleged victim actually consented to the sexual conduct being charged as rape. It’s a common defense that an individual accused of rape often offers. If you have been charged with rape and you wish to assert consent as a defense, it is imperative that you consult with an experienced California criminal defense attorney as soon as possible. In the meantime, however, there are some things you should understand about asserting consent as a defense to rape.
California Penal Code section 261 defines the criminal offense of rape. The statute is lengthy and includes a number of scenarios under which an individual can be convicted of rape. In essence, the statute defines rape as sexual intercourse that occurs with a victim who is forced to participate or who is otherwise unable to refuse. Clearly, if an alleged victim consented to the sexual intercourse it is not rape unless the alleged victim was a minor.
Whether or not consent is a viable defense when charged with rape depends, to a large extent, on the age of the alleged victim. In California, the age of consent is 18, meaning that an individual under the age of 18 cannot legally consent to sexual intercourse. Of course, we all know that teenagers under the age of 18 do engage in sexual activity; however, the law in California says they are unable to consent to that activity. Therefore, if you have sex with someone under the age of 18 you are committing a criminal offense in California. If the alleged victim in your case was under the age of 18 at the time the sexual conduct occurred, consent is not a viable defense. There are some caveats to this general rule. The seriousness of the offense you are committing is determined by the victim’s actual age as well as your age. The older the victim and the closer in age you are to the victim, the less serious the offense. If you were close in age, and the victim was close to the age of consent, you may not be convicted of rape; however, another sex crime conviction may apply.
Regardless of the circumstances in your case, be sure to consult with a criminal defense attorney as soon as possible if you are accused of rape. Assuming that the alleged victim was over the age of consent at the time of the alleged rape, consent is certainly a possible defense. Whether or not you can prove that the alleged victim consented or not is another question. People claim rape after consensual sexual intercourse for a number of reasons, including:
- Shame/regret – The alleged victim may now wish she/he had not had sex with you and so calls it rape.
- Fear of getting caught – If the alleged victim is married or in a relationship, and the spouse/significant other finds out, the alleged victim might claim rape.
- Revenge – An ex sometimes claims rape simply for revenge.
- Mistake – Sometimes an alleged victim was so intoxicated that he/she doesn’t honestly remember consenting to the sexual conduct.
If the alleged victim in your rape case is over the age of 18 then he or she is legally old enough to consent to sexual intercourse. Whether or not a judge or jury would agree that the alleged victim consented is a different question. Consent often plays a pivotal role in “date rape” cases. The law does not distinguish between “date rape” cases and other scenarios under which an individual is accused of rape; however, the term “date rape” is often used to refer to a situation where the alleged perpetrator and alleged victim knew each other on more than a casual basis prior to the alleged rape. Alcohol or drugs may have played a role at the time of the incident, leading the alleged victim to believe he or she was raped while the alleged perpetrator believes that consent was given prior to the sexual activity. Cases such as this are highly fact specific.
Although consent may be a viable defense to rape, you need an experienced criminal defense attorney to review the facts and provide you with an opinion as to whether the defense of consent may potentially work in your case. If you find yourself accused of rape in San Diego, yet you believe that the alleged victim consented it is imperative that you consult with an experienced California criminal defense attorney immediately.
For immediate legal help, call San Diego criminal defense attorney Domenic J. Lombardo at (619) 232-5122 to schedule a free and confidential consultation.
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