Donte T Wyatt -
How can your criminal attorney protect you when charged with rape?
At Common Law rape was obtaining carnal knowledge of a woman, that was not your wife by force or fear. Today most
rape statues still have these basic elements. However, the term carnal knowledge is generally replaced with
intercourse and most states have passed statues to allow for the prosecution of the forcible rape of person by
their spouse. Under California Law a prosecutor must prove the following in order to obtain a conviction for
1. The defendant had sexual intercourse with a woman;
2. He and the woman were (not married/married) to each
other at the time of the intercourse;
3. The woman did not consent to the intercourse;
4. The defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to the woman or to someone else.
threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility
that the defendant would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or
inﬂict extreme pain, serious bodily injury, or death or threatening to
use the authority of a public office to incarcerate, arrest, or deport someone. A public official is a person
employed by federal, state, or local government who has authority to incarcerate, arrest, or deport. The woman must
have reasonably believed that the defendant was a public official even if he was not.
Now in addition to the modern allow allowing for the prosecution of a person that rapes their spouse, in California
there is also a provision specifically for a woman that initially consents and then withdraws her consent.
A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under
the law, the act of intercourse is then committed without her consent if:
1. She communicated to the defendant that she objected to the act of intercourse and attempted to stop the act;
2. She communicated her objection through words or acts that a reasonable person would have understood as showing
her lack of consent;
3. The defendant forcibly continued
The defense in a rape case can be very difficult based on the emotionally charged nature of the conduct and the
often sympathetic nature of the victim. The experienced criminal defense attorney will vary his approach based on
the type of rape case. Rape is often categorized by two types. First date or acquaintance rape and secondly
Date Rape often involves an accused and an alleged victim that know each other and may have some feeling for each
other. This is typified by the couple that have been on several dates and have kissed and maybe touched each other.
However, after intercourse the woman argues that she agreed to kiss and pet however she did not consent to actual
intercourse. Date Rape charges are sometime the product of false accusations because of hurt feeling or remorse
about engaging in intercourse. If this is the case it is critical to have an experience criminal attorney early in
the process to investigate whether or not the alleged victim gave any statements to her friends or loved ones that
are inconsistent with her statements to law enforcement after she decided to make the false allegations. In
addition, these type of allegations have been used to influence family court and custody proceedings therefore it
is critical have an experienced criminal defense attorney that knows how to handle these sensitive matters and
while still providing an effective defense.
With stranger rape the only true issue is identification therefore the experienced criminal defense attorney must
address it like they would any other ID case. First try to establish an “alibi” if possible and secondly attack the
identification made by the alleged victim.
Curbside Line Up:
This is generally shortly or soon after the incident. The officers identify a possible suspect and they bring the
victim to the location of the suspect and they allow the victim to see the suspect and the victim tries to make a
positive identification if the suspect is the person that committed the crime.
There are several problem with the curbside lineup that the experienced criminal defense attorney will be aware of
and use in the defense of the accused. First, there usually only one person for the victim to choose from.
Secondly, the suspect is often in a location with bad and lighting. The suspect is also often in a patrol car or in
handcuffs with officers around him creating an aurora of guilt. Therefore these types of line ups are very bias
against the suspect.
Photo Line Up:
This is when the officer shows the victim a set of photos with possible suspects. The criminal defense attorney
must review this type of line up to insure that the line up is not biased. Do all of the people look similar or
does only one or two actually match the description given by the victim. Was a reasonable amount of photos shown to
the victim. Was there anything suggestive about the photo of the suspect or the way in which the detective or
officer conducted the line up.
Live Line Up:
This is when the officer or the detective has several people in a controlled environment (usually in a room
dedicated for this purpose) and the officer has the victim look at each individual and determine if the victim can
make an identification. Although, this is better then a photo line up it still has several flaws. First it is
usually hours if not days or weeks after the incident. In addition, it is important to determine if the subjects in
the line up look reasonably close to the description given by the victim.
With the advances in DNA evidence juries and the public in general has began to question eye witness identification
evidence, however in order for a defendant to effectively take advantage of this shift in public consciousness they
need an attorney that can effectively evaluate these types of identification and present a defense that exploits
the short coming of each of these types of evidence.
If a person is incapable of giving consent because of their age, their sexual partner could be charged with
261.5.(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the
spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under
the age of 18 years and an "adult" is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years
older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years
younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment
in a county jail not exceeding one
year, or by imprisonment in the state prison.
(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is
under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a
county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.
Statutory Rape is generally prosecuted once the sexual conduct has been reported to the police. These cases are
often difficult because the underling sexual contact is often the product of a relationship between the person
charged and the alleged victim. Hence, these cases can be complicated by the emotions of the person charged and the
alleged victim. Often times the parents of the alleged victim notifies the police, or the alleged victim contacts
the police because the relationship has ended or the alleged victim is upset with the person charged. These cases
usually involve serious negotiation as to penalty and long term consequences (such as registration as a “Sex
Offender” and jail time) It is rare that these cases have strong evidentiary issues for trial because the alleged
victim generally knows the person charged. In some cases the intercourse is a one time sexual interaction. In cases
of a one time sexual encounter the primary issue is whether the person charged was aware of the fact that the
alleged victim was under eighteen (18) years of age. This lack of knowledge can defeat the prosecution of the