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Defending Accusations of Sex Crimes

There is no such thing as a simple or straightforward rape case. When there is a victim who alleges that the defendant forcibly had sexual intercourse with them, it is never a simple story to present to a jury. Emotions for these cases can carry more weight than the evidence in the courtroom.

What any experienced a San Diego rape attorney knows is that a trial is the telling of a story to 12 jurors and a judge. The question for a jury comes down to guilt but also what they believe. A person’s history with sexual violence or a family member who was raped can be the deciding vote in a trial that sends the defendant to prison for years.

Rape allegations can be devastating to an individual’s life and reputation. A rape conviction could lead to several years of prison time and a lifetime of stigma. If you are facing rape charges in California, it’s vital to seek representation from an experienced lawyer who understands the laws surrounding rape and sexual assault. Rape is a complex and politically charged issue, which makes finding a qualified attorney even more important.


The crime of rape brings many emotional attachments that are unique to sex cases. When people think of rape, the image that comes to mind is usually a male aggressor violently forcing himself on a woman. However, rape is defined much more broadly by the law, and these broad definitions create legal gray areas that contribute to many false rape allegations.

Under CA Penal Code 261, rape in this context refers to any individual who engages in sexual intercourse with a person who did not consent to sexual contact. By this definition, both women and men can be accused or convicted of rape. More simply, this means that a person forced the victim to have sex by force or threat of force.

Changes in Rape Definition

In 2015, the 80-year-old definition of rape was modified to include, both male and female victims and offenders, and reflects the various forms of sexual penetration understood to be rape, especially nonconsenting acts of sodomy, and sexual crimes with objects. This change in definition has caused a spike in the number of reported rapes in San Diego County – an increase of approximately 55% from the number that would have been reported from the legacy definition.

Source: SANDAG Thirty-Six Years of Crime in the San Diego Region

What Qualifies as Lack of Consent?

Consent is one of the most difficult and contention portions of a rape trial. A victim must often give testimony that they never gave consent to have sex with a defendant. California consent laws are clear. A victim who was drunk or on drugs must make difficult statements in open court about their inability to consent because they were too intoxicated or unaware of their circumstances to understand what was being done to them.

In consensual sex, both parties engage in sexual contact willingly, with full knowledge of what will occur. For example, the threat of force is exercised when a police officer who uses their authority to force sex on a woman; the police officer can be arrested and charged with rape. Similarly, other professionals in the position of authority such as doctors or military leaders can be charged with rape if they use their authority to essentially take away the victim’s ability to consent.

It is considered rape if a person is coerced into sex through any of the following:

  • Violence or threats of violence.
  • Fear of retaliation.
  • Fraud or misrepresentation.
  • Physical force.

Even if those circumstances are not in place at the time of the incident, sexual contact can still be considered rape if:

  • The victim is intoxicated with drugs or alcohol to the point of being unable to provide informed consent.
  • The victim cannot provide consent due to a mental or physical disability that the accused should reasonably have known of.
  • The victim was asleep, unconscious or otherwise unaware of the nature of the act committed.
  • The victim engaged in sexual contact willingly but later withdrew consent, but the sex act did not stop.

Sex under any of these circumstances could lead to rape charges in the state of California. Understandably, this means that many people can face rape charges unexpectedly. Additionally, false rape allegations are often made against innocent men and women by “victims” with a personal vendetta or other motivations.


Many rape cases come down to a “his word against hers” situation as there is not always DNA evidence or eyewitness testimony to sway the outcome of the case. That said, as with all legal cases, the burden of proof rests on the prosecution.

To find the accused guilty of rape, four “elements” must be established:

  • That the accused engaged in sexual penetration. In California, this means any level of penetration, for any amount of time, whether or not ejaculation occurred.
  • That the other party did not consent to the sexual intercourse.
  • That the sexual act was accomplished by means of force, duress, fraud or similar.

Additionally, these laws apply only in situations where the accuser and accused are not married. Rape allegations between spouses fall under a different set of laws and are treated somewhat differently.


The legal defense against rape charges will depend on the individual circumstances of the case. However, multiple strategies can be employed, including:

  • That the accusations are falsified or made up.
  • That the accused had an honest and reasonable belief that the accuser had consented to intercourse.
  • That there is insufficient evidence to prove that sexual intercourse took place.
  • That any physical contact made between the accuser and accused fell short of actual intercourse (in this case, lesser sexual misconduct charges may be applicable).
  • That the accused is a victim of mistaken identity and was not actually present or responsible for the alleged rape.

In many situations, the defense can center around issues of consent. If it can be proven that consent was given, rape cannot be prosecuted. This is true even if a “victim” consented to sex and then changed his or her mind; if the withdrawal of consent is not effectively communicated, rape did not occur.

Similarly, bear in mind that consent cannot be implied simply through the relationship of the accuser and accused. If two people are dating or have had consensual sexual contact in the past, that does not necessarily mean that any sexual advances in the future will be considered consensual. However, certain “mixed signals,” such as inquiring about birth control or requesting the accused wear a condom, may constitute implied consent.

If the accused had reason to believe that whatever sexual contact occurred was consensual and that the accuser was seemingly capable of providing that consent, a strong defense can be made. This is just one of many strategies that can be employed when building a defense against rape charges.

Contact a San Diego Sex Crime Attorney Today

Jury trials for rape are very contentious and charged with emotion and anger. The prejudices of juror’s and even a judge must be explored from the early parts of any criminal case. If you have been accused of rape, contact a seasoned San Diego criminal defense attorney right away to prepare a solid defense and protect your rights. Additionally, if you have been convicted of sexual conduct prior to a rape allegation, it is imperative to contact an experienced rape defense attorney. We can discuss your unique case and help you to understand your options as we guide you through this legal process and work to protect your reputation in the face of rape charges.

Call us today at (858) 281-4605 or contact us online.

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