San Diego Sexual Assault Attorney
If you have recently been accused of committing a sexual assault, you are likely wondering what steps to take so that you can safeguard your future and reputation. Because the laws related to sexual violence can be complex, many people are left feeling hopeless and confused; they don’t know where to turn for answers or how to protect themselves from the charges. A conviction will not only result in time behind bars, but it can also leave a nasty mark on your background report.
The steps that you take in the early stages of an investigation will play a role in your odds of success. Even though following the right path can help, it won’t be enough on its own. When you want to take every possible step to prevent a conviction, you will need to enlist the services of an experienced sexual assault defense attorney.
Sexual Assault Defined
The charge of sexual battery (often referred to as sexual assault) is brought under California Penal Code (PC) section 243.4 and a misdemeanor or a felony. While any criminal charge has serious consequences, a felony charge can be devastating. Your freedom, livelihood and rights are at stake. Sexual battery is quite different from a rape offense. The crime of sexual battery does not have to involve any sexual act and can come from allegations of sexual touching of any type.
What is the difference between Sexual assault/battery and rape?
Attorney George Gedulin explains the distinction between sexual battery and rape: “The prosecutor will always charge the most serious offense for which there is significant evidence. Where there is not physical evidence, often victim statements or witness accounts are used as evidence that a crime was committed. Rape under the penal code requires actual penetration of the sexual orifice. This penetration can be with a sexual organ or by another foreign object. These are in fact two separate offenses. Sexual assault does not require a penetration of the vagina or anus. Sexual assault charges can be brought when there is any offensive or harmful touching of an intimate part of a person’s body.”
Learning how the state defines these charges is a smart move if your goal is to build a solid defense and to stay out of jail. In simple terms, sexual assault is touching another person in an intimate way without permission. For a sexual assault charge to stick, penetration does not need to take place, which is a separate crime. This definition might seem straightforward, but you will often encounter gray areas that can put you in danger.
For example, some people believe that their spouse is unable to press sexual assault charges, which is not true. Also, a person could claim that they had initially given consent but later changed their mind, and you could have a problem on your hands. You might feel tempted to ignore the threat if you don’t believe that the accuser has any evidence, but doing so is a mistake that you must avoid if you enjoy having freedom.
Investigation of Sex Crimes
Police are not the only ones permitted to investigate a sex crime. Once someone has been charged, they have the right to seek the help of experts and investigators to gather all evidence that may help prove their case to a Jury. Witnesses of the alleged events can be critical to establish the credibility of a story. Past sexual relationships and possible abuse from family members are often important pieces of information for a jury deciding a sex crime verdict.
Will you be charged with a felony or a misdemeanor?
Depending upon the facts and circumstances surrounding the event, the prosecutor can file the charges as either a misdemeanor or a felony. The prosecutor will likely pursue a felony conviction if the victim was fraudulently convinced to engage in the act, was unlawfully restrained, or suffering from a medical or mental disability. Also, if the victim was forced to masturbate or touch another person’s intimate parts, then felony charges will likely apply.
How Convictions Occur
Learning how the prosecutor will need to move forward is another great step in the right direction and can give you a solid foundation on which to build your case. The courts must demonstrate that you touched someone in an intimate way, that you did not have consent and that you did so for sexual gratification. If any of those elements are missing, you will have a decent chance of having your charges reduced or dropped.
On the other hand, the charges can escalate to a felony if the prosecutor can prove that the defendant restrained the victim during the incident. Even with the legal requirements in place, defending yourself is often a long and challenging road, but getting help as soon as possible will make the process that much easier. A good defense attorney will work to find holes in the evidence that the prosecutor is trying to use against you.
The Conviction Process
The conviction process begins the moment anyone files a formal complaint with a law enforcement agency. Once the accuser speaks with the police, they will ask for details about the incident, such as the date, time, location and any possible witnesses. Depending on the situation, the police could ask the accuser to submit to a medical test to provide evidence that they could use in court.
The first report is often done by a patrol officer but later handed to a detective who specializes in sex crimes. Once the case is open, investigators will speak with any witnesses, trying to paint a clear picture of the events that had happened. At this point, law enforcement officers will reach out to the accused to let them know about the charges and to seek an interview. Since a crafty prosecutor will use anything that you say as evidence against you, don’t speak until you consult with a legal expert.
What facts must the Prosecutor prove?
PC 243.4 prohibits the touching of another person’s intimate part(s) for sexual purposes for gratification, arousal, or abuse. To be convicted under PC 243.4, the prosecutor must prove the following three elements:
- that you touched the intimate part(s) of another person;
- that there was no consent or the consent was fraudulent; and
- that the touching was done for sexual gratification, arousal, or abuse.
What does “touch” mean?
The victim’s intimate part must have been physically contacted either directly or through clothing. For a felony battery, bare skin of the victim must be involved (not the accused).
What is an “intimate part”?
An intimate part is what you would think: a man or woman’s groin, sexual organs, buttocks, or a woman’s breast.
What is “without consent”?
To touch without consent is to touch someone against his/her will. To be considered consensual the person must know what he/she is doing and be acting freely and voluntarily. An unconscious person is unable to understand what is being done to them and so cannot give consent. Another element of the crime can be that the individual was restrained and forced to engage in a sexual act.
Note: Even if the person acts freely and voluntarily, sexual battery may be charged if the accused fraudulently convinces the person to engage in the act, i.e., a physician convincing a woman to touch his penis during a therapy visit, to overcome her sexual inhibitions.
What does “sexual arousal, gratification, or abuse” mean?
In the simplest terms, sexual battery or assault is committed if the unwanted touching is for sexual pleasure, meaning either “arousal” or “gratification”. Or, if the sexual assault or battery is to harm the other person, then it is “abuse”. Any of these situations can lead to a sexual battery charge.
Possible Defenses – What are the defenses?
The most common defenses to a sexual battery charge are:
- consent: there cannot be sexual battery if the victim consents to the touching;
- insufficient evidence: to establish sexual battery, there must be evidence of what is alleged—many times there simply is not enough evidence to establish the battery; and/or
- false accusation: the accusations must be true! Because it is difficult to prove battery, some people bring this accusation out of revenge, jealousy, or anger.
When someone claims that you have committed sexual assault, you have several options when it comes to defending yourself. You could try to prove that the encounter had taken place but was consensual. Due to the lack of evidence that is common in these cases, proving that you had permission is not always easy. But the lack of proof could also make it hard for your accuser to show that a crime had taken place. Demonstrating that the accusations against you are false is another way for you to escape conviction. If you have mutual friends with the accuser, you might be able to get someone to speak up in your defense, revealing your innocence.
For example, you can get the court to drop the charges if you were at a different location when the accuser said the events took place. The approach that you will want to select will depend on several factors, and only a lawyer can tell you what makes the most sense for your situation. Having an attorney review the details and recommend a course of action can reduce the stress and put your mind at ease. When you need to pick the right defense, nothing can compare to having a kind expert in your corner.
Penalties and Punishment for Sexual Assault
Because PC 243.4 is a “wobbler” (can be prosecuted as either a misdemeanor or a felony), the penalties and punishment can be complicated and severe. Depending upon whether you are convicted of a misdemeanor or a felony, you could face:
- maximum jail time up to 6 months;
- prison time of 2 to 4 years;
- fines of $2,000, up to $10,000;
- informal/summary probation;
- formal probation;
- order to attend one or more rehabilitation programs;
- registration as a sex offender; and/or
- complete community service.
Consulting a Sexual Assault Attorney
If you are facing an investigation or charges for sexual assault, it is important that you know how to respond to a rape accusation and vital that you reach out to a qualified defense attorney as soon as possible. Many sexual assault cases are complex and require extensive investigation into the accuser’s allegations, past, and the evidence that actually exists. Without corroborating evidence, it can be very difficult to prove that an unwanted act happened beyond a reasonable doubt.
At the Law Office of George Gedulin in San Diego, we understand the sexual offense laws in California and can help you build a strong defense for your case. With a commitment to honest and direct counseling and a personal and customized approach to each case, we can help you defend your dignity and your reputation in a sexual assault case.
View the Types of Sex Crimes Cases We Specialize In