Rape and Non-Consensual Sex

As an experienced criminal defense lawyer, Richard M. Oberto understands the difficulties clients face when presented with rape allegations. The allegations are frightening, the potential punishments are severe, and an accused person may find that some people are willing to pre-judge him without waiting for the evidence. Mr. Oberto ensures that his clients' rights are fully protected and that nothing stands in the way of his clients' receiving a zealous defense.

The Prosecution’s Burden of Proof

California law defines rape (Penal Code section 261) to include four main elements of proof. The prosecution always has the burden of proving each element beyond a reasonable doubt.

The first element of proof in a rape case is sexual intercourse with a woman. California law defines sexual intercourse as vaginal penetration by the penis. Given the definition of sexual intercourse, almost all rape cases involve female complaining witnesses. Although men can be victims of forcible and otherwise non-consensual sex, such cases are usually charged under statutes that define offenses involving oral copulation, sodomy, and sexual penetration.

The second element of proof is that the accused person either was or was not married to the complaining witness at the time of the alleged incident. The evidence in every case likely will satisfy this second element. A person must have been either married or not married to his accuser. Nonetheless, the prosecution must present the evidence. Proof of a marital relationship may affect the way a judge instructs a jury to consider evidence regarding consent.

The third element of proof is that the complaining witness did not consent to the sexual intercourse. California law provides that a person consents to sex when he or she acts freely and voluntarily and knows the nature of the act. Consent can be demonstrated by words or actions, although words and actions are not necessary. Consensual sex frequently occurs even though neither person says or does anything to confirm he or she is consenting. The law recognizes that consent can be implied by the circumstances or context.

The fourth element of proof is the specific means by which the accused person accomplished the nonconsensual sex. Rape can occur by means of force, fear, or threats. It also can occur when the complaining witness was incapable of consenting due to intoxication or unconsciousness. The complaining witness must have been intoxicated or unconscious to an extent that she could not understand and evaluate the physical nature and moral character of the act and the probable consequences.

Rape also can occur on grounds of disability or fraud. Both such cases require that the complaining witness was not married to the accused person. In the case of disability, the complaining witness as a result of the disability must have been incapable of consenting to sex. In the case of fraud, the accused person must have deceived the complaining witness about his identity. The complaining witness as a result of the deception must have believed she was consenting to sexual intercourse with a different person whom she knew.

More about Legal Consent

A person generally cannot be convicted of rape if he reasonably believed the sexual intercourse was consensual. The exception is in the case of rape by fraud where a person obtains consent by causing the complaining witness to believe he is someone else she knows. Where an accused person’s belief about consent is an issue, the crucial question is the reasonableness of the belief. If an accused person reasonably believe the complaining witness was consenting, he cannot be convicted of rape just because his belief turned out to be mistaken or untrue.

Special rules apply in cases where a complaining witness alleges that she initially consented to sex, but withdrew her consent during intercourse. The complaining witness must have communicated to the accused person by words or actions that she was no longer consenting to intercourse. The communication must have been sufficiently clear that a reasonable person would have understood that the complaining witness was no longer consenting to sex.

Punishments for Rape

The punishments for rape are extremely serious. In addition to lifetime sex offender registration and other penalties, a person faces a prison term of three, six, or eight years. The term of imprisonment can be much greater, including a term of up to life in prison, if certain conduct or status enhancements apply.

Legal Representation

Mr. Oberto is always honored to provide the best legal representation to those who need it most. He welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Espanol.

People also may contact Mr. Oberto to request an initial consultation using the contact form available on this website. Please do not use the contact form to write down sensitive information. Information communicated over the internet, including through this website, may not be considered confidential or privileged.

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