San Diego Sexual Assault Lawyer

Defining Sexual Assault in California

Rape, covered by California Penal Code section 261 (PC), is the best-known form of sexual assault. It involves the act of sexual intercourse, or attempted sexual intercourse, with an unwilling, unknowing, or unconscious person, accomplished by force, threat, fear of immediate injury, drugging the victim, or other prohibited conduct. Sexual battery, California Penal Code section 243.4 (PC), is a related offense that is essentially unwelcome sexual touching.

No matter what you have specifically been accused of, it is critical your attorney has experience defending all variety of these charges, ranging from non-violent acquaintance rape to sexual assaults that have left the victim in the hospital. Peter Liss has this level of experience and has successfully defended hundreds of clients accused of all nature of sex crime charges.

Is There a Difference Between Sexual Assault and Rape?

Yes. While some states have replaced the word “rape” with “sexual assault” in their law books, California considers the two terms to be distinct. In California, sexual assault is an umbrella term for a type of crime that involves the unwanted touching of another person in their breasts, genitals, anus, groin or buttocks. Rape, forced oral copulation and illegal sodomy are all different types of sexual assault that involve physical penetration. Sexual battery and forcible penetration with a foreign object are also commonly charged forms of sexual assault.

What is Considered Consent Under California Law?

Consent means someone agrees to a sexual interaction. Ideally, it comes in the form of a verbal yes, but as long as either party was free to say “no,” “stop” or use a pre-chosen safe word at any point, that can still be considered consent. If one party was prevented from being able to stop the activity before or after it started (including being unconscious or too drunk or high to consent) or attempted to discontinue a sexual act they originally consented to, but was ignored or forced to keep going, then the other person or persons may be charged with sexual assault.

Statutory Rape Charges Under Penal Code 261.5 (PC)

If a person has sexual intercourse with minor under the age of 18, he or she has committed statutory rape, regardless of his or her age and whether or not the victim consented. It also does not matter if the minor initiated the sexual intercourse. If both parties are under the age of 18, it is still a crime. The only time it is legal for a minor to have sex is if he or she is married to that person. It’s important to note that it is legal for a minor to date someone and then have sex with him or her, as long as the actual intercourse occurred after the minor turns 18. It’s also important to recognize that in cases involving two underage persons, prosecutors rarely press charges in San Diego County.

Prosecuting statutory rape is difficult because the prosecution must prove that the parties were not married, did have sex, and that one party was under 18 at the time. In many cases, finding sufficient evidence to prove sex occurred is difficult, especially if the minor is uncooperative with the police and prosecutors -or if the child or their parents have something to gain by accusing the other party with statutory rape.

If the Person I had Sex With Told me They Were 18, is it Still Statutory Rape?

If you legitimately believed the person was over 18, this is a defense, but this criminal defense is a lot stronger if you met somewhere like a bar than at a playground. If the victim looks particularly young, this defense may not be as strong.

Rape Penalties in California

A conviction for most of these charges requires an automatic state prison sentence of at least 3 years, though you could face up to 8 years for each count. Spending time in a state prison is mandatory if you are convicted of any form of sexual assault. In cases involving children, you may also lose of the right to see your children or be in the presence of children. Additionally, many of these offenses will count as a strike under California’s three strikes law and if you receive three strikes, you can face life imprisonment.

Alternative sentences are not available in all cases, but may include house arrest, residential treatment, counseling and hormone therapy that will suppress your sex drive. In some cases, this may even qualify you to be excused from registration as a sex offender.

Mandatory Registration on the Megan’s Law List

These convictions will not only result in prison sentences, but will also require you to register as a sex offender for anywhere from 20 years (in cases where the victim could not consent) all the way through the rest of your life (in cases where the force, threat or fear was used). This means that your name, address, photograph and the crimes you committed will be available to the public, even searchable on the internet throughout the entire time you are required to register.

What is Aggravated Sexual Assault?

Cases that involve more than one attacker, a defendant with a previous sex crime conviction, a weapon, a juvenile victim, where the victim suffered great bodily injury, or that took place during a burglary or kidnapping are known as aggravated rape under California Penal Code section 269 (PC). Under California’s one strike law, those convicted of aggravated rape can face 15 years to life in a state prison and if the victim was a child under 18, the crime carries a life sentence. It’s important to keep in mind that these cases are not only more serious than a standard rape charge, but they will also often involve a more biased jury, which means your San Diego sex assault attorney will need to work even harder to fight the charges.

Even those who are released from prison after a conviction for aggravated sexual assault need to register as a sex offender for life and many will be considered a dangerous violent offender, meaning they may be subjected to mandatory confinement in an institution or chemical castration.

Statutory Rape Penalties

Under 261.5 (PC), statutory rape charges can be either a misdemeanor or felony in California. In cases involving people who are no more than three years apart in age, the charges are always filed as a misdemeanor. Typically, cases where the accused party has some type of authority over the minor (for example, they are the minor’s teacher, coach or boss) are viewed more harshly.

Misdemeanor statutory rape charges carry a penalty of up to one year of jail time and $1,000 in fines, while felonies carry a maximum sentence of three years in prison. The sentence could be enhanced to carry as many as four years in the state prison if the defendant was over 21 and the alleged victim was under 16 when the intercourse took place. Statutory rape does not require mandatory registration as a sex offender, although this can still be added as part of the sentence.

Call a San Diego Rape Lawyer As Soon As Possible

Rape is a very serious criminal charge with very serious consequences. It is also one of the most common crimes that people falsely accuse others of doing. These are serious crimes with complex defenses. When you have been accused of these charges, is important to contact a skilled criminal defense lawyer as soon as possible to obtain the best case results under the particular facts and law of your case.

Remember to always speak with a San Diego criminal defense attorney before speaking with police in order to avoid saying something that could harm your defense later. Your lawyer may be able to have charges or sentencing reduced in a plea bargain so you will at least minimize the penalties you face.