Defenses Against Rape Accusations, Consent Vs. Non-Consent

There are only a few defenses available for a rape charge. They include:

Consent (vs. No Consent)

This is one of the hottest topics in the news right now. With the #metoo movement, there has been a lot of talk about what consent is and when someone has consented to sexual activity or not.

This is a hefty question, which will be broken down as best as possible here. However, the best rule of thumb is always to air on the side of caution. If you aren’t sure if your partner hasn’t consented, either ask or refrain from partaking; and remember this may mean asking for your partner’s age, as discussed below.

In California, consent is defined as positive cooperation in act or attitude pursuant to the exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. California Penal Code § 261.6.

Consent can’t be procured through the use of fear, intimidation, coercion, under duress, violence, or threats of harm.

Who Cannot Consent

There are classes of people that are legally unable to consent to any sexual activity, whether they want to or not.

Here are a few tips that are easy to explain regarding consent:

  1. An intoxicated person, whether voluntarily intoxicated or not, CANNOT consent to sexual activity
  2. A person who is mentally handicapped, regardless of their age, CANNOT consent to sexual activity
  3. A person who is developmentally disabled CANNOT consent to sexual activity
  4. A person who is physically handicapped or physically helpless, and CANNOT verbalize their consent or lack of consent
  5. A person who is unconscious CANNOT consent to sexual activity
  6. A minor under the age of 18, no matter how “old” they look, CANNOT consent to sexual activity

When someone cannot consent to sexual activity this means, it does not matter if they say “yes” to you; they are not in the right state of mind to be able to make that decision – regardless of what the decision is.

When Someone Says NO to Sexual Activity

This is very different than people who say NO, meaning they do not consent to sexual activity. This is where the topic of consent can become blurry.

The typical example of this is when a male and female begin to engage in flirtatious or suggestive behavior; one party takes that to mean that they can engage in all sexual activity.

This could not be farther from the truth. As the parties begin to engage in sexual intercourse or other sexual activity, both parties must consent to move forward. Once that consent is gone, a sexual assault can result.

The best course of action in order to protect yourself from a sexual assault charge is to be open and transparent with your intentions. Unfortunately, you may have to be the responsible one; but it is worth it in the long run.

If you do find yourself charged with a sexual assault crime that you believe was consensual, most of the time it comes down to the parties’ impressions and recounting of the scenario. That is what makes these cases so difficult for both sides.

An experienced criminal defense attorney can help and make it a little easier as they guide you through the court system.

DNA Defense

The last major defense is based on DNA. If the victim does not know who the assailant was and only has a description, you may have been falsely accused just because you match the description of someone else.

This defense can be called the “it wasn’t me” defense. Meaning, other than providing alibi evidence, a sure-fire way to get yourself acquitted or have the charges dropped against you would be to show through DNA evidence that you were not the attacker.

This can only be accomplished if the woman goes to the hospital and gets a sexual assault kit conducted after the sexual assault. If this occurs and DNA other than the victim’s appears on the tests, then you can submit your DNA for matching.

When it doesn’t match the DNA on the victim, then you probably exonerated yourself.

Statutory Rape

Statutory rape occurs when a  person has consensual sexual intercourse with an individual who is below the age of consent, and the individual is not their spouse. Punishments vary depending on the respective ages of both victim and offender.

Separate crimes exist for sodomy with minors and sexual intercourse between a child under age 14 who’s attacker was at least seven years older.

In the United States, the age of consent is the minimum age at which an individual is considered legally old enough to consent to participation in sexual activity. The age of consent differs from state to state. In California, the age of consent is 18 years old, which means that individuals aged 17 or younger in California are not legally able to consent to sexual activity, and such activity may result in prosecution for statutory rape.

H Law Group Online

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