Los Angeles Rape Attorney - Rape Lawyer | Law Offices of Jeff Voll

RAPE

Prosecutors in the State of California punish and prosecute allegations of violating California Penal Code section 261 - Rape with a heavy hand. If you are accused of violating California Penal Code Section 261 - Rape, it is important that you get to know the legal definition, penalties, and defenses related to the crime. Please continue to read below and remember to never ever speak to the police when they come knocking and asking questions of you.

WHAT IS THE LEGAL DEFINITION OF SECTION 261 OF THE CALIFORNIA PENAL CODE - RAPE?

THE LAW

The legal definition of California Penal Code Section 261 - Rape, determines the criminal culpability you may realize if you are charged with this crime. Be aware that the legal definition of California Penal Code Section 261 - Rape, differs from the generalized concept/understanding of rape.

Section 261 of the California Penal Code defines the crime of "rape" as generally applying to all undesired, non-consensual sexual intercourse imposed upon another person. The means of imposition may have been force, threats, or fraud (impersonation).

Keep in mind that many sex acts forced on someone against his/her will are classed as "sexual assault" or "sexual abuse." There is a great diversity in the particular acts that may be classified under such headings, but all of these allegations are extremely serious. No one accused of rape or other sex-related crimes should be without a top criminal defense lawyer. Jeff Voll is well seasoned in fighting these types of cases.

"Date rape" while not a legal term, it is very common. It involves forcing sexual intercourse on another person with whom you are acquainted while attending some form of social event like a party or dinner gathering.

While most rape requires the element of non-consent, "statutory rape" does not. It is enough that the person engaged in sex acts with a person below the legally established "age of consent." See the page section on Statutory Rape

Before you can be convicted of Rape in California upon a jury verdict of guilt, the prosecutor must prove all elements of the specific crime you are charged with beyond a reasonable doubt. An element is a part/segment/section that is essential to the crime. Almost all crimes have several elements. The prosecutor must prove all elements beyond a reasonable doubt before the defendant can be found guilty.

Remember that it is the sole burden of the prosecutor to meet this requirement. It is the sole duty of the prosecutor to prove all the elements of the crime beyond a reasonable doubt before one may be convicted by a jury of one's peers.

Actual Case #1

In People v. Mainor E. - Case No. VA103961, my client was accused of the very serious sex crime of rape of an ex-girlfriend of his. He was facing many years in State Prison along with mandatory sex registration for life. The Detective Investigating this case was a real piece of work; a real class A asshole. The "victim" walked into a Sheriff's Station and made allegations that my client drugged her and then had his way with her. When she woke up, she claims he made incriminating statements about raping her after he drugged her. At least that's what she told the police. So my client receives a phone call from the Detective to voluntarily go to the Sheriff's Station to discuss an incident involving my client. My client, not being street wise whatsoever, decides to drive over to the Sheriff's station for the tape recorded interview. The interview was conducted in Spanish. After about 3 hours of denying that he ever drugged or raped his ex-girlfriend my client "conceded" that it happened. The Detective asked no more questions and terminated the interview just before he slapped handcuffs on my client and had bail set at $100.000. I had the taped interview translated and transcribed (at L.A. County expense of $2,000.00) and I turned over a copy to the prosecutor who was sharp and ethical enough to see that this was NOT a "voluntary confession" like the Detective claimed in his report. Outcome: Case dismissed.

What Must the Prosecution Prove?

Some accusations of rape are either entirely false or actually fall under different classifications in the California Penal Code. To prove a defendant guilty of rape, the following facts must be established:

The defendant engage in sexual intercourse with the victim.
The victim was someone other than the defendant's spouse at the time. "Spousal rape" is a distinct offense.
There was a lack of consent. [To legally "consent," the victim must have been aware of the nature of the sexual act and then freely, without coercion, agreed to engage in it.

Note: If the victim initially consented, the consent was later withdrawn, and the defendant forcibly continued the sexual intercourse anyway a Rape has occurred. Providing the withdrawal of consent was clearly communicated with words or actions that anyone could have been reasonably expected to understand.

The defendant used force, threats of immediate bodily injury, fraud, or duress to engage in intercourse with the victim.

Charging someone with rape does not prove that a rape occurred. Even in the case of heinous, violent crimes, the defendant is innocent until proven guilty. There are many who are falsely accused of committing rape, and a good defense attorney can help to defend their rights. Some of the most commonly used defense strategies against rape allegations are as follows:

The alleged victim consented to participate in sexual intercourse with the defendant.
Though the plaintiff claims to have had a change of desire in the middle of the intercourse, that withdrawal of consent was not communicated clearly in a way the defendant could reasonably be expected to recognize.
Though the plaintiff did not give consent, the defendant had a reasonable basis for believing that there was consent. The actions or words of the plaintiff gave an impression of consent.

The accusation is simply false, totally fabricated. Many times, charges of rape are falsely leveled out of a desire for revenge or from some other selfish motive.

WHAT IS THE LEGAL DEFINITION OF SEXUAL INTERCOURSE?

The legal definition of sexual intercourse, according to California Penal Code Section 261 - Rape, differs greatly from the often cited general definition of sex. The accused has violated California Penal Code Section 261 - Rape, if there was the slightest penetration of a penis to a vagina. It doesn't matter that penetration was quick and/or minimal. It is also irrelevant whether one of the parties achieved orgasm or ejaculated. Therefore, as long as there is penetration, the accused may be charged under California Penal Code Section 261 - Rape.

As one can see, the State of California when it comes to rape, defines intercourse very broadly. As long as there is penetration, the first element of California Penal Code Section 261 - Rape, has been satisfied. Therefore, it is irrelevant if you start having sex non-consensual sex with someone, and then decide that what you are doing is wrong and you stop. As long as there was penetration, you can be charged and convicted of violating California Penal Code Section 261 - Rape.

WHAT DOES “LEGAL CONSENT” MEAN?

As previously stated, the common concept of consent and legal consent are very different. One may think they have consent to do something, but for legal purposes they could be criminally culpable. Consent is a crucial topic to grasp in all cases involving California Penal Code Section 261 - Rape. This is because most rape cases occur in private or intimate settings, where the only witnesses/participants are the accused and alleged victim. As such, cases involving California Penal Code Section 261 - Rape, are often referred to as “he said/she said” scenarios.

Add these types of allegations to the current political climate what with the likes of newsworthy cases like Bill Cosby and Harvey Weinstein and it is easy to see that Judges, prosecutors and juries are more likely to give the victim the benefit of the doubt. Therefore, it is important to grasp what legal consent truly is, since one's guilt or innocence and registration as a sex offender for life could be reduced to this single issue.

Black's Law Dictionary defines consent as “a voluntary yielding to what another proposes or desires; agreement, approval, or permission regarding some act or purpose, esp. given voluntarily by a competent person; legally effective assent. Another way to explain consent is to know that a person “consents” to an act, such as sexual intercourse, when they do so freely and voluntarily, as long as they understand the nature of the act in which they take part in.

Court's will rely on other facts to determine whether or not consent was given in these “he said/she said fact patterns. Below is a short list of the some common facts and scenarios that the court, jury and prosecutors will consider when determining whether consent existed.

WHAT IF YOU ARE OR WERE ROMANTICALLY INVOLVED WITH THE ALLEGED VICTIM?

California Penal Code Section 262 - Marital Rape

Although a past or current romantic relationship does not equate to consent, it will be taken into consideration when determining if consent existed when sexual intercourse occurred. Judges, prosecutors and juries will consider whether you are/were dating/seeing the alleged victim, whether you lived together in the past or currently do, as well as whether you are or were currently or previously married/engaged.

Note: one can't be charged with a crime under California Penal Code Section 261 - Rape if you are currently married to the alleged victim. If the alleged victim is someone you are currently married to, the local prosecutor will charge you with violating California Penal Code Section 262 - Marital Rape. California Penal Code Section 262 - Marital Rape possesses the same issues, penalties, and defenses as Penal Code section 261 but it only applies if you are currently married to the alleged victim. If you were married to the alleged victim in the past, but now divorced, California Penal Code Section 261 - Rape, will apply.

USING OR ASKING FOR A CONDOM OR OTHER TYPES OF CONTRACEPTION?

If the alleged victim asked for you to use a condom prior to sex, or some other form of contraception, this by itself does not mean that she consented to sexual intercourse but it sure as hell helps your defense if she did. The fact that she asked for contraception can be used to show she did in fact give consent. Likewise, it could be useful to impeach the alleged victims propensity to tell the truth in that she acted in a contradictory manner. If this happened it can be used to show that you reasonably believed you had consent which is a great defense against an allegation of committing California Penal Code Section 261 - Rape.

WHAT HAPPENS IF THE VICTIM INITIALLY CONSENTS BUT LATER RETRACTS?

Being charged with violating California Penal Code Section 261 - Rape, can occur even if the alleged victim consents to sex and decides sometime during the act that she does not want to continue. If the victim initially consented, the consent was later withdrawn, and the defendant forcibly continued the sexual intercourse anyway then a Rape has occurred. Providing withdrawal of consent was clearly communicated with words/actions that one could have reasonably understood. Therefore, what started out as a passionate, loving, legal and consensual sexual encounter could suddenly become an act of rape sending someone to the Prison as a sex offender for life.

For lawful legal intercourse to elevate to rape, all of the following must occur:

(1) The alleged victim must openly state that s/he does not wish to continue to engage in sexual intercourse and must attempt to cease the act at least once.
(2) The alleged victim openly declares his/her opposition in such a way that a reasonable person would understand that s/he no longer wishes to engage in sex.
(3) You continue the sexual intercourse by force despite the protest to stop.

The prosecutor must prove not only that the alleged victim did not ultimately give consent, but also has to prove that you knew that there was no effective consent. Conversely, you have to show that you did not factually or reasonably believe that the alleged victim consented. To assess the concept of what is a reasonable belief, the court will consider a belief to be “reasonable” if a normal, prudent, ordinary person would have reached the same conclusion as the accused did.

FOR A RAPE CHARGE TO STICK, INTERCOURSE MUST BE CARRIED OUT THROUGH ONE OF THE FOLLOWING WAYS

(1) Force: by physical force such as restraining the alleged victim using one's strength;

Example: Marcellus Wallace in Pulp Fiction when he was getting smashed by the Hillbilly in the underground basement OR Shaggy getting throttled by Sneaky in the SFV Clubhouse.

(2) Coercion: forced intercourse is accomplished using a direct or implied threat. The threat must be strong enough to convince a reasonable person to allow the invasion to happen;
(3) Threat: an act illustrating the intent of causing harm to the victim or another;
(4) Fear: of causing physical harm to an alleged victim or another. The fear must be both real and reasonable.
(5) Fraud: requires that you fraudulently persuaded the victim that you are married OR fraudulently persuaded her that intercourse had a “medical” or “professional” purpose.

SITUATIONS WHERE CONSENT CANNOT BE GIVEN

The following are situations where the alleged victim cannot legally consent:

(1) The alleged victim was too intoxicated by alcohol or some other drug;
(2) The alleged victim had a mental or physical disorder which you were aware or reasonably should have been aware of;
(3) The alleged victim was not conscious, so s/he could not consent to the intercourse. This applies even to cases where the alleged victim was sleeping.

CONSENT AND THE CALIFORNIA RAPE VICTIMS PROTECTIVE ACT/RAPE SHIELD ACT

California enacted laws to limit the type of impeachment evidence usable against an alleged victim in criminal prosecutions of California Penal Code Section 261 - Rape. These laws were created to protect victims and their privacy. These laws are collectively called the Rape Shield Laws.

The California Rape Victims Protection Act states that consent cannot be proven/shown by introducing evidence of the victim's prior sexual history, prior sexual reputation, or prior sexual behavior. Therefore, it is disallowed to mention in open court via cross examination that the alleged victim has been promiscuous with many sexual partners in the past to show/prove that s/he gave consent to have sexual relations regarding the charge at issue.

WHAT ARE THE PENALTIES FOR COMMITTING RAPE?

California Penal Code Section 261 - Rape is a felony crime. A conviction for California Penal Code Section 261 - Rape, can include up to a maximum of 6 years in State Prison and mandatory Sex Offender registration for life.

In rare circumstances a Judge is allowed to sentence a defendant convicted of California Penal Code Section 261 - Rape, to formal probation without incarceration.

These circumstances are:

(1) The accused was found guilty only because the victim was unable to give legal consent due to being disabled;
(2) the accused was found guilty by Impersonating Another such as a boyfriend or husband.

Example: Willy was thrashed by Aaron who impersonated Craig as Willy's boyfriend. Willy absolutely loved it but was ashamed when his crew started to whisper about it at Church. Willy, being the coward punk POS that he is, called the police and informed the man of what happened.

(3) the accused was found guilty by threatening the victim that the power of a public authority would be used against them.

In these scenarios the Judge MAY sentence the accused to only formal probation, and avoid prison. Remember that these are rare cases and any Judge, upon a conviction for Rape, will send the accused to prison.

Typical Sentences

In addition to a 6 year prison sentence, the defendant could also suffer the following penalties:

5 more years in Prison: if the victim suffered serious physical harm as a result of the rape, the convicted person could have to serve an additional 5 years in state prison;
Fines and Fees: A fine of up to $10,000;
Strike Offense: a “strike: is a serious or violent felony that increases future sentences;
Minor victim: (a) if the victim is under 18, the potential sentence increases to up to 11 years, (b) if the victim is under 14, the potential increases to up to 13 years in Prison.

Sex Offender for Life: Remember that those convicted of California Penal Code Section 261 - Rape, will have to register as a third degree sex offender for the rest of your life.

Lesser Included Offenses

Lesser included offenses that can enhance sentencing for a rape conviction include the following:

Assault (California Penal Code section 240): In California, "assault" is the attempt to harm another by unlawfully applying force, whether directly or by means of an instrument. It is also necessary that the would-be attacker had the ability to carry out the intended act of violence. Even an attempted rape involves assault so keep this in mind when charged with Rape.
Battery (California Penal Code section 242): If physical contact of any kind was made, then "battery" was also committed in addition to assault. Battery can be any kind of offensive or injurious application of force to another against his/her will so keep this in mind when charged with Rape.
Assault with intent to commit rape ( California Penal Code section 220): When assault is committed for the specific purpose of carrying out a rape, California gives it a special classification. under Penal Code section 220.
Attempted Rape (California Penal Code sections 663 & 261): "Attempted rape" is also addressed clearly in the California Penal Code. Anyone committing rape would have had to intend to do so, thus it is an included offense. A failed rape attempt is still punishable under the law.
Attempted Spousal Rape (California Penal Code sections 663 & 261): While handled under the same sections of the penal code, there is specific wording that deals with the rape of one's own spouse.

Actual Case #2

In People v. Noor K. - Case No. BA482163, my client who is Muslim, was initially accused of the very serious sex crime of assault to commit rape of a homeless paraplegic Muslim on the Southeast corner of 4th Street and Vermont Avenue in broad daylight on a week day. After a vigorous cross examination of the arresting officer at the preliminary hearing, it was clear the LAPD had embellished in their police report and that this case was never about raping a homeless paraplegic Muslim on the Southeast corner of 4th Street and Vermont Avenue in broad daylight. The Judge dismissed that serious sex crime charge which left assault with a deadly weapon and resisting arrest causing injury as the last remaining counts. The event was videotaped from a location across the street. The case went to trial on both felony counts. The jury found my client Not Guilty of both felony counts but found him guilty of the two lesser counts of simple assault and resisting arrest. Outcome: probation and everyone is happy.

Legal Defenses to California Penal Code section 261 - Rape

Time barred

Statute of Limitations, also known as the legal time limit within which the prosecutor may file criminal charges against the accused in a California Penal Code section 261.5 case. The statute of limitations is three years from the date of the alleged crime for both felony and misdemeanors in statutory rape 261.5 cases.

No Penetration

It is a complete defense to a violation of California Penal Code section 261 - Rape, that the accused did not penetrate the victim's vagina with his penis. But remember that penetration can be very slight, and neither ejaculation, nor DNA evidence, is required to prove penetration.

False Allegations/Impeachment of Testimony or statements reported by alleged victim

It is not uncommon for defendants to face false allegations under California Penal Code Section 261 - Rape. There have been many cases where work associates, in order to get someone they do not get along with fired or family members involved in divorce proceedings have made false allegations to use the criminal justice system to get someone caught up. This is especially true with ex-spouses trying to gain an advantage in future divorce or custody hearings. In these types of cases, your Attorney Jeff Voll may be able to get the charges dismissed or a Not Guilty verdict at trial if he can prove that the complaining witness was a liar, thief, coward rat informant like Jefferson Dee Martin. In situations of false accusations, it is important for the defense to gather their own arsenal of evidence and not solely rely on the allegations offered by the police and prosecutors. Attorney Jeff Voll will hire a private investigator to interview any and all witnesses to find weaknesses or inconsistencies in the prosecution's case. Attorney Jeff Voll will subpoena phone records and text messages, re-analyze DNA samples, and even have the accused submit to a private polygraph examination. What is key in these types of cases is to gather an arsenal of evidence so that it is difficult, if not impossible, for the prosecution to prove the charges beyond a reasonable doubt.

Coerced Confessions

If the police coerced a "confession" then any prosecutor with a heart will see that this type of "case" will never reach a conviction due to the brow beating by the blue meanie in question. See below:

Actual Case

How I Can Help - Call me at 323-467-6400

Do you have any questions or concerns about a situation that may involve rape? If you or someone you know has been accused of rape or "unlawful sexual intercourse," you should seek the assistance of an attorney right away. This can be a very serious charge, and having an attorney to represent you can make all the difference in the outcome. The experienced Los Angeles-based criminal defense law firm of Jeff Voll may offer exactly the help you need. If you're facing a statutory rape situation, don't hesitate to call to receive a free consultation and case evaluation. When you hire the Los Angeles-based attorney Jeff Voll to represent you, you can be assured that your case is in good hands. You will be hiring an experienced attorney who specializes in criminal law, including rape cases, and who has handled over 8000 criminal law cases. You will be hiring an attorney who knows the process and knows the system. P J Voll has the experience, training and resources to help address your problem. Call Now for your FREE consultation and case evaluation: 323-467-6400. Contact us today and we will put our knowledge and experience to work for you.

Remember that Attorney Jeff Voll is the ONLY California criminal defense firm that can truthfully state he achieved over 100 case dismissals in one 12 month period. Look no further for an attorney to represent you or a loved one.

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