There’s all sorts of different defenses that can be utilized in sex crime cases , obviously, depending on the facts and circumstances of the case. What happened, who’s involved, whether there’s witnesses, the age of the alleged victim — there’s a whole host of factors that play into what the defense is going to be.
Sometimes there is no defense and you’re just doing damage control and trying to mitigate the case to get the best resolution.
But if it is a case where there is a defense, probably the number one defense that I’ve seen in sex crime cases over the last 26 years of working on the defense side. I worked for the DA’s office in the early 1990’s and then I worked for a Superior Court Judge for a time as his research attorney and kind of right hand man.
Consent Defense in Sex Crime Allegations
I would say the number one defense is consent. In other words, whatever happened, the other party consented to it. They agreed to it, and therefore, I didn’t do anything wrong. Two consenting adults have sex or engaged in some sort of sexual activity — that’s not criminal.
For certain crimes, such as rape and sexual assault, defendants can’t be guilty if their victims legally consented to the conduct. Rape is defined under California Penal Code 261. Sexual battery is defined under Penal Code 243.4.
Of course, if a person is underage, you cannot use this defense because someone under the age of 18 in California cannot consent to any type of a sexual act. So, usually where we’re going to see this defense used is in an adult case.
A lot of times I see maybe an alleged victim getting drunk or using some sort of drugs and then end up having sex, and then having regrets the next day or sometime thereafter.
The party that’s involved just can’t believe that they’re being accused of something when they felt that the person was okay or maybe they were drunk too and that they both consented and agreed to have the sex.
Alleged Victim Must Be at Least 18 Yeas Old
Consent is definitely a defense to a sex crime in most instances, as long as an alleged victim is over the age of 18 and consent can come in many forms. There’s all sorts of different ways that I’ve seen sex crimes come up.
Sometimes the person gives consent at the beginning. In other words, sometimes in the beginning of an encounter, one party or both parties obviously agree to the sex and then during the middle one of the parties says they don’t want to have sex anymore and the other party proceeds to have sex with them anyway.
This would obviously be a problem, because once somebody no longer consents to an act, if you force your way through it, then you’re going to end up getting charged and then potentially convicted if they can prove that you ignored their clear invocation of them not wanting to have any more sexual contact with you.
Other times, the person passes out drunk or having pills or whatever the case may be, and then the other party proceeds to have sex with them anyway without getting their consent. Obviously, if that can be proved, then they’d be in a position where they could mount a criminal case against the party that’s forced the other party to have sex.
Intoxication Defense in Sex Crime Cases
So, it really depends on the surrounding circumstances of the case, what’s going on and intoxication sometimes is a defense as well. In other words, if both parties are intoxicated and have sex, it’s a real tough road for the prosecutors to prove that one party or the other is an aggressor and is somehow responsible for a crime.
If both parties were drunk and both parties agreed to have sex, having regrets about it later is not going to be a way to prosecute somebody for a criminal offense. Everybody has to know what they’re doing and somebody’s gotta take advantage of the situation where we’re talking about a scenario where somebody’s passed out drunk.
Reasonable Belief Victim was an Adult
So, that’s another scenario I see where consent is at issue. Sometimes you have a scenario where somebody consents to have sex and it turns out that person is under the age of 18, now the authorities are prosecuting the person that had sex with him.
Now, this area where consent would be relevant is, if the person who had sex with the underage person believed or reasonably believed that under the circumstances if the other party was 18 years or older.
Let’s say they showed him a fake ID. They looked like they were 18 years or older and all the surrounding circumstances and such that the person genuinely believed the person was at least 18 years old, then that would be a defense to the crime, that they thought they were of age.
They consented to the sex or the sexual touching, and therefore, they felt they were okay to have sex with that person. In that scenario, that could be a complete defense to a sex crime.
So, long story short, you have to figure out what type of a criminal case you have and if it’s a sex crime case you’ve got to decide whether or not consent is really at issue in the case.– whether that can be asserted as a defense or there’s some other defense that applies.
I’m just giving you the best and most used defense that I see having done sex-crime cases for a long time, but there are other defenses that apply to certain circumstances and certain cases.
The way we figure that out obviously is, you pick up the phone. You make the call. You take the first step. Come and meet with me and then we can figure out whether or not your sex crime case if it’s I the San Fernando or example is one where you can use consent as a defense.
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