When you're talking about an attempted rape in California, you're talking about a strike. You're talking about a sex offense that will cause you to register as a sex offender for the rest of your life.
So, the bottom line is, if you can get a not guilty verdict, that means everything. How you get it, in short, is getting a not guilty verdict with a jury—in other words, showing the jury that you're innocent. That's done through a great criminal defense attorney and the evidence. Sometimes people are just straight out innocent.
The prosecutors have it wrong. The police did not do a very good job investigating the case, so what ends up happening is the jury looks at the evidence and says, we're not finding this person guilty of attempted rape. We know how serious that crime is, and the defense has shown that the person is not guilty.
Under California Penal Code 664 PC, an unsuccessful attempt at a criminal act can be punished. An attempt is a crime itself if the perpetrator intended to commit the crime and took a direct but unsuccessful step to complete it.
The penalty for an attempted crime is half the sentence imposed if they had completed the crime. In this article by our Los Angeles criminal defense attorneys, we will review this topic in more detail below.
The Crime of Rape – Penal Code 261 PC
To understand an attempted rape crime, we must first examine the crime of rape defined under California Penal Code 261 PC as: “the act of sexual intercourse that was accomplished with somebody who is not the perpetrator's spouse, under certain circumstances.” Thus, rape is sexual intercourse accomplished against the consent of the victim through any of the following:
- Force or violence,
- Coercion or duress,
- Fraud or deceit
- Threats against the victim,
- Fear of bodily harm to the victim,
- Loss of consciousness,
- Mental disability or disorder.
The primary elements of rape are that the victim did not or could not give their consent to sexual intercourse.
See related: Van Nuys Court Sex Crime Cases
What Is Attempted Rape?
Based on the above definition of rape, attempted rape is an attempt to have sexual intercourse with someone without their consent where no sexual penetration occurs. For example, perhaps the intended victim fought off their attempt before any penetration occurred, or the perpetrator could have changed their mind before completing the rape.
In these situations, the prosecution must prove, beyond any reasonable doubt, that the perpetrator intended to rape another person and took a direct, though ineffective, step toward completing it. Evidence of attempted rape often includes evidence of some injuries sustained by the victim while defending against the attack.
If you are convicted of attempted rape, you will typically receive half the sentence for rape, which carries a felony punishable by three, six, or eight years in state prison and a fine of up to $10,000.
Thus, an attempted rape conviction could result in a sentence between one-and-a-half to four years in a California state prison and a maximum fine of $5,000. Further, a rape or attempted rape conviction will require registration as a sex offender under California Penal Code Section 290 PC.
See related: Best Defense in a California Sex Crime Case
What Are the Related California Crimes?
- Penal Code 261.5 PC – statutory rape,
- Penal Code 262 PC – spousal rape,
- Penal Code 287 PC – forced oral copulation,
- Penal Code 289 PC - forcible penetration with a foreign object,
- Penal Code 243.4 – sexual battery.
Defending Attempted Rape Allegations
You need to assess the attempted rape case in another way initially. That is, you start with a not guilty verdict. The jury is told that the prosecutor has the burden of proof. They must prove the case beyond a reasonable doubt.
So, a lot of times, after that's read to them and I get my opportunity to talk to the jury, in what's called voir dire, I can ask them point-blank, does anybody think that my client is guilty just because the government has charged him with a crime and he is here next to me?
Invariably, people raise their hands because they don't understand how the system works and think people are guilty. They're being honest, and I take that as a teachable moment to educate them, but that's not how our system works.
If they were charged with a crime or one of their family members, they wouldn't want a juror assuming they were guilty. Make the prosecutors prove their case, and if they can't prove the case, it's a not guilty verdict.
Elements of an Attempted Rape Crime
So, you have to look at the elements of attempted rape. You look at the California Criminal Jury Instructions related to attempted rape to prove that charge. I'm going to give you an idea of what they have to prove. First, they have to show that the person charged with the crime tried to have sex with another individual physically. That's the attempted rape charge.
It can't be a scenario where two people go on a date, maybe they meet on a social media app, start kissing, have drinks, and the person charged with the crime tries to become intimate, and the other party says no, the person stops. That's not attempted rape.
Attempted rape is when a person says no, and the other party continues to force themselves upon the person, and for some reason, they're unable to complete the act. Otherwise, it would be charged as rape.
Then the prosecutors, if they can prove that, can charge attempted rape. Often, all they have in an attempted rape case is one person's word against the other, and that's not easy for them to prove because why should a jury believe one person over another.
See related: Best Defense of Sex Crime Cases
Witness Statements and Physical Evidence
So, the police and prosecutors know they have to try to come up with something else besides the alleged victim's statement – a witness statement, some physical evidence. For example, let's say there are some injuries on the victim consistent with someone trying to rape them.
That would be evidence they could use to get that guilty verdict in conjunction with the person's statement. Other evidence they get in these types of cases is admissions. The alleged victim texts the offender and brings them to admit or say something that clarifies they are guilty.
They even do a pretext phone call, where they have the alleged victim call the perpetrator, confront the perpetrator, and the perpetrator does or says something that makes it clear they are guilty, and they use that to get the conviction.
Seeking a Case Resolution Before Trial
So, before you get the not guilty verdict in an attempted rape case, you have to know how the case is proven. Because if you can see that they've got the evidence against you and they're going to be able to prove the case, then you don't want to risk going to trial.
Because a lot of times, your attorney can get you a much better resolution of an attempted rape case before the trial. If you go to trial and lose, you get the conviction, and there's no getting out of it, and then you lose control over your sentence. Now that judge is likely to send you to prison for a long time.
So, to get the not guilty verdict in an attempted rape case, you've got to have a great attorney ready to fight for you. You've got to coordinate with that attorney to help them help you get the not guilty verdict, and finally, you have to have a case that you can win. You have to have a theory from which you can win.
Real Attempted Rape Case Example
I remembered years ago; I got a not guilty verdict. It was a case in downtown Los Angeles at a time when the jury trials were so overcrowded that they started shifting cases to 111 North Hill Street, downtown, Los Angeles.
They were letting the civil judges preside over a criminal trial, which is horrible because a lot of the civil judges weren't used to doing that and didn't know how, in my opinion, know how to make the proper rulings.
We got in front of a real harsh judge. I was young, about 28 at the time. My client told me he was innocent. This involved his brother's girlfriend. There was an allegation that the girlfriend had stolen my client's check and that she might be prosecuted for it, and the next thing you know, my client is charged with attempting to rape her.
She was using the alleged rape allegation to get out of having to pay back the money for the check and herself being prosecuted for a crime. Boy, we fought like heck to show that to the jury. We were effective because it was a not guilty verdict after they evaluated all the evidence in about one hour.
We had an angle there. We had a motive for the victim to lie. That's another way to defend some of these cases. Sometimes the victim has strange and idiotic as it seems that someone would lie about something so serious as a rape or attempted rape allegation. I see it happen all the time.
Trust me, the police see it all the time, too, because I've been speaking to these detectives for the past 30 years and even getting rid of cases, but sometimes they can't tell the difference. Sometimes they don't know whether or not the person is telling the truth, and they've got what they think is evidence that can prove an attempted rape charge, and they're going to give that to the prosecutor, and they file a lot of those cases.
But they can be beaten. People can get not-guilty verdicts, but you have to have the right set of facts, and you have to have a champion defense attorney ready to fight for you to get you that result.
If you need help, you've come to the right place. Pick up the phone. Ask for a meeting with Ron Hedding. I stand at the ready to help you. Hedding Law Firm is located in Los Angeles County and offers a free case review by phone or through our contact form.