Rape Law in California - Penal Code 261 PC
Over the last twenty-five years, I've handled many rape cases in all the Los Angeles courts, especially the Van Nuys court. This court is about five or ten minutes from my office, so I get a lot of cases there; plus, I'm very well-known in the San Fernando Valley, and Van Nuys court handles most of the cases in this general area.
It's all divided up by jurisdiction, so if somebody commits or allegedly commits rape in the San Fernando Valley, there is a special sex crime prosecution unit that is located in the civil building of the Van Nuys court.
I go there all the time because to get discovery, I have to go into this particular court and talk to the prosecutors there. There are a lot of specially assigned sex crime prosecutors that work in the court and deal with these rape cases. When it comes to a rape case, what you're looking at as a criminal defense attorney is a SART exam done, which means a sexual assault kit is down at a local hospital.
A nurse practitioner is usually involved, and basically, they're assessing whether there is DNA that they can test to get some sort of evidence that sex was had or some physical contact. They'll also be looking for semen when they do these rape kits. These SART exams are essential. Sometimes you can use experts to attack the SART exams in a rape case.
Pretext Phone Call to Record Conservation
Also, we're looking for what they'll usually do: a pretext phone call in these rape cases where the alleged victim will call the suspect or the defendant in a suit, and the police will tape-record the conversation. The police will give them specific questions regarding the alleged rape, and then depending on how the person answers those questions; then the questions can be used against the person in the prosecution of the sex crime case.
This is another thing we always deal with: pretext phone calls and how they relate to the alleged rape case. Other pieces of evidence used are witnesses, any video evidence that might be available, statements from the alleged victim, and statements from the defendant.
So, when it comes to these rape cases, the prosecutors use a whole slew of different things to prosecute them. As defense attorneys, we have to be ready to counter some of those things because many times in these rape cases, people are drunk, intoxicated, or on drugs.
Then they wake up in the morning, and all of a sudden, they somehow think they've been raped, and yet there's no evidence to prove that. Penal Code 289 PC defines the crime of sexual penetration with a foreign object.
How Can You Defend Yourself If Charged with Rape?
This is a pretty good question because with the “me too” movement and all of these different groups attacking individuals who are claiming that they didn't sexually assault somebody if you're charged with rape or any sex crime, you're automatically pigeon-holed, and there's a stigma against you.
You're assumed to be guilty. So, somebody who's charged with rape is asking themselves, how do I defend myself? So, even if you're innocent – you didn't do the crime – just being charged with it is a problem.
Step one is hiring the best attorney you can find. Your attorney is going to be your champion. Your attorney will be the one who helps you strategize what you're going to do.
Your attorney is going to be the one that executes the plan that either gets you that not guilty verdict at a jury trial or helps you work out some resolution to save your life, to keep you out of prison for an extended period, and all of the other bad things that come along with a rape conviction.
You have to set up a meeting with the attorney. Then, what I have you do is come into the office. Then, we will discuss what direction we will take in this case.
I encourage you to be honest with me. Otherwise, we won't be able to figure out the best course of action. Once we meet, we decide what we're going to do. Our legal options include the following:
- We're going to fight the case, we're going to investigate it, we're going to file motions, we're going to get ready for trial, or
- We will mitigate the case and try to work out a resolution that helps save your life and put the pieces back together.
That's step one. Get your game plan together. Step two is to start looking for the problems with the prosecutor's case. Whether you're innocent or whether you're guilty, there are always some issues in these cases.
Once we identify the weaknesses in the case, we have to take steps to exploit them by way of investigation, by way of experts, and finally, many times, I do the preliminary hearing in the case.
That's where they've got to call witnesses to prove the case, and we attack the witnesses' credibility. We attack the weaknesses in their case. So that does one of two things:
- It either damages the case so bad that they have to dismiss it, or it sets it up to be destroyed at an upcoming trial, or
- It points to problems with the prosecutor's case that can be used to work out a resolution.
The final piece of the puzzle in defending these rape cases is, putting our plan together – executing the plan, taking things step by step, and setting up your defense the right way so that you feel comfortable knowing we will do everything possible can to help you.
How to Get the Best Result in a Rape Case?
Those charged with California Penal Code 261 PC rape face prison time, sex registration, and many other bad consequences.
You want to get the best possible result for your case. That's where I come in. I've been doing this now for 30 years. I started working for the district attorney's office, then a superior court judge, and I've been handling these matters since the early 1990s. What we do is the following:
- Have you come into the office, or
- I'll meet with you in custody if you're calling for a loved one, and
- Go over the whole case with you and get your perspective.
I've got to see all of the discovery related to the case, which is the paperwork, videos – whatever they have evidence-wise, and then, of course, I talk to the prosecutor and see their position. Then we'll meet, and we'll talk about the case, and we'll decide exactly how we're going to handle it.
Two Ways to Handle a Rape Defense
Regarding a rape case, you're looking at two potential ways to handle it. One, you can try and fight the case, do the preliminary hearing, attack all of the prosecutor's evidence, and ultimately take the case to trial.
Or, we can try to mitigate the case and work out a deal with the prosecutor. If we decide to mitigate the case, we're going to:
- Get character letters,
- Information about your job,
- Any volunteer work,
- Any other good information that you have.
One big thing the prosecutors look at in dealing with these rape cases is whether or not the person has any prior criminal record related to sex crime-type activity. So, if you don't, you'll be in a much better position.
When we evaluate the strength of the case, we have to look at what evidence the prosecutor will use to try to prove the case. Sometimes in a rape case, they've got a pretext phone call where the alleged victim called you, challenged you with a crime, and you made some statements.
They were tape recorded by the police, and the police directed the alleged victim to ask the specific questions, and they're hoping that you'll apologize or say something incriminating. That's called a pretext phone call.
Consensual Sex
Also, sometimes there are defenses to rape cases where we can argue that it was consensual sex or that you were not the one that allegedly committed the rape.
Of course, the prosecutors will try to counter with evidence of their own. They can do an SART exam, a sexual examination that a nurse usually performs.
They're checking to see whether the alleged victim has any signs of injuries from rape and other things consistent with rape. They'll check for DNA and semen to see if they can corroborate that you even had sex with the person in the first place.
Experienced Criminal Defense
What we need to do is sit down and talk about it. I've been doing this for 30 years, so I will put my experience to work for you, and we will decide the best course of action.
When it comes to a severe rape charge, you want to make sure you're marching in the right direction; the moves that are being made because we decided this is how we're going to handle the case and we're putting in the work and the effort to get the best possible result. I suggest you pick up the phone now. Make the call. Ask for a meeting with Ron Hedding.
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