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Attempted Rape Defense Story

Posted by Ronald D. Hedding | May 18, 2024

Several years ago, I had a client who was charged with California Penal Code 664/261 PC attempted rape, and he was facing 20+ years in prison because he had a prior strike on his record.

He swore up and down that he was innocent and not taking any deals, even though if he lost, he was probably looking at triple the time the prosecutors offered him.

Fortunately, we could go to trial and get a not-guilty verdict, but let me tell you, it was not an easy road. The judge and the prosecutor were dead set on getting a conviction.

The prosecutor put in all of the evidence that he could and made the arguments, but one thing that the judge and prosecutor did that was very damaging to my client was my client said look, this was my brother's ex-girlfriend. She had stolen a check of mine, and that's why she and I had issues. It had nothing to do with me attempting to rape her.

What is Attempted Rape?

Attempted forcible rape is defined by California Penal Code 664/261(a)(2). It's committed when a defendant makes a direct but ineffectual step towards the commission of the crime of rape, along with the specific intent to commit rape.

California Penal Code 664/261(a)(2) - Attempted Rape

An attempt to commit a crime consists of a specific intent to commit a crime and a direct but ineffectual act done towards its commission (PC 21a). Simply put, attempt means to try but fail to do something.

​Rape is defined as the sexual penetration of a woman by a man, which is committed without the woman's consent or by force or fear of bodily harm to the woman or a third person.

Sexual penetration means the man's penis enters the woman's vagina, no matter how slight the penetration and no matter the duration of the penetration.

​Consent to sexual intercourse is only valid when an adult woman understands the nature of her circumstances and freely and voluntarily enters into sexual intercourse with someone.

There is no valid consent when sexual intercourse occurs with a minor under 18 who is legally incapable of consenting, a person who is intoxicated, disabled, or unconscious, a person who is subjected to force or fear of bodily harm as a condition of her consent, or where consent is obtained by fraud.

Any defendant convicted of attempted rape must register as a sex offender pursuant to PC 290. Failure to register as a sex offender after a conviction for any PC 664/261 crime is a separate crime and a possible probation or parole violation.

The length of sex offender registration depends on the exact attempted rape crime for which the defendant was convicted.

Opening Argument at Trial

The judge basically, after the DA objected to me getting that evidence in - and I had told the jury in the opening argument what had happened and why he had been in contact with her - the judge blocked me from being able to get the check and the information related to the check, into evidence, saying it wasn't relative to the case.

Then, when the prosecutor, when my client took the witness stand, asked him why he had the big issue with the alleged victim, I said, " Your Honor, he's now opened the door.

My client should be able to mention the check because the judge had ordered that the check was not allowed to be mentioned. The judge still wouldn't let him say the check. I mean, it was unbelievable.

Highly-Experienced Rape Defense

Sometimes, you get into a circumstance where the prosecutor is trying to prosecute your client. Then you've got a judge who is a former prosecutor trying to help him or her, and I would say that's a lot of the cases in many counties, so you, as a defense attorney, have to be prepared for that. You've got to have the evidence. You've got to be able to make the arguments despite the judge and the prosecutor trying to get the convict.

If you need the best - you need somebody who's battle-tested, has handled many jury trials, and had a lot of success, you've come to the right place. I've worked for the district attorney's office. I've worked for a superior court judge, and since the early 1990s, I've worked for people like you and gotten good results. Pick up the phone now. Ask for a meeting with Ron Hedding.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.