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Consent Defense in California Sex Crime Cases

Posted by Ronald D. Hedding, ESQ. | Feb 21, 2020

If someone is claiming that you committed a sex crime against them and you believe that person agreed or consented to the sex act that you are being accused of performing, then that could be considered a consent defense to the alleged crime.

A lot of times, especially with dating apps, people get together. Sometimes they have too much alcohol and they end up getting together sexually. And, usually, the woman wakes up in the morning and decides that something wrong happened.

She believes that she would have never gotten sexually involved with somebody that she had just met through a dating app. Therefore, the man is then being accused of doing something impermissible, such as sexual battery (CALCRIM 935).

SART Exam in Sex Crime Cases

Most often, the person accusing someone else of a sexual crime will get a SART exam done, which is a sexual assault exam administered by a trained professional. The SART exam is used to determine if there is any injury consistent with being sexually assaulted.

Sometimes, when a person can't even remember what happened the night before and wakes up naked in bed, they tend to look for somebody to blame for what's happened. I see a lot of these circumstances where the man has done nothing wrong.

For instance, both the man and the woman become intoxicated by drinking, and he perceives that the person agreed to the sexual act they engaged in. The man then becomes confused when he can't understand why he is being attacked and accused of doing something wrong. Moreover, the police have all sorts of methods to try and show there was no consent.

For example, the police will have the alleged victim call the perpetrator and ask him why he did what he did. If the man says that he is sorry and doesn't know what came over him, then that would be evidence that the victim didn't consent.

If, on the other hand, the man says that he didn't do anything wrong, and that the other person agreed to it while recalling that the other person was going to text him after getting home, then a consent defense could be argued. It depends on the circumstances, but consent in a sex crime case is usually a complete defense.

Not Knowing Age In Sex Crime Cases With a Minor

Not knowing the age of an underage teen in a sex crime case is a difficult argument to prove. If you met a person in a bar, and she was at least 21 years old, and there was consent, you may have the argument that you didn't commit a crime, especially if she looked 21 years old, was drinking alcohol, and had a fake ID.

Consent Defense in California Sex Crime Cases

These are all indicators that she was at least 21 years old. In this type of scenario, the police are going to go back through all of your communication. If the police find that the female told you that she was underage, you still met her anyway, and ended up engaging in a sexual activity with her, then you can be prosecuted for having sex with somebody under the age of 18 even if that person consented to the matter.

In California, the legal age is 18 years old. If the person that you had any sexual contact with is under the age of 18, then you can be charged with statutory rape and a number of other crimes.

You can also be charged with soliciting a minor under Penal Code Section 288a. Therefore, before you engage in any sort of sexual activity with someone who may be under the age of 18, you will want to have confirmation that the person is at least 18 years old. See CALCRIM 422 – solicitation of a minor.

A lot of times, there are various ways to get confirmation. In the bar scenario, you do have an argument – how did they get in the bar? Who would let them in if they didn't have any identification showing that they were at least 21?

If the person was drinking any alcohol, then they should have been required to show some ID to get the alcohol in most bars. The bottom line, you should not take any chances when it comes to having sexual contact with anyone who may be under the age of 18.

If you have taken a chance, and you find yourself on the wrong end of the law, the police will try to talk to you or contact you, and you should get an attorney involved to act as a buffer between you and the police. An attorney can do some damage control, and assert your defense related to any potential sex crime charges.

What if a Minor Sent Me Nude Photos Without My Consent?

If somebody sent you photos that you did not ask for or consent to, you would have a defense that you did not have any knowledge that someone was going to send those photos to you. If you can prove that they sent it to you without your will or against your will, then you have a defense. However, it will also depend on when they sent those photos to you.

If they sent them to you a year before and you kept them, the authorities may be able to make the argument that you are possessing child pornography of a person under the age of 18.

When it comes to these sex crime cases and the transmission of nude photographs and videos over the internet, the police are going to look at who sent them and determine whether there is any connection between you and that particular person.

If you have a history of knowing that person, and they end up sending you nude photographs while you know that they are under the age of 18, you may have a problem. But, if you didn't solicit them to send you indecent content, then you can also mount a defense.

If they sent the indecent content out of their own accord and you deleted the photographs, you would be fine. When people keep the photographs in their phone, and the police somehow get their hands on the phone, questions get asked. Why are these photos on here?

How long have the photos been on the phone? Under what circumstances were the photographs sent to you? You've got to make the determination that whoever sent the photographs is actually under the age of 18.

There are a lot of things that go into it. One thing that you should keep in mind is that talking to the police about the situation is usually not a good idea. Talking to the police usually ends up with some sort of alleged confession, and they can gather information that could be used against you to prosecute you.

What Is The False Memory Syndrome?

In any sex crimes case, false memory syndrome occurs when somebody's memory about what happened could be impacted if they had any alcohol or drugs. Sometimes they can't remember exactly what happened in a particular setting or scenario.

People who meet on dating apps usually end up drinking too much, get involved sexually, and then wake up in the morning with one side accusing the other of doing something illegally.

Sometimes the person that is claiming that the other person did something wrong has a false memory of what happened because they used drugs or drank too much alcohol. They can't exactly remember what happened because their memory is distorted from the ingestion of the inebriating substance and it altered their memory.

Those types of cases are common. People figure that something must have happened, but they can't remember all of the pieces. Usually, the police realize that it's an inherent problem for the prosecutors to try and prosecute a case where someone may be having a false memory about what happened.

Under that certain circumstance, the police will take DNA samples from the person during a sexual assault examination to see if there's any DNA, then they'll ask the defendant whether they had sex with that person.

If the defendant says no and the DNA comes out positive that there was sexual contact, they can make the argument that you lied, and that you must have done something wrong while that person was in an intoxicated state. An exam can also be administered to show whether there are any injuries consistent with non-consensual sex. All these cases spin on their own facts.

Whenever there is alcohol involved, the prosecutors will basically file the case as rape of an unconscious person. They're going to try and gather evidence that shows that the person didn't consent and would never consent to having sex with another individual under the circumstances that they found themselves in. Therefore, any DNA or any signs of sexual activity are significant because they must show that the person committed a sexual assault.

Factors Considered During Sentencing In A Sex Crime Case

Some of the most important factors that a judge will be looking at in a sex crime case are the circumstances surrounding the alleged crime. The judge will be looking at whether there was violence involved, which would be a negative factor.

They will also look at the age of the defendant, the age of the alleged victim, and the age gap between the two. In any type of a sex crime sentencing case, they're going to be looking to punish the defendant.

Therefore, they're going to want to give a sentence that deters the defendant from committing any further crime. If the case is serious enough, a long sentence is appropriate from the judge's circumstance to protect society from this particular criminal defendant.

A lot of times, the courts look at what's called a Static 99 report. The report helps evaluate whether the defendant is likely to re-offend. The less likely they are to re-offend, the better sentence they will most likely receive.

They'll also check to see if the defendant has committed any past sex crimes, or if this is a first offense. The number of previous offenses will help determine the appropriate sentence for the defendant.

There's a whole host of factors that are taken into account by the judge. In addition to punishing a person for a sex crime, the prosecution will also look for the root problem. In other words, why did this person commit this sex offense? What caused them to do it? Is there a treatment that could help them from committing future sex crimes?

This is an area where the Penal Code Section 288.1 report can apply. Under the penal code, a doctor or psychiatrist assesses a person's likelihood of re-offending. They will try to figure out why the person committed a sex crime.

It gives them ideas for rehabilitation whether it be medication, a lock-down program, or an outpatient program. There are a lot of factors that go into sentencing in sex crime cases. They don't all apply to every sex crime case, so it's up to the attorney to figure out what applies while making the right arguments at sentencing to get the best result.

Hedding Law Firm is a criminal defense law firm located in the San Fernando Valley area of Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436. We are also located at 633 West Fifth Street Los Angeles, CA 90071. Contact us for a free case evaluation at (213) 542-0979.

About the Author

Ronald D. Hedding, ESQ.

Ronald D. Hedding, Esq., is the founding member of the Hedding Law Firm. Mr. Hedding has an extensive well-rounded legal background in the area of Criminal Law. He has worked for the District Attorney's Office, a Superior Court Judge, and as the guiding force behind the Hedding Law Firm. His multi-faceted experience sets Mr. Hedding apart and puts him in an elite group of the best Criminal Defense Attorneys in Southern California.