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How to Defend a Date Rape Charge

Posted by Ronald D. Hedding, ESQ. | Oct 21, 2019

With the increasing frequency of date rape charges in California, particularly in the wake of the Me Too movement, a common scenario unfolds. A woman, often under the influence of alcohol and drugs, reaches a state of intoxication where she is unaware of her surroundings.

Then they wake up in the morning after having been with somebody, and they think somehow the person has taken advantage of them, and they end up calling the police, and the police do an investigation. The serious sex crime charges of rape charges are covered under California Penal Code 261.

Today, any claim of rape or sexual assault triggers a series of actions from the police, who are bound by specific policies and responsibilities. They conduct a thorough investigation into the matter.

They may even obtain DNA evidence or test the alleged victim for DNA, and they can usually obtain the defendant's DNA. All they have to do is get a search warrant.

Once they do that, they're going to check to see if the defendant somehow had some sort of sexual contact with a victim who's claiming they were unconscious or could not consent to have sex, and with that piece of evidence combined with whatever statement that the alleged victim makes, a lot of times that's enough for the prosecutors file a criminal date rate charge.  That's serious business.

Sometimes, I've even had clients who were just as drunk as the alleged victim, and so they think that the alleged victim is consent based on the conduct and kissing and whatever else is going on; the next thing you know, the person cries sour grapes in the morning. Learn the difference between rape and consent in California.

It's really one of those things where it's not fair because it's a situation where the person should not be claiming something if they really don't know what happened.  That's what's really troubling to me.  If you don't know what happened, why do you necessarily assume that something bad happened?

No Evidence of Forced Sexual Activity

So, I think that's where a lot of defenses are going to lie in these date rape cases that the other person doesn't even know what happened.  If there's no evidence of any force being used — any injuries to the alleged victim — that's a really tough case for the prosecutors to prove, and a lot of those are being won throughout Los Angeles County because they just cannot simply prove the case.

Defending Date Rape Charges in California - Penal Code 261

If, on the other hand, they have other evidence, then that can certainly be a different story. One piece of evidence that I see them use all the time is what's called a pre-text phone call, where they will have the alleged victim call the defendant and say, "Why did you do that to me?"

Why did you take advantage of me and confront the person with whatever they supposedly did wrong, and then the person apologize, say they're sorry, and even give some detail about some wrong behavior on their part?

That, combined with what the alleged victim said, combined with DNA evidence, would put them in a strong position to be able to prosecute somebody for the crime of rape or date rape.  So, these pre-text phone call is definitely something to look out for.

Other times, they try the pre-text phone call, and the defendant says, "I don't know what the heck you're talking about. I didn't do anything wrong. I would never do anything wrong." This can have the opposite effect on the prosecutors and police case because then the defense can use it and say, "The guy denied the charge right away."

There's no evidence of any injuries on the alleged victim, and the alleged victim can't even remember what the heck happened.  How could they possibly be claiming that this particular defendant did anything wrong.

So, there are all sorts of defenses that can be utilized.  You're not going to utilize the same defense in every case because it's not the same factual scenario in every case.  That's the key thing that people need to know.

You may be reading these things on the internet about date rape and rape cases and how they're defended, and what type of evidence is presented. Still, really the attorney is going to need to know the facts and circumstances of your case before they start pontificating about what the result is going to be and what they can do to help you.

When a client comes to me, we have a private, honest discussion about the case under the attorney/client privilege. This transparency is crucial in understanding the case and building a strong defense .

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.

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