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How to Defend a Date Rape Charge


More and more, I’ve seen these date rape charges across California, especially since this Me To movement and a lot of times what I’m seeing happen is, a woman will drink to much, take some drugs, mix drugs with alcohol, and basically become in a state where they’re intoxicated to the degree that they don’t even know what’s going on around them

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.

Rape Investigations by Police

Nowadays, anytime somebody says they’ve been raped or somebody has sexually assaulted them, the police have certain policies and responsibilities that they have to follow-up and most of the time they’re going to do their investigation.

They may even get DNA evidence or test the alleged victim for DNA and they get the DNA of the defendant which they can usually do.  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 having 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.

It’s really one of those things where it’s not fair because it’s a situation where the person should be not 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 real 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 calling 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 it is they supposedly did wrong and then the person will 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 of 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 and then it can have the opposite effect for 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.

Criminal Lawyer Review Of Your Date Rape Case

So, there’s 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, but 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.

That’s why I get the client in.  We sit down in the privacy of my office under the cloak of the attorney/client privilege and we talk about the case and obviously, I assure t hem that I’m not going to say anything to anybody and I encourage people to be honest so I can really get a good sense of what happened and get a good defense together so we can move forward in the strongest possible way.

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About the Author

Named Top Los Angeles Criminal Attorney by LA Times and named one of the Top 100 criminal defense attorneys in California by the National Trial Lawyers Association. I'm the attorney other lawyers hire to defend them.