Steve Novak: Criminal Defense Lawyer North Salt Lake Utah

Being charged with rape is a very serious thing. If convicted you will have to spend time in prison and you will also be labelled a sex offender. If you have accused of rape, contact an experienced North Salt Lake Utah criminal defense lawyer.

Rape is one of the most controversial and widely debated topics in the criminal law. As such, it presents some of the most complex issues of proof in the context of a criminal trial. During a rape trial, the prosecutor must prove beyond a reasonable doubt that the defendant engaged in sexual intercourse with the victim by force and without the victim’s consent. In some cases, the defendant denies that the sexual conduct ever occurred. The prosecutor will usually respond to this denial by presenting DNA evidence or other physical evidence linking the defendant to the victim. In other cases however, the defendant will admit that sexual intercourse occurred but will argue that it occurred without force and with the consent of the victim. This type of defense automatically shifts the focus of the factual inquiry to the victim’s conduct at the time of the offense. Thus, the crime of rape is unusual in the sense that it is one of the few crimes that requires some proof of the victim’s conduct during the commission of the crime as a necessary component of establishing the defendant’s guilt.
In some instances, an examination of the victim’s conduct can take the form of merely inquiring into what occurred during the incident in question.

But, in other cases, the factual examination could result in a wide-ranging exploration of the victim’s past sexual history as the defendant attempts to establish that the victim consented to sexual intercourse during the incident in question. This intensely personal focus on the victim’s conduct and sexual history often creates an atmosphere in which it appears that the victim is on trial rather than the defendant. Rape shield statutes cannot protect victims from all inquiries and revelations concerning their sexual histories. Thus, the defendant who is arguing that the victim consented to sexual intercourse is entitled to present relevant evidence to support the defense. Such evidence, often presented through the defendant’s own testimony, almost always directly contradicts the victim’s explanation of what occurred during the incident in question. Therefore, the typical rape trial becomes a question of credibility. Who is more credible–the victim or the defendant? Which version of events is more believable? This contest of credibility becomes even more acute in date or acquaintance rape cases, when there is a preexisting relationship or friendship between the parties. That is, from a credibility standpoint, it becomes even more difficult to draw the line between when the preexisting consensual relationship ended and the nonconsensual sexual assault began.

The issue of rape between spouses adds yet another layer of complexity to the topic of criminal sexual assault. Not only do the victim and defendant in a marital rape case have a preexisting relationship, but that relationship is sanctioned by the state, with an expectation that there will be consensual sex between the spouses. Given these expectations, it becomes even more difficult to determine when consensual sexual behavior crosses the boundary into unlawful conduct. This difficulty is further complicated by the fact that, traditionally, the government has been extremely reluctant to interfere unnecessarily with the privacy and sanctity of the marital relationship. Therefore, “misconduct” that occurs within the confines of the marital relationship is often resolved informally or, in more extreme cases, through the formal processes of domestic relations courts.

Nevertheless, sexual assault can and does occur within the marital relationship. To make the factual determination a little less difficult in these circumstances, marital or spousal rape statutes usually provide that there must be some evidence of force (e.g., physical injury to the victim) and/or evidence that the spouses have been living separate and apart for a specified period of time. Clearly, if there is evidence of physical injury to the victim, then that fact makes the issues of force and lack of consent easier to demonstrate. Physical injury associated with a sexual assault also strongly indicates that the marital relationship has reached a point where formal intervention in some form is necessary despite the government’s traditional hands-off approach.

Similarly, requiring the spouses to have lived separate and apart for a specified period of time provides some evidence that the marital relationship has broken down and that the traditional expectations that accompany the relationship are no longer present. In other words, living separate and apart is an indication that the parties may have withdrawn the consent to sexual relations that is implicit in the marital relationship.
One unique feature of marital rape statutes is the penalty structure. Because of the government’s overriding concern with preserving the marital/family relationship if at all possible, penalties in marital rape cases sometimes allow for counseling (both family and individual) in lieu of criminal prosecution if the victim and defendant consent to this form of “punishment.” If the defendant/spouse completes the counseling requirements, then the criminal charges are dismissed.

Of course, these statutes also provide for traditional criminal prosecution if the victim and/or defendant refuse to consent to the counseling program or if the defendant fails to successfully complete the program requirements.

Because of the marital status of the parties and the presumption of consent to sexual relations, the material elements of force and lack of consent are exceedingly difficult to demonstrate. Essentially, the prosecutor must prove that the spouse alleging rape manifested a clear intent to revoke the consent to sexual relations that is inherent in the marital relationship. This evidence may be demonstrated by the fact that the parties have lived separate and apart for a period of time or that there was actual physical force involved.

Statutory Rape

Historically, statutory rape laws were enacted to protect the chastity and morality of young women. These statutes made it a crime for a man to have sexual intercourse with a young woman under a certain age (usually eighteen), even if the young woman consented to the act. (Today statutory rape provisions protect minors of both genders.) Further, it did not matter whether the man actually believed that the young woman was above the specified age of consent, because statutory rape was/is a strict liability offense. This means that as long as the sexual conduct occurred between the victim and the defendant, the defendant could be convicted of statutory rape without regard to his mistaken belief.

Young people are becoming sexually aware and sexually active at earlier ages. Moreover, modern trends in fashion and makeup often make it difficult to determine the exact age of many young people based solely upon outward physical appearance. Therefore, in some instances today, it is much easier for an unsuspecting male or female to be deceived by a young woman’s or man’s behavior and outward physical appearance. To relieve the potential for unfairness in these situations, a defendant charged with statutory rape will be allowed to present arguments as to what he or she reasonably believed based upon the facts presented to him or her at the time of the sexual conduct. Again, however, few jurisdictions allow arguments based upon the defendant’s reasonable belief, and most continue to adhere to a strict liability standard, which promotes the broader social policy of protecting minors. Defendants in these cases will therefore shoulder the burden and suffer the consequences of their mistaken beliefs.

It should also be noted that, in addition to statutory rape provisions, many sexual assault statutes contain provisions that proscribe sexual conduct be tween specific categories of individuals. The categories generally encompass relationships wherein an adult is entrusted with the care, custody or control of a minor or is in a position of trust or authority vis-à-vis the minor. Such relationships would include, for example, teacher/student, foster parent/child, and baby sitter/child relationships. Like statutory rape provisions, these statutes are usually strict liability in nature because they are designed to protect minors from the abuse of trust and manipulation that can result if sexual conduct is introduced into these relationships, even if the minor consents.

Rape Shield Statutes

In an effort to prevent some of the embarrassment and humiliation to victims that can result from the criminal trial process in rape cases, almost every jurisdiction has enacted a rape shield statute. Rape shield statutes generally prohibit the introduction of evidence related to the victim’s past sexual behavior unless that evidence fits within one of the very limited exception categories. Overall, rape shield statutes have been successful in keeping the focus of rape trials on the defendant’s conduct rather than the victim’s sexual history and reputation.

To combat the potential for further humiliation and trauma to victims in rape prosecutions, Utah has enacted a rape shield statute. This statute is designed to exclude evidence of the victim’s past sexual history unless that evidence fits within one of a few carefully crafted exceptions. Line-drawing difficulties arise, however, when attempting to determine whether certain evidence offered by the defendant falls within one of those exceptions. Depending upon where the lines are drawn, the defendant may be effectively precluded from presenting evidence in his defense.

While the defendant has a constitutional right to present evidence in his defense, that right is not absolute. The defendant’s task in a sexual assault trial then is to clear the hurdle of establishing the relevancy of the evidence to the issues at trial, rather than simply seeking to introduce evidence that the victim was a bad person. Although this standard presents some difficult line-drawing decisions, it represents the best effort to protect the defendant’s right to a fair trial while simultaneously protecting the victim’s right to privacy.

One of the limited exceptions in rape shield statutes that permits the introduction of evidence related to the victim’s sexual history arises when the proposed evidence is relevant and is offered as an alternative explanation for the physical evidence in the case. For example, the defendant may seek to offer evidence that the victim engaged in sexual intercourse with another person during the relevant time period of the alleged sexual assault in order to offer an alternative explanation for the presence of semen collected from the victim. Evidence of the victim’s sexual history may also be offered to establish prior, recent consensual sexual encounters between the defendant and the victim. Finally, evidence of the victim’s sexual history may be offered to demonstrate that the victim might have a motive to fabricate a rape charge against the defendant. For instance, if the defendant claims that the victim is making a false allegation of rape because the defendant terminated their dating relationship, then the defendant may be permitted to offer evidence that the victim has previously made false allegations of rape after the termination of other dating relationships. Because most of the evidence related to the victim’s sexual history is of a highly sensitive nature, the judge will review it in a private hearing to determine whether it is relevant and whether it complies with the provisions of the rape shield statute before it will be admitted in open court.

Sex Offender Legislation

One of the more recently controversial areas of crime and punishment involves the treatment of repeat sex offenders. Repeat sex offenders are those who have committed several sex-related offenses and, by their conduct, indicate an inability to control deviant sexual impulses. Many of these repeat sex offenders specifically target and commit offenses against minors and are generally categorized as pedophiles. In an attempt to combat the problem of repeat sex offenses, particularly those that target children, many states have enacted criminal and civil legislation designed to remove these offenders from society at the earliest possible moment and for the longest possible time. Despite the effectiveness of this legislation, however, some of the statutes have met with constitutional challenges because they fail to provide appropriate procedural and substantive protections to those suspected or convicted of committing sex offenses. For example, several states have passed sexual predator laws that allow convicted sex offenders to be civilly committed to an institution after they have served their term of imprisonment. Those challenging such legislation argue that a period of civil commitment following the prison sentence inflicts an additional, unwarranted and potentially limitless punishment on a defendant who has already served the statutory penalty for his crime.

Fighting a rape charge without the services of an experienced North Salt Lake Utah criminal defense lawyer is almost impossible. Don’t take chances. Speak to an experienced North Salt Lake Utah criminal defense lawyer.

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