Being accused of rape is a very serious matter. Criminal charges for rape or other sex offenses can result in jail time, fines, counseling, and require registration as a sex offender. Decisions made now will affect your future. You need an aggressive, experienced, and knowledgeable lawyer to help navigate you through the criminal process in Virginia. Contact attorney Bryan J. Jones, LLC today.
Statutory Elements of Rape in Virginia
When the prosecutor goes before a jury, she must prove all the statutory elements to get a conviction. If the prosecutor cannot prove all the elements of the crime, the defendant should be found not guilty.
Under Code of Virginia § 18.2-61, in order to convict a defendant of rape, the Commonwealth of Virginia must prove the defendant had sexual intercourse with another person or that defendant caused another person to have sexual intercourse, which was accomplished:
- Against the complaining witness' will, by force, threat, or intimidation of force; or
- Through the use of the complaining witness' mental incapacity or physical helplessness; or
- With a person under 13 years of age, whether or not force was used.
The rape statute notes that forced sex is still rape if committed against the person's spouse. Historically, spousal rape was treated differently than other types of rape, or in some cases, was not a crime at all. Now, spousal rape is a crime in all states.
However, spousal rape in Virginia is still treated differently than other types of rape. When the person convicted of rape is the victim's spouse, the court can defer a sentence for someone who has not been previously charged with rape. The person will then have to complete counseling or therapy. Once counseling or therapy is completed, the court may decide to dismiss the proceedings, based upon relevant evidence, including the views of the complaining witness.
A conviction for rape in Virginia can result in imprisonment of not less than five years up to life in prison. The exact sentence will be decided by the court or jury.
When rape is committed against a person under 13 years of age, there is a higher minimum prison sentence where the perpetrator is more than three years older than the victim. When the offender is more than three years older than the victim, there is a mandatory minimum sentence of 25 years in prison.
When rape is committed against a person under 13 years of age by a perpetrator who is an adult (over the age of 18), there is a mandatory minimum sentence of life imprisonment.
As an example, if a 17-year-old has sex with a 13-year-old, the perpetrator may face a minimum of 25 years in prison. If an 18-year-old has sex with a 13-year-old, the perpetrator may face a minimum sentence of life in prison.
A conviction of rape requires registration as a sex offender in Virginia for life. This will have an impact on the sort of jobs you can get, the relationships with your neighbors, custody of children, and other aspects that are very important to you. Registration as a sex offender requires regular updates with law enforcement, including anytime the offender moves, gets a new job, or plans to move.
In many cases of alleged rape, there are no other witnesses other than the alleged victim and the accused. Rape cases often come down to a "he said, she said" situation. In such situations, it is important that an attorney fully explore the facts and investigate the case.
Consent is generally a defense to rape charges. If the alleged victim consented to sex then the accused should not be found guilty of the crime. The defendant does not have to prove he or she is innocent. Instead, the defense attorney only needs to put enough doubt in the minds of a judge or jury that the prosecutor did not prove all the elements of the crime. In some cases, an experienced criminal defense attorney can place enough doubt in the mind of a prosecutor even before trial to have charges reduced or even dismissed.
Another potential defense is showing that no sexual intercourse took place between the defendant and victim. DNA testing can be used to show that the defendant did not have sexual intercourse with the victim. Testing can also show that there was another person who had sex with the alleged victim and the victim was mistaken about the perpetrator's identity.
Force, threat of force, or intimidation must be proved by the prosecutor for the rape of an adult. For the prosecution to prove "force," they must generally show that the force was enough to overcome the person's will. A threat of force simply means a threat to do bodily harm. Intimidation means putting the alleged victim in fear of bodily harm that comes from some statement or action from the defendant.
By showing that there was no force, threat of force, or intimidation may be another defense to criminal rape charges.
In many cases, sexual assault occurs between people who know each other. This can add a layer of complexity to rape claims. Often, the events that lead up to the allegation of rape are seen very differently by the two parties. It is important to have an experienced attorney that can determine the facts and present them in a way that protects your rights to a fair trial.
An experienced criminal defense lawyer can also use his or her skill to lessen the potential charges or penalties. There is a significant difference between sentencing from sexual assault and a possible life sentence for a conviction of rape. Talk to your criminal defense lawyer about your options and how to best fight the charges against you.
Sexual Assault Criminal Defense Lawyer in Virginia
Being charged with rape in Virginia is a very serious matter. As soon as any allegations of sexual assault are made you should consider talking to a lawyer before you talk to investigators. You need an experienced and committed attorney to fight for your rights. Bryan J. Jones will make sure you understand your options and fight to make sure your rights are protected. Contact us today.