Virginia Criminal Attorney is a reputable law firm that can help you with criminal defense services if you are facing rape or any sex crime cases in the Fairfax and Northern Virginia areas. If you are convicted of rape, you may face harsh penalties including possible life imprisonment and registration as a sex offender. Thus, you need to seek immediate legal help to avoid such repercussions.
Legal Definition of Rape in Virginia
Virginia Code, Section 18.2-61 (criminal sexual assault laws) defines rape as the act of having sexual intercourse with another person, regardless of whether you are married to them or not, while any of the following conditions hold:
- You used threats, intimidation, or force against the person;
- The person was mentally incapacitated or physically helpless;
- The person was under thirteen years old.
Common Categories of Rape
Rape may be carried out against a person who is incapable of giving valid consent by the use of physical force or if the victim is below the legal age of consent under the following categories:
Gang Rape
This occurs when a group, usually three people or more, rapes a single victim. This kind of rape is characterized by night attacks, alcohol, and other drug use and is usually violent.
Rape of Children
This is a form of child sexual abuse. All sexual acts that are not categorized as other sexual battery or assault offenses against a child are considered rape. When committed by close relatives or by a parent it is known as incest. When committed by another child (probably stronger than the victim), it is known as child-on-child sexual abuse. When the act is done by an adult who is not a family member (such as a teacher or a caregiver), the action is known as incestual rape. Rape of children can cause severe and long-term psychological trauma on the victim.
Date Rape
Acquaintance rape and drug-facilitated rape are typical examples of date rape. Acquaintance rape is done by a person who knows the victim. Drug-facilitated sexual assault occurs when a person intoxicates a victim before having sex with them without the victim’s consent.
Types of Evidence for Proving Rape Cases
A prosecutor must prove the following elements of rape as required by the law before the final verdict is issued: the accused had sex with another person or caused another person to have sexual intercourse; the act was against the will of the complainant; the complainant is under 13 years; and force, violence, or threats were used against the complainant.
The proof of the above elements majorly relies on the witness testimony, physical evidence, and circumstantial evidence.
Witness Testimony
Most of the times, proving the case based on the witness testimony can be challenging because of the limited number of witnesses willing to take part in the case. Consequently, the victims remain the only reliable witnesses to prosecutors. He/she has to recount anything that happened, including the number of offenders, their identities, the type of sex, and so on. In turn, the prosecutor builds their allegations based on this testimony.
Still, the victim may not be willing to testify for fear of being traumatized. This situation is common if the victim is a minor (specifically under 13 years old), the accused is the victim’s close relative or friend, or the victim fears for their life because of threats from the defendant. The state allows such victims to be exempted from testifying in ways that the public could identify them as witnesses; for instance, the case hearings can be done in an out-of-court arrangement.
Physical Evidence
The rape kit is the physical evidence of the alleged crime. In this case, the police will collect evidence like semen, saliva, or hair that might procure a DNA match. The DNA will be used to ascertain whether sexual acts occurred and the identity of the perpetrator(s).
If the complaining witness incurred any injury during rape, the prosecutor would use this injury as primary proof that the accused used force during the incident. However, challenges are encountered if the defendant claims that the injury is not a result of the use of force – the victim might have had the injury even before the alleged rape happened. Prosecutors would also face challenges in proving that the alleged perpetrator used force if there are no physical injuries on the victim.
Some of the ways to prove rape without physical evidence are: gathering circumstantial evidence during the investigation (like the sudden change of behavior from the victim); looking for a serial pattern behavior from the accused (by contacting other victims who could have been violated by that person); establishing elements of force or fear if present from either party; or using interview techniques to gather more information.
Circumstantial Evidence
This evidence relies on inference to connect a series of facts to an overall conclusion. For instance, investigators may use fingerprints to ascertain the identity of the suspect. Also, the Commonwealth of Virginia prosecutors use DNA evidence that is unique to the defendant to prove their case. Most rape cases are assigned to investigators who are trained in obtaining such forensic evidence.
This evidence also allows for more than one explanation, meaning that the prosecutor uses distinct arguments to conclude that you are the perpetrator of the rape crime. Reasonable doubt is also tied to circumstantial evidence. Reasonable doubt is the highest standard of proving a criminal case and it also means that the evidence must be convincing and clear to incriminate the person. It is right to say that this form of evidence may not be enough, but it contributes to other decisions reached about the case – circumstantial evidence may help in proving one element of the offense while bypassing the other elements. For instance, this evidence may show that you were at the crime scene but fails to link you with any use of force or intimidation to sexually assault the victim.
Rape Shield Law in Virginia
This is a law that limits the ability to introduce evidence or cross-examine rape victims about their past sexual behaviors. The law was enacted to protect the victim from humiliation and embarrassment. It analyzes the defendant’s right of confrontation, the interest of the state in prosecuting rape, and the victim’s right to privacy. The standards for admitting the specific evidence are explored as stipulated in Virginia Code, Section 18.2-67.7. This is the statute that governs all aspects of hearings of cases, particularly the admissibility of evidence.
The 1960’s sexual revolution came with a more open forum in which to discuss intimate sexual issues. Before Virginia enacted the rape shield statute, courts in the state relied on the traditional common law standard that allowed the accused to prove consent by introducing the victim’s character and reputation for being immoral unless he/she attacked the victim’s credibility. The rape shield was designed to make sure that the general background of the victim does not come in.
The rape shield law was also introduced to limit the ability of the defendant’s counsel to introduce the accuser’s sexual history as evidence in the rape trial. The first rape shield law was passed in Michigan and within two decades almost all the states in the US (including Virginia) had enacted the legislation. Thus, this law applies in both state and federal criminal and civil rape proceedings.
What Are the Sentences for Rape in Virginia?
A rape conviction results in the imprisonment of between five years to life. There is a higher minimum prison sentence if the rape is committed against a person under the age of 13 years and if the accused is older than the victim by at least three years: a minimum sentence of 25 years in prison is applied if the accused is more than three years older. When an adult commits the act against a minor under the age of 13, he/she must also serve a minimum of 25 years in prison.
If the complainant is your spouse and you are tried without a jury, the Commonwealth of Virginia attorney may defer further criminal proceedings and place you on probation pending completion of therapy and counseling. If you complete the counseling as prescribed under Virginia Code, Section 19.2-218.1, the court may discharge you and dismiss the proceedings after the consideration of views of the complainant.
Will I Be Required to Register as a Sex Offender after a Rape Conviction?
You are required to register as a sex offender following a rape conviction. Other rape-related charges such as child molestation also have this requirement. This requirement adversely affects most people because they can hardly get employed or overcome the social stigma that is tied to convictions of sexual crimes.
Failure to register as a sexual offender is a separate offense that can lead to further restrictions. For instance, the court may decide to make you take a picture, provide proof of residence, provide assets you own, and offer your employment number. Your fingerprints will also be required. You also need to provide your email address and give a DNA sample that goes into the DNA database bank. You will also be required to re-register as a sexual offender and check-in with the police regularly.
Civil Commitment for Rape and Other Sex Offenders
If you are a habitual sex offender, a civil commitment proceeding can be used to remove you from society for an extended period of time. This is an involuntary confinement which is based on the possibility of an individual to commit any crimes in the future. These proceedings can also be applied to someone who poses a high level of threat to the public. It may include people with mental illness, chemical dependencies, or people with developmental disabilities.
The constitution of Virginia permits these civil commitments, though they vary depending on the jurisdiction. Essentially, the proceedings are similar to civil hearings; but they involve legal aspects such as the right to legal representation, the right to present evidence and testify, and the right to cross-examine a witness.
After the judge establishes that you are, indeed, sexually dangerous, you are placed under the attorney general’s custody until the state assumes responsibility for your custody or when you are no longer deemed to be sexually dangerous.
Charges Related to Rape
The most common sexual offenses that can be charged alongside or instead of rape are sexual battery, aggravated sexual battery, and the attempt to commit certain sex crimes like rape and aggravated battery.
Sexual battery, under Virginia Code, Section 18.2-67.4, is a form of sexual abuse that entails any of these circumstances: (a) the use of tricks, intimidation, force, or threats, (b) the accused is in an authoritative position whereas the victim is an inmate, (c) the accused is in an authoritative position whereas the victim is a parolee, pretrial defender, or probationer, and (d) the act is committed with at least two victims without their consent within two years or with one victim at multiple times without his/her consent. This offense carries class 1 misdemeanor penalties: a maximum of $2,500 as fines and up to 12 months imprisonment.
Simple sexual battery (as described above) can graduate into aggravated sexual battery if: (a) the victim is under thirteen years old, (b) the victim was mentally incapacitated or physically helpless during the act, (c) the offender is a close relative to the victim (a parent, step-parent, grandparent, or step-grandparent) and the victim is a minor above 13 years old, or (d) force, intimidation, or threats were used against a victim who is between 13 and 15 years old with the threat or actual use of a dangerous weapon, or the victim was seriously injured (mentally or physically). This offense is always a felony, carrying a sentence of one to twenty years in prison.
Lastly, attempting to commit the following sexual offenses is a crime:
- Forcible sodomy, object sexual penetration, or rape. This crime is considered a class 4 felony;
- Sexual battery, which is a misdemeanor (class 1);
- Aggravated sexual battery, which is a felony (class 6).
Defenses for Rape Charges
You can raise the following arguments to fight the rape charges.
You were mentally unfit during the act
Proof that you were mentally ill during the act may not eliminate all punishments but it may reasonably call for leniency from handlers of the case. For instance, the prosecutor may easily agree on a plea bargain to solve the case (with the complainant's permission).
Consent
It is possible to prove that the alleged victim consented and that the sexual activity occurred under normal circumstances – without force, intimidation, or threats. However, this defense strategy may not work if the victim is a minor since minors are legally considered to be unable to give consent to sex. Besides, this strategy may not work if the victim was evidently intoxicated, mentally incapacitated, or physically helpless such that they could not consent to the act.
No sexual activity took place
This assertion is typically useful if there is no direct evidence to show that you had sex; for instance, when the complaining witness refuses to testify or the DNA test shows that you never had sex as alleged.
No force, intimidation, or threats were used
For a sex crime to qualify as rape, you must have to overcome the victim’s will by intimidating or forcing them into the act. There must also be proof that the force applied was enough to overcome the alleged victim’s will. This claim is effective if there is no physical evidence (such as injuries) to show that force was used.
Mistaken identity is also a defense that can be used
The defense team can insist on having a DNA test to show that you are not the real perpetrator of the crime. Also, you may have a witness to claim that you are innocent since you were not at the crime scene during the incident.
Each rape case has specific elements that a defense attorney keeps in mind while devising defense strategies. It is essential for you to always seek legal assistance in case you are accused of rape to facilitate a proper analysis and defense of your charges.
Virginia Statute of Limitations Laws
The statute of limitations (SOL) in Virginia is meant to preserve the integrity of evidence and to ensure an efficient justice system. Cases of rape and murder, however, do not have time limits because the cases may take a long time to solve. Victims of these cases will not allow a violent criminal let off the hook on such a technicality. Cases such as sexual abuse have an extended SOL of up to 20 years. The statute of limitation does not necessarily start once the crime has been committed but it starts after reporting the case to the authorities.
Can I Find a Rape Attorney Near Me?
Virginia Criminal Attorney is a criminal defense firm that serves clients in Fairfax and the adjoining Northern Virginia areas. Call our Fairfax Criminal Lawyer today at 703-718-5533 for profound consultation on your rape charges or any sexual charges and let us devise the best defense for your case.
