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Richard Lougee

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The Lawyer’s Role in a Rape Case

In Arizona, rape is called sexual assault and is defined by A.R.S. 13-1406 as follows:

A. A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.

While generally consent is a defense to the charge of rape, the Arizona statutes have curtailed the use of the consent defense in A.R.S. 13-1401(5) as follows:

5. “Without consent” includes any of the following:

(a)     The victim is coerced by the immediate use or threatened use of force against a person or property.

(b)     The victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, and such condition is known or should have reasonably been known to the defendant.  For purposes of this subdivision, “mental defect” means the victim is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in the conduct with another.

(c)      The victim is intentionally deceived as to the nature of the act.

(d)     The victim is intentionally deceived to erroneously believe that the person is the victim's spouse.

While the crime of stranger rape rarely involves the consent defense, the accused still has the following constitutional protections:

  1. The government must prove the accused committed each and every element of the crime beyond a reasonable doubt, and
  2. The defendant is presumed innocent until such proof is established.

Since the identity of the perpetrator is usually the only issue in dispute in stranger rape cases, DNA evidence is most often the evidence the accused must confront.  While most jurors (and police and prosecutors) find DNA evidence conclusive evidence of guilt, the job of the defense attorney is to have the DNA evidence tested by an independent and reputable forensic laboratory.  In a startling number of cases the government will use public or private DNA testing laboratories with a history of questionable or even flawed results.  Accordingly, no defense attorney can conclude the case against his client is doomed to failure until the state's samples have been independently tested and the state's results carefully analyzed.

Absent DNA evidence, the identity of the perpetrator will usually rely on the identification procedures employed by the police.  These procedures are themselves often flawed and there are a frightening number of cases of innocent individuals being convicted and thereafter exonerated based on mistaken identification procedures.  The defense attorney must vigorously challenge the identification procedures used by the police with pretrial motions.

A far more common type of rape allegation arises in situations where the accuser and the accused know each other.  The law makes the crime simple but the human dynamics are far more complex.  Of all human interactions, sex is the most complex.  For younger men, sexual drive is fuelled by a powerful drug: testosterone.  For younger women, sexual attractiveness is (unfortunately) a key component of personal esteem and self-confidence.  As people age, the testosterone in men diminishes and most women find their identities are not defined by their appearances.  However, aging does not eliminate the confusion and conflict generated by sexual energy.  Regardless of their age, most men still see sexual prowess as evidence of their power and virility while many women never really lose the sense that their physical appearance is constantly being evaluated.

The point of all this is that sex, from the beginning of life to the end, is fertile ground for gender conflict.  And gender conflict in the adult world often leads to claims of rape.    Here is the script for how false allegations often arise between adult acquaintances:

1. Two people, both intoxicated, engage in some form of sexual act and

2. The woman realizes others know or will learn about the sexual act and she is embarrassed and/or

3. The woman suspects her husband or boyfriend will learn of the event and be outraged and/or

4. She simply has regrets about her conduct and decides to deflect blame from herself by convincing herself the act was non-consensual.

In conclusion, sex between two people, who have usually been drinking, both agreeing to the event and with no force involved, will often lead to the male being prosecuted for rape.  (Prosecutors' offices universally choose to conclude only the woman cannot consent because of intoxication.)  Following the initial report of rape the police and prosecutors will rarely conduct an investigation into the surrounding circumstances or contested facts.  Witnesses with evidence the sexual encounter was consensual will almost never be interviewed.

Thus, in the current political climate, a woman's claim of rape will likely be taken at face value.  See the article “Mishandling Rape” in The New York Times Sunday Review, November 16, 2014.  Accordingly, the task of the defense attorney in these cases is to investigate all of the contextual facts and to tell the jury why the woman's allegations are false.  What makes these cases so expensive and difficult to defend are the ideologies and biases of the people charged with investigating and  prosecuting these cases.  For these ideologues the man is guilty because he is a man and in their world intuition and hunches trump facts.  A good defense attorney must understand the politics involved in a rape case and tell the jury the full story.

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