Rape | Resources

What does the prosecutor have to prove my guilt for a rape charge? 

Under Penal Code section 261(a), prosecutor must show that:

  1. You had sexual intercourse with a woman
  2. You were not married to the woman at the time you had intercourse with her;
  3. the woman did not give you consent,
  4. and that, in order to accomplish said intercourse, you used either force, violence, duress, menace or fear of immediate and unlawful bodily injury, either to the woman or to another person

To meet the final element, the prosecutor can alternatively show that you threatened future reprisal against the woman or a third party when there was a reasonable possibility that you could carry out the treat.  A third alternative to this element is that you used the authority of a public office to arrest, deport or incarcerate the woman or a third party.

However, this is not the only “type” of rape.  You can be found guilty of rape if the prosecutor can prove that you accomplished intercourse through fraud (known as “artifice, pretense or concealment”). Rape can also include “spousal rape” (under Penal Code 262) and “statutory Rape,” that is, sex with a minor.  Statutory rape does not require lack of consent from the victim.  Even if the victim willingly had intercourse with the defendant, he or she can be found guilty of rape because the minor is said not to have the “capacity” to consent to sexual intercourse.

You should be aware that the element of “resistance” is not necessary to prove up rape charges. In other words, the prosecutor need not prove that the victim offered up a fight.

Also, you can be found guilty if the alleged victim was physically incapable of rendering consent, either because she was inebriated, mentally or physically challenged or otherwise unconscious (i.e., asleep, comatose)

As you can see, there is a vast range of issues that may need to be addressed in your case.  We will sit down with you and go over your charges in detailed form so that you understand what you are up against and what our lawyers can do to help.

What defenses can your attorneys argue in my defense?

Robert Ernenwein is skilled at thoroughly reviewing the evidence, such as police reports, witness statements and any available forensic and other evidence.  He often employs the use of an investigator, if needed, to interview witnesses who may have witnessed the alleged incident.  Our team’s review of discovery and witness interviews may yield evidence that shows your innocence or which diminishes or weakens the prosecution’s case against you. Depending on the facts and circumstances of your case, we may use any of the following defenses on your behalf.

We may be able to argue that the victim gave her consent to have intercourse.  If the alleged victim consented to intercourse but later retracted her consent, we can argue that she consented if she did not communicate her retraction to you.

Does the victim mistakenly believe that you raped her when, in fact, she was victimized by someone else?  There may be issues of mistaken identity arising from a prejudicial or suggestive line-up that may have caused her to believe you were the rapist when, in reality, somebody else was the perpetrator.

Our investigators will verify whether intercourse ever even occurred. Did the victim have a motive to lie?  Did she bear a grudge against you and file a false police report?  If there is no forensic (i.e., clinical or scientific) evidence to verify that the rape occurred, and the allegation is based exclusively on verbal accusation, we can impeach the accusing party with evidence of bias or motive to lie.  If the jury does not believe the accusing party and we can show that she fabricated the charges, we can secure your acquittal.

There is no greater miscarriage of justice than when an innocent man is accused and convicted of a crime he never committed.  Unfortunately, such tragedies often arise out of rape charges.  If necessary, our Los Angeles criminal defense lawyers will be ready to go to trial to defend you against a false accusation of rape.

Our team will delve through the available evidence to construct the best possible legal defense.  Call us at 310-375-5858 for your free consultation.

What is the advantage of using Robert Ernenwein over another lawyer?

The advantages are many.  By hiring our office, you are securing the help of a law firm with an established, reputable and aggressive criminal defense lawyer with over 30 years of experience. Robert Ernenwein is a former Los Angeles County prosecutor and bears the distinguished designation of “Super Lawyer.”  Few, if any, other attorneys have this impressive combination of background, skill and distinction.

In addition to these “tangible” qualifications, we are also extremely compassionate to our clients.  We are highly communicative with our clients and treat every case as if it were our only one.

We understand that anxiety and concern that a criminal charge or accusation can create.  That’s why our phone lines are open 24 hours a day, 7 days a week.  Also, we can meet with you on a Saturday or Sunday.

Call us right now at 310-375-5858 or e-mail us to reserve your free consultation.