Sex Crimes Against Adults

Penal Code Sections 261, 288a and 289

The Law

Penal Code Sections 261, 288a and 289

California Penal Code Sections 261, 288a and 289 make it a crime to commit a sex act against an adult if the complaining witness did not consent to the act. In other words, in California it is not a crime for two adults to engage in any type of sex act. But if one of the participants does not consent, a crime has been committed.

These crimes carry maximum punishment of 8 years for each count. A conviction for these crimes requires mandatory lifetime sex offender registration.

What Does This Mean?

The key to these crimes is consent. If any type of a sexual touching is accomplished by means of force, it is a crime. Force can be physical force (holding down or striking the complainant). Force can be through threats or intimidation (display of a weapon, threat of harm to complainant).

A lack of consent may also be accomplished through other means. The complainant may be incapacitated due to ingestion of drugs or alcohol. Or the complainant may have insufficient mental capacity to consent.

How To Defend Against These Charges

Most adult sex crimes are based solely upon the statement of the complaining witness. There are only two defenses to adult sex crimes. The defense is either “It’s not me, I didn’t do it” or “Yes, I committed the act but the complainant consented”.

If there is DNA or other scientific evidence, it is difficult (though not impossible) to argue against a mistaken identification. If there is no scientific evidence, then an excellent argument can be made for a case of mistaken identity. A case based solely upon the identification of one witness can be attacked on many fronts.

If the defense is consent, then the relationship between complainant and accused must be thoroughly explored. This must be used to explain why complainant is lying. The key to defending against these types of charges is to attack the believability of the complaining witness. Oftentimes it can be shown the complainant has a motive to get the accused out of her life.

This is why it is imperative to have an attorney who is knowledgeable in the law and experienced in the courtroom. It is important to have an attorney who can discover and exploit the reasons why the complaining witness may lie. All it takes is for the jury to be given a reason to believe the witness is lying. Once the jury is given that reason, the falsely accused can expect a successful result.

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