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False accusations of rape occur when an accuser claims to be a victim, but in actuality, no rape ever took place. Many of these cases turn out to be he said /she said scenarios where there are no independent witnesses or other corroboration. When this occurs, there are a number of legal defense strategies that can help to exonerate the wrongly accused person.
Three common defenses to rape accusations include defendants showing that:
they did not engage in “sexual intercourse” with the alleged victim,
they were falsely accused, and/or
the alleged victim consented to sex.
Note that, under Penal Code 261 PC, a prosecutor must prove the following elements to successfully convict a defendant of rape in California:
the defendant committed an act of sexual intercourse with another person,
the parties were not married at the time,
the other person did not consent to the sexual intercourse, and
the accused accomplished the act by means of force, injury, or fraud.
The above defenses are effective because they negate one or more of these elements.
Is it a defense to rape for a defendant to show that he/she did not have sexual intercourse?
Yes. Defendants can challenge false rape accusations by showing that they did not have sexual intercourse with their complainants.
Under PC 261, “sexual intercourse” means any penetration, no matter how slight, of the vagina or genitalia by the penis.1
Ejaculation is not required for an act to be considered sexual intercourse.2
Since “sexual intercourse” is a key element of rape, and this term has a precise legal definition, people facing false reports of rape can always challenge the sex crime by saying they never had a “sexual encounter” with the alleged victim.
Can defendants challenge false rape claims by saying they were falsely accused?
Yes. People facing false accusations of rape can challenge them by saying they were unjustly blamed for the offense. False accusations of sex crimes are common.
False accusations happen all the time in California sex crime cases (including rape cases and cases of sexual abuse and sexual assault allegations).
An accuser may falsely blame another for a crime out of:
It is always a defense, therefore, for a defendant to assert that he/she was falsely accused of rape.
Does a consent defense work with false claims of rape?
Yes. An alleged rapist can contest a false report of rape by showing that there was consensual sex.
A party is not guilty of rape if the accused actually and reasonably believed that the other person consented to the intercourse.3
For example, consider the scenario where Mike and Lisa go back to Mike’s apartment after a date. The two begin making out and it eventually leads to intercourse.
During sex, Lisa starts to think that it might not be a good idea and she thinks about leaving. However, she never says anything to Mike, who continues with the intercourse.
Here, Mike is likely not guilty of rape. The facts show that he could have held a reasonable belief that Lisa consented to sex.
Should a person facing false allegations of rape consult with a criminal defense lawyer?
Yes. People facing criminal charges of rape should contact a criminal defense attorney.
Given the severity of this offense, anyone should contact a defense lawyer or law firm if they are suspected of rape – even if they believe they are an innocent person.
A criminal defense attorney can contact law enforcement personnel, any applicable police department, and/or the applicable prosecutor to learn more of an allegation or a charge.
When meeting with a lawyer, a rape suspect should provide the attorney with a detailed account of the facts underlying a charge or allegation. The suspect should also set forth any reasons why the alleged victim might make false reports of rape or sexual assault.
Keep in mind that most lawyers offer free consultations. This means people can get legal advice without spending a dime.
In addition, any conversations with a lawyer are privileged by the attorney-client relationship. This means your attorney cannot disclose any of your communications with a third party unless you consent to it.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.