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Best Defense Strategy in a Date Rape Prosecution

Posted by Ronald D. Hedding | Jun 26, 2020

I've been handling these date rape offenses now for 26 years, and obviously, it's terrifying, especially now with the advent of the internet, and people are hooking up on the first date a lot.  They meet somebody.

Sometimes they have to go through a process on these dating apps, so they feel like they already know the person.  Alcohol may be involved, whatever the case may be, and they end up having sex with the person.

Sometimes, I see that the guy is rude to the woman, which causes them to start questioning why they had sex with the guy suddenly.  The next thing you know, the guy is being accused of date rape under California Penal Code 261.  They're trying to figure out what to do.

Police Use of Pre-Text Phone Call

You want to get to an attorney as fast as possible.  Do not talk to the woman anymore once you think that you may be accused of date rape.  Some people believe they are going to talk their way out of it.

The police end up doing what's called a pre-text phone call because the woman says she was raped, and now they've got the guy on the phone, and she's saying, you did all these bad things to me, and sometimes the guy's reaction is not the proper reaction.  They want to say, I'm sorry.  I'm sorry you feel that way.

Now the police and prosecutors take that as a passive admission of guilt because what you should have said was, what are you talking about?  You agreed to whatever happened.  It was consensual.  How could you possibly be accusing me of rape?  But a lot of times, the guy doesn't say that.

Don't Make Any Statements – Remain Silent

The first strategy is, keep your mouth shut.  Don't communicate with the alleged victim anymore and hire an attorney right away.  I mean, what these guys have to prove in a date rape situation is that one, you had sex with the person.

Often, when people talk to the police, they give them, right off the top, yeah, I had sex with the person, but it was consensual.  Don't give anybody anything, especially your freedom. All of this is on the line.

You have to register as a sex offender — I mean, I could go on and on and on of all the potential ramifications if you're convicted of date rape in Los Angeles, so why would you give the prosecutors or police anything?  So, could you not talk to them?

That's the first thing they have to prove, that you had sex with the person.  The second thing they're going to have to prove is that it wasn't consensual.  In other words, the other party didn't agree to it.  A lot of times, I've got clients who say it was consensual.

They were kissing me.  Maybe it was the first date; perhaps it was a second or third date, but the consistent thing I see in defense of these cases is that the guy is saying, I don't know why this person is accusing me of this.  Maybe I made her mad.  I'm not sure, but I didn't do anything wrong.

Inconsistencies With Alleged Victim's Story

As a defense attorney in these date rape cases, I start looking for inconsistencies with the alleged victim's story.  In other words, they say that it was forced on them, but they're doing things that are not consistent with that.

Maybe they send a text message after the fact saying they got home safely and they're pleasant and friendly with the person, and then we see a situation where the guy does something rude — like doesn't respond or says something stupid — and now all of a sudden they turn on the guy.

That would be consistent with the argument — hey, why would you, after allegedly being raped by somebody, send them a text within hours of leaving their home, telling him you got home safely.  That would be an example of inconsistent behavior in a date rape case.

I don't know what it is in your case because I don't know all the facts.  That's why we sit down and go over everything and talk about it.  I had a date rape case in Pomona years ago.  My client met a young woman on the road.  They were next to each other, and they ended up hooking up.

Long story short — for some reason — he was a famous athlete at the collegiate level — all of a sudden, he gets accused of rape, and there were so many inconsistencies with the alleged victim's story, and that's what ultimately was the undoing of the prosecution's case.

The jury came back not guilty in like ten minutes.  But, it was again, inconsistency after inconsistency.  Why would you do this if this happened?  This does not make sense, and the explanation was just idiotic.  So, when things don't make sense, juries don't like that.

Weak Credibility in Date Rape Cases

Of course, it cuts both ways.  If a defendant testifies and something the defendant says doesn't make sense, a lot of times, the jury will think they're lying.  So, inconsistencies and weak credibility in these date rape cases can lead to a not guilty verdict.

You also have to evaluate do the prosecutors have the evidence in the date rape case because if they do, you probably don't' want to fight them.  You probably don't want to make the alleged victim testify because that angers the prosecutors.

I also anger the alleged victim and put the defendant in a worse position down the road in the case.  After a preliminary hearing, the prosecutors jack the offer up often say you should have taken the offer earlier.  You made our victim testify, so now your client is going to pay the price for that.

So, consult with an attorney right away.  Get to somebody like me.  We'll sit down and get our strategy together depending on what evidence there is, and we'll make the right moves right from the beginning so you can end up with the best result.

About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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