This is an interesting question because a lot of the rape cases that we see is one person's word against another's. That makes it very difficult for the prosecutors to prove the case because the man is going to say one thing and the woman is going to say another thing, and then it ends up boiling down to the credibility of the alleged victim. Clearly, one of the major defenses in rape case is the issue of consent.
The defendant has the presumption of innocence, so if the prosecutors don't put on enough evidence and the person is presumed innocent, then it should be a not-guilty verdict. The crime of rape is defined under California Penal Code 261.
That said, since the prosecutors know this, they don't really like to file a lot of cases that are in that posture, so they're going to be looking to get some other things to corroborate the alleged victim's story. Some examples in rape cases that I've seen, and I've been doing this for twenty-five years now, are as follows:
Pre-Text Phone Call
First, they're going to want to see if they can do what's called a pre-text phone call, which means they have the alleged victim call the person that they think perpetrated the rape, confront them with what they did and hope that they either apologize or admit something or say something that you could infer that they did something wrong.
They tape record it. Believe it or not, this is allowed because it's part of the police investigation. Normally, you could not tape record somebody without that person's permission. Penal Code Section 632 which is the eavesdropping Penal Code says that you're not allowed to do that. But the police can do that when investigating a sex crime or a rape charge.
Sexual Assault Response Team
Another thing that they can use is a medical expert. So, if the person got a SART exam where a doctor and a nurse basically check to see if there's anything that's consistent with being forcibly raped and there's a whole exam done with pictures.
If any of that is consistent with what the person is saying, obviously that would be good evidence and they could also call a medical expert like a SART nurse to testify to what they saw, give an opinion as to whether or not they think there's some trauma there, whether or not the person was raped. There must be penetration to be charged with a California rape case.
Prior Sexual-Related Acts
Another thing which I think is very big in today's society as far as rape cases go is what's called Evidence Code Section 1108 evidence, which is prior sex acts of misconduct that were committed by the defendant. In this scenario, there doesn't have to be a conviction.
If the person has some prior incident with another person where they attacked them, raped them, sexually assaulted them in any way, the prosecutors are going to try to get that evidence in to show propensity — meaning to show that that person has the propensity to commit sex crimes.
Obviously, if they're successful — and I can tell you right now from a lot of experience, they're successful a lot of the time — this evidence is very damaging to a defendant in a criminal case.
Witnesses and Physical Evidence
The other examples of evidence are obviously witnesses — anybody that saw anything. Any type of physical evidence — photographs, injuries — these are all things that I've seen in rape cases that I've handled. A lot of this stuff is common sense. If someone says they punched me in the face and then they raped me, and then there's no damage to their face, that would obviously be inconsistent with what they said.
So, the answer to the question as to what evidence the prosecutors are going to get in a rape case, is they're going to get whatever they're able to get based on the circumstances of the cases.
Sometimes they're able to get a lot of evidence, and sometimes they're not able to get any evidence. So, we really need to use our common sense in these cases and see what would be present if there really was a rape and if there's stuff that's missing, that is certainly an argument that the defendant could point out at a jury trial.
Also, someone charged with rape is permitted to testify and they can say what really happened or what really didn't happen, depending on the circumstances.
So, in the end, it's going to come down to the credibility of the alleged victim, the credibility of the defendant if the defendant decides to testify, and it's going to come down to how skillful your attorney is in representing you.