Arizona law, which formerly classified the crime of rape into first degree rape and second degree rape, now uses different nomenclature. The conduct previously labeled as “rape” is now called “sexual assault.” However, even with the name change, the crime remains a serious felony, and if convicted, punishment can be severe.
Pursuant to Arizona Revised Statutes Annotated Section 13-1406, a person commits the crime of sexual assault by meeting the following statutory elements:
To obtain a conviction for sexual assault, the prosecutor must prove all of the elements of the statute beyond a reasonable doubt. In other words, if the government fails to prove even one element of the crime, the defendant will be acquitted. Therefore, experienced criminal defense attorneys often use the strategy of attacking the prosecutor’s proof on one or more elements of the crime. Below we’ll take a closer look at some of those elements, including the definitions of terms used in describing the elements.
People have different perspectives on the ordinary meaning of “sexual intercourse.” One common definition is the insertion of the penis into the vagina. However, Arizona law greatly expands this definition, and thereby expands the conduct that can result in charges, and a possible conviction, for sexual assault. Arizona Revised Statutes Annotated Section 13-1401 provides that “sexual intercourse” occurs when:
In cases in which the government alleges that penetration occurred, Arizona courts have held that mere contact is not sufficient to support a conviction – there must be evidence of penetration. On the other hand, courts also note that only the slightest penetration is required.
In one unusual case, a male defendant was charged with raping a woman. Because the undisputed evidence demonstrated that the defendant was impotent and did not have an erection at the time of the alleged offense, the defendant contended the charges should be thrown out. The court disagreed and found that any penetration, even with a flaccid penis, is sufficient. Whether or not such penetration has occurred is sometimes a question that must be answered at trial by a jury.
Under the Arizona sexual assault laws, oral sexual contact includes oral contact with the penis, the vulva, or the anus. The statute does not include breasts.
To obtain a conviction for sexual assault, the prosecutor must prove that the accused acted “without consent” from the victim. The issue of consent is often hotly disputed, and in many instances must be decided by the jury after hearing all of the facts.
Arizona statutory law provides that “without consent” includes the following:
Consent is often a strong defense to an allegation of sexual assault and must be investigated carefully. Most of us have heard of cases, whether in Arizona or elsewhere, where an alleged victim fabricates charges of one kind or another against a defendant. This can certainly occur with the crime of sexual assault. For example, perhaps one party consented to sexual activity at the time it occurred, but now has an ulterior motive to deny the consent. One example is when a party is jilted, and in anger alleges sexual assault. Another example is where one party sees an opportunity to gain the upper hand in a collateral case, such as a divorce or child custody action, by making an accusation of sexual assault, even though consent was actually given.
Further, in many cases, the alleged victim and accused have a prior or ongoing relationship, sometimes including marriage, which involves a history of consensual sexual activity. Couples may have broken up and reunited on prior occasions. As a result of a pre-existing familiarity with one another, one party may have interpreted certain actions of the other party as cues suggesting consent to sexual activity, without any intention of acting without consent.
The penalties for a conviction for sexual assault can be severe. A first offense carries a minimum sentence of 5.25 years and a maximum sentence of 14 years. The sentence for a defendant previously convicted of one felony carries a minimum term of seven years and a maximum term of 21 years. For a defendant with two or more past felonies, the minimum sentence s 14 years and the maximum sentence is 28 years. These sentences are not eligible for probation or pardon. Additionally, the sentence will be increased by three years if the defendant knowingly or intentionally administered certain drugs (ketamine hydrochloride, gamma hydroxyl butyrate or flunitrazepam) to the victim without the victim’s knowledge. Sentences are also enhanced when the victim is less than 15 years of age. Finally, if a defendant intentionally or knowingly inflicts serious physical injury on the victim, the defendant may be sentenced to life imprisonment, with a minimum serve time of 25 years.
Sexual assault is a serious felony with serious consequences. If you’re facing charges, you need the help of an experienced criminal defense lawyer like Howard Snader, who will aggressively defend you during all phases of the case. Call our offices today at 602-899-0590 to schedule a consultation.
