Rape is a serious felony offense under Virginia law. You could face rape charges if you have sexual intercourse with another person against their will. The prosecutor must prove that you used force, intimidation, or threats to make the victim have sexual intercourse with you. Rape attracts severe penalties, including fines, jail time, or even life imprisonment. The specific penalties for rape vary depending on the facts of your case, including whether the rape victim is an adult or a child. If you face rape charges, you should hire a skilled criminal defense attorney to help you fight the charges. At the Virginia Sex Crime Attorney, we have aggressive and highly experienced attorneys who can help you create a solid defense strategy to challenge your charges.

Rape Under Virginia Law

The crime of rape is defined by Va. Code 18.2-61 as having sexual intercourse with someone else without their consent by using force, intimidation, or threats. You could face rape charges regardless of whether you are married to the victim.

If the prosecutor accuses you of rape, Va. Code 18.2-61 requires that the prosecutor prove the following elements:

  • You had sex with another person, or you forced another person to have sex with you.
  • You acted against the victim’s will.
  • You used force, threats, or violence to make the victim have intercourse with you.

You could face aggravated charges if the following is true:

  • You applied force, intimidation, or threats against the victim.
  • The victim was physically helpless or mentally incapacitated.
  • The alleged victim was below 13 years old.

The prosecutor will rely on circumstantial evidence, physical evidence, and witness testimony to prove the above elements.

Circumstantial Evidence

Circumstantial evidence usually depends on inference to connect several facts to an overall conclusion. For example, investigators could use your fingerprints to determine your identity. The Commonwealth of Virginia's prosecutors could also use DNA evidence unique to you to provide evidence in your case. In most rape cases, the authorities only assign the cases to investigators skilled in obtaining forensic evidence.

Circumstantial evidence also permits more than one explanation. The prosecutor could apply distinct arguments to show you are liable for the offense. The prosecutor could also tie reasonable doubt to circumstantial evidence. Reasonable doubt is the highest level of evidence in a criminal case. It also means the prosecutor must provide clear, convincing evidence to incriminate you.

Circumstantial evidence is often sufficient to prove guilt but contributes to other decisions regarding your charges. This evidence can assist in proving one element of the crime while bypassing the other elements. For example, circumstantial evidence could reveal that you were at the crime scene but fail to associate you with applying force or intimidation to assault someone sexually.

Physical Evidence

The rape kit is always the primary physical proof of rape. Usually, law enforcement gathers evidence like hair, saliva, or semen that could procure a DNA match. The experts can use DNA to determine your identity and if a sexual act happened.

If the victim suffered any injury during the rape, the prosecutor could use the injury as evidence that you applied force to the victim during the incident. However, proving liability can be challenging for the prosecutor if you allege that the injury did not arise from using force. At times, the victim could have suffered the injury before the rape occurred. If the victim did not suffer physical injuries, it would be hard for the prosecutor to prove that you used force during the incident.

The prosecutor could use circumstantial evidence to prove rape without physical evidence. The prosecutor could look for a serial pattern of conduct from you and a sudden change of conduct in the victim. The prosecutor could also reach out to other victims that you raped. Other methods that the prosecutor can use to gather more information include the interview method and establishing elements of fear or force, if present, from any victim.

Witness Testimony

Proving rape charges using witness testimony can be challenging because witnesses are rarely present in rape cases. Even if witnesses were present, some could be unwilling to testify. In most cases, the prosecutor only has the victim as a witness. The victim will give an account of what happened, including the nature of the sexual act, the number of perpetrators involved, and their identities. The prosecutor will typically build their accusations around the victim’s testimony.

Some victims can refuse to testify for fear of being traumatized. This is common in the following situations:

  • The victim fears for their life because of your threats.
  • If you are a close friend or relative of the victim.
  • If the victim is a juvenile, especially below 13 years — In this case, you will face statutory rape charges. You could be guilty of statutory rape, whether you used force or not.

The law exempts the above victims from testifying, and their cases could be handled in an out-of-court arrangement.

Categories Of Rape

You will face aggravated rape charges if you rape someone incapable of giving consent using force. You will also face aggravated rape charges if the victim is below the legal age of consent. The standard categories of rape under Virginia law include the following:

Date Rape

Date rape can either be drug-facilitated rape or acquaintance rape. You could commit drug-facilitated rape if you intoxicate the victim before having sex with them, meaning you have sexual intercourse without the person’s consent. An intoxicated person is not capable of giving consent. You can commit acquaintance rape if you know the victim.

Child Rape

You can face child rape charges if you rape a minor or someone incapable of legal consent. Sexual crimes that do not fall under sexual assault or battery crimes against a child are considered rape. When perpetrated by a parent or a close relative, the sexual act is incest. Child rape is known as child-on-child sexual abuse if perpetrated by another child stronger than the victim. The crime is known as incestual rape if an adult who is not a family member, like a caregiver or a teacher, perpetrates it. Child rape attracts severe penalties because a child can suffer severe and long-term psychological trauma following a rape incident.

Gang Rape

Gang rape happens when a group of perpetrators, usually three or more people, rape one person. Gang rape is often characterized by alcohol, night attacks, and other drug use and is often violent.

Rape Shield Law Explained

This law limits the ability to bring evidence or cross-examine a rape victim about their past sexual conduct. The role of the rape shield law is to protect rape victims from embarrassment and humiliation. The law revolves around the victim's right to privacy, the defendant's right to confront or question the victim, and the state's interests in prosecuting rape. Virginia Code, Section 18.2-6.7.7 sets forth the standards for admitting specific evidence in rape cases.

The 1960s sexual revolution brought a more explicit forum for discussing intimate sexual issues. Before the enactment of the rape shield law, the defendant could prove the victim's consent to sexual intercourse by referring to the victim's character and past sexual behavior. With the rape shield law in place, the victim's moral standards or past behavior do not matter when determining whether the victim consented to the sexual act.

The law limits the freedom of the defendant's attorney to introduce the victim's sexual history as evidence in a rape case. Michigan was the first state to enact the rape shield law in the United States. Within the following two decades, almost all the states in the U.S., Virginia included, had passed the law. The rape shield law is applicable in both state and federal civil and criminal rape proceedings.

The Penalties Of A Rape Conviction Under Virginia Law

The potential penalties for a rape conviction under Virginia law include a jail sentence of five years to life imprisonment. If you commit rape against a victim under the age of 13 years, a higher minimum prison sentence applies. A higher minimum prison sentence applies if the defendant is over three years older than the victim. If the defendant is over three years older than the victim, the minimum prison sentence is 25 years. If you rape a victim below 13, you will also face a minimum of 25 years in prison.

You could face less stringent penalties if the rape victim is your spouse. If you face trial without a jury, the Commonwealth of Virginia attorney could have you placed on probation while you undergo counseling and therapy. If you complete probation as Virginia Code Section 19.2-218.1 outlines, the court can dismiss the criminal proceedings and discharge you. However, the court will consider the complainant's view/opinion.

Whether You Must Register As A Sex Offender Following A Rape Conviction In Virginia

Following a rape conviction in Virginia, the law requires you to register as a sex offender. Other rape-related offenses, like child molestation, have a sex offender registration requirement. A sex offender's registration could affect many areas of your life, including your ability to secure employment or acquire tenancy. Even worse is the societal stigma associated with rape convictions.

If you fail to register as a sex offender when the court requires you to, you could face separate charges, leading to additional restrictions. For example, the court can request your photograph, proof of residence, your employment number, and proof of the assets you own. The court can also request your fingerprints and DNA sample, which will go to a DNA bank. With this information, it will be easy for anyone who conducts a background check on you to know you are a sex offender. You have to re-register as a sex offender whenever the registration expires. You must inform law enforcement every time you change your residence. If you relocate from Virginia to another state, you must notify law enforcement in the new state that you are a registered sex offender.

Civil Commitment After A Rape Conviction

Habitual sex offenders can be removed from the community for an extended period through a civil commitment proceeding. A civil commitment is an involuntary confinement that ensures that the defendant does not commit subsequent sexual crimes in the future. A civil commitment can also apply to any person who poses a high risk to the community. This can include people who suffer from mental illnesses, people with developmental disabilities, and people with chemical dependencies.

Civil commitments are legal under Virginia's constitutions, even if the specifics of the commitments can vary by jurisdiction. The proceedings for civil commitments are similar to those for civil hearings. Additionally, civil commitment proceedings allow the right to testify and present evidence, the right to legal representation, and the right to cross-examine witnesses.

The judge places you under the attorney general’s custody after establishing that you are sexually dangerous. You will remain in custody until you are no longer considered dangerous or until the state assumes responsibility for your custody.

How You Can Fight Rape Charges

Facing rape charges does not mean that all is lost. You can put up several legal defenses to fight your charges. Some of the common legal defenses that you can employ include:

The Victim Consented To Your Actions

You can only be guilty of rape if the prosecutor proves beyond a reasonable doubt that you engaged in sexual intercourse with another person against their will. It must be evident that you forced the victim into engaging in the sexual act using force, violence, or intimidation. The court can dismiss your charges if you prove the victim consented to the sexual intercourse. However, under the law, certain people cannot consent.

For example, you cannot use this defense if the victim is a minor because minors cannot consent under Virginia law. This defense will also not apply if the victim was intoxicated with alcohol or drugs during the rape. Other people incapable of legal consent include mentally incapacitated people or people whose physical disabilities prevent them from rejecting your sexual advances.

You cannot be guilty of rape if you reasonably believe the victim consented to your actions. For example, you could have gone with the victim to your apartment after a date and begun to make out. Your actions soon lead to sex. However, during sex, the victim starts to think that the sexual intercourse was not a good idea but does not say anything to you. Unaware of what the victim feels, you proceed with the sexual encounter. Here, you are likely not guilty of rape. This situation shows that you could have had a reasonable belief that the victim consented to sex.

There Was No Sexual Intercourse

For the court to convict you of rape, it must be evident that you had sexual intercourse with the victim, meaning that you penetrated the victim's genitalia. Therefore, you can fight the rape charges if you did not have sexual contact with the victim. For example, the DNA results can reveal that you did not have sexual intercourse with the victim.

With the help of your attorney, you can convince the judge that even if you engaged in acts like making out, the acts did not reach the level of sexual intercourse. Most rape allegations revolve around “he said” and “she said” situations. Therefore, if we prove to the District Attorney that he/she has insufficient evidence to support the rape allegations, the district attorney could be willing to reduce or even drop your charges.

You Did Not Use Force, Threats, Or Intimidation

For a sexual act to qualify as rape, the defendant must have used force, threats, or intimidation to overcome the victim’s will. You must have forced or intimidated the victim into committing the act. The prosecutor must also prove that the force you applied to the victim was sufficient to overcome the victim’s will. You can use this defense if there is no physical evidence that you applied force to the victim. For example, if the victim does not show physical injuries, you can convince the judge that you did not apply force to the victim.

Some accusers go to the extent of wounding themselves to back up their rape allegations. Your attorney can call an expert witness even if the accuser does this. An expert witness will study your medical records and testify that the alleged victim's injuries can only be self-inflicted.

Mistaken Identity

You could face rape charges, yet you are not the crime's actual perpetrator. For example, the victim can identify you as the perpetrator since you have similar physical attributes to the actual perpetrator. A reliable way of proving that you did not commit a rape offense is by presenting DNA results showing that you had no sexual intercourse with the victim. You can also have a witness testify in court that you were not at the crime scene when the rape occurred.

The suitable defense for a rape case depends on the case's specific facts. Therefore, seeking legal defense is essential when facing rape charges. Your attorney will analyze your case and help you pursue a suitable defense for your charges.

You Were Falsely Accused

False accusations happen all the time in Virginia. A person could falsely accuse you of rape out of:

  • Revenge.
  • Jealousy.
  • Regret.
  • Anger.
  • A misunderstanding.

Your attorney can use several strategies to prove the victim's ill intentions. For example, the attorney can use the victim's voicemails and text messages to prove the victim's intention of getting you into trouble. Another way of unearthing false accusations is by subjecting the victim to aggressive cross-examination at the witness stand to question their credibility.

How Virginia Law Addresses Attempted Rape

The Code of Virginia Sections 18.2–67.5 outline the crime of attempted rape. Under Virginia law, it is unlawful to attempt to commit rape. You could face criminal charges for attempted rape even if you fail to complete the act. Sections 18.2–67.5 define the penalties for attempted rape. Under Virginia law, attempted rape is a class 4 felony. After a conviction, the statutory penalties for a class 4 felony include a prison sentence of between two and ten years. The judge can also order you to pay fines of up to $25,000.

Related Offenses

Certain offenses are related to rape under Virginia law. The prosecutor can charge the related crimes alongside or in place of rape. The related crimes include:

Sexual Battery

The Virginia Code, Section 18.2-67.4, defines the crime of sexual battery. You could face misdemeanor charges when you sexually abuse someone else. You could face sexual battery charges if you:

  • Intentionally or knowingly touching another person's intimate body part.
  • You use threats, force, ruse, or intimidation.
  • Force a person to touch the victim’s intimate body parts.
  • To sexually arouse, molest, or gratify.
  • Against the victim’s will.

Sexual battery charges can also apply if you touch the clothing covering another person's intimate body parts, like underwear or a bra.

Aggravated Sexual Battery

Virginia Code Section 18.2–67.3 outlines the crime of aggravated sexual battery. Unlike sexual battery, aggravated sexual battery is a felony offense with harsher penalties. You could face aggravated sexual battery charges if you commit simple sexual battery and any of these elements are true:

  • The victim is below 13 years.
  • The victim is physically or mentally challenged.
  • When the victim of sexual abuse is a teenager, and the perpetrator is a parent, grandparent, or step-grandparent.
  • When you use threat, force, or intimidation to sexually abuse a victim who is 13 or 14, inflicting severe physical or mental injury, you could also face aggravated sexual battery charges if you use or threaten to use a dangerous weapon when committing the crime.

Find a Sex Crime Attorney Near Me

If you face rape or other sex crime charges in Virginia, you should take the accusation seriously, given the lengthy prison sentence and other harsh consequences you could face. The good news is that you can employ several legal defenses to fight the charges. The court could dismiss or reduce your charges when you present a strong defense. For reliable legal representation, we invite you to contact the Virginia Sex Crime Attorney. Our experienced criminal defense attorneys will aggressively defend you. Call us today at 571-933-8494 to speak to one of our attorneys.