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SEXUAL ASSAULT

Sexual assault is one of the most serious crimes in Nevada and encompasses any conduct that would be considered "rape" or "sexual battery" in another jurisdiction. The serious nature of the crime also means serious potential punishments. Conviction for sexual assault will result in a lengthy prison sentence, and in some cases, life in prison without the possibility of parole. Despite being such a serious crime with such harsh penalties, there are frequently situations where the only evidence in a case is the alleged victim's testimony. Please read on for more information on the definition of sexual assault as well as the potential penalties and possible defenses to this charge.

NEVADA'S DEFINITION OF SEXUAL ASSUALT

The Nevada Revised Statutes define sexual assault as any situation wherein a person subjects someone else to sexual penetration against that person's will or forces a person to sexually penetrate herself or someone else (or an animal) (NRS 200.366).

Defining Penetration

What qualifies as "sexual penetration" for purposes of this definition? Nevada has defined the term "penetration" to include not only vaginal or anal penetration, but also cunnilingus and fellatio (commonly referred to as "oral sex"). The definition also goes on to clarify that the depth of the genital or anal "intrusion" need only be "slight", which means that it does not matter how far the object was inserted so long as it was inserted at all. (NRS 200.364.5).

Additionally, it is considered penetration regardless of the object used (NRS 200.364.5). Most people understand that inserting a penis into a woman's vagina without her consent would be sexual assault, but fingers or inanimate objects would also qualify as penetration under this definition.

Finally, it is also important to note that the person who is committing the sexual assault needn't receive any sexual gratification from the penetration, nor do his actions even need to be sexually motivated. It is the act of the penetration itself and not the underlying reason for the conduct that matters for purposes of this statute.

Express vs. Implied Consent

The question of whether or not a person gave her consent is one of the most important aspects of this type of case. There are two types of consent in these situations: (1) express consent, and (2) implied consent.

Express consent is the easier of the two forms of consent to define and identify. Express consent exists when a person states in no uncertain terms that she is consenting to the penetration. So if you can imagine a situation where two adults sit down and have a lengthy discussion about their pending intimate act and discuss in detail exactly what type and degree of penetration each is and is not comfortable with and then go on to only have the exact type and degree of penetration that each already consented to, then you would likely have a situation where express consent existed.

However, even here there could be facts that would change that analysis. What if the woman initially agreed to vaginal intercourse but said she no longer wanted to do that when the time actually came? Depending on how and when it was stated, the woman might have effectively withdrawn her express consent, in which case any vaginal penetration that occurred thereafter would be sexual assault.

If you are like most people, however, you probably do not have sexual relations in such a rational and calculated fashion. This is where implied consent comes into play.

Implied consent is far more common but also far more subjective, which means that all of the facts of the situation need to be analyzed to determine whether or not a reasonable person in the circumstances would have thought that consent existed at the time the penetration occurred. A skilled defense attorney will be able to identify each and every fact that supports your position and will use this information to convince prosecutors, and — if necessary — a judge and jury, that a reasonable person in your circumstances would have believed that implied consent existed.

It is also important to note that while it is definitely a helpful fact that a person did not unequivocally state that she was not consenting to the penetration, that fact alone is often not sufficient in these types of cases for several reasons. As we will discuss below, there are certain situations where a person does not possess the ability to consent for one reason or another, and in such instances showing a lack of resistance or even consent may not suffice on its own.

Ability to Give Consent

As we stated previously, even when consent may arguably have otherwise existed, there is still the added requirement that the person giving consent possess the ability to do so. As such, it is considered sexual assault if the person who is being penetrated was physically or mentally unable to give consent and the perpetrator knew or should have known this fact.

Examples where this part of the definition would apply include a situation where the person being penetrated was unconscious, where the person was mentally handicapped to the extent that she lacked the capacity to give her consent, or where she was physically handicapped such that she was unable to voice her consent or resist the penetration.

Date Rape

One very common example of sexual assault is what is often referred to as "date rape". Simply put, date rape involves a situation where two people go out together and may even consent to some or all of the sexual contact that occurs on the date, but somewhere along the way there is sexual penetration that goes beyond the consent that was either expressly or impliedly given.

While people are generally most familiar with the term "date rape", date rape is really just one form of "acquaintance rape". The U.S. Department of Justice reports that in the years of 2005 through 2010, 78% of all reported sexual assaults were committed by a person who was known to the victim in some way, meaning that the perpetrator was either a family member, acquaintance, friend or someone with whom the victim was in a romantic relationship (U.S. Bureau of Justice Statistics, "Female Victims of Sexual Violence", 1994-2010). What these statistics unequivocally show is that most victims know their perpetrators.

In some of the above examples it would seem obvious that the person could not give consent, but not every situation is so clear. For example, what if two people go out to dinner and the woman voluntarily drinks far too much alcohol, so much in fact that she can barely walk and is slurring her words? If her date then takes her home and proceeds to penetrate her and she never says no while it is happening, did consent exist? Did she even possess the ability to give her consent considering her altered state of mind? Did her date know or should he have known that she was too drunk to consent to the penetration? What we are asking generally here is were his actions reasonable in those particular circumstances? If she never reports the incident, then these questions will go unanswered. If, however, she sobers up and decides to file a police report, then the answers to these questions could forever change the course of that man's life.

Another problematic situation arises when a person is initially hesitant about having sexual relations, but the other person eventually talks her into it. What amount of "persuasion" is allowable before the consent is no longer freely given? We have likely all seen television shows or movies where a guy sits on a bed trying to convince a girl why having sex with him is a great idea. Some people might argue that if a person says no even once or says yes only after being pressured into that decision, then there is no consent given and any penetration that occurs is sexual assault. The concept of "enthusiastic consent" is just one of these examples. The reality is that this is a gray area that has no definite answers except that it depends on the circumstances.

There is no bright line rule that states exactly when persuasion or pressure crosses the line into criminal behavior, but some circumstances are certainly more obvious than others. For example, would it be considered sexual assault if a man took a woman out on a boat and then refused to head back to shore unless she agreed to have intercourse? The answer is YES despite the fact that the person never used any physical force. In addition to a charge of sexual assault, the person could also be facing charges of false imprisonment and kidnapping depending on the specific circumstances of the case.

POTENTIAL PENALITIES

Sexual assault is a category A felony. The potential punishment depends on whether or not the assault resulted in substantial bodily harm.

Sexual Assault Without Substantial Bodily Harm

If the assault did not result in any substantial bodily harm, then the penalty is life in prison with the possibility of parole once a minimum of 10 years of the sentence has been served.

Sexual Assault With Substantial Bodily Harm

If the assault caused substantial bodily harm, then the penalty can either be life in prison without the possibility of parole or life with the possibility of parole once a minimum of 15 years of the sentence has been served.

DEFENSES

Some of the most common defenses to sexual assault include the following:

Insufficient Evidence and the Related Issue of False Accusations

Simply stated, evidence is insufficient when there is not enough evidence or proof to show what really occurred in a given situation. The law requires that a person be found guilty beyond a reasonable doubt, which means that the prosecution must have sufficient evidence to prove what actually occurred to the jury to the extent that there is no reasonable doubt left in any single juror's mind. This standard exists for a good reason, which is to protect the rights of the accused.

The sufficiency of the evidence will always be a concern in cases where there are no witnesses, no video or audio of the alleged incident, and where the alleged victim does not suffer any physical injuries. In such instances it can be difficult trying to balance the rights of the victim with the rights of the accused.

On the one hand, victims need to have a voice and be believed without having to further "prove" a sexual assault beyond their word. Oftentimes victims are alone with a perpetrator when the sexual assault occurs, so how else can they prove the assault occurred but by testifying as such? Imagine if Nevada law required additional evidence to substantiate victims' claims of sexual assault. Such a law would have the effect of silencing victims and telling perpetrators that what they were doing was only really illegal if they were careless enough to commit the assault in front of witnesses or leave visible physical injuries. Clearly that doesn't produce a fair and just result.

On the other hand, however, there exists the very real concern regarding false accusations. Without any evidence to substantiate a person's claim that she was sexually assaulted other than her word, how can we as a society be assured that the assault actually occurred? While it may sound absurd to some people that anyone would ever make such a horrible accusation about another person if it weren't true, this does happen. Commonly cited motivations for these false accusations include jealousy, anger, revenge and even trying to gain custody of children.

There have been a lot of recent news stories about false rape claims, including those of Wanetta Gibson, Elizabeth Paige Coast, Sara Ylen, and Leanne Black to name just a few. Another story that received a large amount of news coverage was that of the Duke lacrosse scandal, where a woman named Crystal Gail Mangum (who worked as a stripper and escort) falsely accused three members of the Duke lacrosse team of raping her during a house party that they all attended in Durham, North Carolina in 2006. Although the three men were eventually exonerated, each had his life completely devastated in the short term and each will likely spend the rest of his life repairing that damage.

There is also the recent story of Las Vegas banker Louis Gonzalez, who was falsely accused by his ex-girlfriend of ambushing her outside of her house and then dragging her inside, where she claimed that he tied her to a chair and sexually assaulted and tortured her for several hours. His ex-girlfriend, a woman named Tracy West, even went so far as to inflict physical injuries on herself to further substantiate her story. Fortunately for Gonzalez, he had been traveling from Las Vegas to California when the alleged incident occurred, so police we able to verify Gonzalez' story by looking at surveillance footage from several places he stopped at along the way. Why would West do something so atrocious to someone she presumably once loved? Well the two share a son in common and West had recently gotten married, so Gonzalez believes that West made up the entire story so that she could gain sole custody of their son and push Gonzalez out of the child's life. West had a new husband and a new life, and Gonzalez simply didn't fit into that perfect picture she had painted for herself.

Consent

As you probably saw from some of the examples above, determining whether or not consent existed at the time of the alleged incident can be very complicated and requires a thorough, detailed analysis of all of the facts and circumstances surrounding the situation. This is true even of situations that may initially seem somewhat straightforward. The consent of the alleged victim will nearly always be a central issue to a sexual assault case, with the only exception being a situation where the defense is that no sexual penetration occurred at all.

Statute of Limitations

In Nevada, the statute of limitations for sexual assault is four years (NRS 171.085). This means that the victim of the sexual assault or a person authorized to act on the victim's behalf must file a report with law enforcement within 4 years from the date of the alleged assault.

If a police report is filed within this time, then the statute of limitations is satisfied and there is no further limitation for the time in which the prosecution must file a complaint or indictment (NRS 171.083). However, if the victim fails to file a report with law enforcement within 4 years of the alleged assault, then the case would be dismissed on this basis.

That being said, there are some exceptions to this rule. If the victim was suffering from a "disability" during any portion of the 4-year period, then the time in which they had the disability is excluded from the overall calculation. For purposes of this statute, a person would be considered disabled if she were "insane, intellectually disabled, mentally incompetent or in a medically comatose or vegetative state" (NRS 171.083.4).

WHY HIRE AN ATTORNEY?

Sexual assault is a very serious crime that could result in either a long prison sentence or even a permanent loss of liberty if a person is convicted. This is not the type of case that should be left to an attorney without experience. Sexual assault cases require a thorough and detailed analysis of the specific facts and circumstances surrounding the alleged incident.

These cases necessitate that an attorney be able to unflinchingly question the story of the supposed victim even when those questions make the victim or other people uncomfortable or even upset. Some attorneys simply aren't willing to do this and see it instead as forcing the victim to relive the trauma. While this opinion is certainly understandable and having sympathy for people is good, our priority is to protect your rights. Even attorneys who are willing to ask the tough questions can run into problems when they are perceived as being overly aggressive. The right attorney is able to strike a balance between these two extremes in order to get you the best results possible.

If you or someone you know has been charged with sexual assault, call us now so that we can ensure that your rights are protected and that your side of the story is told. We will investigate all of the evidence in the case and together make a determination on the best course of action. Every situation is different, and we will tailor our approach based on the strength or weakness of the case as well as your specific goals. Sometimes the best approach will be to negotiate the case with the State to plead to a lesser charge or to get the case dismissed altogether. Other times, however, it may be necessary to take the case to trial and tell your side of the story to a jury. In either instance, the success of your case is dependent on having an attorney who will do whatever it takes to get you the best outcome possible. Call us today for a free consultation.

By Jenny Pandullo

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