Virginia Rape Defense Lawyer

Rape shield laws generally prevent the defense from introducing evidence of an alleged victim’s prior sexual history into evidence. But there are exceptions. Under Virginia Code § 18.2-67.7, the defense can introduce evidence of prior sexual conduct if the following conditions are met:

• The evidence shows an alternative explanation for physical evidence (e.g., semen, pregnancy, disease, physical injury).
• Evidence of sexual conduct between the accused and the alleged victim which shows that the alleged conduct was not done with force, threat, or intimidation.
• If the prosecution introduces evidence of the alleged victim’s prior sexual conduct, the defense can offer rebuttal evidence.
• Evidence which shows that the alleged victim has a motive to fabricate the allegations. Under this last exception, the defense must file a written notice of its intent to introduce such evidence.

Notably, prior to trial, the court must rule on the admissibility of any evidence concerning the alleged victim’s prior sexual history. Let an experienced Virginia sex crimes lawyer determine how to show that the sexual encounter was consensual. You can call us at (703) 684-8000 or send us a confidential email online.

The earlier we get involved, the greater the chance there is that we will be able to gather the evidence we need to prove that the sexual encounter was consensual. A good defense will therefore begin with a thorough independent investigation into the allegations as well as the alleged victim.

Step 1: Independent Investigation

An independent private investigator should conduct a thorough investigation into the allegations by obtaining all police reports in which the alleged victim is named. While some police reports may not concern your case, these reports can show a motivation to lie or a reason why the alleged victim may not be telling the truth (e.g., drug use, scared of violating probation, frightened that a boyfriend or husband may find out). It is also not uncommon for an alleged victim to have made allegations against other people which were inaccurate or misleading.

A private investigator will also scour social media accounts. In virtually every case, the alleged victim will have made incriminating statements on social media which either concern the case directly or which show that the victim is a person who should not be believed. A private investigator can also help your lawyer obtain text messages and phone logs which often contain revealing conversations between the alleged victims and others.

The investigation will also involve interviewing potential witnesses. While every case is different, this may include interviewing people who saw you and the alleged victim earlier in the night, former roommates or boyfriends, and people who may have had bad experiences with the alleged victim in the past. An investigator can also gather any video surveillance or other evidence which may show what actually happened. Again, the goal of an independent investigation is to determine if there is a reason for the alleged victim to lie or to not remember the events that transpired accurately.

Step 2: Expert Witnesses

Sexual Assault cases often involve the use of rape kits for the collection of DNA and medical examinations to show physical trauma consistent with the allegations. It is not uncommon for an expert in DNA, usually a crime lab analyst, and a medical professional, such as a nurse or doctor, to testify. The defense should have its own DNA expert or medical professional to attack the validity of the findings of the Commonwealth’s experts.

The defense may also benefit from using cell phone data experts. Cell phones transmit data to the phone companies. From this data, experts can help us understand where the alleged victim was and for how long. It is not uncommon for this data to tell a different story from the alleged victim’s story.

Step 3: Trial Preparation

Trial preparation begins long before your case is actually scheduled for trial. Based on the findings of the private investigator and the discovery produced by the Commonwealth, your lawyer can begin to build a defense. In rape or sexual assault cases, a good defense involves 1) attacking the credibility of the Commonwealth’s evidence and 2) explaining what actually happened.

While it may be enough for you lawyer to poke holes in the Commonwealth’s case (e.g., the alleged victim told different stories about where she was earlier in the night), it isn’t always enough to get a not-guilty verdict. Most juries want to know what actually happened, and it is human nature to want to believe the story that makes more sense. If you can’t tell the jury what happened, you run the risk of the jury simply believing the prosecution despite shoddy police work or inconsistent statements. To accomplish this, your defense team may do the following:

• Look for inconsistent statements made by the alleged victim.
• Compare statements made by witnesses to the alleged victim’s statements.
• Obtain all social media postings, text messages, and emails which are either inconsistent with the alleged victim’s account or are inconsistent with someone who is a victim.
• Gather all surveillance footage which provides for a different account.
• Line up any witnesses who either provide a different account of what happened or who can testify about why the alleged victim should not be believed.
• Dig into any false statements or prior false allegations that the alleged victim has previously made.
• Research whether the alleged victim has mental health issues or a drug problem which could cause a false allegation.
• Retain expert witnesses who can testify that the evidence is not consistent with the alleged victim’s story.

Every case is different, and every case will present a unique set of circumstances that your lawyer will need to explore and investigate. By turning over every rock and interviewing every possible witness, you can greatly increase the odds of not being convicted of a false allegation.

There are a few different Virginia statutes that someone can be charged with when there is a sexual assault allegation made by an adult:

Rape (Virginia Code § 18.2-61)

Legal Definition: Rape of an adult is defined under Virginia law as sexual intercourse that is committed against the victim’s will by force, threat, or intimidation. The offense of rape can also be committed if the alleged victim is mentally incapacitated or physically helpless. For instance, a person who has blacked out from alcohol cannot legally consent to sex.

Penalties: Rape has a sentencing range of five years to life in prison.

Forcible Sodomy (Virginia Code § 18.2-67.1)

Legal Definition: Forcible sodomy occurs when a person engages in oral or anal sex with the victim and is done so against the will of the victim by force, threat, or intimidation.

Penalties: A person convicted of forcible sodomy will face a sentence between 5 years and life in prison.

Aggravated Sexual Battery (Virginia Code § 18.2-67.3)

Legal Definition: Aggravated Sexual Battery occurs when a person sexually abuses the victim and the act is accomplished through the use of the victim’s physical helplessness or mental incapacity. This offense can also be committed in cases where the act was committed against the victim’s will by force, threat, or intimidation, and the person causes serious bodily or mental injury or threatens to use a weapon.

The phrase “sexual abuse” has a specific meaning under Virginia law and requires that the person intended to sexually molest, gratify, or arouse any person by:

• Touching the victim’s intimate parts (or the material covering the parts).
• Forcing the victim to touch the person’s intimate parts, the victim’s own intimate parts, or someone else’s.
• Forcing another person to touch the victim’s intimate parts.

Penalties: A person convicted of Aggravated Sexual Battery will face a sentence of 1 to 20 years in prison.

Sexual Battery (Virginia Code § 18.2-67.4)

Legal Definition: Sexual Battery occurs when a person sexually abuses the victim against the victim’s will by force, threat, intimidation, or ruse. In the alternative, a person can be convicted of sexual battery if he sexually abuses the victim on two occasions (or two different people) within a two-year period, and it was done intentionally and without the victim’s consent.

Penalties: Sexual Battery is a Class 1 misdemeanor under Virginia law which means that it can carry up to 12 months in jail.