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AlexiaEsq., Managing Attorney
Category: Criminal Law
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Experience:  19+ Years of Legal Practice in Criminal Law.
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i was accused of rape. we were both drinking me being 18 at

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i was accused of rape. we were both drinking me being 18 at the time her being 23 and providing the alcohol. she was willing then the next morning waking up relzing she had just slept with someone she worked with and called rape. she went and got a rape test with it showing only a small tear is there anything i can use in court because we were drinking and her providing it to me under age

Dear jd,


First, I would certainly get a second opinion from a criminal defense attorny (preferably that involving defending those accused of rape)...And make sure he gets to see your whole file, all discovery, etc. If my attorney told me I was SOL, I would have very little confidence in him, why kee him?


There is no way to evaluate your case obviously, but here are some considerations:


First, were you do intoxicated that you may not have had the requisite level of "intent" ("mens rea") necessary to commit a crime that requires intent behind it. (You will have to look at the actual crime statutes and evaluate each word. See if it must be intentional. If so, it may be that you can put reasonably doubt into the minds of jurors or prosecutors that this was done with intent.


Secondly, you need an expert physicial or similar that can testify that some nice drunken sex can result in vaginal tearing - and often does.


Thirdly, has she been charged with serving alcohol to an underaged person? How about then taking advantage of, possibly, that underage person who may have been too drunk to knowingly consent to sex? This may be a stretch, but all must be investigated. Your life is at stake here, life as you know it, and you must put on a vigorous defense.


Check to see if she has a partner that she may have had sex with that night as well - again, remote, but possible.


Above all, jd, get antoher attorney, a rape specialist, to AT least fully review and consult with. Your current attorney has basically told you, it seems, that he can't do anything for you. That may be because there is really bad evidence, such as a video showing you with a gunto her head (but I doubt, right?) or because there is more evidence against you than you are aware of or sharing, OR it could be because he is not so great. His lack of hope is disturbing. Either way, pay for another, VERY top experienced lawyer in this specific field.



Hope this helps to clarify.


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AlexiaEsq., Managing Attorney
Category: Criminal Law
Satisfied Customers: 13555
Experience: 19+ Years of Legal Practice in Criminal Law.
AlexiaEsq. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 8 years ago.

I have a Public deffender I can not afford a attorney, she doenst have a partner and i stayed at her house all night. the utah code states


76-5-402. Rape.

(1) A person commits rape when the actor has sexual intercourse with another person without the victim's consent.
(2) This section applies whether or not the actor is married to the victim.
(3) Rape is a felony of the first degree, punishable by a term of imprisonment of:
(a) except as provided in Subsection (3)(b) or (c), not less than five years and which may be for life;
(b) except as provided in Subsection (3)(c) or (4), 15 years and which may be for life, if the trier of fact finds that during the course of the commission of the rape the defendant caused serious bodily injury to another; or
(c) life without parole, if the trier of fact finds that at the time of the commission of the rape the defendant was previously convicted of a grievous sexual offense.
(4) If, when imposing a sentence under Subsection (3)(b), a court finds that a lesser term than the term described in Subsection (3)(b) is in the interests of justice and states the reasons for this finding on the record, the court may impose a term of imprisonment of not less than:
(a) ten years and which may be for life; or
(b) six years and which may be for life.
(5) The provisions of Subsection (4) do not apply when a person is sentenced under Subsection (3)(a) or (c).
(6) Imprisonment under Subsection (3)(b), (3)(c), or (4) is mandatory in accordance with Section 76-3-406.

Is there anything in here that helps me I dont unferstand all the meaning of the words..and how would i find out if "mens rea" is useable in utah court??

Customer: replied 8 years ago.
Relist: I prefer a second opinion.
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Because you have requested a second answer, I will also answer. While you have (rightfully) accepted a previous JustAnswer member's answer and while she should not opt out (as her answer was a good one), I would ask that you accept my answer as well. If you do not accept my answer as well, I will not receive any credit for the considerable time and effort I have spent answering your question.

What follows is not legal advice, nor is it a legal service. You should not base any legal action based on the information that follows. Instead, you should ask your attorney about anything this answer contains, if it interests you. I am providing this information to show you just how badly you need to find an attorney who is comfortable in defending you in this matter. This is merely for informational purposes. You need an attorney who is licensed to practice law in your state. Please consult with one or more attorneys. You can find a licensed Utah attorney through Utah's Lawyer Referral Service:

Rape is often a he-said she-said situation and, in all honesty, it can be very difficult to defend a rape charge. That is probably why your public defender told you that you were SOL. The unfortunate fact is that, in cases of rape, frequently the only evidence of rape is the "victim's" word and there are juries that are willing to convict on that alone. While I do not agree that your current attorney's prognosis suggests he is unqualified to handle your case, I do agree with the other JustAnswer Member in that I believe you should get a second opinion from a private criminal defense attorney who deals heavily with rape defense.

I completely understand that you may not have a great deal of money and, the fact is, a defense attorney for a matter like this is probably going to cost you a lot of money. However, there is simply no way around one fact: it doesn't matter. If you can get the money for a private attorney, you should. As the other JustAnswer Member stated, this truly is your life at stake here. Personally, I think it's better to go into debt trying to avoid a conviction for something such as rape than to stay out of debt and serve time. Further, if you wind up in prison, your lost wages will probably well-exceed any attorney's fees you would likely incur as a result of defending the charge. And all this still ignores the fact that your earning potential and job opportunities may decrease substantially after a rape conviction. Innocent or not, a rape conviction can ruin your future and, in your situation (especially at your age), that is a major concern. Further, if convicted of rape, prison is a likelihood. It is important to remember that your innocence is irrelevant as, if you are convicted, in the eyes of the world, you have become a rapist. The stigma surrounding that is fierce and hateful and it is something to be avoided if at all possible.

Regarding the other JustAnswer Member's thoughts on your intoxication level affecting your mens rea (the legal word for "intent to commit the act"), I doubt that this will be a permissible offense. While some jurisdictions may allow it, generally you cannot use voluntary intoxication as a defense to a criminal act. Essentially, the intent to get drunk is often translated into the intent to commit drunken acts which in turn is translated into the intent to commit whatever crimes you commit due to drunkeness.

That said, with your very limited experience with alcohol, your jurisdiction may permit you to enter the defense that you were under effects unknown and unintended. In other words, the alcohol affected you in a way that you were not expected. Further, the other JustAnswer Member's suggestion that you were the one who was taken advantage of may hold water. Why would someone serve an underage person alcohol unless she intended to get him drunk? And what was she trying to accomplish with that? And why were you permitted to stay the night? Really... how many people rape someone and then go to sleep right next to her? That just doesn't sound very rapist-esque, does it? These are the questions that a private attorney will take the time to develop. It is important to note that the law has never favored convicting women of raping men, for numerous reasons, some of which may seem obvious. However, it is possible for a woman to rape a man. Accordingly, this could provide some interesting options to you and you should speak to an attorney about this.

Thus bringing us to the discussion of experts. Like the other JustAnswer Member mentioned, you will want an expert to show that vaginal tearing is common, even in the course of normal sex (as opposed to rape). I am not familiar with the frequency of vaginal tearing, but I would assume it happens more often than the layperson would think. If the prosecution brings that in as evidence (your attorney will probably look for a way to suppress that evidence), you're going to want an expert who can come into court and say "so what... that happens X% of the time." This serves to show a jury of laypeople that there was not necessarily violence involved in the act.

An attorney may be able to do additional research to determine whether she'd been talking to her friends about her attraction to you, previous sexual acts with you, or even her intent to have sex with you. This may or may not be admissible in court, depending on the rules in your jurisdiction.

You mentioned that she was a coworker. If she is your supervisor or senior, that may also be useful in court as you may be able to show she used her authority to take advantage of you.

I would ask you to do one more thing, prior to contacting a licensed criminal defense attorney who specializes in rape defense:
That statute you posted... read it again. Read it another time. And read it once more. If hiring a private attorney even gives you a slightly better chance of avoiding those consequences, I would personally think it's well worth the money, if you can come up with it (you may be able to find an attorney who will accept payments, credit cards, etc.). Public defenders are usually excellent attorneys. Unfortunately, they're overworked, underpaid, and they usually have caseloads that no normal person can possibly keep up with. Accordingly, indigent defendants often suffer.

Do not take any action based on what I have written here. You need to speak with an attorney who is licensed to practice in your state.

And please remember:
Anything you say will be used against you in the court of law. You should not disclose any information regarding this matter to anyone but your attorney. Be wary of even friendly conversation with the police and always keep your mind on what might be used against you at trial.

Good luck. I'm very sorry to hear that you're in this situation.

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