December 9, 2019 By Stephen Klarich

Most people have heard the expression, “No means no,” which means that when a person says they do not want to engage in sex, it is on the other person to stop trying to do so. What happens if the other person never says no? Can you still be convicted of a forcible sex act?

According to a recent case before the California Courts of Appeal, the answer is yes.

People v. Aguilar

Moises Aguilar was accused on separate occasions of sexually assaulting the 13-year-old and 24-year-old daughters of his mother’s boyfriend. In each case, he rubbed the girl’s breasts and pushed his finger inside the vagina of each girl. The younger victim told him to stop and tried to push him off, but he was too strong. In the case of the older daughter, she did not say anything, but she tried to push his arm away and likewise was overcome by his strength.

Aguilar was convicted on one count of forcible sexual penetration with a foreign object on a minor at least 14 years old, and one count of sexual battery. He was sentenced to six years in prison. He appealed his conviction based on the notion that the penetration was not forcible, arguing that there was no evidence that he used force beyond that necessary to effect penetration of each victim’s vagina, and that the older daughter never said “no.”

Forcible Penetration (Penal Code § 289)

In the words of the court, “This is not a close case.” The court explained that under Penal Code Section 289(a)(1)(C), forcible sexual penetration is committed “against the victim’s will by means of force.” This includes circumstances where the evidence shows the victim was uncooperative with the act, as well as efforts by the defendant to move and to position the victim’s body.

Here, although the older daughter made no verbal expression (there were other people in the room at the time of the crime), the evidence shows she attempted to push his arm away. In addition, the younger daughter actually said the word “no,” but as the court stated, it was not required to prove that there had been forced used.

The Aguilar case shows that while the word “no” is certainly important in sex crimes cases, it is not required to change an unwanted sexual act into one of force. All that must be shown is that the victim did not cooperate in the sexual act in order for the sexual act to be considered forcible.

Contact the Sex Crimes Defense Attorneys at Wallin & Klarich For Help with Your Case

Facing a charge of a forcible sexual act could have severe consequences. Not only are you potentially facing several years behind bars, but also having to register as a sex offender, which can negatively affect your life for decades. At Wallin & Klarich, our attorneys have more than 35 years of experience in helping clients like you who are facing sex crime charges. We work hard to review the evidence, analyze the facts, and give you the best possible defense in your case. Let us help you today.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance, and Victorville, there is an experienced and skilled Wallin & Klarich sex crimes defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free, no-obligation phone consultation. We will get through this together.

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