When Attempted Rape is Not a Violent Crime
Attempted rape falls under a violation of California Penal Code 261 and is generally considered a violent crime. If you are accused of such a crime, the prosecution will attempt to prove that you intended to engage in sexual intercourse with someone who was not consenting through force or the threat of force, and that person fought you off or escaped before intercourse occurred.
When is Attempted Rape Not a Violent Crime? (United States v. Alvaro Gonzalez)
In January 2010, 28-year-old Alvaro Gonzalez was arrested after he drove a 14-year-old girl home from church and allegedly pulled over to the side of the road and began kissing her and asked her to have sex with him.
Gonzalez was convicted for attempted rape and deported because of his status as an illegal alien. Shortly after being deported, Gonzalez reentered the county illegally at the Mexico-Arizona border. He was arrested and pleaded guilty to one count of illegal reentry under 8 U.S.C. Section 1326.
Upon trying to determine what Gonzalez’s sentence would be for his illegal reentry, federal prosecutors first needed to weigh in his prior conviction of attempted rape. If Gonzalez’s prior charge was considered a violent crime, he would have faced a minimum of 51 to 63 months imprisonment.
Under Delaware law, “attempting” to commit a crime is defined much more broadly than it is under federal law. It focuses much more on the defendant’s intent than it does on the actual act of attempting to commit the crime. It also categorizes a “forcible sex offense” on the basis of age. Because Gonzalez’s accuser was 14-years-old and not of age to give legal consent, his offense was automatically ruled a “violent crime.”
Federal law often conflicts with state law. With Delaware having a much broader definition of a “crime of violence” as it pertains to attempted rape, the Court of Appeals ruled that Gonzalez’s prior conviction could not be used to enhance his sentence.
Under federal law, Gonzalez would have only been convicted of “statutory rape,” which is a non-violent crime.
Because of these. sentencing can vary. The Court of Appeals in the case of Gonzalez ruled that the enhancement of his sentence was unnecessary on the basis that his prior offense was “non-violent” under federal law.
What are the Penalties for Attempted Rape? (PC 261 and PC 243.4)
Under California law, if you are convicted of an attempt to commit a crime, you are generally facing a punishment that is half of what you would face if convicted of actually committing the crime. Rape is considered a violent crime and comes with severe penalties, including:
- 3, 6, or 8 years in state prison; or
- If the victim was a minor, between 7 and 13 years in state prison; and
- Lifelong registration as a sex offender under California Penal Code 290.
When a sexual assault or attempted rape occurs and falls short of actual intercourse, you may be charged with sexual battery under California Penal Code Section 243.4.
Sexual assault, which is defined as an individual touching another person for sexual gratification without that person’s consent, can be charged as a misdemeanor or felony depending on the circumstances of your case. The penalties for a conviction of sexual assault are:
• Up to four years in California state prison; and
• Up to $10,000 in fines.
Call the Criminal Defense Attorneys at Wallin & Klarich Today
If you are charged with attempted rape, you are facing severe consequences that can have a major impact on the rest of your life. The sex crimes attorneys at Wallin & Klarich have been successfully defending our clients accused of attempted rape for over 30 years.
With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, Wallin & Klarich has an established reputation of providing its clients with round-the-clock support in Southern California.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.