Sexual assault charges in Rhode Island
What is sexual assault?
Sexual Assault is a criminal act that refers to unwanted sexual contact.
This offense encompasses virtually all sexual contact to include penetration.
Examples of sexual assault
Examples of sexual assault include touching someone, without their consent, on the buttocks, anus, breasts or genitals such as any part of the penis or vagina, for purposes of sexual gratification.
Sexual Assault may occur by a man against a woman or a man against a man. Though infrequently reported or prosecuted, Sexual Assault can also theoretically occur by a woman against a man or a woman against another woman.
Sexual assault includes touching a person over the clothing as well as under the clothing.
In addition to touching, sexual assault includes unwanted sexual penetration by any means of the mouth, vagina or anus. Sexual assault may be committed by force, threat of force, or against someone incapacitated and unable to consent to sexual contact.
Incapacitation may exist from an intoxicating substance such as alcohol or drugs, or due to mental illness or disability.
Degrees of sexual assault
The charges depend on the activity the defendants engages in with the victim.
First-degree sexual assault
First-degree sexual assault is when one person engages in sexual penetration with another individual under the following circumstances:
- The defendant, which is not a spouse, knows or has reason to know that the individual has a mental disability, mental incapacitation, or is physically helpless. Examples include someone who is under the influence or a person with a mental disability.
- Secondly, the defendant uses force or coercion.
- The defendant uses the element of surprise or concealment to overcome the victim
- Lastly, the defendant uses a medical treatment for their own arousal or sexual gratification.
First degree sexual assault case results:
Charges: First degree sexual assault investigation – Case closed without prosecution.
A young man had his father’s apartment all to himself for the evening. He invited his new girlfriend over to spend the night. While alone in the apartment, the two engaged in sexual intercourse. The following day, the girl accused the young man of rape. This sparked a sexual assault investigation of the man by Providence Police. The young man and his parents retained Rhode Island Criminal Defense and Sex Assault Defense Lawyer, John L. Calcagni III, to represent him during this investigation. Attorney Calcagni conducted his own investigation and learned there were no witnesses or physical evidence to support the woman’s allegations. This was a classic “he said, she said” fact pattern. The only complicating factor was that the man had a juvenile criminal history for a sexual assault. Notwithstanding, because of the man’s young age, college enrollment, supporting family and uncooperative ex-girlfriend, Attorney Calcagni was successfully able to persuade authorities to close this case without criminal prosecution.
Second-degree sexual assault
Second-degree sexual assault does not have to include penetration. This is also known as indecent assault and battery. A person is charged with second-degree sexual assault if they engage in sexual contact with someone under the following circumstances:
- The defendant knows or should know of a physical impairment, mental disability, or mental incapacitation of the victim.
- Secondly, the defendant uses force or coercion.
- Lastly, if the defendant is a medical provider that uses an examination for their own sexual arousal or gratification.
The law recognizes certain defenses to Indecent Assault and Battery. The most common defense is Consent. This defense provides that Sexual Assault cannot occur where the alleged victim consented to sexual contact with or touching by the alleged offender.
Mistake of fact for second-degree sexual assault
Another recognized defense is Mistake of Fact. This defense may apply either in the absence of or in conjunction with a Consent defense.
Mistake of Fact provides that though the alleged victim may not have actually consented to the sexual touching or contact, the alleged offender mistakenly believed in his or her mind that there was consent.
Mistake of Fact may be established from facts and circumstances surrounding the parties and their sexual conduct.
Examples include, but are not limited to the alleged victim’s statements, actions, clothing, body language and overall demeanor.
Mistake of Fact may also be established by the alleged victim’s failure to express lack of consent, or from past, consensual sexual conduct or relations between the alleged offender and victim.
Second-degree sexual assault penalties
A second-degree sexual assault conviction in Rhode Island will result in a prison sentence between three and fifteen years as well as hefty fines. In Massachusetts, an Indecent Sexual Assault conviction will result in a prison sentence of not more than twenty years.
Second degree case results:
Charges: Second degree sexual assault child molestation – Reduced to misdemeanor assault with probation
A man attended a magic show at the Providence Performing Arts Center (PPAC) with his son. PPAC is a large, historic theater. The man and his teenage son sat on the ground level of the theater with seats in the middle of their assigned aisle. The son sat to the right of his father. To the man’s left sat a young girl with her father seated to her left. In the middle of the show, the young girl’s father confronted the man verbally about inappropriately touching his daughter’s leg and inner thigh. The father then reported his observations to PPAC staff, who contacted Providence Police. Police arrived and questioned all parties. Based on the little girl’s allegations and her father’s reported allegations, the man was ultimately charged with Second Degree Sexual Assault Child Molestation. The man retained Rhode Island Sex Assault Defense Attorney, John L. Calcagni III, to represent him in this matter before the Rhode Island Superior Court. Attorney Calcagni initially represented the man in both District Court and at his arraignment in Superior Court. He successfully obtained bail for his client in both places. Attorney Calcagni then investigated this matter and prepared for trial. The man’s son was an eyewitness who did not see his father say or do anything inappropriate during the show. Attorney Calcagni also argued to prosecutors that common sense dictated against someone committing such an offense in a theater full of potential witnesses. Based on these collective efforts, Attorney Calcagni successfully negotiated with prosecutors to reduce his client’s charged felony sex offense to the misdemeanor of simple assault. In exchange for the man’s admission to this less serious charge, he received a suspended sentence with probation for one year.
Second degree child molestation
If this act is committed against a child under the age of 16, it is called Second Degree Child Molestation.
Unwanted sexual penetration under Rhode Island law is called First Degree Sexual Assault.
First degree child molestation
If this act is committed against a child under the age of 16, it is called First Degree Child Molestation.
Read more about child sexual assault.
Sexual assault defense: consent
The law recognizes certain defenses to Sexual Assault. The most common defense is Consent. This defense provides that Sexual Assault cannot occur where the alleged victim consented to sexual contact by the alleged offender.
However, any sexual contact between an adult and child under 16 is legally without consent.
The law provides that persons under the age of 16 our without sufficient experience and mental capacity to consent to sexual contact.
Mistake of fact
Another recognized defense to sexual assault is Mistake of Fact. This defense may apply either in the absence of or in conjunction with a Consent defense.
Mistake of Fact provides that though the alleged victim may not have actually consented to the sexual contact, the alleged offender mistakenly believed in his her mind that there was consent.
Mistake of Fact may be established from facts and circumstances surrounding the parties’ relationship, statements or conduct, to include sexual conduct, actions and omissions.
Examples of mistake of fact
Examples include, but are not limited to, the alleged victim’s statements, actions, clothing, body language and overall demeanor.
Mistake of Fact may also be established by the alleged victim’s failure to express lack of consent verbally and/or physically, or from past, consensual sexual conduct or relations between the parties.
Third-degree sexual assault (Statutory Rape)
Third-degree sexual assault is also known as statutory rape.
Read more about Statutory Rape.
If you have been charged with sexual assault
If you have been charged with Sexual Assault, it is important to seek legal representation immediately in order to protect your rights and minimize the impact that a charge of his nature may have on your life.
Sexual assault case results:
Charges: Sexual assault investigation – Closed without criminal prosecution
Warwick, Rhode Island Police investigated a Nigerian immigrant for allegations of sexual assault. The man, who was lawfully visiting the United States on a visa, met a female using an online dating service. The couple went on a few dates that included drinks and meals. During one of the occasions, after dinner, the couple checked into a hotel room and had sexual intercourse. The next morning, they had sex again before checking out. They then went out for brunch and parted ways. The man’s male cousin joined them for both dinner the night before and brunch the next day. Some weeks later, the man lost interest in the woman and began dating other females. The woman ultimately contacted Warwick Police and accused the man of raping her in the hotel when they first had sex. She claimed that the first sexual encounter occurred without her consent and against her will. The Nigerian, now married to a U.S. citizen and applying for his U.S. residency, retained Rhode Island Sex Assault Defense Lawyer, to represent him. Attorney Calcagni and his team conducted an independent investigation of the allegations. This led to the collection of documents and receipts establishing the couple’s adventures together at bars, restaurants and the hotel. There are no witnesses to the alleged rape or sex assault. When conversing with police, Attorney Calcagni argued that it made no sense for the woman, who claimed she was raped the night before, to have sex with her assailant the next morning and then accompany him to brunch. Attorney Calcagni also offered the man’s cousin as a witness who observed nothing out of the ordinary or change in the woman’s behavior the next morning. Based on these collective efforts, Attorney Calcagni successfully persuaded Warwick Police to close this rape investigation without any criminal charges or prosecution.
Common rules applicable to sexual assault cases
Resistance by the victim or complaining witness
During trial of a sexual assault charge, there may or may be evidence that a victim or complaining witness resisted the defendant’s sexual advances. Where the victim resisted, the prosecution will offer this evidence as proof the complaining witness did not consent to sexual penetration, and that such occurred by force or coercion. Where the victim failed to resist, the defense will characterize this absence of evidence as an indication of the complainant’s consent to the sexual penetration, or alternatively, the defendant’s reasonably mistaken belief that the victim consented to sex.
The prosecution is not required to prove that the victim physically resisted the sexual advances if he or she reasonably believed that such resistance might have resulted in serious bodily injury or would have been useless. The law provides that the victim’s resistance, if any, must have been reasonable under the circumstances. Reasonableness of the resistance is based on the totality of the circumstances, including factors such as comparative strength of the parties, the age or condition of the victim, the degree of force, or the threat of force used by the defendant, the relationship between the parties, and the defendant’s degree of control over the victim, if any, if any.
Single witness rule in sexual assault cases
Under Rhode Island criminal law pertaining to sexual assault crimes, only the testimony of a single victim or complaining witness is necessary to arrest, charge and convict.
A victim’s word alone is sufficient for police to arrest you for any sexual assault crime. This word alone is also sufficient for your to be criminally charged, and even held without bail while awaiting trial.
Once a case proceeds to trial, whether by a judge sitting alone or before a jury, the testimony of the victim, if believed, is enough for a conviction. No corroboration is required under the law. This means that even in the absence of eyewitnesses, video or photographic evidence, medical or forensic evidence, a contemporaneous report and more, a defendant may be arrested, charged, denied bail and ultimately convicted on the sole word of a single witness.
This sobering law in Rhode Island underscores the need to have a very experienced criminal defense trial attorney handling your case, should you be charged with a sexual assault crime.
Consent as a defense
An accused charged with a sexual assault offense may raise the defense of consent at trial. The defense of consent is applicable to charges of First Degree Sexual Assault and Second Degree Sexual Assault. It is inapplicable, however, to charges of Third Degree Sexual Assault First Degree Child Molestation, and Second Degree Child Molestation.
A defendant must raise the defense by offering some evidence of consent at trial. This may be done during either presentation of defense evidence or during cross-examination of government witnesses, such as the complaining witness. Consent may be expressed in words, actions or inactions that imply consent. If the evidence establishes that the complainant voluntarily consented to the charged penetration or sexual contact, the defendant is not guilty of a sexual assault. Similarly, if the evidence establishes that the defendant reasonably believed the complainant consented, the crime of sexual assault has not been committed. The reasonableness of the defendant’s belief that consent was given is determined based all the facts and circumstances.
Where the defense raises some evidence of consent at trial, the prosecution must prove beyond a reasonable doubt that the victim did not consent to the penetration (First Degree Sexual Assault) or sexual contact (Second Degree Sexual Assault) in question, or that the consent provided was not voluntary. If the prosecution fails to disprove consent, a defendant must be found not guilty.
If you have been charged with sexual assault and need expert legal representation, contact the Rhode Island sex crime attorneys at the Law Office of John L. Calcagni III by email or call today at (401) 351-5100 to schedule a free consultation.