Sexual Assault Charges in Las Vegas

Defining Sexual Assault According to Nevada State Law

Sexual assault, or rape charges, in Las Vegas are governed by Nevada Revised Statute (NRS) 200.366 which provides:

A person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself or herself or another, or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his or her conduct, is guilty of sexual assault.”

These very serious charges require excellent representation, not only because of the mandatory life sentence associated with the charge, but also because of the difficulties inherent in defending sexual assault/rape allegations in Las Vegas. Only a skilled criminal defense lawyer with a substantial background and understanding of the areas of SANE examinations, child interviewing techniques and standards, and forensic evidence issues related to sexual assaults, should take on these types of cases.

Call Oronoz Ericsson & Gaffney LLC for a free initial case evaluation if you are facing charges - do not wait!

Sexual Assault/Rape Penalties in Nevada

This statute essentially makes non-consensual sexual acts, which include some degree of sexually motivated penetration, a criminal act which carries serious penalties, according to NRS 200.366.

A quick reading of the statute quickly reveals that other than first-degree murder, sexual assault carries with it the largest potential criminal penalty under Nevada State law. In sum, minimum parole eligibility for a person convicted of sexual assault can be thought of as follows:

  • Sexual assault of a victim over 16 years of age: minimum of 10 years until parole eligible
  • Sexual assault of a victim under 16 years of age but over 14 years of age: minimum of 25 years until parole eligible
  • Sexual assault of a victim under 14 years of age: minimum of 35 years until parole eligible

There are other factual issues which may enhance the sentence, but in essence, the above ranges serve as a rough guide to the most common sentences for sexual assault and rape in Nevada.

Sexual Assault and Issues Pertaining to Consent

The crucial question in determining whether or not sexual assault has occurred is whether the act is committed without the consent of the victim. Oftentimes persons charged with sex assault mistakenly believe that physical force is an element of the crime. This is not the case. Nevada’s sexual assault or rape statute does not explicitly require proof that a defendant used overt force when committing the crime of sexual assault.

The statute simply requires the commission of an act of penetration against the will of the victim. A victim of sexual assault need not fight back, nor need he or she sustain any injuries during the crime. Lack of consent is the singular issue in this regard. A perpetrator can commit a sexual assault in Nevada by simply threatening his victim and forcing his victim verbally to submit to non-consensual sexual actions. A victim who submits against his or her will is not automatically deemed to have consented. As the controlling Nevada Supreme Court case on this issue states: “submission is not the equivalent of consent. While consent inevitably involves submission, submission does not inevitably involve consent.”

For example, a leading Nevada case on this issue involved a Medical Practitioner who specialized in obstetrics and gynecology. This doctor would subject his patients to penetrations under the guise of pelvic and rectal examinations. He was convicted of sexual assault and other various criminal counts at trial. The Nevada Supreme Court affirmed his conviction stating: “We hold that sufficient evidence of sexual penetration against the victim's will exists under Nevada's statute when the penetration is accomplished under a pretext of medical treatment and without the victim's foreknowledge or consent.” This case and others, make it abundantly clear that criminal liability will lie for sexual assault unless the person subjected to the penetration, unequivocally manifests his or her consent. Valid consent cannot be the result of trickery or force, either overt or covert.

Sexual Assault on a Minor Charges

While many of the issues are similar, cases involving sexual assault on a minor in Las Vegas are arguably the most difficult to defend. These charges carry with them a huge potential for prejudice and public backlash. Persons are understandably upset and angry when they hear allegations that a child has been sexually abused. Many times a large portion of the pool of persons chosen to possibly sit on a sexual assault on a minor jury trial must be dismissed because of the outrage they express during jury selection questioning. In essence they argue that they cannot be fair triers of fact because of the inflammatory nature of the charge. In other words, they cannot keep the required unbiased state of mind which the law requires of trial jurors. This problem arises constantly in these cases. Simply finding a jury of non-biased, fair minded persons is a challenge. Of all charges, a person facing sexual assault on a minor will in all likelihood be subjected to the greatest degree of pre-trial prejudice because of the nature of the charge. People hear the allegation and they become so enraged that they cannot see straight. This dynamic comes into play in many if not all of these types of cases.

Trial Issues Pertaining to Sexual Assault Cases

In addition to the difficulty of finding fair minded jurors, sexual assault cases also frequently rest on one other issue which often surfaces constantly. This issue is perhaps the second most difficult aspect of a sexual assault case.

Persons are routinely shocked to learn that the testimony of a victim, in and of itself, is sufficient under Nevada law to sustain a conviction for sexual assault. Again – it bears repeating – the Nevada Supreme Court has repeatedly held that “the testimony of a sexual assault victim alone is sufficient to uphold a conviction.”

Many people find this shocking. With television shows which (mostly inaccurately) portray criminal cases as the battleground of high-tech scientific testimony, many people expect that some level of forensic proof beyond the testimony of an alleged victim will be required to obtain a conviction for sexual assault. That is not the case. The testimony of a victim alone is enough.

Psychological Examination of Sexual Assault Complaining Child Witness

Nevada case law provides a mechanism whereby a psychological examination of a child-victim can be obtained. The District Court Judge presiding over the case makes the decision as to whether a legal basis exists to order a psychological examination. In a sexual assault case involving a minor, the District Court Judge must consider a number of factors in determining whether the defense request to have an independent psychological evaluation of the child witness should be granted. The Nevada Supreme Court correctly noted that: “Denying the defendant an opportunity to examine the victim could have disastrous consequences, especially in instances where the victim's veracity is seriously called into question and the defendant needs an independent psychological examination to present an adequate defense.” This is just one tool of many which a criminal defense attorney who defends these types of cases must be aware of. Litigation surrounding these requests can be complex and must be handled in an appropriate manner.

Prior False Allegations – Nevada Rape Shield Statute

Nevada’s Rape Shield Law, NRS 50.090, precludes admission of a complaining witness’ previous sexual conduct. However, the Nevada Supreme Court carved out an exception to the statute which allows a criminal defendant to admit prior false allegations of sexual assault or sexual abuse. By way of explanation the Court stated: “it is important to recognize in a sexual assault case that the complaining witness' credibility is critical and thus an alleged victim's prior fabricated accusations of sexual abuse or sexual assault are highly probative of a complaining witness' credibility concerning current sexual assault charges.” Therefore, by allowing the introduction of prior false allegations of sexual abuse or sexual assault, “defense counsel may cross-examine a complaining witness about previous fabricated accusations, and if the witness denies making the allegations, counsel may introduce extrinsic evidence to prove that, in the past, fabricated charges were made.”

Prior to introducing such evidence, defense counsel must file a notice of intent to cross-examine and present evidence regarding false allegations. The District Court Judge will then hold a hearing outside the presence of the jury (this is usually all done well in advance of trial) , and determine certain factors.

In order to prevail, defense counsel must prove by a preponderance of the evidence:

  1. The prior false accusations were made
  2. They were in fact false
  3. That the evidence of the prior false accusations is more probative than prejudicial

A successful outcome to this hearing will go a long way towards a good outcome at trial. If evidence of prior false accusations surface during the defense investigation, it is critical that defense counsel effectively litigate the introduction of those accusations. This can make or break a case.

Sexual Assault/Rape Sentence Summary

A quick reading of the statute quickly reveals that other than First Degree Murder, Sexual Assault carries with it the largest potential criminal penalty under Nevada law. In sum, minimum parole eligibility for a person convicted of Sexual Assault can be thought of as follows: Sexual Assault of a victim over 16 years of age: minimum of 10 years until parole eligible; Sexual Assault of a victim under 16 years of age but over 14 years of age: minimum of 25 years until parole eligible; and Sexual Assault of a victim under 14 years of age: minimum of 35 years until parole eligible. There are other factual issues which may enhance the sentence but in essence the above ranges serve as a rough guide to the most common sentences for Sexual Assault/Rape in Nevada.

Importance of Having the Best Sexual Assault Criminal Defense Lawyer

If you have read this far you have a basic idea of the numerous issues presented by these cases and also the enormous sentences which attach to this crime. Hiring an amateur to defend you or your loved one against these charges is like playing Russian roulette. Perhaps as much as homicide, sexual assault defense work requires a level of specialization and expertise which exceeds all other areas of criminal law.

The lawyers at Oronoz Ericsson & Gaffney LLC have that expertise. We have won these types of cases in front of juries and understand the complex laws pertaining to sexual assault litigation in Nevada.

If charged or even suspected of a sex crime, call us immediately. We have the ability to help you stay out of prison.

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