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
- 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
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:
- The prior false accusations were made
- They were in fact false
- That the evidence of the prior false accusations is more probative than
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
If charged or even suspected of a sex crime, call us immediately. We have the ability to help you stay out of prison.