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California Sex Crimes Involving Issues of Consent – Part 1

Sex Crimes, A Snyopsis

This series of blog articles examines all the various California sex crimes for which lack of consent is a necessary element that a prosecutor must prove in order to convict you before a jury. Although I cover a great deal of information in this series relating thereto, specifics regarding convictions, including sentencing terms, as well as defenses to specific sex crimes, are discussed in other articles on this website.

Introduction

Since October 2017, when Hollywood movie mogul Harvey Weinstein’s decades-long cover was finally blown as a serial rapist – the exposure of whom gave birth to the Time’s Up and Me, Too movements – the issue of consent has been a red-hot topic. For myself, sex crimes involving allegations of nonconsensual intercourse, sodomy, oral copulation, and contact in general have always made up a significant portion of my sex crimes practice. Nevertheless, I have certainly noticed an uptick in these types of cases since Weinstein was finally outed.

Legal Consent in California

California Penal Code section 261.6 defines “consent” as “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act … involved.” This provision explicitly applies this definition to the following crimes:

Rape/Forcible Rape (California Penal Code section 261)

Spousal/Marital Rape (California Penal Code section 262)

Sodomy (California Penal Code section 286)

Oral Copulation by Force, Fear, or Threats (California Penal Code section 287)

Forcible Sexual Penetration (California Penal Code section 289).

As I’ve written repeatedly in other articles on this website, anyone under 18 years of age cannot legally consent to sexual contact unless he or she is legally married to the purported perpetrator. Further, even if you, too, were a minor at the time of the sexual activity with the purported-victim-minor, you can still be prosecuted for a sex crime. See, e.g., In re T.A.J. (1998) 62 Cal.App.4th 1350, 1364.

In other words, underage persons have no legal right to have sex unless, again, they are actually married, and one minor consenting to another cannot serve as a valid defense. See People v. Kemp (1934) 139 Cal.App. 48, 51.

Consent can often fall into a gray area in California prosecutions, particularly when alcohol or drugs are involved, and where prosecutors are allowed to prove a lack thereof by inference from a totality of circumstances. See, e.g., People v. Ireland (2010) 188 Cal.App.4th 328, 338 (holding that the victim need not directly communicate lack of consent which can be inferred when force or duress is used).

In other words, as the California Supreme Court has held, the victim doesn’t need to actively or even passively resist for the prosecutor to prove lack of consent. People v. Barnes (1986) 42 Cal.3d 284, 297-302. For example, if you allegedly held a gun to the purported victim’s head, and she went limp and said nothing while you allegedly had intercourse with her, the prosecutor is entitled to argue that by virtue of that threat, the sex was nonconsenual.

Further, our state supreme court has also held that even if the victim initially consented, he or she is legally entitled to withdraw that consent at any time, which, if proven, can result in your conviction. In re John Z. (2003) 29 Cal.4th 756, 760.

Prior to this opinion, the lower courts of appeal were split as to whether rape had occurred in such a situation where the male continued intercourse after the female changed her mind “through her actions and words”. Specifically, the court held, “the force defendant exerted in resisting Laura’s attempts to stop the act was clearly ample to satisfy.” California Penal Code section 261(a)(2) (Forcible Rape).

Keep in mind, however, that if you reasonably and actually believed the purported victim did consent to intercourse (or other sexual activity), then you are not criminally culpable. People v. Dominguez (2006) 39 Cal.4th 1141, 1148.

However, such consent must be obtained in a lawful manner – i.e., it can’t be obtained by fraud or deceit, or any other illegal means. Specifically, pursuant to California Penal Code section 266c, consent cannot be obtained via a “false or fraudulent representation or pretense” if the perpetrator’s intent was to instill fear in the victim. However, this need not be fear of suffering physical injury in order to constitute coercion.

People v. Cardenas (1994) 21 Cal.App.4th 927, 937-938 (finding that defendant abused his “position of trust”, exploited the victims’ fears, and “created intolerable conditions specifically to weaken his victims, providing him with opportunities to molest and abuse them”).

The Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”) mirror all of the foregoing appellate and supreme court decisions regarding consent. For example, CALCRIM number 1000 (“Rape or Spousal Rape by Force, Fear, or Threats — Pen. Code § 261(a)(2), (6) & (7)”) lists the elements of this crime as follows:

  1. The victim didn’t consent to sex; and

  2. The perpetrator was able to engage in sex by forcing or otherwise threatening him/her with “violence, duress, menace, or fear” of imminent physical injury to the victim or a third party.

This instruction emphasizes that the victim must truly understand the “nature of the act” to which he/she is consenting, and must otherwise give this consent “freely and voluntarily”. It also requires that if the victim did withdraw his/her consent, then a reasonable person must be able to understand that he/she did so.

Further, as clearly indicated by California Penal Code section 262 (Spousal/Marital Rape), simply because the perpetrator was married to the victim does not automatically establish consent. Nor is it a defense that the victim asked the perpetrator to use a condom during intercourse. See California Penal Code section 261.7.

In regard to a victim who is mentally or physically disabled, CALCRIM number 1004 (“Rape of a Disabled Woman — Pen. Code § 261(a)(1)”), the victim must have had a disability to such an extent that he/she was incapable of providing legal consent, and the perpetrator knew or reasonably should have been aware of his/her condition.

Sex Crimes — Punishments for Lack of Consent

Illegal sex, at its worst, is obviously charged as rape or forcible rape. However, in its least egregious form, it will charged as Unlawful Consensual Sex with a Minor (“Statutory Rape”) (California Penal Code section 261.5).

This crime is typically charged when the victim – but for his/her age (i.e., under 18) – would otherwise be considered to have consented to the intercourse. Again, this typically occurs when the perpetrator is also a minor or – as in a number of cases I’ve handled – where the perpetrator is an adult but no more than three years older than the minor-victim.

Because of the extreme nature of the offense, rape in its most extreme forms is commonly understood to entail severe punishments ranging from 25 years to life in prison. But lesser sex crimes involving nonconsensual sexual acts (including those where the victim is precluded from legally consenting because of his/her juvenile status) can cover a wide range of punishments.

For example, as detailed later in this series of blog articles, I’ve successfully defended a number of clients who were facing extremely serious rape charges with potential life sentences, but because of my defense and the client’s age (i.e., no more than three years older than the victim), I was able to plead them down to a simple misdemeanor for Unlawful Consensual Sex with a Minor (Penal Code § 261.5 (b)), which only carries a maximum of one year in the county jail (assuming the judge actually orders a jail term at sentencing).

Where the perpetrator is more than three years older than the minor victim, but where the sex would otherwise have been consensual but for the victim being underage, the DA’s Office has the discretion to charge the crime as a misdemeanor or a felony. This is therefore commonly referred to as a “Wobbler” (California Penal Code section 17(b)). A felony conviction thereunder would result in a state prison term of 16, 24, or 36 months. Penal Code § 261.5(c).

History of Consent/Statutory Rape Law in California

In 1850, one year after the Gold Rush, the California state legislature voted in its first statutory rape law where the age of consent for a female was codified as ten years old. Almost four decades later, in 1889, the age of consent was raised to fourteen. Then eight years later, in 1897, it was increased by two years to sixteen. Finally, 16 years later, in 1913, it was raised another two years to eighteen, where, of course, it’s remained ever since.

As clearly indicated above, California’s sex-crime laws involving consent as an element have continued to evolve since 1913. Most recently, on February 8, 2021, a bill was introduced to the California legislature that, if passed, would make the nonconsensual removal of a condom during sex a crime of misdemeanor Sexual Battery (California Penal Code section 243.4(e)(1)).

Penal Code section 243.4(e)(1) defines this crime as follows: you (allegedly) touched the sexual organ or other private body part of the purported victim against his or her will, and for your own sexual arousal/gratification.

Notably, Assembly Bill 453 explicitly states that actual penetration is not required – i.e., only “contact” between the perpetrator’s penis and victim’s sexual organ is necessary – for this act to constitute a crime.

The impetus for the bill was the concern that the nonconsensual condom removal would not only dramatically increase the chances of pregnancy (with a female victim, of course) and transmission of a sexually transmitted disease, but would completely transform the nature of the sex act. And this latter concern really hits at the heart of what consent is all about.

See: latimes.com

I’ll admit that out of the many hundreds of sex crimes I’ve fought over the last 16-plus years, none involved the allegedly nonconsensual removal of a condom, which is apparently known as “stealthing”. However, I have certainly handled almost every type of sexual battery case, including where the purported victim was unconscious, intoxicated, drugged, or asleep.

Sex Crimes Involving Disputes Over Consent

The following crimes involve the issue of consent – or, more specifically, the lack thereof – either as a key element that the prosecution must prove to the jury beyond a reasonable doubt in order to obtain a conviction, or, alternatively, these crimes explicitly exclude consent (legal or otherwise) as a defense thereto.

In the former category of sex offenses, legal consent provides an absolute (i.e., complete or “perfect”) defense to the charge (as discussed in more detail in the next section below).

CALCRIM Defenses to Sex Crimes Involving Disputes Over Consent

As indicated above, I won’t go into much detail regarding specific defenses to these types of crimes. However, I do think it’s important to give a broad overview of a few of the primary defenses set forth in CALCRIM. In most of the sex crimes I’ve handled over more than a decade-and-a-half period where the purported victim was an adult, consent has been the key issue at stake. Even in the vast majority of rape/forcible rape cases I’ve defended, the defendant and complaining witness knew each other – sometimes on an intimate basis.

As set forth in CALCRIM number 1000 (“Rape or Spousal Rape by Force, Fear, or Threats — Pen. Code § 261(a)(2), (6) & (7)”), you aren’t criminally culpable for these types of crimes if you “actually and reasonably believed” that the purported victim had actually consented to intercourse. In other words, even if you were mistaken as to this consent, as long as the jury believes you were honest in your belief, you will/should be acquitted.

Again, always remember that this defense is automatically negated if the victim was never capable of legally consenting, and that you knew this was so. But conversely, if the jury believes you reasonably and actually believed he/she was capable of legally consenting – for example, you didn’t know he/she was too drunk to resist – that you can employ the preceding defense.

In addition, the jury must also believe that he/she never changed her mind throughout the intercourse or, alternatively, that you believed he/she never did so. In the specific instance of rape, however, CALCRIM requires that if the victim did change his/her mind, he/she must have “clearly and unequivocally” communicated this change to you.

Obviously, however, if you (allegedly) used violence or threats, he/she is not required to have communicated lack of consent as, again, this is inferred by this use of force. See People v. Ireland (2010) 188 Cal.App.4th 328, 338.

See: justia.com.

What’s Coming Up in the Next Blog Article

Among other things, in the next article I’ll discuss the new sex-registration requirements that apply to the foregoing sex crimes involving consent; the new law allowing for early parole for offenders convicted of the foregoing crimes that do not involve violence or threats; and how the new District Attorney’s Special Directives affect some of these crimes as far as seeking sentencing enhancements and Strike prosecutions under California Penal Code section 667(a)&(b)); California Penal Code section 667.5 (“Violent Felonies”); and California Penal Code section 1192.7 (“Serious Felonies”).

The Los Angeles Defense Attorney Law Firm (LADALF)

Aside from murder cases, rape charges are the most serious cases LADALF leader Ninaz Saffari handles as they usually involve potential life-in-prison terms upon conviction. Fortunately, however, she has never lost a rape case at trial. Similarly, she also enjoys similar outstanding track records in fighting all of the other sex crimes discussed above. Call our Los Angeles criminal defense attorney for a free consultation today.

Possible Early Parole for Non-Violent Sex Offenders

Just over five months ago, on Dec. 29, 2020, the California Supreme Court issued a landmark ruling which directly affected hundreds, if not thousands, of individuals currently imprisoned in state penitentiaries for sex crimes involving issues of consent. Specifically, the court that so long as force or the threat of force had not been part of the sex crime, the inmate would be eligible for early release.

The genesis of this decision originated four years earlier when California voters approved of a ballot allowing for potential early release for all non-violent prisoners. However, wardens across the state refused to provide this right to sex offenders because the wardens – supported by then-Governor Jerry Brown – believed without merit that the voters never intended to release even non-violent sex offenders pursuant to the new measure.

But fortunately, the supreme court ruled that the wardens – and Gov. Brown – were acting unconstitutionally because the ballot never included language explicitly rendering sex offenders ineligible. The court’s ruling certainly came as no surprise since all of the appellate courts had also held that such exclusion was unconstitutional and contrary to the voters’ wishes in passing the ballot.

See: washingtonexaminer.com

Sex Registration for Sex Crimes Involving Consent – Three Tiers

Regardless of whether or not you are released from prison early – or even if you were never sentenced to any prison term – most likely you will be required to register as a sex offender.

California Sex Offender Registration laws are codified at California Penal Code section 290 and California Penal Code section 290.018 (Sex Offender Registration Act: Penalties for Violation).

Beginning this year, January 1st, these laws radically changes. Specifically, prior thereto, virtually every sex crime conviction, including misdemeanors, came with automatic lifetime registration on the Megan’s Law website (see: meganslaw.ca.gov).

Since then, fortunately, the state has divided sex offenses into the three tiers, each with their own mandatory registration period. The following three tiers include examples of the consent-related sex crimes identified above:

  • Tier One – Minimum Ten Years’ Registration
  • Tier Two – Minimum Twenty Years’ Registration
    • Rape – Intoxicated/Drugged Victim/Spouse (Penal Code sections §§ 261(a)(3), 262(a)(2))
    • Rape — Unconscious Victim/Spouse (Penal Code sections 261(a)(4), 262(a)(3))
    • Rape — Disabled Victim (Penal Code section 261(a)(1))
    • Rape — Fraud (Penal Code section 261(a)(5))
    • Oral Copulation – Intoxicated/Drugged Victim (Penal Code section 287(a), (i))
    • Oral Copulation — Unconscious Victim (Penal Code section 287(a), (f))
    • Oral Copulation — Disabled Victim (Penal Code section 287(a), (g))
    • Oral Copulation – Victim 13 Years or Younger (Penal Code section 287(c)(1))
    • Sexual Penetration with a Foreign Object – felony where victim is unconscious, intoxicated, drugged, or mentally or physical disabled (California Penal Code section 289)
  • Tier Three – Automatic Lifetime Registration
    • Sexual Battery (California Penal Code section 243.4(e)(1)) – felonies involving force)
    • Rape/Spousal Rape — Force, Fear, Threats (Penal Code section 261(a)(2), (6) & (7))
    • Sodomy — Force, Fear, Threats (Penal Code section 286(c)(2), (3), (k))
    • Sodomy – Intoxicated/Drugged Victim (Penal Code section 286(i))
    • Sodomy — Unconscious Victim (Penal Code section 286(f))
    • Sodomy — Disabled Victim (Penal Code section 286(g))
    • Oral Copulation by Force, Fear, or Threats (California Penal Code section 287)
    • Special Bulletin re Governor Newsom’s Approval of California Senate Bill 145 (SB-145)
    • On September 11, 2020, Governor Gavin Newsome approved California Senate Bill 145 (SB-145), which beginning on January 1, 2021, gave judges discretion to waive what was previously mandatory registration for all of the following consent-related sex crimes where the minor-victim was at least fourteen and the perpetrator was not more than a decade older than him/her:
    • Sodomy with a Person Under 18 Years of Age (California Penal Code section 286(b)(1))
    • Sodomy with Minor: Defendant 21 or Older (California Penal Code section 286(b)(2))
    • Oral Copulation with a Minor (California Penal Code section 287(b))
    • Unlawful Consensual Sex with a Minor (“Statutory Rape”) (California Penal Code section 261.5)
    • Sexual Penetration of a Minor (California Penal Code section 289(h) & (i))

See: leginfo.legislature.ca.gov.

The New DA’s Special Directives regarding Sex Crimes

On December 7, 2020, on his first day in office, LA County’s new District Attorney, George Gascón, issued nine “Special Directives”, each of which promised progressive reforms as to how his office would henceforth prosecute certain cases, including sex crimes.

See: latimes.com

By far, the most controversial of these groundbreaking edicts was Special Directive 20-08 (“Sentencing Enhancements/Allegations”), which promised that the DA’s Office would no longer charge certain crimes as Strike offenses (California Penal Code section 667(a)&(b)); California Penal Code section 667.5 (“Violent Felonies”); and California Penal Code section 1192.7 (“Serious Felonies”), including sex crimes.

See: da.lacounty.gov.

Mr. Gascón also promised therein that his office would no longer seek any other sentencing enhancements for any crimes, including sex crimes.

As a result, most of the rank-and-file prosecutors working for him, as well as all LAPD officials and victims’ rights advocates, raised such a hue and cry that Mr. Gascón felt forced to back-peddle on S.D. 20-08 to mollify these critics. So, on December 18, 2020, he issued Special Directive 20-08.2 (“Amendment to Special Directive 20-08”), which now stated that line prosecutors would have discretion to pursue enhancements, including Strike enhancements, for the following consent-related sex crimes:

(1) Violation of Penal Code section 667.61, where you are now convicted at least a second time for the following:

(a) Forcible Rape (California Penal Code section 261(a)(2))

(b) Spousal/Marital Rape (California Penal Code section 262(a)(2))

(c) “Gang Rape” (Forcible Rape Act in Concert) or Sexual Penetration in Concert (California Penal Code section 264.1)

(d) Forcible Sexual Penetration (California Penal Code section 289)

(e) Sodomy through Force, Violence, or Fear (California Penal Code section 286(c))

(f) Sodomy in Concert (California Penal Code section 286(d)).

See: da.lacounty.gov.

(2) Violation of Penal Code section 667.9 or Penal Code section 667.10, which both involve any of the foregoing crimes committed against an elderly person, someone is blind or deaf, a “developmentally disabled” person, or an individual who is paralyzed (so long as you knew or should have known of his/her condition);

(3) Violation of Penal Code section 675, which involves you committing any of the foregoing crimes while working as a “primary care provider in a day care facility”, and the victim was a resident-patient therein; and

(4) Human Trafficking violations, including:

(a) “Sex Trafficking” (California Penal Code section 236.1)

(b) “Pimping” (California Penal Code section 266h)

(c) “Pandering” (California Penal Code section 266i)

Personally, I believe that these clarifications were unnecessary as Mr. Gascon initially indicated that he would still allow some sex-crimes enhancements, such as the “one strike” sex crime enhancement (Penal Code § 667.61), to be prosecuted which can automatically result upon conviction in a 25-years-to-life in prison term.

Nevertheless, I certainly understand that he had to keep these critics at bay so he can continue doing his job – and thus far, I believe he has done an outstanding one. In fact, as I wrote in an earlier blog on this website, I never in my wildest dreams thought it was possible to have a District Attorney who truly desired progressive reforms.

Examples of Sex Crimes Involving Disputes Over Consent — Misdemeanors

Two Friends Get Three Months in Jail for Committing Sexual Battery on a Sleeping Friend

On or about March 9, 2016, two friends – Glendale’s Pedro Garcia (twenty-three) and Lincoln Heights’ Bryan Lizarraga (same) – went out at night with a handful of other individuals and apparently consumed prodigious amounts of alcohol at a bar.

Later, Garcia and Lizaone gave one of the females in their group a ride home, during which she passed out. While she was asleep, both men took turns sexually assaulting her while photographing themselves doing so.

The next morning, she woke up in their car, which was parked in front of Garcia’s residence. Somehow and sometime thereafter, the victim saw images of the incident on someone’s cell phone and called Glendale PD, who arrested the two men shortly thereafter.

Almost exactly one month later, on April 7th, both took nolo contendere pleas to a single misdemeanor for Sexual Battery (California Penal Code section 243.4(e)(1)).

As a result, they each received a three-month jail term, 48 months of formal probation, a four-year victim stay-away order, 52 weeks of sex-compulsion counseling, and lifetime registration.

See: da.lacounty.gov.

Examples of Sex Crimes Involving Disputes Over Consent — Felonies

Owner & Operator of Drug Treatment Facility Gets 53 Years for Raping Drugged Clients

Over a 24-month period, from 2014 through 2016, Chris Bathum (age 43 at the beginning of this period) forcibly raped more than half-a-dozen women who were patients of several drug treatment centers he was running in L.A.

He would take these women – who were in their early 20s to their early 30s — to motel rooms, ply them with heavy drugs such as heroin and crystal meth, then have intercourse with them when they were passed out or too high to resist. He sometimes raped them in the actual treatment facilities, which were located on Melrose Avenue near Highland Avenue, and in Malibu.

Following a year-long joint investigation by the DA’s Office and the LA County Sheriff’s Dept., he was arrested and tried. In Feb. 2018 (almost four years after he first started raping the victims), a jury convicted him of more than thirty felonies, such as:

At trial, Bathum claimed each of the women had consented to intercourse, but the jury found that the women were incapable of legally consenting.

It remains unclear why it took so long for Bathum to be sentenced, accounting even for Covid-related delays, but in mid-July 2020 (almost two-and-a-half years after his conviction), he received almost fifty-three years in prison plus lifetime registration.

He also received two decades in prison for fraudulently bilking numerous insurance companies out of almost $180 million in payments for false bills relating to his rehab businesses. Specifically, he was convicted of numerous white-collar felonies, including:

Fortunately for Bathum, his 20-year sentence was ordered to run concurrently for his rape sentence – although at his age, which was 49 at sentencing – he will likely die in prison in any event from the 52-year term.

See: da.lacounty.gov

Los Angeles Man Received a Quarter-Century in Prison for Trafficking a NorCal Woman

In 2014, Mr. Okang Palmer (36), an L.A. resident, somehow befriended and romanced a woman who lived in NorCal and convinced her to move in with him on the promise of an intimate relationship. However, she soon found herself forced into prostitution after Palmer threatened her with violence and a firearm. Palmer also forced her to give him all the cash she earned from her sexual encounters.

In or about January or February 2015, the woman unsuccessfully tried to flee Palmer but he caught her, whipped her with a metal belt buckle, and scorched her with a lighter. Later that same night, Palmer drove her to an ER in Stockton, where she was treated and let go. It remains unclear whether she told the doctors about what Palmer had done to her because if she had, they would have been required to immediately call police and report the incident.

In any event, after Palmer returned her to his residence where they were living together, the woman once again tried to escape. This time she was successful, and later notified LAPD, who quickly arrested Palmer.

In October 2017, jurors at his trial rejected Palmer’s defense that the woman had consented to the sexual encounters and convicted him of the following felonies:

At the end of Nov. 2017, a judge handed Palmer a twenty-five-year term in a state penitentiary.

See: da.lacounty.gov.

Ex-Jail Guard/LASD Deputy Gets Two Years in Prison for Having Sex with Female Inmates

Over a two-month period in 2017 (Aug. & Sept.), an LA Co. sheriff’s deputy named Giancarlo Scotti (thirty-one) working as a guard at the Lynwood jail for women repeatedly had sex with a at least half-a-dozen inmates there who were ages twenty-four to forty-two.

In one particular instance, he forced two inmates to simultaneously fellate him then afterwards had sex with both of them in the bathroom. In another instance, he forced a third inmate to fellate him while he stood in her cell.

It remains unclear how the investigation into his activities came about, but Scotti was eventually arrested by his own department, LASD.

When I use the word “forced”, it’s because the women could not legally consent to sex with a guard even if they otherwise wanted to engage in intercourse because of California law (see below). As such, Scotti had no defense to the charges.

As a result, in early Sept. 2019, he pled nolo contendere to half-a-dozen felony charges, as well as two misdemeanor charges, of Unlawful Intercourse with an Inmate (California Penal Code section 289.6(a)(2)).

On or about Sept. 25th of that same month, the judge gave him a 24-month-prison sentence. And, of course, Scotti was fired from the LASD.

See: da.lacounty.gov.

What’s Coming Up in the Next Blog Article

In the next article, I’ll give examples of three extremely high-profile cases involving two celebrities – disgraced former movie mogul Harvey Weinstein and actor/producer/Scientologist Danny Masterson (That 70’s Show, Netlfix’s The Ranch) – and former Stanford University swim team member Brock Turner.

In addition, I give detailed summaries of numerous sex crimes cases I’ve handled over the years that involved issues of consent.

The Los Angeles Defense Attorney Law Firm (LADALF)

LADALF’s founding attorney Ninaz Saffari is now in her seventeenth year of defending individuals – adults and juveniles – against almost every type of sex crime on the books. Most of these crimes where the purported victim was an adult or a juvenile at least 16 years of age, have involved issues, elements, and defenses of consent.

For juvenile victims, her successful defenses based on “consent” resulted in a significant mitigation of the charges whereby the client was able to plead to a greatly reduced charge — for example, from “Gang Rape” (Forcible Rape Act in Concert) or Sexual Penetration in Concert (California Penal Code section 264.1) down to Unlawful Consensual Sex with a Minor (“Statutory Rape”) (California Penal Code section 261.5).

Examples of Sex Crimes Involving Celebrities and Disputes Over Consent

Harvey Weinstein

On or about May 10, 2010, former superstar film titan Harvey Weinstein (then age 58) allegedly tried to rape a would-be actress in his suite at the Beverly Hills five-star Peninsula Hotel. As was proven at his New York City trial on similar charges, which resulted in his conviction and a 23-year prison sentence, Weinstein’s M.O. – at least in those cases – was to rent a five-star hotel suite then hold “auditions” for unsuspecting beautiful, young women. Then, as soon as he was alone with them, he would attack.

Almost nine-and-a-half years later in Oct. 2019, this alleged victim finally filed a police report with the Beverly Hills PD, which was conducting a joint investigation with LAPD against Weinstein.

In January 2020, Weinstein was hit with a slew of charges by the DA’s Office relating to similar alleged attacks on two other women seven years earlier. Specifically, he was charged with the following sex offenses:

On or about April 9, 2020, the DA’s Office amended the criminal complaint against Weinstein and finally charged him with Sexual Battery of a Restrained Victim for allegedly sexually assaulting the woman at the Peninsula Hotel almost a decade earlier. (The applicable limitations period for this particular offense is a decade so the case was filed just under the statutory wire.)

If convicted of all charges, Weinstein could receive as much as three decades behind bars – a sentence that almost certainly would not run concurrently to his current 23-year stretch. In addition, because of the New York convictions for similar charges, those will be considered as Strike Offenses (California Penal Code section 667(a)&(b); California Penal Code section 667.5 (“Violent Felonies”); California Penal Code section 1192.7 (“Serious Felonies”).)

As a result, if convicted of the current charges, Weinstein will have to serve at least 85% of the sentence, even with good behavior.

See: da.lacounty.gov.

Danny Masterson

In the early years of the 2000s decade, numerous women were allegedly drugged and raped by actor/producer/Scientologist Danny Masterson (That ’70s Show, Netflix’s The Ranch) at his mansion above Sunset Blvd.

In early March 2017, an LAPD spokesperson announced that Masterson (age 39 at the time) was a suspect in those alleged rapes, and requested that other potential victims come forward. Five women ultimately did so, including Chrissie Bixler and his former paramour, actress Bobette Riales. At least three of the five alleged victims were also Scientologists.

In addition, at least two of the women claimed that Masterson had engaged in nonconsenual intercourse with them while they were sleeping at his residence — after being allegedly drugged by him without their knowledge.

Not surprisingly, Masterson publicly denied all of the accusations, claiming that all of the sexual encounters had been completely consensual. For example, he claimed that one of the purported victims had been in a romantic relationship with him for half-a-dozen yrs., that the alleged rape occurred in the middle of that period, and that afterwards they’re romantic relationship continued. He even claimed that after he had broken up with her, she continued to pursue him, thereby intimating that her allegations were motivated by revenge.

Masterson also blamed former Scientologist and actress Leah Remini, claiming her hit TV series prompted the women to come forward solely for the purpose of smearing the “church”.

See: people.com.

In Dec. 2017 (seven months after the LAPD’s announcement), Netflix terminated Masterson’s involvement with the hit series The Ranch. Shortly thereafter, his talent agency also dropped him. Since then, he has stayed out of the public eye (aside from his court appearances, of course).

See: vulture.com.

On June 17, 2020, LAPD arrested Masterson on suspicion of, and the DA’s Office prosecuted him for, three counts of Forcible Rape (California Penal Code section 261(a)(2)), as well as multiple counts of Rape of an Intoxicated Person (California Penal Code section 261(a)(3)).

The three purported victims — women whose ages then ranged from twenty-three to twenty-eight – were allegedly raped between 2001 and 2003, again, at his residence. If Masterson is convicted of all charges, he could face almost five decades in a state penitentiary.

Notably, the DA’s Office rejected the rape allegations from the other two accusers because the applicable limitations periods had expired. Masterson’s attorney filed a motion to dismiss the other three rape allegations based on the same grounds but the court denied it.

See Sex Crimes Statutes of Limitations (California Penal Code section 801.1).

After posting almost three-and-a-half million dollars, Masterson bailed out of jail.

See: nytimes.com.

On or about January 20, 2021, at his arraignment, Masterson pleaded not guilty. Because of Covid-related continuances, his preliminary hearing – where the judge decides whether there is sufficient evidence (i.e., a 51% or more probability) to hold him over to trial – will not take place until May 24th.

See: nydailynews.com.

Stanford’s Brock Turner

In mid Jan. 2015, Stanford University sophomore and swim team member Brock Turner (nineteen) sexually assaulted fellow co-ed Chanel Miller (twenty-two) while she lay unconscious after having consumed too much alcohol. More specifically, Turner penetrated Miller’s vagina with his fingers while pushing down his pants as he was apparently intending to have intercourse with her.

As they were both laying prone behind a dumpster on campus, two other male students spotted them and yelled at Turner, who jumped to his feet and took off running. The two young men chased after him, tackled him, and held him down until police arrived and arrested him. He bailed out that same day, not many hours after Miller regained consciousness at the hospital.

As a result, the Santa Clara County DA’s Office prosecuted Turner on the following charges:

Brock rolled the dice and went to trial, which culminated at the end of March 2016, when, following only a few days of deliberating, the jury acquitted him of all but the sexual penetration charges. (Prosecutors were unable to prove that his penis had made contact with Miller’s vagina.) Notwithstanding, the prosecution asked the judge to give Turner six years out of a maximum of fourteen.

Six months later, in early Sept., the judge shocked many people, not least of all Miller herself, by sentencing Brock to only six months in jail, 36 months of formal probation, 52 weeks of sexual compulsion therapy, and lifetime registration. With good behavior, he was released halfway through his sentence.

The public outcry ultimately resulted in the judge being recalled, which I thought was unfair. Specifically, for a first-time offender with an otherwise stellar life and bright future, the sentence was not unduly short.

Indeed, the evidence presented at trial established that Turner was so drunk himself that he was unable to achieve an erection. More importantly, he was so intoxicated that he claimed he believed Miller had consented to “hooking up” after they both left a frat party together. The sentence was also supported by the the probation department’s report, which cited Turner’s expressed remorse and his degree of intoxication, which both served as mitigating factors.

Finally, the deluge of letters from highly accomplished individuals who knew Turner and pleaded for leniency also clearly affected the judge’s decision.

Notably, the same week Turner left jail, the California legislature approved Assembly Bill number 2888 (AB 2888) — authored by the Santa Clara DA’s Office — that mandated prison terms for defendants convicted of sexually assaulting intoxicated or unconscious individuals. As a result, anyone convicted of one of these crimes will receive a minimum of three years in prison. Prior thereto, no minimum sentence was required in the absence of violence, force, threats, or duress.

See: cnn.com.

See also: latimes.com.

Not surprisingly, Turner appealed his conviction on or about August 10, 2018, but the Court of Appeal denied his petition. And I forgot to mention that he was expelled from Stanford after his arrest.

See: vox.com.

LADALF Cases Involving Issues of Legal Consent/Consensual Intercourse

My Client was Labeled a Serial Rapist by the DA’s Office, Police, and Local Media

People v. Corey Stewart (Torrance Courthouse, May 2014):

One of the most high-profile cases I’ve ever handled began when Corey’s family hired me in or about January 2014 to defend him against two counts of Forcible Rape (California Penal Code section 261), for which he was facing two possible life sentences.

Corey’s arrest occurred after he was falsely accused by a woman who told police he had kidnapped her at gunpoint, forced her into his white SUV – which she claimed had special locks installed to prevent her from escaping – and repeatedly raped her on a side street in an industrial neighborhood. As a result, he was ultimately forced to waste a year plus two months of his life in county jail awaiting trial.

While he was incarcerated, a second accuser came forward after seeing his mugshot splashed across the evening news with the moniker “the South Bay Rapist”, and claimed he had also raped her years earlier.

In any event, Corey’s previous lawyer had failed to do much on his case, which is why his family replaced him with me. By that point, Corey had spent about ten months behind bars.

For the next four months, as I prepared for jury trial, my private investigator, GPS expert, and I conducted an in-depth investigation. First, I discovered that neither Corey nor anyone he knew possessed or otherwise had access to a white SUV.

Nor did Corey – who had never been in trouble before – have access to any guns, much less have one registered in his or his family members’ names. I also learned from the accuser’s private social media postings that she was a con woman who frequently bilked unsuspecting men out of money in a so-called “lonely hearts” scam.

But I truly struck gold on the eve of trial when my GPS expert came through in a major way by providing me irrefutable evidence that according to Corey’s cell phone pings that day, he was nowhere near where the first accuser claimed he had raped her.

On the first day of jury trial, I put all my cards on the table and presented all of the foregoing evidence to the prosecutor who, along with the investigating detectives, immediately re-interviewed the first accuser. Incredibly (or perhaps not), she told them a completely different set of lies.

In addition, at that same time, the second accuser admitted she was no longer certain Corey was the man who had supposedly raped her. (She had obviously been mistaken.)

As a result, all charges were dismissed that same day, and Corey went home a free man. We still keep in contact to this day, and I’m happy to report that he enjoys a good life with a good job.

Two Life Sentences for Gang Rape of Minor & Kidnapping – All Felonies Dismissed

People v. J.C. (Van Nuys courthouse – Sept. 2017):

My client, “Jesse”, was then a nineteen-year-old with no criminal record. One unfortunate weekend, he and half-a-dozen of his friends (four other young men and two 17-year-old minors) partied with a sixteen-year-old female, and all had intercourse and performed other sex acts with her. The female was an eager participant (as the undisputed evidence would show – see below); however, because of her age, she could not legally consent – even with the other two minors.

Anyways, when she returned home after that weekend, her mother and father were furious that she had ran away from home (as she had done on at least several other occasions). To deflect from her own participation in that weekend’s events, she falsely claimed that the seven males had kidnapped and gang-raped her.

The parents, of course, freaked out and called LAPD, who arrested all seven individuals. My client was therefore prosecuted for:

If convicted of all charges, Jesse would have received as much as life in prison.

As always, my investigative team and I spent months intensively looking into the allegations. This included accessing the accuser’s private social media account, which confirmed that she was a wildly promiscuous girl who loved to drink and do drugs. However, under California law, such evidence is inadmissible to disprove sexual assault allegations (for good reason).

But after many months of concerted effort, I finally struck platinum: I obtained video footage of all the sexual activities that weekend, which absolutely proved that the accuser was not only a willing participant, but the instigator. Indeed, the video even captured her imploring the males to call other friends to come over and join the party.

In the end, I confronted the accuser on cross-examination at the preliminary hearing with the video, which, of course, disproved every single allegation she had made. By the time I was done destroying her on the stand, she refused to answer any more of my questions and never once looked at the video, which I played in court (in closed session, of course).

As a result, the prosecutor immediately dismissed all charges with prejudice against all seven defendants, including my client. However, because the tape did show my client having sex with the accuser, he plead out to a misdemeanor for Unlawful Consensual Sex with a Minor (California Penal Code section 261.5), but with no more jail time, informal/summary probation only, and no sex registration. Jesse, as well as his six friends, all went home by the next day.

Notably, Jesse – who had been in jail for more than six months while awaiting the prelim – had never been in trouble before (or since). And when he was suddenly released after what appeared to be a likely decades-long-at-least prison stretch, all of his associates in his suspected-sex-offender-wing at the Men’s Central Jail in DTLA began calling me, hoping to get the same “magic” for their own cases.

As a result, half-a-dozen of them hired me, and all of them were extremely happy that they did. Indeed, Jesse has continued referring other clients to me since then, including someone who I am currently defending against a major federal drug trafficking case in Las Vegas. Crazy.

My Client was Charged with Raping an Intoxicated Person and was Looking at 47 Yrs.

People v. R.T. (DTLA courthouse — June 2015):

My client “Richard” was charged with several felonies for Rape of an Intoxicated Person (Pen. Code § 261(a)(3)), in additional to several other consent-related sexual offenses. As a result, he faced almost fifty yrs. behind bars if convicted due to his previous criminal record, which mandated that his current alleged offenses be charged as Strikes (Pen. Code § 667(a)&(b)).

Unfortunately, however, Richard had been secretly tape-recorded having a conversation with the purported victim during which he said he was “sorry for what happened”. The detectives and prosecutor took that to be an admission of guilt, although Richard claimed the alleged rape was not what he had apologized for. He also claimed that heir intercourse had been consensual.

I pushed this case through trial, during which I put on several DNA experts who testified that there was insufficient DNA evidence to suggest intercourse had even occurred. I also effectively cross-examined the accuser to such a degree that half the jurors no longer believed her accusations.

As a result, the jury evenly deadlocked, including six voting not guilty. Before the scheduled retrial, however, the DA’s Office made my client an offer that was too good to pass up:

one misdemeanor count of Sexual Battery (Pen. Code § 243.4) with no jail time and informal probation.

My Client was Charged with a Dozen Counts of Lewd Acts w/ a Minor – 10+ Years Max

People v. J.G. (LAX Courthouse – Febr. 2018):

My client “Jackson” was charged with twelve felony counts of Lewd Acts with a Minor (Pen. Code § 288), which cumulatively carried as much as ten-plus years in a penitentiary, plus lifetime sex registration, if convicted, pursuant to California’s Sex Offender Registration law (California Penal Code section 290). He, too, had a useless attorney so he, too, spent more than twelve months in the Twin Towers downtown LA jail facility before he fired him and hired me.

As with all my clients, I fought tooth and nail all the way, always putting the Deputy DA prosecuting the case on the defensive, which often includes overwhelming the prosecutor with motions (though certainly never without merit or good cause).

In the end, I forced the prosecutor to give Jackson an impossibly good offer – a drastically reduced charge of Unlawful Consensual Sex with a Minor (Pen. Code § 261.5). He was released immediately with zero additional incarceration.

The Los Angeles Defense Attorney Law Firm (LADALF)

As of this writing, I have been practicing criminal attorney for 16 years and two months – a career I’ve dreamed about since I was a child. For that entire time, including my first four years when I worked as a Deputy P.D. for LA County, much of my caseload has been devoted to defending people (adults and minors) against consent-related sex offenses.

Aside from my extensive experience, deep knowledge of California sex-crimes law, and trial advocacy skills, I also believe that having a strong woman representing you in court absolutely helps your defense in the eyes of a jury.

For example, I am currently defending a successful businessman against several consent-related sexual offenses where he is facing not only more than a decade in prison, but deportation as well since he is a foreign national. For obvious reasons, I am not at liberty to divulge any other details about the case.

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