Many have been in situations where they have gone out on a date, had too much to drink, and hopped in the sack, only to wake up in the morning wondering what happened. Sometimes, this experience leads to regret or embarrassment. To save face, these individuals turn to law enforcement for protection and retribution.
The lines as to what constitutes consent are blurred. Under Virginia code § 18.2-61, one may commit rape when they engage in sexual intercourse with the complainant through the complaining witness’s physical helplessness. Physical helplessness is defined as unconsciousness or any other condition existing at the time of an offense that otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known. See Howard v. Commonwealth, 21 Va. App. 473, 474, 465 S.E.2d 142
The Commonwealth has the burden of proving that the victim was unable to communicate an unwillingness to have sex beyond a reasonable doubt. Often times they succeed in obtaining convictions on the complainant’s uncorroborated claim by piecing together a case through circumstantial evidence. Proving this to be a false narrative can be a difficult task. It requires hours of research and preparation and in some instances may require the involvement of toxicologists, canvassing for eyewitnesses who may have had contact with the victim before the encounter, bar tabs, and video surveillance.
A violation of this section carries a mandatory sentence of five years in the penitentiary to life. You need an experienced criminal law attorney on your side with proven results. If we can help you with this or any other matter please give us a call.