Maryland Criminal & Immigration Lawyer Blog
For many people, “let’s meet up for a drink” is a frequent first-date proposal. Mixing alcohol and dating may be common but also presents risks, particularly when it comes to sexual contact and disputes regarding consent. If you find yourself facing charges for something that was actually a consensual sexual encounter, be sure to retain a knowledgeable Maryland criminal defense lawyer right away. Whether or not alcohol was involved, the right legal team can help you put on the effective and complete defense you deserve.
J.J. was one of those sex crime defendants. In August 2020, law enforcement officers in Anne Arundel County pulled over a woman they suspected was driving while intoxicated. When the officers approached her, the woman was upset and told them about her date with J.J.
According to the woman, she blacked out during the date and, when she regained consciousness, she found J.J. sexually attacking her. The man, however, maintained (and testified) that the entire encounter was completely consensual. The state brought charges of second-degree rape, third-degree sexual offense, fourth-degree sexual offense, and second-degree assault.
Rape Versus Sexual Offense
At this point, you’re probably wondering what the difference is between these various sex crimes. Rape (both first-degree and second-degree) necessarily involves a situation where the perpetrator and the victim engaged in intercourse or in some other form of “sexual act,” such as oral sex or anal sex. If the state doesn’t have proof that intercourse, oral sex, anal sex, or one of the other acts included in the statutory definition occurred, then a rape charge necessarily will fail.
First-degree rape generally involves some form of violence beyond just the sexual attack itself. That additional violence may be a dangerous weapon, physical violence (like suffocation, strangulation, or other serious bodily harm,) the threat of a weapon or infliction of serious bodily harm, or the aid of another person.
Instances in which the alleged victim was “substantively cognitively impaired,” “mentally incapacitated,” or “physically helpless” are generally instances of potential second-degree rape.
Sexual offenses (both third-degree and fourth-degree) are cases where the perpetrator engaged in “sexual contact,” not intercourse or a sex act. In Maryland, sexual contact means touching another person’s intimate area(s) for “sexual arousal or gratification.”
The Centrality of a Proven Lack of Consent
What is common to all four of these crimes (assuming the alleged victim is age 16 or older) is that the state must prove beyond a reasonable doubt that the interaction was non-consensual. Even in cases where alcohol was involved, the burden of proof regarding consent/non-consent falls on the prosecution.
In J.J.’s case, the jury acquitted him on all three sex crime charges but convicted him of second-degree assault.
The man’s legal team also recognized that, in instances like this (where the state charged both second-degree assault and fourth-degree sexual offense, the maximum penalty was the equivalent of the statutory maximum for fourth-degree sexual offense, even if the jury acquitted on that sexual offense charge and convicted on assault…. if the doctrine of merger applies.
For the assault charge and the fourth-degree sexual offense charge to merge, they had to be both parts of one act. Only if the assault and the alleged sexual offense were “separate acts resulting in distinct harms” may the court punish them separately. Here, they weren’t, so the merger rule applied and the maximum penalty available to the prosecution was the maximum for misdemeanor fourth-degree sexual offense, which was one year of imprisonment.
Hopefully, you’ll never have to experience violence committed by an intimate partner. Also hopefully, you’ll never have to go through the experience of a partner falsely accusing you of rape or sexual assault. If the latter happens, though, make sure you have a powerful defense on your side. The skilled Maryland criminal defense attorneys at Anthony A. Fatemi, LLC are here to help, using our knowledge and experience to protect your rights. To learn more, contact us at 301-519-2801 or via our online form.