NRS 200.366 - "Sexual Assault" Charges In Nevada

The Nevada crime of Sexual Assault is also commonly known as rape. The basic rule of sexual assault is that it is illegal to have sex with someone against their will, or when you know or should have known that the person lacked the capacity to consent to the sex.

NRS 200.366 states that sexual assault occurs when a person “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.”

As you can see, the Nevada law of sexual assault is quite aggressive in its application, and leaves a lot of room for interpretation and fabrication. Many cases are referred to as “he said/she said” cases where there is little forensic evidence, or evidence of any kind beyond the word of the alleged victim. Case law on the Supreme Court level allows the admission of a victim’s testimony without corroborative evidence, regardless of the contents of said testimony. Essentially, if the District Attorney chooses to go forward with sexual assault charges, the victim’s testimony will be admissible. Also, Rape Shield laws prohibit the sexual history of the victim (besides history with the defendant) from being admitted. For example, even if the alleged victim is a prostitute, and the alleged incident was a paid encounter that went bad, the victim’s history would be inadmissible.

There are generally three types of sexual assault defenses that the attorneys at Boley and AlDabbagh will employ. Each requires a slightly different strategy. Each sexual assault case is unique, but they tend to come in these three varieties:

FIRST SEXUAL ASSAULT SCENARIO – NO PHYSICAL EVIDENCE

The first type of case is one in which the only evidence offered by the prosecution is the testimony of an alleged victim that a rape took place. This case is the most common type of case, and occurs when a victim claims that a sexual encounter occurred against her will, but the defendant claims that either it never happened or that the victim consented to the sexual encounter. Often times there is no physical evidence of assault, no third party witnesses to the penetration, and no injuries beyond evidence of normal sexual intercourse. Many times, this case bears some risk for the defendant. But, the strength of the defendant’s case at trial generally depends on the strength of the victim’s testimony on the witness stand. The defense attorney must determine whether a jury would believe the victim or his defendant, and whether or not the defendant should testify. If the scales tip in favor of the defendant, it might be a case for trial. If the scales tip in favor of the victim, the Defense might seek to plea bargain the case.

Keep in mind, in the above scenario, the prosecutor understands the weakness of their case. The physical evidence wholly supports an allegation of consensual sex, and there is no evidence of sex assault besides a victim’s testimony. Generally, this makes for a favorable plea bargain fairly early in the case, to something like simple battery or disturbing the peace. It is hard to turn down a plea to misdemeanor battery or misdemeanor public lewdness. Neither of those charges place the defendant on the sex offender registry nor make the defendant a felon.

SECOND SEXUAL ASSAULT SCENARIO – EVIDENCE OF SEXUAL ENCOUNTER

The second type of case is one in which there is some sort of evidence in addition to the alleged victim’s testimony that a sexual encounter occurred, but the fact that is in dispute is whether the action was consentual. Here, there might be some physical evidence that there was a crime committed, but it is inconclusive. Evidence could be anything from a third party witness to a rape kit taken at a hospital some time after the encounter. This type of case is less likely to result in a plea bargain, but still depends on the credibility of the victim vs. the credibility of the defendant. The key of this type of defense is to file motions in limine (motions prior to trial) to limit any physical evidence and to discredit any medical testimony against the defendant. If those evidentiary arguments are successful prior to trial, the prosecution will likely offer a favorable plea bargain.

THIRD SEXUAL ASSAULT SCENARIO – PHYSICAL INJURIES OR RECORDINGS

The third type of case involves a significant amount of injuries or some kind of video or audio recording of the encounter. These are the kind of cases which are ugly, and difficult to put in front of a jury. Generally, this scenario involves a significant amount of evidence against the defendant. Here, there could be an identity defense or possibly a factual defense. For example, the defendant might claim that he and the alleged victim were acting out a roleplaying scene in order to fulfil a fantasy. 

In this scenario, the Defense would need to address each piece of evidence against the defendant and attempt to have each piece excluded. Then, both sides will look at the case prior to trial and decide whether a trial will go forward. The defendant’s testimony might be pivotal in winning at trial.

Generally, sexual assault defense depends greatly on how much evidence exists that 1) a sexual assault actually occurred; and 2) the defendant committed said assault. A favorable plea bargain can result from any of the above scenarios and success at trial is always the ultimate goal.

RETAINING AN A SEXUAL ASSAULT DEFENSE ATTORNEY

Obviously the stakes are high any time a sexual assault case is pending. It is not uncommon for a person convicted of sexual assault to spend the rest of their lives in prison. The key to a successful defense is to enlist the help of an experienced defense attorney as early on as possible. Often times, an investigation may be underway by local police prior to any criminal charges being filed. If the defendant is aware of the investigation, or has even been threatened with police involvement, he should immediately seek the counsel of a defense attorney. How a defendant interacts with a detective could be pivotal in a future trial, or could even result in the investigation being dropped.

If you are being criminally charged with sexual assault, or even just anticipate an investigation, do yourself a favor and contact Boley and AlDabbagh to schedule a free consultation.