Sexual Assault: ARS 13-1406 Get the peace of mind that comes with an elite defense. Call Stewart Salwin.

Sexual Assault (Rape): ARS 13-1406

What is Sexual Assault or Rape in Arizona?

A.R.S. § 13-1406 is the Arizona law that criminalizes sexual assault (aka rape) in Arizona. A person commits rape if he or she knowingly engages in non-consensual "sexual intercourse" or "oral sexual contact." Rape is a serious crime in Arizona and is defined as a class 2 felony. The minimum sentence for a first-time offense is 5.25 years in prison, and this punishment can increase up to 28 years if the defendant has prior felony convictions.

A.R.S. § 13-1406 Defined

ARS 13-1406 defines sexual assault as follows:

  • A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.

This definition has some important legal definitions, with unique meaning defined by Arizona's criminal code.

"Sexual intercourse" is defined by ARS 13-1401 as "penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva."

Under the same law, "oral sexual contact" means "oral contact with the penis, vulva or anus."

"Without consent" includes any of the following:

  • "The victim is coerced by the immediate use or threatened use of force against a person or property."
  • "The victim is incapable of consent by reason of mental disorder, mental defect, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant. For the purposes of this subdivision, "mental defect" means the victim is unable to comprehend the distinctively sexual nature of the conduct or is incapable of understanding or exercising the right to refuse to engage in the conduct with another."
  • "The victim is intentionally deceived as to the nature of the act."
  • "The victim is intentionally deceived to erroneously believe that the person is the victim's spouse."

Lack of consent is often one of the main issues in sexual assault cases. Forensic evidence and the use of "rape kits" by the police soon after a report of sexual assault has made it easier and easier to determine in many cases whether sexual contact occurred. However, there are a large number of scenarios which fall under a "date rape" scenario where the issue of consent is central question. Oftentimes neither the accused nor the victim will deny that sexual intercourse or oral sex occurred, but the question becomes whether the sex was consensual.

The definition of consent above clearly indicates that threats of force negate consent. The use of alcohol, however, adds another dimension to the sexual assault charges that can complicate the case. In date rape cases, it is common for both defendant and the accuser to have drank prior to engaging in any type of sexual or romantic contact. Depending on the specific facts of the case, the use of alcohol may or may not have impaired a person's cognition (i.e., ability to think clearly) to the extent that he or she could not consent.

Less common examples of sexual assault can also occur in other ways according to the definition of consent. For example, the victim being "intentionally deceived as to the nature of the act," could arise in cases that we hear about where a medical professional goes beyond the scope of medical services to engage in sexual assault. This is what was alleged to have occurred in the high-profile USA gymnastics sex abuse scandal in which several gymnasts accused the team doctor of sexual abusing them under the pretense of providing medical treatment.

Sexual assault investigations

It is not uncommon for somebody who has been accused of sexual assault to have some advance notice that he is under investigation before charges are actually filed by the police. This can be because of the nature of the evidence of many rape cases. If the sexual assault is not reported soon after the incident, or if the sexual assault did not occur at all, then there can often be a lack of physical evidence of rape.

Many sexual assault allegations will hinge on the testimony of the accuser. These cases will usually be assigned to a detective in the police department that specializes in investigating claims of sexual assault. A common tactic during this investigation will be for the detective to attempt to reach out to the accused to get a statement about the allegations. Another common tactic is for the accuser to call up or text the accused in what is called a "confrontation call." A confrontation call is conducted in the presence of the investigating detective in order to see if the accused will admit to improper conduct when the alleged victim accuses him of it. These used to be conducted exclusively via telephone on a recorded line, but nowadays text messages are often used instead. During this text exchange, the person on the other side of the conversation may very well be the detective who is using the accusers phone.

What can an attorney do for someone accused of sexual assault during the investigation? [H3]

The investigation stage of a sexual assault case is critical. During this time, an attorney can communicate with the detective on behalf of the accused. Because a defendant's statements can always be used against him when he is speaking with a detective, it is almost always best to have any exculpatory evidence (i.e., evidence that tends to prove the accused is innocent) given to the detective by an attorney rather than through the accused himself.

What evidence can help prove the innocence of the accused?

There are usually two sides to every sexual assault allegation. While it is an unfortunate fact that many people are the victims of sexual assault, it is also often the case that people can be falsely accused of sexual assault when no crime actually occurred. Evidence that a sex crimes attorney can present to a detective to show the allegations are false include:

  • Text messages that establish a consensual sexual relationship;
  • Polygraph (i.e., lie detector) tests that support the accused's side of the story;
  • Other physical evidence or video evidence that disproves the allegations;
  • Testimony from supporting witnesses.

Penalties for Sexual Assault

Sexual assault charges are class 2 felonies. This category of crime usually carries its own sentencing range. But for sexual assault prosecuted under ARS 13-1406, there is a specific sentencing range that is actually harsher than the normal sentencing range for a typical class 2 felony crime.

If a person is convicted of sexual assault, the judge will determine the sentence within the following ranges. The minimum and maximum sentence depends on how many prior felony convictions the defendant has committed:

Minimum Presumptive Maximum
First Offense 5.25 years 7 years 14 years
One prior felony 7 years 10.5 years 21 years
Two prior felonies 14 years 15.75 years 28 years

Note: The "presumptive" sentence is the default sentence where the judge will start in determine the appropriate prison term. The judge can then decrease the sentence to the minimum or increase it to the maximum depending on the facts of the case.

If a defendant is convicted of more than one count of sexual assault, then the sentence must be served "consecutively." Another phrase for this is that the sentences must be "stacked." This means that the sentences are served one after the other, rather than both being served at the same time.

Example: A defendant is convicted of two counts of sexual assault. The defendant receives a sentence of 7 years for both convictions. The convictions have to be served one after the other, so the total sentence imposed will be 14 years.

Note: If the sexual assault involves the intentional use of flunitrazepam, gamma hydroxy butyrate or ketamine hydrochloride without the victim's knowledge, then the minimum, presumptive, and maximum sentence for the sexual assault will be increased by 3 years.

Sex offender registration

In addition to prison time, a person who violates ARS 13-1406 must also register as a sex offender and be placed on the Arizona sex offender registry.

Life sentences for sexual assault

Regardless of the sentencing ranges discussed above, if the sexual assault involved intentional or knowing infliction of serious physical injury, then the defendant may be sentenced to life imprisonment as is not eligible for suspension of sentence, pardon, or release until at least 25 years have been served.

Defenses to sexual assault charges

  • No sexual intercourse or oral contact: The crime of sexual assault requires very specific sexual actions to violate ARS 13-1406. Oral contact, such as fellatio or cunnilingus (i.e., oral sex) or sexual penetration must occur. This can lead to two types of defenses. First, a defense may be that no sexual contact occurred at all. However, another defense may be that even though some type of sexual contact or groping may have occurred, it did not rise to the level of oral sex or penetration. Non-consensual groping is still illegal, but it is a lesser crime than sexual assault.
  • Acts were consensual: We have already discussed that many sexual assault cases hinge on whether the sexual acts were consensual. This can arise when the case is a he-said, she-said; wherein both parties admit that sexual conduct occurred, but there is a dispute over whether it is consensual or not. Sadly, while legitimate allegations of sexual assault occur, it is also the case that people are falsely accused of sexual assault when the contact was mutual. There may be various motives a person has for later denying the consensual nature of the allegations. This could include regret, shame, infidelity, or any other type of human motive imaginable.

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