Consent and Criminal Domestic Violence Charges

One of the best defenses to a domestic violence charge is that of consent. If the defendant can prove that the victim gave consent, he or she cannot face sexual-based domestic violence charges. Most sexual-based offenses involve two people who know each other. The two people may have had a prior relationship, be in a relationship, or may have been on a consensual date at a party when the incident happened. In many cases, the evidence comes down to one party’s word versus the other’s on what took place in private between them.

If you are facing domestic violence charges, Arnold & Smith, PLLC can help. We understand how disconcerting it can be to realize that someone is accusing you of a sexually-based domestic violence crime. We thoroughly investigate our clients’ cases and determine the best way to defend them. Contact our domestic violence defense law firm today to schedule your free initial consultation.

Most North Carolina prosecutors use general criminal statutes to prosecute domestic violence crimes. Any crime can become a domestic violence crime under the right circumstances. A judge will consider a crime to be a domestic violence crime when the victim and the perpetrator have a personal relationship. If so, the judge can impose special probation terms, which might include any of the following:

• Undergoing medical or psychiatric treatment
• Remaining in an institution for prescribed treatment, if necessary
• Requiring the defendant to attend a rehabilitation facility
• Requiring the victim to undergo counseling, training, or other treatment
• Requiring the defendant to undergo a Drug Treatment Court Program
• Requiring the defendant to remain at home except for attending school and work

Committing a sexual offense such as rape falls under the umbrella of domestic violence in North Carolina. Prosecutors often have an extremely difficult time proving that victims did not consent to having sex. Many times, prosecutors cannot get the case past a grand jury because the grand jury refuses to issue an indictment. For example, even when a rape victim reports the incident immediately, evidence from rape exists, and the victim’s testimony is consistent, the jury may still not believe that he or she did not consent to the sexual act.

When are individuals too intoxicated to give their consent to engage in sexual acts? Prosecutors must prove a second-degree sex offense and second-degree rape in one of two ways:

• The act took place against a person’s will by force, or
• The act took place against a person who is mentally or physically incapacitated or mentally disabled

The 2008 North Carolina Court of Appeals ruling in State v. Haddock complicates matters. The court held that the victim cannot be considered mentally incapacitated when the victim was responsible for his or her own incapacity. For example, prosecutors cannot show mental incapacitation if the victim willingly consumed alcohol and became intoxicated prior to the sexual act taking place. However, if other outside evidence exists that the defendant forced the sex act without consent, prosecutors might still bring forth charges.

If you have been charged with domestic violence in the form of a sexual assault charge, and the charge involved alcohol, you may have a compelling defense. If the alleged victim willingly became intoxicated and gave his or her consent to sex, you can use this evidence in your favor. Our attorneys know how to argue effectively for dismissal of the charges or a plea bargain. If the case does go to trial, we know how to effectively argue for our clients throughout the trial.

Can an alleged victim of domestic violence withdraw his or her consent once it is given? Until recently, a woman could not withdraw her consent once the sex act had begun based on a nearly 40-year-old North Carolina Supreme Court ruling. However, North Carolina’s governor recently signed Senate Bill 199. This law will allow women to withdraw their consent after intimate contact has begun. Proving the revocation of the consent of one party can still be difficult.

Often, no outside evidence exists proving whether an individual revoked his or her consent. The issue of consent can come down to “he said, she said.” If you are involved in a domestic violence dispute and the issue of consent is in question, we can help. Contact Arnold & Smith, PLLC today to schedule your free initial consultation. Now with three convenient locations in Charlotte, Monroe and Mooresville, it has never been easier to meet with our experienced criminal defense team. Call us 24 hours a day at 704-370-2828.