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Posted on January 31, 2025 in Sex Crimes
Under Arizona law, a person commits sexual assault—more commonly known as rape—when one person intentionally or knowingly engages in sexual intercourse or oral sexual contact with another person without consent.
Under ARS 13-1406, sexual assault is a class 2 felony, which carries with it at least 5.25 years in prison for first offenders and up to 28 years for those with prior felony convictions.
If you are being investigated for sexual assault or have been charged with it, then call AZ Defenders immediately at (480) 456-6400 to get a free consultation and an elite criminal defense lawyer on your case.
The Arizona statute that defines sexual assault is ARS 13-1406.
It establishes the basic definition of the crime and the penalties for conviction, including enhanced penalties for certain variations like sexual assault of a victim less than 15 years of age, the use of certain drugs during the commission of the offense, and the infliction of serious physical injury.
The basic elements of sexual assault that the prosecution must prove beyond a reasonable doubt are:
ARS 13-1401(A)(4) defines sexual intercourse 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.”
ARS 13-1401(A)(1) defines oral sexual contact as “oral contact with the penis, vulva, or anus.”
ARS 13-1401(A)(7) defines the victim’s lack of consent as:
Consent, or the lack of it, is one of the most contentious elements in any investigation or prosecution for sexual assault. Proving that sexual intercourse or oral sexual contact occurred can be accomplished by forensic evidence, including police “rape kits,” DNA testing, or the testimony of the parties involved; sometimes, the alleged perpetrator and victim will agree that a sexual act took place.
The element of consent depends on whether the victim voluntarily agreed to it.
In cases where the lack of consent is evidenced by force or threats of force or the use of date rape drugs that have no legitimate non-prescription use, showing a lack of consent is usually not difficult.
Other situations can be more problematic to prove, like when the alleged perpetrator and the victim consumed alcohol to the point where the victim could no longer voluntarily consent because of the inability to think clearly enough to give it.
Issues in police investigations of sexual assault involve the gathering of physical and testimonial evidence. The longer after the alleged criminal act takes place, the harder it is for police to gather forensic evidence and the more they will have to rely on the testimony of the victim and the alleged perpetrator.
Especially when the sexual assault allegation depends mainly on the testimony of the accuser, during their investigation, the police will often attempt to reach out to the accused to get a statement about the alleged victim’s allegations. Because you are not under arrest during such communications, the police do not need to inform you of your “Miranda” rights prior to questioning you. Do not talk to police!
This is where having an experienced criminal defense attorney represent you can be critical to protecting your legal rights. Often, during the investigation, the police will count on you making an unwitting statement against your own interest when answering their questions.
Another common police investigation tactic is for the accuser to call or text the accused in what is called a “confrontation call.” This phone call is done in the presence of an investigating detective, who will listen to see if the accused will admit to the alleged victim’s accusations.
In today’s age of social media and online communications, a confrontation call may not be a phone call but rather an exchange of text messages that the police investigator monitors.
Sexual assault charges are class 2 felonies in Arizona. For sexual assault prosecuted under ARS 13-1406, the law provides its own sentencing range that is more severe than the normal sentencing range for a class 2 felony-level offense.
For a sexual assault conviction, the minimum and maximum sentence depends on how many prior felony convictions the defendant has committed:
The presumptive sentence is the default. The judge can increase or decrease the presumptive sentence based on mitigating or aggravating factors:
If you are convicted of more than one count of sexual assault, then the sentence for each count must be served consecutively, or “stacked.” This means the sentences are served one after the other rather than simultaneously or concurrently.
If the sexual assault conviction involved intentional or knowing infliction of serious physical injury, then you may be sentenced to life imprisonment with no eligibility for a suspended sentence, pardon, or release until you serve at least 25 years in prison.
In addition to prison time, a person who violates ARS 13-1406 must also register as a sex offender, which means having one’s name listed on the Arizona sex offender registry.
A felony conviction for any serious crime in Arizona carries long-term effects that go beyond the terms of the sentence. Your ability to exercise some civil rights, like purchasing or possessing a firearm, can be negatively affected. A felony conviction remains on your public record, so anyone who checks it – like a potential landlord or employer – might also hold it against you.
If you are accused of sexual assault, you are not without possible defenses. Two of the most common defenses are that the alleged sexual intercourse or oral sex contact did not take place, and that if they did, they were consensual.
This defense claims that no sexual activity happened or that if it did, it did not qualify as the kind of sexual contact that the sexual assault statute makes illegal. For example, if the defendant gropes the accuser without that person’s consent or an act of indecent exposure, but no penetration or oral sexual contact occurred, this may still be illegal conduct like public sexual indecency but does not meet the statutory definition of sexual assault.
Sometimes, an accuser may have regret after a consensual act or some other motivation that can lead you to be falsely accused.
In situations involving false accusations, an experienced sex crimes attorney may be able to introduce exculpatory evidence, including communications with the accuser showing that the sexual contact was consensual, testimony from witnesses that cast reasonable doubt on the accuser’s allegations, physical evidence such as video recordings that put you at a different location than where the alleged sexual assault happened, or even passing a polygraph examination.
If you or a loved one is facing a charge of sexual assault, contact a skilled Phoenix sex crimes lawyer at AZ Defenders. We are available 24/7 to take your call and will take the action needed to defend your freedom.
We have criminal law specialists and 150 years of combined experience among our attorneys. You can rely on our attorneys to do everything within their power to create the best possible outcome for you.
Call our Phoenix law firm at (480) 456-6400 or contact us online to receive a free consultation and find out how we can help save your future.