What Is the Crime of Attempted Rape?

Posted on November 26, 2020 by JACK MKHITARIAN

New Mexico sex offenses are some of the most serious crimes that someone can face. Depending on the circumstances, crimes such as rape and attempted rape can result in a life sentence for those who face them. At the same time, attempted sexual assault cases are often prosecuted on very thin evidence. In some attempted rape cases, there is no physical evidence at all, making the case a “he said she said” situation.  Regardless of the prosecution’s lack of evidence, it is crucial that anyone facing any type of New Mexico sexual offense work with an experienced attorney to create a compelling defense to these serious charges.

The Elements of an Attempted Rape Charge in New Mexico

To understand how attempted rape is prosecuted in New Mexico, it is essential to know the elements of a rape crime as well as the legal concept of an “attempt.” In New Mexico, rape is officially referred to as “criminal sexual penetration.” New Mexico Statutes Section 30-9-11 defines criminal sexual penetration as unlawfully and intentionally causing a person to engage in vaginal, anal, or oral intercourse. Additionally, the statute explains that rape can also consist of “causing of penetration, to any extent and with any object, of the genital or anal openings of another.”

As is often the case, the New Mexico rape statute is not a model of clarity. However, when stated more succinctly, the crime consists of having vaginal, anal, or oral sex with another person without their permission. The second part of the statute covers the penetration of either the vagina or anus with any foreign object.

Rape charges are extremely serious. Depending on the nature of the offense and the alleged victim’s age, a rape conviction can be graded as high as a first-degree felony, carrying a possible life sentence. Below is a list of the gradings of New Mexico rape offenses:

• Aggravated rape is punishable by life imprisonment and a fine of up to $17,500
• Second-degree rape is punishable by up to nine years in prison and a fine of up to $10,000
• Third-degree rape is punishable by up to three years in prison and a fine of up to $5,000

However, when discussing an attempted rape, no penetration of any kind occurs. Instead, when the prosecution charges someone with attempted rape, it claims that the defendant tried to commit a rape, but failed to complete the act for whatever reason. New Mexico Statutes Section 30-28-1 defines the crime of attempt as making an “overt act in furtherance of and in an attempt to commit” the underlying crime.

Attempted rape allegations are still extremely serious. Generally, any attempted crime in New Mexico is graded as one grade lower than if the defendant had completed the offense. For example, the attempt to commit a first-degree rape is punishable as a second-degree felony; the attempt to commit a second-degree rape is punishable by a third-degree felony; and so on.

Defending against New Mexico Attempted Rape Charges

Many attempted rape cases rely on very thin evidence. In fact, in many New Mexico attempted rape cases, there is no physical evidence whatsoever. In these situations, the prosecution will often proceed primarily with the alleged victim’s testimony.

However, this does not mean that those facing these allegations should not take them seriously. Prosecutors are skilled at creating what may initially seem to be a compelling case by calling additional witnesses, such as police officers, detectives, experts, and the friend or family member who the alleged victim first told about the incident.

Of course, there are defenses to a New Mexico attempted rape offense. These defenses can be classified into two main categories: witness credibility and lack of evidence:

Witness Credibility in a New Mexico Rape Case

Given that many attempted sexual assaults proceed on very little evidence, one of the best ways to beat a New Mexico attempted rape is to challenge the alleged victim’s credibility. For example, a defendant may be able to successfully claim that the alleged victim made up the charges out of spite. Perhaps the defendant was involved in a heated custody dispute over the couple’s children, or the alleged victim recently found out that the defendant was unfaithful. A defendant may also argue that, despite the alleged victim’s testimony, the defendant had consent to engage in whatever acts led up to the incident.

Often, emotions run high in these cases, and a defendant’s perceived insensitivity could be viewed negatively. Thus, challenging a witness’s credibility must be done carefully as to not offend the judge or jury hearing the case.

The other central defense in an attempted rape case is a challenge to the sufficiency of the evidence. Before the prosecution can convict someone of attempted rape, they must prove each of the elements beyond a reasonable doubt. If the prosecution has very little evidence indicating that there was actually an attempted rape, a defendant may be successful in arguing that the prosecution did not meet its burden. An example of where this type of defense may work is when the defendant and alleged victim knew each other, and the defendant voluntarily ceased the offensive conduct upon being told they did not have the other person’s consent.

Are You Facing Domestic Violence Charges in New Mexico?

If you have recently been arrested and charged with an attempted rape offense, contact the New Mexico Criminal Law Offices for immediate assistance. Our trusted defense attorneys have decades of combined experience representing clients in all types of sexual assault cases, including those involving attempts. We understand that these allegations – regardless of whether they are true – can have an enormous impact on your life. We also know that you take your case very seriously, and so will we. From the moment you bring us on to work on your case, we will begin creating a compelling defense. To learn more, and to schedule a free consultation with one of our criminal lawyers, call us today. You can also reach us through our online form.