Sexual Assault is commonly known as “Rape,” but Arizona law does not use the word “Rape” anymore. In simple terms, sexual assault is having sex with an adult (over 18) without that person’s consent. To be sexual assault the sex has to be vaginal, anal, or oral sex. If the sexual act does not involve one of those forms, then it falls under Sexual Abuse (see ARS 13-1404).

What does ‘consent’ mean?

No consent means not having permission of the other person. Sometimes it is clear whether one has permission, but there are situations that are not as obvious. Under the law there are times when someone is considered incapacitated. That means that the person does not have the ability to give legal consent. For instance, anyone under 18 cannot legally give consent (see Sexual Conduct with a Minor (see ARS 13-1405). Likewise, someone who is severely intoxicated cannot give consent.

Potential Punishment if found guilty of Sexual Assault in AZ

The punishment for Sexual Assault in Arizona is severe. A defendant convicted of sexual assault must go to prison for at least 5.25 years but it can go up to 14 years. If the defendant has a prior felony conviction (or multiple prior felony convictions) the prison range jumps to no less than 7 years and up to 28 years. If the victim suffers a serious physical injury (in addition to the sexual intercourse), the punishment is 25 years to life. If a drug was used to make the victim pass out, the prison sentence is increased by 3 years.

Possible Defenses of Sexual Assault charges in AZ

While the situation seems dire if someone is charged with Sexual Assault, there are defenses available. Of course, actual consent is a defense. Often the credibility of the accuser is relevant in a defense of this charge. The strength of the State’s evidence is also important. You want someone that will leave no stone unturned and will evaluate all of the evidence with a fine tooth comb for any insufficiencies. If the charge is a result of incapacitation the State also has to prove that the defendant knew, or should have known, that the other person could not consent.

If you or someone you love is facing sexual assault charges, give me a call. I am a former sex crimes prosecutor for Maricopa County and I can help. Call 602-492-8295 for a free consultation.

Below is the full text from the Arizona State Statutes:

13-1406. Sexual assault; classification; increased punishment
A. 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.
B. Sexual assault is a class 2 felony, and the person convicted shall be sentenced pursuant to this section and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served or commuted. If the victim is under fifteen years of age, sexual assault is punishable pursuant to section 13-705. The presumptive term may be aggravated or mitigated within the range under this section pursuant to section 13-701, subsections C, D and E. If the sexual assault involved the intentional or knowing administration of flunitrazepam, gamma hydroxy butyrate or ketamine hydrochloride without the victim’s knowledge, the presumptive, minimum and maximum sentence for the offense shall be increased by three years. The additional sentence imposed pursuant to this subsection is in addition to any enhanced sentence that may be applicable. The term for a first offense is as follows:
Minimum Presumptive Maximum
5.25 years 7 years 14 years

The term for a defendant who has one historical prior felony conviction is as follows:
Minimum Presumptive Maximum
7 years 10.5 years 21 years

The term for a defendant who has two or more historical prior felony convictions is as follows:
Minimum Presumptive Maximum
14 years 15.75 years 28 years

C. The sentence imposed on a person for a sexual assault shall be consecutive to any other sexual assault sentence imposed on the person at any time.
D. Notwithstanding section 13-703, section 13-704, section 13-705, section 13-706, subsection A and section 13-708, subsection D, if the sexual assault involved the intentional or knowing infliction of serious physical injury, the person may be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31-233, subsection A or B until at least twenty-five years have been served or the sentence is commuted. If the person was at least eighteen years of age and the victim was twelve years of age or younger, the person shall be sentenced pursuant to section 13-705.

See the results of one of our Sexual Assault cases here.

If you've been charged with Sexual Assault, contact Phoenix Criminal Defense Attorney Burges McCowan.