Was it legal to arrest my wife when she was the raped? 41 Answers as of July 03, 2013

My wife was raped by two men leaving a bar. When the police arrived she was arrested for being drunk in public. Is that legal?

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
Your wife should contact the police about the alleged rape. However, if she provides a written statement or agrees to an interview, her statements may be used against her in her criminal case. She needs a lawyer to assist her with these issues. An alleged rape is a very serious allegation. If the police fail to investigate it, you may want to contact a civil right's attorney and explore other options.
Answer Applies to: Michigan
Replied: 11/28/2011
Law Office of Geoffrey M. Yaryan
Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
If she was so intoxicated that she couldn't take care of herself, then yes it's legal. The purpose is to protect the person arrested from harm.
Answer Applies to: California
Replied: 11/18/2011
Jules N. Fiani, Attorney at Law
Jules N. Fiani, Attorney at Law | Jules Fiani
Yes.
Answer Applies to: Michigan
Replied: 5/31/2013
Michael Breczinski
Michael Breczinski | Michael Breczinski
Yes it was but it ws also extremly insensitive. I would talk to the police chief about it.
Answer Applies to: Michigan
Replied: 11/16/2011
Edward  D. Dowling IV Attorney at Law
Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
Most likely yes. However she should have the prosecution press charges.
Answer Applies to: New York
Replied: 11/16/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    The answer depends on what fact the police had before making their arrest. It is likely that they were not apprised of all allegations until after making contact with yours spouse.
    Answer Applies to: Minnesota
    Replied: 11/16/2011
    Law Office of Ronald Aronds, LLC
    Law Office of Ronald Aronds, LLC | Ronald Aronds
    If the police can show that they had probable cause for an arrest then it is a legitimate arrest.
    Answer Applies to: New Jersey
    Replied: 11/15/2011
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    Unfortunately, yes it is legal.
    Answer Applies to: California
    Replied: 11/15/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    Without knowing more facts, the officers do have the right to arrest if there was probable cause. You do not give me enough info. My advice: Seek out local counsel.
    Answer Applies to: Washington
    Replied: 11/15/2011
    Baner and Baner
    Baner and Baner | Jonathan Baner
    Yes, but I don't believe the fact pattern. One can be arrested based upon probable cause and without a warrant for certain crimes (drunk in public I am not sure, but that might not be one of them).
    Answer Applies to: Washington
    Replied: 11/17/2011
    The Law Offices of Seth D. Schraier
    The Law Offices of Seth D. Schraier | Seth D. Schraier
    She can be arrested for public intoxication, but if the circumstances show why it occurred, then she may be able to get her charges dropped. If the police have probable cause to arrest someone, they may do so, even if there was a crime committed against her prior to the arrest. Remember that an arrest does not mean a conviction so the charges can be dropped after the arrest without consequences.
    Answer Applies to: New York
    Replied: 11/15/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    If the police believe that they had probable cause do believe that your wife was drunk in public they have the right to arrest her. regardless of that she should still be treated as a victim of the rape.
    Answer Applies to: California
    Replied: 11/15/2011
    The Law Office of Marc G. Snyder | Marc Gregory Snyder
    Your question is far too complex to be answered here. There are many questions that need to be answered and important information to be filled in. If your wife was attacked, did it happen inside the bar, outside the bar but on the bar's property? If so, you may be able to hold the owner of the bar responsible for what happened. As far as criminal charges against the people you allege attacked your wife, if it was not witnessed, you should report it right away so that charges are filed, if appropriate. I'm assuming your wife was arrested because the police were present and witnessed her acting a certain way. If she was reacting to what happened, it may be completely justified, and perhaps the police did not have "the whole picture." The simple answer to your question is "yes" she can be charged even though she was a victim of another crime. That is up to the police officers and their discretion while at the scene or after speaking to witnesses. Your situation seems to have several parts. If you wife has been charged with being drunk in public, that, in and of itself, is not a very serious charge. Of course, if she has a prior record, things can get more complicated. I would suggest contacting a criminal defense lawyer to handle that part of the matter. As far as her being the victim in another crime, as I said, you should report this immediately. If it did happen on the property of a business, I would also contact a lawyer who handles cases such as yours, often termed "negligent security" matters. The owner of the bar can be liable for a patron being victimized by someone's criminal act.
    Answer Applies to: Maryland
    Replied: 11/15/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    It is legal. Insensitive but legal. Depending on what happened next there might be some civil liability for the cops.
    Answer Applies to: California
    Replied: 11/15/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    Yes, one crime does not negate the other.
    Answer Applies to: Washington
    Replied: 11/15/2011
    Laguzzi Law, P.C.
    Laguzzi Law, P.C. | Carina Laguzzi
    Is it legal? Yes. Why would this do this? Well they may not believe the alleged victim's story about a sexual assault but they should be investigating and you should follow up with the assigned Detectives. In the meantime, hire an experienced criminal defense attorney to represent your wife.
    Answer Applies to: Pennsylvania
    Replied: 11/15/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    It is legal but unusual.
    Answer Applies to: Michigan
    Replied: 11/15/2011
    bark & karpf
    bark & karpf | peter bark
    It might be legal, but it's very stupid. If she was in public because she was fleeing from the rape, it is a defense to the charge. If the police did nothing to investigate her complaint, she should take this matter up with internal affairs.
    Answer Applies to: New York
    Replied: 11/15/2011
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    If she was drunk in public then she can be charged with that offense. Evidently the police did not believe her allegations.
    Answer Applies to: Minnesota
    Replied: 11/15/2011
    Law Office of Richard Southard
    Law Office of Richard Southard | Richard C Southard
    It sounds like there is more to this story than what you are posting.
    Answer Applies to: New York
    Replied: 11/15/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    Whether your wife was sexually assaulted is an issue they were investigating. It is not illegal to arrest her if she was publicly intoxicated but that sure seems bad. File a complaint with the police internal affairs division.
    Answer Applies to: Texas
    Replied: 11/15/2011
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    I'm sure the police will investigate and charge any crimes they deem were committed.
    Answer Applies to: Michigan
    Replied: 11/15/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    Yes.
    Answer Applies to: New York
    Replied: 6/2/2013
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    Maybe not.
    Answer Applies to: California
    Replied: 6/2/2013
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    It may be legal but it appears to be an extremely poor choice by the police.
    Answer Applies to: Alabama
    Replied: 11/15/2011
    Richard W. Barton
    Richard W. Barton | Richard W. Barton, Esq.
    The police may have a claim that your wife broke some law. But the obviously overlooked the real issue, which is that she was attacked. Instead of focusing on that, the police arrested your wife. You could have grounds to file a suit against the police. You may also need legal advice concerning your wife's arrest and also, some assistance in the prosecution.
    Answer Applies to: New York
    Replied: 11/15/2011
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    If she was drunk, and walking around in public in an intoxicated state, the arrest was legal.. As for the rape, I feel the police screened the lady and felt her allegations did not add up to a rape. If a rape occurred, I trust she went to get a rape test performed immediately. If it came up positive, then she should see the prosecutor's office with the concrete evidence to corroborate her story.
    Answer Applies to: Illinois
    Replied: 11/14/2011
    The McDonnell Law Firm, PLLC
    The McDonnell Law Firm, PLLC | Patrick J. McDonnell
    There is no New York State Law against being drunk in public. There may be a local ordinance against it in the locality where she was but unless she was behaving in a manner to justify an arrest for disorderly conduct, harassment, inciting a riot, or similar offense, or under the influence of a drug other than alcohol, she can be as drunk as she wants in public.
    Answer Applies to: New York
    Replied: 11/14/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    As long as the police had reason to believe her conduct met the elements of the crime, she can be charged. Just because she's a complaining witness doesn't mean that she can't be charged with a crime as well. It's a little unusual, but not unheard of.
    Answer Applies to: Michigan
    Replied: 11/14/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    The police can arrest someone if they believe they are intoxicated in public. It is a minor violation and it will be dismissed if she does not have a criminal record. You should retain a good criminal attorney in your city if you have the money. If you are indigent a public defender will be assigned and there is a very good chance that the case will be dismissed with an ACD delayed dismissal. If she was raped the prosecutor will ask her to testify at the Grand Jury and possibly at a trial. Your attorney should investigate the rape case and advise her as to how to handle the Grand Jury and trial testimony. If she has an alcohol problem get her into AA or counseling as soon as possible and support her sobriety.
    Answer Applies to: New York
    Replied: 11/14/2011
    Law Offices of Stephanie Lee Ehrbright, Esq.
    Law Offices of Stephanie Lee Ehrbright, Esq. | Stephanie Lee Ehrbright
    While it may technically be legal (it is hard to say without more details), it is certainly not in good taste. Is she pressing charges against the men?
    Answer Applies to: Arizona
    Replied: 7/3/2013
    Lawrence Lewis
    Lawrence Lewis | Lawrence Lewis, PC
    Is it legal to arrest a person for public drunk? Yes. Did the police know she was raped? Did she phone the police to report a rape, and then got arrested for public drunk? Is that legal? Yes. Strange, but legal. If you decide to include some more germane details, feel free.
    Answer Applies to: Georgia
    Replied: 11/14/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Yes. Being raped is not a defense for being drunk in public. The two are completely apples and oranges.
    Answer Applies to: California
    Replied: 6/2/2013
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    Yes, if she was a danger to herself or others. Hire an attorney and should be easy to defend. I hope the two guys were arrested too.
    Answer Applies to: Texas
    Replied: 11/14/2011
    John Segelbaum, P.S.
    John Segelbaum, P.S. | John Segelbaum
    Being the victim of sexual assault is not a defense to committing a crime. However, there is no crime in the State of Washington of Being Drunk In Public.
    Answer Applies to: Washington
    Replied: 11/14/2011
    Law Offices of Elliott Zarabi
    Law Offices of Elliott Zarabi | Elliott Zarabi
    Yes, because she was committing a crime by being drunk in public. The questions is what happened to the two men who raped her?
    Answer Applies to: California
    Replied: 11/14/2011
    Robert Mortland
    Robert Mortland | Law Office of Robert Mortland
    While she was the victim of a crime, the police saw that she was drunk in public and arrested her for a violation of PC 647(f). This sounds like the police are being mean but they did have the right to arrest her if they believed that she committed a misdemeanor in their presence.
    Answer Applies to: California
    Replied: 11/14/2011
    Connell-Savela
    Connell-Savela | Jason Savela
    It is legal, but wrong usually the police protect the person most injured. If they need to ticket her, they could have just done that rather than arrest her.
    Answer Applies to: Colorado
    Replied: 11/14/2011
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    I've never heard of the police arrested a rape victim. Did the police arrest the rapists? Your wife's lawyer should speak to a DA from the Special Victims' Bureau.
    Answer Applies to: New York
    Replied: 11/14/2011
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