Groups » Three Powerful Sexual Assault Defense Strategies and Arguments

Being charged with sexual assault can be as overwhelming as it is scary, given the fact that a conviction can result in serious penalties, including years in prison, a permanent criminal record and required registration as a sex offender for years or even decades to come. In fact, even if a person is ultimately acquitted of sexual assault charges, simply having been accused of this crime – or other sex offenses – can be enough to seriously damage his personal and professional reputation.

Despite these facts, however, the following are some powerful criminal defense strategies and arguments that may significantly help the accused person’s sexual assault case and could help him secure an acquittal. It’s important to point out, however, that the best defense strategies and arguments will depend on:

• The specific charges filed against the accused
• The facts of the case
• Whether there is one or more than one accusers (and the age or ages of the accuser(s))
• Whether the accused individual has a criminal record (and, if so, it includes prior convictions for sexual assault or other sex crimes).

Defense Strategy 1: Try to get the prosecutor’s evidence suppressed.

The best way to cripple a prosecutor’s case is to try to get as much of his evidence against the defendant suppressed (meaning that it cannot be used in court or presented to the jurors). When such evidence is successfully suppressed, it can increase the chances of getting the charges against the defendant reduced or possibly even dismissed entirely.

Some of the ways in which a prosecutor’s evidence can be suppressed include by arguing that:

The evidence was obtained by police illegally – There are very specific and strict rules regarding how police are supposed to search for and seize evidence, and law enforcement officers’ failure to follow these requirements can mean that the evidence will never be able to be used in court against the accused individual.

Specifically, when it comes to searching an individual (or his property), police must not violate a person’s Fourth Amendment rights, which means that they must have a warrant to conduct such searches. If they conduct a search without having a warrant, or if they search property not included in the warrant and collect evidence from this property, this evidence will be considered to have been illegally collected and can, as a result, be thrown out of court.

Alternately, if police obtain a confession or any evidence from what an individual has said before they have read that person his Miranda rights, they will have violated his Fifth Amendment rights, and the confession and resulting evidence can be suppressed.

The evidence is incomplete – This is an especially effective defense argument when it comes to recorded evidence (such as audio or video recordings). If prosecutors are trying to use a piece of recorded evidence and they do not have the entire recording, it can be argued that the context of the entire recording is needed to properly judge the specific clip. If prosecutors cannot produce the entire recording, then the clip they are trying to use can be thrown out of court by a judge.

The evidence has been tainted – Just as there are specific rules for searching for evidence, there are also very strict requirements for collecting, transporting and storing evidence. These requirements are known as chains of custody and they are in place to ensure that no one (or nothing) is able to alter the evidence (i.e., that the evidence is preserved just as it was when it was collected from the scene of the alleged crime). If the evidence chain-of-custody is broken in anyway, there is a possibility that the evidence could have somehow been tainted, and this can result in that evidence being suppressed.

Defense Strategy 2: Argue that the sexual assault never took place.

In some cases, a person may accuse another individual of sexual assault when, in fact, no such assault took place. This can occur if the accuser is trying to gain the upper hand in a divorce or child custody case or is trying to get revenge on the accused for some perceived past wrongdoing. When a false accusation of sexual assault takes place, it will be important to:

• Establish the alibi of the accused.
• Bring in character witnesses for the accused and possibly even the accuser (while character witnesses for the accused may be able to establish his upstanding moral character, such witnesses may also be able to point out that the accuser has a history of making false accusations or lying.)
• Have expert witnesses interview the accuser and testify in court.

This defense strategy may also be effective in cases of mistaken identity – meaning that the accuser may have been sexually assaulted but that the defendant was not the individual who committed the crime. While establishing an alibi for the accused is important in these types of cases, so too is creating reasonable doubt that someone other than the accused could have been the perpetrator.

Defense Strategy 3: Argue that the sex was consensual.

Occasionally, a person can be accused of sexual assault after engaging in consensual intercourse with another individual. This can happen when:

• The accuser regrets the consensual sexual experience after the fact (because, for example, (s)he is in another relationship, is embarrassed about family or friends finding out about the encounter, etc.).
• She/he may be trying to get revenge on the accused.
• She/he may be trying to ruin the accused person’s reputation.

When consensual sex took place and resulted in false accusations of sexual assault, an professional criminal defense lawyer can use the following to try to clear the accused individual’s good name:

• Character witnesses for both the defendant and the accuser
• The accuser’s sexual history (if it indicates sexual behaviors such as those involved in the case at hand)
• The defendant’s lack of criminal history (if and when applicable)
• Physical evidence or the lack thereof (which could potentially be used towards proving that the intercourse was not forced, rough, etc.).

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