What is a Potential Defense to Sex Crimes?

Juries have little sympathy for anyone charged with a sexual offense. Despite the “innocent until proven guilty” rule, deep down, most people assume that anyone accused of a sex crime is guilty as soon as the handcuffs go on. Furthermore, most people believe sex offenders are homogenous. A flasher is just as “bad” as a serial rapist.

Furthermore, a guilty verdict has lifelong consequences. To avoid these harsh consequences, criminal defense attorneys often advise their clients to plead guilty to other charges, such as simple assault or burglary, to avoid sexual assault charges. But prosecutors don’t hand out these generous offers like candy on Halloween.

So, a Marietta criminal defense attorney must leverage one or more of the defenses below during pretrial settlement negotiations. If prosecutors believe the defendant has a possible defense, they usually agree to charge reduction plea bargains, especially if the alleged victim signs off on the deal or doesn’t object to it.

Procedural Defenses

Fifth Amendment violations are common in these cases. As investigators close in on a suspect, they’re eager to get a confession.

Defendants have a right to remain silent during custodial interrogations. Usually, the refusal to answer questions is inadmissible in court. The Fifth Amendment right to remain silent includes the right to refuse to appear in lineups or pose for pictures. More on that below.

A brief, but important, procedural point. The Supreme Court recently held that defendants must clearly assert their Fifth Amendment rights to preserve them. If they simply remain silent, police can continue interrogations.

Alibi

This defense rarely arises. Usually, criminal investigators check out potential alibis and, if these alibis are confirmed, don’t refer the case to prosecutors. Alibis are especially hard to establish in sexual assault cases, as these cases often have lengthy time windows (e.g. the offense occurred between 8 and 10 p.m.).

However, the state has the burden of proof on every element of the offense, including the defendant’s presence at the time. Police officers might dismiss a weak “I was watching TV alone” alibi. But a jury might accept that alibi.

Misidentification

The scene is dramatic. Prosecutors ask witnesses to identify defendants, and after collecting their thoughts for a moment, they do so.

Incidentally, did you notice that spectators laughed at Krusty when he said he was innocent? Deep down, if peace officers arrest defendants, most people assume they’re guilty.

These dramatic courtroom identifications are often inaccurate, and the evidence isn’t just anecdotal. In 2014, a group of scientists questioned the use of eyewitness identifications in court, because they have such an outsized effect on jurors.

Pretrial identifications are problematic as well. During single-blind lineups (the administering officer, but not the witness, knows the suspect’s identity), witnesses usually receive subtle clues about whom to pick. For example, the suspect might be in the middle of the line. Double-blind lineups (neither the administrator nor the witness knows who’s who) are much more accurate.

DNA Proof

To most jurors, DNA evidence is almost as compelling as eyewitness evidence. Once again, the evidence collection process is far from perfect.

Today’s ultra-sensitive collection instruments are part of the problem. Police technicians can extract DNA samples after the slightest contact, or even after secondary contact (touching something the alleged victim also touched).

Furthermore, even if the DNA sample is accurate, it only proves the defendant was there at the time or had sex with the alleged victim. It doesn’t prove that sexual contact was illegal. More on that below.

DNA evidence is scientific, but humans collect and process this scientific evidence. People are biased and make mistakes. Any hint of collector bias or possible gap in the chain of custody could give jurors a reasonable doubt as to this evidence.

Consent

One of the most common defenses in sexual assault cases is the alleged victim’s consent. Consent in a sex crime has a different meaning than it does in other types of crimes or civil cases. In general, consent to a sexual act must be voluntary, affirmative, and freely given. Both parties must be free to leave the encounter at any time.

Consent usually involves the defendant’s and alleged victim’s state of mind. However some people cannot consent as a matter of law. They include:

• Underage (a Romeo and Juliet exception may apply),
• Severe intoxication or impairment,
• Developmental disability or mental incapacity,
• Unconsciousness, and
• Severe power imbalance (e.g. doctor/patient).

Georgia, like most states, has strict liability rape and sexual assault laws. Defendants cannot argue they thought victims consented or didn’t realize they couldn’t consent.

Procedurally, if a Marietta criminal defense lawyer establishes the basic elements of consent (voluntary, affirmative, freely given), the state must disprove consent.

False Accusations

Although it does not happen often, there have been cases where the alleged victim makes up the crime for revenge or out of malice. These are not the same as cases of mistaken identity or lack of consent. In some instances, people have claimed to have been victims of sexual abuse when nothing has happened.

The most common cases for false accusations are divorces when one spouse accuses the other of sexual abuse of the spouse or children to gain an edge in a custody dispute. Allegations of sex offenses are also common attention-grabbers on social media. In most cases, criminal charges are not filed based on these claims since there is no evidence besides the claimant’s statement.

Once again, a Marietta criminal defense lawyer need not “prove” the alleged victim fabricated or exaggerated the allegations. A jury must simply believe that the alleged victim’s credibility is questionable.

Convictions aren’t automatic in sexual assault cases. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.