Our goal as sexual assault defence lawyers is to fight the false charges made against our clients with tireless preparation and a dedicated commitment to winning. Fighting the charges of sexual assault starts immediately at the time of your arrest. The first thing to remember is to remain silent and not help the police build a case against you. The hours immediately following your arrest will be filled with emotion and confusion. Do not talk to the police, friends or the media about the situation. Instead, make a call to Kruse Law and let us do the talking for you.
Since many sexual assault cases are not brought against a person for days, weeks or even years after the alleged attack, these cases might not include physical evidence and are merely verbal accusations. Although most cases of being accused of sexual assault are merely ‘he said, she said’ scenarios, there can be others where alleged physical evidence may be introduced. Knowing the exact evidence that is being brought against you and the potential defences against the supposed evidence can go a long way towards building a case for your defence.
If you are accused of sexual assault, the types of evidence that can be brought forward include, but is not limited to, witness testimony and written statements, photographs and video surveillance camera evidence, and biological or forensic evidence. Also, the complainant may testify. When physical evidence is introduced, the claimant testimony is only a part of the case. The judge has the discretion to allow or disallow physical evidence.
The Complainant’s Preliminary Statement and Testimony
An important element of preparing a defence strategy is to arrange to have the complainant testify at a preliminary hearing to the trial. Sexual assault cases can go to trial with no evidence other than the statement and accusation of the complainant. If a person calls 911 or files a complaint at a police station against another person, the police have no discretion in the matter and are compelled to make an arrest. Getting the complainant’s testimony under oath at a preliminary hearing can provide our defence time to prepare a strong cross-examination. In addition, if the complainant’s testimony at trial differs from that of the preliminary hearing, the complainant’s credibility can be questioned.
The ability or inability of a complainant to speak in court can provide us insight as to what best cross examination tactics to employ. It is also possible that once a complainant sees what they will be up against to in court, they may withdraw the charges not wishing to expose their lies and the flimsiness of their case. If the complainant refuses to testify at a preliminary hearing, they may be compelled to do so via a subpoena.
Video Surveillance Camera Evidence
Nowadays there are many locations in Ontario and the rest of Canada where videotapes are present for one reason or another. Companies use surveillance camera footage to attempt to disprove claims made by people for being injured by falling on their property or in their store. Hotels and other places where sexual assaults are sometimes claimed to have occurred can provide video tape evidence of your innocence. If you were at a coffee shop at the exact time of the alleged assault, chances are they have a video of you being there and can thus provide an alibi. The same can be said if you were at a 7-Eleven, at the mall, at home using your computer, or even driving your car. Perhaps the complainant was seen with another person and not the defendant at the time and place of the alleged sexual assault. Every eventuality must be explored.
Eyewitness Statements and Testimony
At a preliminary hearing, a complainant may testify of the exact time and place of the alleged sexual assault as well as the events immediately leading up to it. The complainant may not be able to produce a witness who saw the two of you together. Or, there may be someone who observed the complainant with another person altogether. If you were somewhere else at the time of the alleged assault, we may have eyewitnesses that can give testimony that you were somewhere other than at the scene of the alleged sexual assault and thus support your alibi. We can go back to the places that the complainant says the two of you were prior to the time of the alleged sexual assault to see if anyone remembers the complainant being with a different person.
Forensic Evidence including DNA
DNA and other biological evidence can be important in proving your innocence of the crime of sexual assault. Forensic science has made great strides in recent years and there may be biological proof that another person could have committed the alleged sexual assault. Biological evidence can attempt to substantiate that sexual acts actually took place, when they happened, and the identity of those involved. Other types of biological evidence that can be brought against someone accused of sexual assault includes clothing fibers, hair fibers, saliva, semen or other bodily fluids. If no biological evidence of the crime taking place is forthcoming there may be no proof that the accused person committed the alleged sexual assault.
When DNA and other biological evidence is going to play a role in a case against our client, we may employ experts in the field of forensics to counter the complainant’s claims. Our firm is committed to investigating every case thoroughly and seeking respected and knowledgeable expert witnesses to refute biological evidence as well as any other physical evidence brought against our client. There is always the possibility that hair, fibers, saliva, semen and other bodily fluids cannot be matched to our client or they may actually suggest that someone else committed the sexual assault and/or provide a reasonable doubt to the case. In addition, the manner in which the police handled the evidence must be scrutinized and any discrepancies with respect to appropriate analysis and investigation procedures must be called into question.
Consent and Fabrication of a Story
In the absence of physical evidence, the only evidence given may be the testimony of the complainant. The complainant may charge that no consent was given, but we may counter that there was consent given or that the defendant had a reasonable belief that consent was given. Even if consent was not given, if the defendant was reasonable in believing that there was, there could be an acquittal. However, mistaken belief in consent cannot be used if there is self-intoxication, recklessness, or if reasonable care was not taken to make sure that consent was present. The accuser may have fabricated the entire story and there was in fact consent. There may be a motive for the complainant lying and we will explore those possibilities to the fullest. Difficulties in a relationship or getting revenge on a partner for cheating are typical reasons for fabricating a story of sexual assault.
Our law firm has dealt with hundreds of cases of alleged sexual assault over the years and has seen it all. We know how to cross-examine a complainant given the restrictions of Canada’s rape shield laws, how to gather evidence to support our claims of having an alibi, and how to refute the evidence against our client. If you have been arrested and charged with sexual assault, call our office immediately. Do not talk to the police, investigators, friends, family members or the media. Let your knowledgeable and experienced sexual assault defence lawyer do the talking for you. Call us now.
Related: Burden of Proof