Because most sexual assault cases are “he said, she said” scenarios, police and investigators may try to coerce you into making self-incriminating statements with the intent to use these statements to convict you in court. The temptation to get out of handcuffs and “tell your side of the story” is strong, but the invitation to do so is a frequently used technique by investigators to have you make statements that they may claim proves a lack of consent.
Police will try and pin you down to having been at the scene of the crime at the time that the alleged sexual assault took place. Interrogators are not prohibited from trying their utmost to get you to talk. Nevertheless, if you are arrested, always remain silent and let your sexual assault defence lawyer do all the talking for you.
This may be the first time you’re dealing with a trauma as upsetting as being charged with a sex crime, but our law firm has successfully handled hundreds of sexual assault cases and we are well experienced in the tricks and tactics law enforcement use to try and trap accused persons. Always keep in mind that just because you are accused of sexual assault doesn’t mean that you will be found guilty. Even after being detained and questioned on a sexual assault charge, prosecution may not go ahead with filing charges as they want to be reasonably sure they have enough evidence to get a conviction before they do. Immediately call the Kruse Law Firm if you are detained on any sexual assault charge and ensure that you don’t say or do anything to endanger your case.
The following are a few, but certainly not all of the possible strategies an experienced sexual assault defence lawyer may use in order to build a case for reasonable doubt. These strategies are general in nature and not intended to represent a particular approach that we may consider for an individual case. Each sexual assault defence case is unique and if you are arrested and charged with sexual assault, please call Kruse Law immediately to make certain that the most appropriate strategies are being applied on your behalf.
Complainant Testimony at a Preliminary Hearing
In most sexual assault cases all that is necessary to bring charges of sexual assault against a defendant is a verbal accusation by the complainant. Physical evidence is not required. The baseline of defence in your sexual assault trial will be to challenge the testimony of the complainant.
Most sexual assault cases are merely ‘he said, she said’ scenarios and rely solely on the opposing testimony of the complainant and the accused person. The credibility of the complainant will be vigourously challenged within the boundaries of the existing rape shield laws. We may attempt to have the complainant testify at a preliminary hearing to the indictment. The complainant’s testimony under oath at a preliminary hearing can provide us with the ammunition we need: to investigate holes in his or her testimony; to challenge the complainant’s credibility; and help in building an 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. By listening to the complainant speak in court we can judge whether or not the person is committed to going to trial, and this judgement can help in determining the best cross examination techniques to employ. It is also possible that once a complainant sees what they can look forward to in court, they may withdraw the charges not wishing to expose themselves to the rigors of a trial. If the complainant refuses to testify at a preliminary hearing, they can be compelled via a subpoena to do so.
The claimant’s motive for making an accusation of sexual assault will be thoroughly investigated by our team to determine whether a motive or conflict of interest undermines the credibility of the claimant’s charge. A complaintive may accuse their spouse of sexual assault in order to gain an advantage in a divorce or child custody case that might be ongoing or forthcoming. A complainant could be secretly contemplating a divorce with child custody issues and could first level false charges of sexual abuse on a defendant in order to lay the groundwork for an advantageous divorce settlement.
The Wrong Person
Not every sexual assault happens during broad daylight hours. There is always the possibility that the complainant didn’t get a good look at their alleged attacker. In certain cases, the complainant may not be able to fully identify their attacker and they may be accusing the wrong person. The entire case against you could simply be a case of mistaken identity.
It may be possible to prove that you couldn’t have been at the exact location at the specific time when the alleged sexual assault took place. Videotape evidence from a store, restaurant or another place where you may have been at the time of the alleged assault can be used as evidence to support your alibi.
Did the complainant consent to the alleged incident of sexual assault? Was there consent at first and at then, at some point the complainant change her mind? The specific nature of the alleged assault and the discussion that took place between both parties may show that the accused person had reasonable cause to believe there was consent.
Violation of Your Charter Rights
If the matter against you goes to trial, the Crown Prosecutor must prove their case beyond a reasonable doubt. The actions of the arresting police officers and during the subsequent arraignment will be carefully examined. Any errors in following required arrest procedures are grounds for having the charges dismissed.
Our experience has demonstrated time and time again that talking to the police can have a detrimental effect on a person’s defence, as prosecutors will certainly use any incriminating statements against them in court. Forcing or encouraging you to make self-incriminating statements can be argued as a violation of your rights under the Charter of Rights and Freedoms. If you have already spoken to police, we can seek to have this evidence thrown out as a violation of your rights. You may have been threatened by police or lied to, had your premises illegally searched, or were perhaps not informed of your right to call a lawyer before they began their questioning.
Reduction in Sentencing
If the charges against you are one of the lesser sexual assault charges, we may argue to have a conviction discharged, or if all else fails, we will seek to have the penalties levied against you kept to the minimum. This means avoiding jail time or seeking the least possible amount of jail time.
Rape Shield Law
Canada’s rape shield law has effectively taken the bite out of a defendant’s ability to bring up the past sexual acts of a complainant to challenge their credibility and to introduce evidence of such acts in court. This is why testimony at a preliminary hearing is so important as it gets the complainant’s case down on paper and we can compare that testimony to actual court testimony and effectively challenge any inconsistencies.