Sexual allegations can destroy your life, whether the claims are true, or false. I am updating an earlier post now that we are post-Ford and Kavanaugh. This post is not about the Senate confirmation process. I am not expressing my view as to whether Justice K should or should not have been confirmed. You can believe or not believe Dr. Ford. But believe this – if it is claimed that you committed a sexual assault, truth means practically nothing. The claim is deadly, true or false.
There are times when someone is accused of having committed a sexual assault and the claim is TRUE. Often it is nearly impossible to provide any physical proof of such a claim. Time, circumstances and the nature of the assault may prevent any other form of proof except the sworn testimony of the claimant. For example, do you think the cases involving sexual assault by Priests made tens of years later are all false? How about the Boy Scout cases? All false? What about an eight-year-old boy who tells his parents that someone jumped out of a car and exposed himself? The eight-year-old runs away and can’t describe the car or the man. It happened, but there is no corroboration of the claim. No witness. No physical proof or photo.
This post is not intended to suggest that every claim is false. Instead, I want to suggest that motive and corroboration are critical parts of an investigation into such a claim. The claim is either true or false, but regardless, once public, the damage to reputation is undeniable.
Imagine a claim made during the course of a contested divorce; that you forced your spouse into sexual conduct against his or he will. Imagine having to defend against innocuous apologies for an argument that your spouse recorded in anticipation of a possible custody dispute. Imagine being interrogated by a trained detective, who hounds you and cajoles you by calling you a liar, and telling you that nobody would ever believe your version of what happened. You are guilty, the detective says. Over and over and over, hoping you will confess.
We have seen it in the cases we defend.
We defend people all too often who have been charged with sexual crimes, including rape and sexual battery. Many of those folks face the stigma of such charges without there being any corroboration. Most have already spoken to investigators and made statements that could be used as evidence. IF CONVICTED they face a possible sentence of life in prison and a lifetime of sex offender registration.
In a particularly contentious case in which our client’s soon-to-be ex-spouse cried rape, we are happy to report DISMISSAL OF THE CASE. The rape claim was made eight months after the two spent a weekend in a hotel with their young child, and after our client would not agree to supervised visitation in a divorce proceeding filed by his wife for “irreconcilable differences.”
What did the proof look like that rose to the level of probable cause and resulted in a felony rape charge?
First and foremost there was her sworn testimony he had forced her onto a bed, removed her clothing and forced intercourse against her will. The story was told to detectives eight months after the alleged incident so there was no physical evidence supporting the claim. She had not gone to a doctor. The investigators had no DNA or torn clothing or timely report of a crime. She had not told anyone until the divorce case proved tougher to settle than perhaps she imagined. Then, after waiting month after month, and many more months, she protested she had been raped by her husband after she refused to consent to sex.
There was proof that the two had a quarrelsome history and the marriage had deteriorated by the time they were in that hotel. Audio recordings and hundreds of text messages confirmed the couple disagreed often over minor issues. She had recorded most of their conversations while they were separated, but she had not turned over those recordings to lawyers or the court.
There were also his “apologies” in text messages and on audio recordings for his behavior at the hotel that weekend. He never admitted to rape but he said he was sorry that he had hurt her. She argued his apologies were proof he had raped her. He told investigators the apologies were simply his attempt to smooth over the situation and buy her peace.
These facts ultimately led a detective “investigating” the case to set up a “confront telephone call” which was recorded in an effort to trap our client into admitting he raped his unhappy wife. When she made her claim on the phone, he denied it over and over. He said she was trying to get evidence against him. He was right.
“That never happened! You are just making that up! We never had intercourse that weekend!”
She claimed they did. He denied it, but the detective who was secretly listening and recorded the call believed her. There was no supporting proof of any of it, but that did not matter. She said he had done it and they had been to a hotel and he admitted they had argued. That was the extent of the investigation and of the proof.
Our client was charged with rape. A no-contact order was entered to keep our client away from his infant child. He was forced to hire a lawyer in the pending divorce case and in the rape case. He was forced to investigate the case and prove that he was innocent. He had to prove that he was telling the truth or go to prison.
Fortunately, a prosecutor ultimately agreed that there was no actual proof they had intercourse. There will not be a trial but our client has lost more than just a little skin. His reputation is tarnished. He has lost a job and future employment opportunities, and that divorce case is still pending. Another lawyer, another case, the same baseless allegations now used to keep him away from his child. He still cannot spend “unsupervised” time with his son and their relationship will undoubtedly suffer in the future.
The dismissal comes with an added burden – he must plead guilty to having touched his wife without her consent. Touching your wife without her consent is a crime. A misdemeanor. Not a sexual touching, just touching.
This case reminds me that the presumption of innocence really only means you get a “fair trial” in a criminal court if someone produces a false case. It is no assurance of the truth. It cannot prevent the injustice of having to prove to the world your innocence. And it cannot take away the risks posed by too little investigation of such claims and charges that you must face in court.
We tell the world that defendants are presumed innocent, but that doesn’t mean anything if there is a rush to judgment against all reason and no real investigation.
I wish this was only the first such case I have seen, but it isn’t even the first this year. Before you talk to the police about any allegation of a crime, get a lawyer. Shut up. Don’t try to explain. Just remain silent to the detective, and spill your guts to your lawyer. Your lawyer is there to defend you.
And hang up the phone when that call comes accusing you of a crime. Just hang up.