Sex crimes are among the most challenging cases we defend and are the cases that require the most sensitivity and delicacy in the development and execution of the defense strategy. Sex crimes run the spectrum from computer based crimes to physical contact between strangers. However, the vast majority of sex crimes involve either individuals with a pre-existing sexual relationship or people who have a family, friendship or work relationship.
We are, unfortunately, in a time when the zeal to protect victims (or potential victims) of sex crimes has become so great that police, prosecutors and social service agencies will pursue any claim of sexual impropriety no matter how implausible the allegation might be. There is also a strong bias in our current cultural climate against anyone accused of a sexual crime and this leads to an implicit presumption that the accused person is guilty. All of this has made defending sex crimes more difficult than ever with increasingly high stakes.
There is also seems to be an increase in allegations against young men from teenagers upward in which obviously consensual sexual encounters later become characterized as non-consensual after the encounter is over and remorse or social pressure arise with the female partner. Both the law and current cultural attitudes are unfriendly to the person accused of such wrongdoing. The law surrounding consent requires that there be an expression of consent and merely failing to say “no” does not mean that consent for sex has been given. We have been involved in many cases, particularly with intoxicated young people, where the issue was whether consent was actually given or whether consent was withdrawn during the sexual encounter because of either a change of mind or intoxication. These are nuanced and difficult cases and a young person’s promising future usually hangs in the balance.
Crimes against children are another area in which there are many prosecution for sex crimes. These can be the most difficult cases to defend because the allegations are usually made by children, sometimes very young. We have seen many of these cases which occurred in the context of a divorce or custody conflict in which one parent is effectively making the allegation against the other parent. Once the allegation is made, there is a whole system that becomes engaged to prove the allegation with little emphasis on subjecting the allegation to any sort of critical analysis before the police case moves forward against the accused. A person who defends himself (or rarely herself) against such an allegation is demonized for “re-victimizing” the “victim” by claiming to be innocent.
The most important advice we give to people who call us because they suspect they may be accused of sexual impropriety is to say absolutely nothing to any government actor whether police, social service agency or even school/college official. It is difficult to emphasize enough how important it is to not make any statement at all in these types of cases. The police in particular will engage in high pressure tactics in sex cases to attempt to coerce an admission that a sexual event took place. Once any admission is made concerning a sexual encounter, relationship or even being in a particular place at a particular time, the police can use that admission to enhance what might otherwise be a weak case. An example of a typical police tactic used in these cases to coerce an admission of sexual activity is for the police to lie to the accused person and say that the “victim” is making an allegation which is much worse than was really reported. For instance the police will approach a man and tell him that a woman has accused him of a violent, forcible rape when the woman actually reported that she was too intoxicated to consent. When the man proclaims his innocence of forcible rape to the police by stating that the sex he had with the woman was consensual, the police have obtained the admission that a sexual encounter took place. In that instance, the police have tricked the man into proving the most difficult to prove element of the case against him, the fact that sex even took place.
KAPLAN AND KAPLAN has decades of experience defending sex crimes, experience which is essential to ensuring the best possible outcome for our clients accused of sex crimes.