A false accusation of sexual assault places your reputation, livelihood, and freedom on the line. But what happens if the allegations are from months or even years ago? Below is an overview of some steps you can take to protect yourself when facing a delayed accusation of a sexual assault.
Do Not Meet with Law Enforcement or Give a Statement
Law enforcement may reach out to you to make you aware of the accusation and to get “your side of the story.” You should consult an experienced criminal defense attorney who handles sexual assault cases before meeting with law enforcement or speaking with them by phone. If law enforcement calls you, obtain the name, direct phone number and/or email of the person calling and politely tell them that you are not in a position to speak with them right now.
It is important that you not subject yourself to questioning from law enforcement without consulting an attorney. Your attorney can communicate with law enforcement to determine the specific nature of the allegation and time period of the accusation. Law enforcement officers are trained to use tactics to confuse you or get you to admit things that might help their case before you even understand the nature of the allegations. Law enforcement may make you feel like the whole issue will be put to rest if you just cooperate, but do not fall into this trap. Law enforcement is allowed to mislead you in order to further the investigation of their case.
Do Not Voluntarily Provide a DNA Sample
Often there is no physical evidence such as DNA from a crime victim who delays their report of a crime. However, it is always possible that the accuser has an item of clothing or something else that they will produce to law enforcement at the time of their report to attempt to bolster their claim. The safest course of action is to decline to voluntarily provide a DNA sample until you have consulted with an experienced criminal defense attorney who can advise you.
Do Not Agree to Take a Polygraph By Law Enforcement
Sometimes law enforcement will suggest that you take a polygraph to show that you did not commit the crime that you have been accused of. Do not agree to take a polygraph without consulting an experienced criminal defense attorney first. Polygraphs are highly subjective tests and the stressful environment of being administered a polygraph by law enforcement can influence the results. In other words, an innocent person can “fail” a polygraph, due to the stress of taking the test, unrelated mental health issues or medications they are taking. If you retain an experienced criminal defense attorney, they will have their own relationships with polygraphers who work with them. They can work with the polygrapher to come up with relevant questions and to create a setting that is less stressful than a law enforcement setting. A polygraph administered by a defense polygrapher also does not have to be shared with anyone if it is not helpful to the defense. Do not consent to a law enforcement polygraph test, even if police are telling you they are administering the test to “clear” you of the accusations.
Be Aware of Law Enforcement Search and Seizure Tools
Law enforcement has several tools at their disposal to further the investigation of their case. It is important if you become aware that someone has come forward with a delayed report of a sexual assault that you understand tools law enforcement could use to further investigate the case.
Law enforcement could request a search warrant of your home, car or storage space if they are able to articulate probable cause to believe they will find evidence of the crime in those areas. With a delayed reporting situation, a warrant might not be granted because of the argument that the search is not timely and the issue is “stale.” However, there are searches that law enforcement can conduct without a search warrant. For example, they can search garbage and recycling put outside your house without a warrant. This includes recovering cigarette buts or other items that might contain your DNA.
In addition, law enforcement can obtain a warrant to record a phone conversation between you and your accuser. Washington is a two-party consent state and recording conversations between two people is illegal without the consent of both parties or a warrant. It is a common law enforcement tactic in delayed reporting cases to have the accuser call the person they say abused or assaulted them (if they are not strangers) and confront them with the accusation to see how the accused responds. These recorded calls, obtained after securing a warrant, can yield important evidence for the prosecution of the case. There is also a concern about the crime of witness tampering if there is a conversation with the accuser where it appears that the person accused is trying to discourage the accuser from pursuing the accusation.
The lesson here is to be very careful in your further communications with the person who you have learned made a delayed accusation of sexual assault.
Consult an Attorney Before Responding to Contact from Child Protective Services
If the report of sexual assault is against a child and you still have children living in your home, it could trigger an investigation by Child Protective Services (CPS). It is important that you consult with a qualified attorney before speaking with an investigator for CPS because the information gathered by CPS could be shared with law enforcement. Additionally, a CPS investigation could have important consequences for you or your family, depending on the outcome of the CPS investigation. A qualified criminal defense attorney can help you navigate a CPS investigation in a setting where there may also be an investigation by law enforcement.
Hire an Attorney with Experience Defending Sexual Assault Cases Immediately
A delayed report of sexual assault is a unique situation that can benefit from the immediate involvement of legal counsel. This is true even if charges have not been filed. It could make an important difference in your situation if you immediately contact a sex crime defense attorney and only discuss the accusation against you with that attorney. You should not discuss the details of your case or the accusation with the police, the accuser, a therapist or even your family until you have first contacted an attorney. An attorney will advise you on how to proceed and will defend your innocence based on a number of common weaknesses in cases involving delayed reports of sexual assault, including:
Lack of physical evidence
When a significant amount of time has passed since the alleged crime, this can make it difficult for investigators to build a case of sexual assault. A long delay may result in a lack of DNA and other biological evidence. In addition, there may not be pictures or other documentation of physical injuries that the accuser alleges they suffered from the event.
Memory issues
In cases in which there isn’t any physical evidence, a complainant’s ability to recount specific details of the event is extremely important to his or her case. When this information is lacking or inconsistent, your attorney may be able to use this to make your case stronger.
If you are facing a delayed accusation of sexual assault, contact Jennifer Horwitz Law today
As noted above, if you’re facing a delayed accusation of sexual assault in Seattle, you should hire an attorney as soon as possible. Even if you haven’t been formally charged with a crime, you need an experienced and knowledgeable attorney on your side. Jennifer Horwitz has both the experience and expertise to defend you against a delayed report of a sexual assault.
Jennifer Horwitz is a criminal defense attorney who has spent her career representing clients who’ve been accused of committing rape and other sex crimes. A graduate of Harvard Law School, Jennifer has a strong track record of obtaining dismissals, reduced charges and not-guilty verdicts in rape cases.
DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of criminal cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.