INCREASE YOUR ODDS IN THE PRE-CHARGE STAGES
The following article is meant to outline common themes in the legal defence of accusations of sexual crimes. It should not be relied on as legal advice. To obtain legal advice for your specific situation, you should speak to a criminal lawyer directly.
If you are ever charged with sexual assault, it will be one of the worst experiences of your life. No lawyer can change that. One of the very few things worse than experiencing such an accusation is being convicted of it.
For those of you in Canada who have been charged (or are about to be charged) with sexual assault, it is crucial that you understand how to reduce the chances of a conviction. What you are about to read is meant to assist with that.
Sexual assault is, in simple terms, sexual touching without consent. There are many different sexual offences in the Criminal Code of Canada, but sexual assault is the most common charge. Some similar charges – such as those committed against young persons – are known as ‘sexual interference’ and ‘sexual exploitation’, but most sexual crimes are colloquially referred to as ‘sexual assault’, as does this article.
Canadian society holds a particular revulsion for these types of crimes. A custodial period in jail for months, or even years, is the default sentence, and sexual offenders are put on a national registry.
As frightening as it is to be accused of such horrible crimes, there is a silver lining: sexual assault trials have better success rates than trials for other types of offences.
Why Sexual Assault Cases Are Easier to Defend
It has been my experience as a criminal lawyer that these types of trials are tactically easier to win. There are a few reasons as to why this is:
- There are seldom any independent witnesses to the alleged crime;
- Complainant witnesses are often incapacitated or intoxicated by substances during the alleged act;
- Nobody ever takes any notes during or shortly after the incident;
- Complainants and witnesses seldom record anything before, during, or after the alleged crime; and
- Contrary to popular belief, there is often a motive for the complainant to lie (more on that below).
The quality of evidence collected in these situations is the polar opposite of that collected in an impaired driving case, for instance. In impaired driving cases, police – who are experienced in testifying in court – take contemporaneous notes of their observations, record the accused when at the police station, and seldom have a personal stake in an accused’s conviction. In sexual assault cases, however, the lack of impartial and conscientious observation makes it easier for witnesses to make mistakes, and that makes for an easier defence at trial.
Regardless of how the general public may feel about this, these are undoubtedly some important reasons why accused persons more often exercise their right to a trial when charged with sexual assault. For those who do opt for a trial, defence counsel have the duty to inform on how to improve the odds.
It should be noted that this article frequently refers to the accused with male pronouns and complainants with female pronouns. While it is acknowledged that some victims of sexual assault are male, and some sexual offenders are female, the overwhelming majority of sexual assault accusations are male-on-female assaults.
How to Make it Easier in the Pre-Charge Phase: shutting up
The initial phase of the process is where you – the soon-to-be accused – have a bad case of the jitters. If someone is hinting that a charge is coming down the pike... it probably is.
At this point, the complainant, someone she knows, or the police has confronted you with an accusation. That confrontation could be subtle. It may be your ex-girlfriend baiting you with a text message about the drunken sex you two had after a party. Conversely, it could be as direct as a police officer inviting you to the station to talk about an accusation made by your friend’s daughter.
Should you have even the slightest feeling that an accusation is coming, here is the golden rule: calm down, stop what you’re doing, and DON’T TALK ABOUT IT WITH ANYONE WHO ISN’T YOUR LAWYER! That rule is ten times more important when it comes to talking to the police.
You know what trial lawyers love? Prior statements made by opposing witnesses. Why? Because a person’s account of an event is more likely to change the more often he or she talks about it. When you talk to others about the interactions that did or didn’t happen between you and the complainant, you risk giving an account that differs from the account that will actually matter – the one you ultimately give to a judge and/or jury.
As an accused person, you are never required to testify at your trial. However, you may decide to tell the court what happened in order to counteract the complainant’s testimony. If you do ultimately tell the court what happened at trial, you won’t want the prosecution to compare your testimony to a recorded interview you gave to the police. If it differs in any material way, the prosecution will point out that your story is evolving, and it will argue that you are not credible. At that point, your testimony will go up in flames. That’s why you don’t give your side of the story to anyone but your lawyer before trial – particularly not the police.
Here's another example. After having told the court that you remember your buddy’s girlfriend enthusiastically giving you oral sex after the kegger, you don’t want the prosecutor cross-examining you with a text message you sent to your buddy two days after the party where you told him that you got too drunk to remember what happened.
These are examples of what trial lawyers call ‘prior inconsistent statements’. Let the complainant make the prior inconsistent statements – not you. Don’t give statements to the police; don’t try to explain yourself to the complainant; don’t try to make people less mad at you; and don’t think that you can talk yourself out of a bad situation. You need to shut up and play a smart game... because the stakes have probably never been higher.
Preparation: finding the complainant’s prior inconsistent statements
When there are no independent witnesses or other corroborating evidence of an offence, the prosecution needs the complainant to be credible and reliable if it wants a conviction. As stated by the Ontario Court of Appeal in R. v. A.M., [2014] O.J. No. 5241,
one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath.
These cases are usually very much about the complainant’s credibility. They are thus very much about the complainant’s prior inconsistent statements.
In almost all sexual assault trials, the complainant will have told her story at least twice. In the pre-charge phase, she will have given that story to the police in a written and/or recorded statement. Such statements will be disclosed to the accused and his lawyer shortly after the charge is laid. Later on, she will give her story to the court. If her story to the court differs in a significant way, her statement to the police will be considered a prior inconsistent statement.
The trick to defending against sexual assault accusations is tracking down and identifying complainants’ prior inconsistent statements. Those statements can come from many sources other than complainants’ police interviews. Most of those sources can be hunted down with a smartphone.
The internet and digital text messaging have made defending against sexual assault charges so much easier. Complainants very often pick up their smartphones and vigorously type away about the accused and/or the alleged offence. This means that there may be a Facebook message, an email, a tweet, or a text message just waiting to be found. Complainants sometimes upload these communications to the social media profiles for everyone to see. Other times, they privately send them to friends, family, and even the accused. This underscores the importance of keeping all the texts and all the emails from your ex or that girl at the bar you hooked up with.
Some people panic when they think they are about to be charged, and they delete their text conversations the moment they’re met with an accusation. Nobody should ever do that. Ever! Accused persons do this as a way of sticking their heads in the sand. We get comfort by pretending that our problem doesn’t exist, but that comfort is very temporary. The smart thing to do is to keep all electronic messages, make screenshots of them, make screenshots of those messages’ date-stamps and metadata, and then make backups of all of those screenshots.
It is also smart to hunt for more than just the communications she herself sent to you. If you are able to view the complainant’s social media profiles, look for anything she posted to her Facebook timeline, her tweets, anything she has said on Reddit, et cetera, and screenshot those writings too. Make copies of those writings and preserve them! If you know people who might have access to such writings, have your lawyer contact them.
Also consider hiring a private investigator to scrub the internet for things the complainant may have said about you or the alleged offence. Do not cheap out when it comes to hunting for prior inconsistent statements. They are the lifeblood of a successful defence at a sexual assault trial.
Locating prior statements is wise not just because those statements may reveal inconsistencies, but they may also reveal motives to lie.
Preparation: finding the motive to lie
A clear motive to fabricate makes it much easier to defend against sexual assault accusations. In the Ontario Court of Appeal case of R. v. Batte, [2000] O.J. No. 2184, Justice Dougherty said,
It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness's credibility then the existence of a motive to fabricate evidence.
There is an emerging narrative that there is no incentive to falsely accuse someone of sexual assault. The logic is that doing so comes with so much to lose and nothing to gain. That narrative is nonsense. It is an offshoot of the “Believe Women” slogan spawned by the #MeToo movement. It presupposes that complainants are telling the truth, and it exists only to foreclose any doubt or probing into accusations of sexual misconduct. That is difficult to square with a fundamental pillar of a free society that we call ‘the presumption of innocence.
I agree that it can be intimidating for a complainant to give statements to the police and testify in court. I am sensitive to the trauma that victims have to relive when they recount their abuse. I also agree that there is a societal interest in having victims come forward with the truth.
Having said that, to claim that there is nothing to gain from a false accusation is to ignore many obvious realities. Complainants do indeed have obvious motives to lie about sexual assault in some situations. They may be
- protecting their reputations as chaste women by pre-empting rumors of promiscuity (for example, see R.I. (Re), [2011] O.J. No. 4154 (Ont. C.J.) at para. 112);
- pre-empting others’ discovery of cheating with the accused (for example, see R. v. Azonwanna, [2020] O.J. No. 1611 (Ont. Sup. Ct.) at paras 241 to 242);
- seeking retribution against the accused (for example, see R. v. Beals, [2008] O.J. No. 3547 (Ont. Sup. Ct.) at para. 54);
- being pressured by someone else into colluding or bolstering their own accusation (for example, see R . v. C.F., [2019] O.J. No. 6885 (Ont. C.J.) at paras. 24 to 25);
- getting the leg up in family court and foreclosing the accused spouses’ access to their children (for example, see R. v. K.H., [2021] O.J. No. 7057 (Ont. Sup. Ct.) at para 93).
These are not stereotypes; they are not rare; and they are not farfetched. They are real.
Some people carry these motivations with the aim of destroying the accused. Others, however, may report sexual offences without expecting them to result in a criminal prosecution. This is very common in cases of domestic violence (e.g. a wife calls the police in hopes that an officer will scare her husband straight), but I have seen it happen in sexual offences too.
Once a person has made her initial false accusation, she will likely feel as though she cannot come clean and set the record straight. At that point, the lie begins to take a life of its own. As the Chinese proverb goes, "He who rides a tiger is afraid to dismount." As such, a person who fabricates an accusation of a sexual offence will often steadfastly maintain her lie until it reaches a verdict (and long thereafter). She will fear that recanting will be too painful.
Although it is not required to mount a successful defence, finding the initial motivation to lie can pay handsomely at trial.
In Summary
In the initial innings of the game (and I liken this to a game because you must approach this with a strategy to decrease the chances of conviction), the accused should say as little as possible and search for previous statements made by the complainant. Searching for statements on the internet is quiet and inconspicuous.
Instead of asking her friends and family what she might have said about the accusation, speak to a lawyer first. That lawyer will likely advise that you hire a private investigator.
This blog is for general informational purposes only. Matthew Wolfson does not distribute legal advice through this blog. As such, this blog does not constitute legal or other professional advice, and no attorney-client relationship is created between the reader and Matthew Wolfson.
Have a legal question? Send an email to ask@criminallawottawa.com
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