Being accused of rape is serious business that often requires special techniques on the part of defense lawyer. Rape complaint are different from other criminal complaints. Traditionally, the? legal definition of rape was that the defendant had sexual intercourse with a woman who was not his wife by force or threat of force without her consent. The consent element is probably the most important and difficult to prove. Consent (and lack thereof) may be expressed in many ways on many levels. Did she say no? Did she mean it? Did she say yes but meant no? Was it really the use of force or an expression of love? Are the charges imaginary or real?
While it?s up to the courts to deal with these issues, when a client is accused of rape, here are the most important things a defense lawyer will do as soon as possible.
First, the defense lawyer should find out what, if anything, the client has told the police.
The problem is that once you make a statement to the police, it?s going to be hard if not impossible to convince a jury that you said something else unless you can produce evidence that you were forced to make that statement by the police.
Second, we need to know if there is a potential alibi defense and we need to know their contact information so that they can be interviewed.
Third, if the defendant claims that there was no sexual activity between him and the complainant, an examination of the defendant’s body and clothing by an expert could be a great defense tool later. Even if there is no expert available immediately, if the defendant doesn?t have any struggle marks on his body, it?s a good idea to have independent witnesses see that so that they could testify about it later.
Fourth, just like the prosecution conducts its investigation of the rape allegation, so should the defense. It?s not good to wait until discovery is turned over by the DA later in the case. Being proactive and aggressive is key here. We use private investigators to examine the scene of the alleged crime, check for video recordings and witnesses. The investigators should (if possible) interview all potential witnesses and even the complainant if possible. Practice shows that after police and the DA investigators speak with witnesses, these witnesses don?t want to speak with defense investigators.
We also need to know whether the complainant has made other claims of rape in the past. In New York, in some cases this evidence as well as evidence that the complainant was convicted for prostitution may be admissible notwithstanding the rape shield laws. In New York there are several other exceptions to the rape shield laws and sometimes trial judges have wide discretion to apply them, therefore, it?s a good idea to have as much information about the complainant as possible.
These steps are just the initial steps that should be? taken by defense lawyer if a client is accused of rape. If you or someone you know have been accused of rape in New York, call our sex crimes defense lawyers today at (212) 577-6677.