Updated: Jun 2, 2021
Establishing a good defense against sex crimes allegations can be very difficult, even for the most experienced defense attorneys. These reasons it is especially difficult to defend sex crimes allegations include the following:
Witness Protections: Witnesses and alleged victims in sex crimes have special protections that do not allow a defense attorney to contact them in order to gather defense-friendly evidence. In fact, in many types of sex crimes, the affidavits supporting any warrants are sealed and the witnesses are unidentified or otherwise protected with criminal protective orders from defense access. The absence of this defense-friendly evidence might otherwise show a witness’ incriminating statement to be contaminated or unreliable for a variety of reasons.
Emotional Evidence: The testimony in sex crimes is usually very emotional and it can be difficult for a defense attorney to elicit defense-friendly testimony without seeming unsympathetic to an alleged victim in front of a jury. This causes juries to dislike the defense attorney, and by association, her client. This is especially true in cases involving minors who are the alleged victims, such as in cases of lewd and lascivious acts on a minor (PC 288(a) & PC 288.5(a)).
Access to Defendant: Defendants in felony sex crimes allegations are usually defending their case from jail because the bail amounts in most felony sex crimes is higher than most other felony charges. Defending a case from jail makes it difficult for the defendant to work with her defense attorney in an expeditious manner. Also, defendants in sex crimes cases are usually fighting other legal battles at the same time and for the same alleged conduct, such as cases related to family law (divorce, child custody, etc.), child protection services (CPS), and civil lawsuits.
Prejudice Against Defendant: Jurors in sex crimes cases tend to be more prejudiced against the defendant than they otherwise might be against a defendant in a less emotional type of case, such as misdemeanor DUI or tax evasion type case.
Contaminated Statements: Initial statements by alleged victims in sex crimes cases are almost never recorded and those statements tend to be conducted by untrained persons who use poor interview techniques that can produce unreliable statements. For instance, untrained interviewers tend to contaminate an alleged sex crime victim’s initial statement by incorporating compound questions, leading questions, and suggestive questions that promote answers which are favorable to the goal-oriented interviewer.
Also, untrained interviewers tend to allow the alleged victim to guess as to any alleged facts, and to reward and encourage reporting of an allegation, as opposed to reward and encourage truth. In fact, by the time the police, doctors, or child protective services (CPS) take an alleged sex crime victim's statement that statement has often been amended to reflect the non-professional interviewer's version of events (especially true with very young children reporting sexual abuse). Tracing these initial statements in an attempt to evaluate the evidentiary value is time consuming, costly, and met with objection from family, police, CPS, and prosecutors.
Vigorous Prosecution: Sex crimes cases are generally prosecuted by seasoned district attorneys who are competent trial lawyers themselves. Plus, there is enormous pressure on the office of the district attorney to pursue sex crimes convictions. This makes plea negotiations difficult, especially in the most serious sex crimes offenses, such as aggravated sexual assault on a child, and kidnapping with the intent to commit a sex act on a child. Also, plea negotiations are limited by law in the most serious felony sex crimes.
SOL: The statute of limitations, or SOL, is usually much longer in sex crimes cases than in other types of felony cases. In fact, in some types of sex crimes, the statute of limitations does not even begin to start until the alleged victim reports the allegations against the defendant, which could be decades after the alleged offense. This time lapse causes many sex crimes defendants to lose documents or witnesses that could otherwise be used in their defense. This time lapse also causes defendants to lose memory of the alleged facts that might otherwise be called upon in her own defense. For more information, see Statute of Limitations.
Believable Witnesses: Statements from alleged victims of sex crimes tend to be honestly and passionately relayed to jurors even when those statements might otherwise be untrue. This is because some alleged sex crimes victims do not necessarily falsely report their experiences even when those experiences are in fact untrue. A passionate statement made with intent to tell the truth does not always equal truth; sometimes an alleged victim's memory of an event is contaminated and unreliable. This is especially true with victims of alleged sex crimes who were very young at the time of the alleged offense. In fact, the younger the alleged victim is at the time of the alleged offense the more likely it is that the alleged victim will succumb to false memories of the event.
Sometimes a victim’s false memory of an event is the product of several psychological phenomena, including the adoption of another person’s statement, confirmation bias, mental disability, use of drugs that affect memory, or even hyper-vigilance of parental figures that constantly place within a child the fear of the ever-present sexual predator while simultaneously rewarding the child for confirming the parental figure’s fears.
Lack of Emotional & Financial Support: Family and friend support for the defendant tend to wane in sex crimes cases. The embarrassment, social stigma, financial cost, and emotional toll that comes from being accused of any sex crime seems insurmountable and can ruin a person's life even if the defendant is ultimately vindicated or the case is dismissed. In these situations the defendant’s family and friends tend to distance themselves from the accused. This is especially true where the alleged victim is related to the defendant. In turn, this gives the defendant in a sex crime case the feeling of total loss, despair, and a willingness to concede, even before the pronouncement of judgement, if any.
Defending Sex Crimes
The particular defense that works best in any sex crimes allegation will be guided by the facts of that particular case. With that in mind, common defenses in sex crimes include:
Consent: Consent by the alleged victim to engage in a sex act with the defendant is perhaps the most commonly used defense in any sex case where DNA evidence is irrefutable (semen, blood, sweat, saliva, hair, etc.). Consent is a common defense used in cases of alleged rape, spousal rape, rape in concert (gang rape), sodomy, and oral copulation. Consent is also common in sex crimes allegations where DNA evidence might not be involved, such as in allegations of sexual battery, sexual assault, and attempted rape.
Note: Consent is not a defense in any case where a minor is the alleged victim because a minor is incapable of consenting to a sex act. The cases where consent is not used as a defense include lewd act on a minor, sexual penetration of a minor, unlawful sexual intercourse (statutory rape), and more. Consent is also not a valid defense unless the alleged victim to a sex act voluntarily consented. Fro more information, see Consent as a Defense to Crime.
Mistake of Fact: Mistake of fact is a defense used in some cases where the defendant reasonably, but wrongfully, believed the alleged sex crime victim was not a minor at the time of the sex act. This defense is most commonly used in cases of statutory rape where DNA evidence is irrefutable, the alleged victim and the defendant have not known each other for a period of time sufficient for the defendant to ascertain the true age of the alleged victim, and the alleged victim is close to the age of consent (18 in California). Mistake of fact is also a common defense used in incest cases where the defendant was reasonably unaware that she was related to the alleged victim. For more information, see Mistake of Fact.
Insufficient Evidence: Insufficient evidence simply means that the district attorney does not have enough evidence to prove that the defendant is guilty beyond a reasonable doubt. This defense can be used in any sex crime case but it tends to be used most commonly in cases where DNA or other physical or scientific evidence is unavailable or unclear and the balance of available evidence against the defendant is based solely on the victim’s testimony (commonly called “he said, she said” cases). These cases can include lewd act on a minor, sexual battery, indecent exposure, prostitution, continuous sexual abuse of minor, etc.
Insufficient evidence is also a common defense employed in allegations of possession of child pornography where the district attorney cannot prove that the defendant knew she possessed the images or videos of child pornography (usually because of computer malware, use of a community computer, or bulk download of legal pornography that unintentionally included child pornography). For more information, see Insufficient Evidence.
Coerced Confession & Miranda Violations: A coerced confession is a statement or confession made by the defendant that tends to incriminate the defendant and is also the product of improper pressure by law enforcement. Coerced statements or confessions is a common defense in sex crimes even when the statement or confession is not entirely excluded from the jury’s presence because the jury can see and hear for themselves that the statement or confession is likely the product of police coercion. When a defendant’s statement or confession is obtained without a Miranda warning given o the defendant then the statement or confession could be excluded from the jury. For more information, see Coerced Confession & Miranda Rights.
Note: Sometime law enforcement will use a pretext phone call placed to the sex crime suspect in order to obtain a statement of confession from the defendant before she is ever questioned by the police. A pretext phone call is a call that is placed to the sex crimes suspect by the alleged victim and which is recorded by law enforcement. The purpose of the pretext phone call is to gain an incriminating statement from the suspect before she retains a criminal defense lawyer. During the pretext phone call the police guide the alleged sex crime victim into eliciting an admission from the suspect, or at least an apology from her (an apology can be viewed as an implied admission to the allegations). These pretext calls are admissible in court because they are guided and conducted by law enforcement, but there is no coercion as the suspect does not know that the police are listening in on the conversation. When a pretext call is guided solely by non-law enforcement related persons, such as when the parent of an alleged sex crime victim is attempting to gather a confession from the suspect, then those pretext phone calls are not usually admissible in court. In fact, the unauthorized recording of another person, without the other person’s consent, is a crime in most situations (See PC 653m).
Entrapment Defense: An entrapment defense is an affirmative defense. This means that the defendant uses this defense to admit that she committed a violation of the law, but that her conduct was the result of law enforcement’s effort to promote the criminal conduct in the first place. Entrapment defenses usually apply to drug and theft crimes, but entrapment is also a common defense in sex crimes that involve prostitution, such as soliciting prostitution, lewd conduct in public related to prostitution, indecent exposure related to prostitution, loitering with intent to commit prostitution, human trafficking, pimping, and pandering. Entrapment is also a defense used with internet related offenses against children, such as annoy or molest a child (by internet, social media, text, etc.), send harmful matter to child (by internet, social media, text, etc.), and possession or distribution of sexual images depicting a minor (possession of child pornography). For more information, see Entrapment Defense.
Use of Psychologist: Sex crimes that involve alleged victims that are very young, and which do not involve irrefutable DNA evidence, physical evidence, or multiple witnesses, are often defended by criminal defense attorneys with the use of a forensic child psychologist. A forensic child psychologist is usually engaged to review the circumstances that surround a child’s statement that may have an impact on the reliability of that statement. These circumstances include the lack of proper interview techniques used by usually well-meaning friends and family law members who ask of the alleged victim compound questions, leading question, biased questioned, suggestive questions, etc..
Note: The psychologist also looks at the biases of the persons interviewing the alleged sex crime victim (i.e. parent interviewer who is also seeking child custody of the alleged child victim in a divorce, Munchausen Syndrome by Proxy issues, etc.). The use of a forensic child psychologist is common in “he said, she said” sex crimes involving lewd acts on a minor, continuous sexual abuse of a minor, sexual penetration by object of a minor, oral copulation of a minor, and more.
Impeachment: A common defense used in many sex crimes is to impeach the credibility of the person’s testifying against the defendant. This impeachment defense is usually used in connection with other defenses in sex crimes and usually includes impeachment of the witness’ memory or his or her veracity for honesty (use of drugs, history of false statements, criminal conviction for a crime involving moral turpitude, etc.). Another common impeachment area is showing the bias of the alleged victim or witness (common in divorce, child custody, and child visitation cases where the alleged victim is the subject of the defendant’s family law case). Impeachment can also include the use character witnesses, criminal history, and physical evidence (lack of DNA evidence that would ordinarily be present in light of the allegations, etc.).
Attacking the Science: Sex crimes often include some sort of scientific evidence, including semen, blood, sweat, saliva, hair follicles, DNA, and even "touch" DNA. The scientific evidence itself may be attacked by a criminal defense attorney as being unreliable due to contamination, unreliable due to the lack of proper procedure in the collection, storage or analysis of that evidence, or even attacked as being the product of an illegal search and seizure.
Sometimes, the evidentiary value of scientific evidence is weak despite the fact that the methodology used or the accuracy of the science itself cannot be reasonably attacked. For example, in an alleged rape case, the value of DNA or hair follicle evidence, no matter how reliable that evidence is, remains irrelevant where the defendant claims the alleged rape victim consented to the sexual act. Attacking the science is a common defense in sex crimes that involve minors because a minor cannot otherwise consent to the alleged sex act. These cases include: digital penetration or sexual penetration with a foreign object (torn hymen evidence), use of novel touch DNA evidence in sexual battery, lewd acts against a minor, oral copulation of a minor, and continuous sexual abuse of a minor cases.
Statute of Limitations: The statute of limitations in sex crimes is rarely used as a defense because the statute of limitations is very long for most sex crimes; however, for minor crimes, the statute of limitations may apply to deny the district attorney an opportunity to prosecute the defendant. The statute of limitations defense is more commonly used in minor sex offenses such as indecent exposure, prostitution, loitering with intent to commit prostitution, revenge porn, and peeping tom cases. For more information, see Statute of Limitations Defense.
Note: Sex crimes convictions carry longer prison sentences than most other types of felonies. In fact, the sentencing scheme for most sex crimes includes consecutive sentencing for each sex crime conviction. In addition, sex crimes convictions carry collateral consequences that are more penalizing than other types of crimes, including, the requirement to register as a sex offender, longer parole periods, criminal protective orders, and more. These punishments are in addition to the other punishments that usually accompany a criminal conviction (i.e. restitution, probation or parole terms, discharge from military, professional license and immigration consequences, fines and court fees, civil lawsuits, etc.).
For all the reasoned mentioned, only qualified, aggressive, and experienced sex crimes trial attorneys should handle these complex sex cases.