As one of Jacksonville’s best sexual battery (rape) criminal defense attorneys, I am often asked. “How do you defend a rape case?” Back in 2008 when I was in charge of a Navy defense services office, I scoured the internet and read as many articles as I could on how to defend rape cases. This was at the start of the military’s war on sex assault. One of the best articles I came upon was written by William Nimmo, a California criminal defense attorney. I think the article is worth sharing:
By William F. Nimmo, May 8, 2006
Forcible rape and attempted forcible rape between people who know each other, either casually or well, make up a sizeable percentage of the false accusations in the criminal justice system. The cry of rape or abuse is a familiar cry when a relationship goes sour or when a woman has second thoughts after a night of sex or near intimacy. While there are certainly legitimate claims of rape and attempted rape in the world, from the defendant’s perspective there are good reasons to view each claim with skepticism. Relationship rapes and date rapes are closely related and the techniques to defend each are similar.
The reasons for the accusations vary as do the situation, the character and personality of the alleged victim. In the system you see questionable accusations when dating or love relationships go sour and the woman is being rejected or being thrown aside for another woman. Sometimes in more casual dating the woman makes an accusation after having too much alcohol and engaging in sex. The morning after they realize what they have done and an accusation follows to protect their pride, cover their embarrassment, or justify a situation to their boyfriend or significant other.
Sometimes in younger women the issue of sex is still very delicate and the accusation comes after giving in and realizing afterwards what they have done does not sit well with their present psyche. Again, many times alcohol is a factor.
Sometimes the mental stability of the alleged victim is a major factor in making an accusation. All experienced rape defense lawyers have seen the young man who falls for a beautiful but unstable young woman and ends up getting accused when they break up or go farther than the woman’s mental state will allow.
And, quite frankly, men are often too driven by their sexual desires to be careful in their judgments about who they attempt to bed. Men view sex entirely different than women for the most part. Men are very capable of enjoying sex and not thinking anything about it afterwards except for how much fun they had. Women may claim that is how they feel but the facts of these accusations show they have a much harder time accepting it as such a meaningless act of pleasure. It is in these instances that false accusations arise.
Also, often times “no means no” to a woman. A man can easily interpret “no” as “yes.” He thinks she is just trying to show that she is not easy. Unfortunately, the trend in most states is that when a woman says “no” it means that consent to proceed has been withdrawn, even in the throes of great passion.
In a rape defense it is important for the lawyer to understand all of the circumstances of the relationship or the situation. A detailed minute by minute account is necessary to understand whether the rules have been broken. Many times if there is simply a misreading of signals, the benefit of the doubt will be given to the defendant. Most jurors have been in multiple sexual and intimate situations and they can understand mixed signals.
The more you can show that the woman gave off all of the signals of a willing participant, the better your chances of success. The witnesses to her earlier drinking and provocative conduct can provide good evidence that the defendant thought she was desirous of consensual sex. While most states’ “rape shield” laws go far in protecting the history of the alleged victim, your lawyer should find out as much as they can about the alleged victim’s history. Due Process requires you to be able to defend yourself and a good lawyer can usually find information that is admissible that sheds light on her character.
The defendant’s character for not being sexually aggressive can be important. It is admissible evidence to show that you are not sexually aggressive. Prior girlfriends, female friends and co-workers, and friendly ex-spouses can be a good source for this evidence.
Your attorney must be prepared to contest the medical evidence if the alleged victim went to a hospital or a sexual assault response team. The current trend is for these medical personnel to testify that the alleged victims had physical injury to their vaginal area. What is usually found are microscopic abrasions that are a result of the friction of intercourse. Sometimes the prosecution’s medical personnel try to say these micro-abrasions are inconsistent with consensual sex.
The research shows that micro-abrasions don’t mean anything negative. They are as consistent with consensual sex as well as anything else. Your lawyer must be prepared to cross-examine these alleged experts aggressively. Your lawyer should also have a counter-expert ready to testify to the opposite of the prosecution’s expert.
Date rape accusations aren’t just limited to younger people. It happens throughout the age spectrum where single men go out with women of questionable stability.
If the accusation comes out of a relationship breakup, look carefully at the mental history of the alleged victim. Many times young men fall in love with very defective young women. A symptom of certain personality disorders seen in young women are the inability to handle rejection. A person they once idealized quickly becomes their archenemy and subject to false accusations of rape. If your jurisdiction allows, your lawyer should get a psychological evaluation of the alleged victim. If your jurisdiction doesn’t allow it, you should investigate her history thoroughly. With a psychologist to guide your efforts, you will probably find evidence to support your theory.
As part of your investigation, look for prior instances of credibility problems on the part of the alleged victim. Check her job history and try to find her former boyfriends. Chances are you will find a history of lying and deception.
In any rape or attempted rape accusation you must find the motive of the alleged victim to lie. These cases of false accusations can be defended successfully, but you must find the motive. It is the key to the jury understanding why the young lady would go so far as to make such a serious false accusation of rape against you.
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