Korody Law has defended sexual assault cases at court-martial and in state courts. Both the military and state courts have been forced to pursue sexual assault cases that they would not have pursued 10 or 15 years ago because of the political pressures related to sexual assault and sexual harassment and the victims’ rights movement. Sexual assault allegations are the scariest type of allegations because they can be made very easily and are taken very seriously, even if the report is stale (weeks, months, and years after the alleged sexual assault). Both military commanders and elected state attorneys are under immense pressure to prosecute these cases. And, juries (called “members” in military courts-martial) are also tuned into the political and social movements are more likely to convict based on weak evidence today than they were 10 to 15 years ago.
So how does a person defend against a sexual assault charge?
It depends. From a 10,000 foot view, there are three overall defense strategies: 1) a crime occurred, but some other person committed it (aka, you got the wrong guy); consent or mistake of fact as to consent (there was sex, but it was consensual, or at least the defendant would have no way of knowing it was not consensual); and, the entire allegation is fabricated (aka, it never happened).
It never happened.
This defense only works where there are no admissions by the defendant (such as texts, calls, statements to law enforcement), no witnesses to corroborate core details of the alleged victims story, and no physical evidence tying the defendant to any type of sexual interaction. An example would be where two persons go into a hotel room and two months later Person A claims Person B sexually assaulted them. Person B could mount a defense by admitting they were in the hotel room together but were just watching a movie on the bed and never had any type of sexual contact. These cases are one form a “he said, she said” case.
These cases can become a credibility competition. In a perfect world, the defendant would not testify in any criminal trial. But often with this type of defense, the defendant has to testify so that there is an alternative version that solidifies reasonable doubt. In other words, the jury doesn’t have to believe the defendant’s version of events – it only has to believe it is reasonable. If so, there is reasonable doubt and the defendant should be found not guilty. Before a defendant testifies, we thoroughly prepare him or her to handle even the best cross-examination by the prosecutor. And the defendant must be able to testify truthfully that no sexual contact occured.
The alleged victim’s credibility is very important when mounting these types of sexual assault defenses. We comb through social media, the investigative files, and speak to witnesses looking for inconsistencies, bad character for truthfulness, and motives to fabricate the sexual assault charge. The goal is to show that alleged victim has lied in the past and is now lying.
It was consensual, or at least I thought it was.
This defense works best when there is some physical, forensic, or eyewitness testimony indicating sexual contact but a lack of evidence indicating there was an actual sexual assault – that is, it against the will and without the consent of the accuser. An example of this would be that Person A and Person B are seen leaving a bar holding hands and kissing. The next morning, Person A claims Person B sexually assaulted her in her hotel room and a forensic examination shows Person B’s DNA in Person A’s vagina, but there are no true indications of force on Person A’s body. Because of the DNA, it’s impossible to run the other sexual assault defenses (someone else did it and the sex never happened).
In these cases, consent or mistake of fact as to the lack of consent are absolute defenses to the charge of sexual assault. The key to this type of sexual assault defense is identifying the objective signs that the accuser consented to the sex, such as leaving the bar holding hands and kissing, permitting Person B into the hotel room, permitting Person B to stay and sleep in the room next Person A, and the lack of any acts by Person B to overcome the free will of Person A. It’s also important to identify a motive to fabricate in this type of case for the accuser; in other words, is there a good reason for Person A to claim the sex was not consensual?
We run this sexual assault defense routinely and successfully because it often is consistent with every other piece of physical and forensic evidence in the case.
You got the wrong guy.
This defense is the most uncommon defense because there has to be very little, if any, evidence connecting the defendant to the alleged victim. We have used this defense where there was incident in an unlocked hotel room and the alleged victim did have instances consistent with a sexual assault. We successfully argued that someone else perpetrated the crime while our client was passed out drunk on the couch in the room. We successfully showed our client’s DNA was only found on the alleged victim’s clothing because they had shared the bed the night before as friends.
The consequences of losing a sexual assault trial are HUGE. Felony convictions, significant punishments, and lifetime sexual offender registration requirements. It’s extremely important that anyone facing sexual assault charges in the military or in state court have an experienced, skilled defense attorney who understands how to choose a defense strategy and execute that strategy.
Attorney Patrick Korody is a former Navy JAG prosecutor and defense attorney and a former state and federal prosecutor. He has handled more than a hundred sexual assault cases and knows how to win a sexual assault case. He has attended countless trainings on prosecuting and defendant sexual assault cases. He offers a free consultation and can be reached at (904) 383-7261.