The One Question Your Attorney Must Answer to Defend You against a Sex Crime Charge

Sex crime charges are different. The disgust they provoke in jurors is one of the things that makes them different from most other criminal charges. So is the absence, frequently, of any physical evidence; they can be “he said, she said” cases.

But an even more fundamental feature of most sex crimes cases is that there is one witness who says they were there when the crime was committed and they know that the defendant committed it. That witness is the complainant, of course. In a case of burglary, bank fraud, or murder, there is usually no such witness—no witness whose testimony all by itself is sufficient to convict.

So the question that lurks under most sex crime charges is this:

If the defendant didn’t do this, why does the complaining witness say he did?

On the surface, the defense might be consent: both persons chose to have sex. Or it might be simple denial: the defendant did not have sex with the complainant. But either way, jurors will wonder, at least sub-consciously:

If the defendant didn’t do this, why does the complaining witness say he did?

If you are charged with a sex crime, that’s the one question your attorney must answer. You may have no idea why you’ve been accused. Whether you do or not, your attorney needs to search for an explanation and to present at trial the best explanation found.

The law says that a criminal defendant has no burden of proof. It is the prosecution that must do all the proving. For example, in Washington State, where my firm tries most of its cases, juries are told this:

“The State has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists.”

The defendant is not required to prove anything. If the State’s proof doesn’t add up to a case that convinces the jury beyond a reasonable doubt, the law says the defendant wins.

But that is not how the brain works. Jurors need frameworks within which to retain information they receive in trial. The most common framework is a story. The conclusion of the prosecutor’s story is always this: the complaining witness testified the defendant committed the crime… because he did. The defense attorney needs a story that includes a different reason for the complaining witness to have testified that.

Here’s another way to think of this:

The jury is told to find the defendant guilty only if the evidence proves guilt beyond a reasonable doubt. In Washington State, jurors are told, “A reasonable doubt is a doubt for which a reason can be given.” By the end of the trial, the complaining witness has testified that the defendant committed the sexual assault. The jury asks itself, “Is there a reason to doubt the complainant’s testimony? A reason to think the complainant’s accusation is incorrect?” If the jury cannot think of a reason, it will not have a reasonable doubt the defendant is guilty.

The defense attorney may not need to call any witnesses or present any exhibits at trial. But one way or another, a sexual assault defense attorney needs to answer that question.

Some sex crimes, of course, have questions of identity at their core: is the rape victim right that the defendant was the rapist? But stranger rape cases are a small minority of sex crimes cases. In the others, the defense attorney must come to trial ready to answer the one fundamental question.

If you have been accused of a sex crime, we can and want to help. Please contact us at contact us at (206) 826-1400 or solutions@marshalldefense.com to schedule a consultation.