Defending Against an Accusation of Rape of a Child

Often a child's out-of-court statements, usually considered hearsay, are a significant part of the evidence against a person. Exceptions to the rule against hearsay usually make these statements admissible at trial. We look to see whether those statements were made in circumstances that give reason to question their reliability.

For example, if the first accusing statements were made to someone who disliked the accused — maybe to someone who suspected the accused had an improper sexual interest in the child — that can undermine the reliability of the statements. The child may have detected the questioner's suspicion and given the incriminating answer they felt was expected.

Sometimes there is medical evidence in child rape cases. A child's genitals or anus may be reddened. But redness can come from many causes, not just from sexual activity. There may be notches in the hymen or other unusual features in the genitals or the anus.

But most unusual features of the anatomy can come from many causes other than sex; some are congenital — that is, the child was born that way. We engage physicians to study the medical evidence and, if appropriate, to testify that the medical condition of the child does not prove the charge.

There may also be biological trace evidence in sex crimes cases. A scientist from a police crime lab may say they have found traces of semen or other organic matter that must have come from the accused. The scientist may say that the trace evidence contains DNA and that the DNA resembles the DNA of the person accused.

We know from experience that biological trace evidence and DNA evidence must be rigorously investigated by the defense, especially in sex crime cases.

Studies have shown that whether a crime lab scientist will find a match with the accused can be heavily influenced by what the scientist has heard about the non-scientific evidence. For example, if police tell the scientist that the accused had sexual contact with the child, the scientist is more likely to find a match.

Especially when the child said to have been raped is quite young, we look for signs that someone suggested to the child, perhaps without malice, that the defendant touched the child inappropriately. A child can form a false memory of being abused based on such a suggestion. We are all susceptible to suggestion, but study after study shows that small children are especially susceptible to it. And once a child (or an adult) forms a false memory, almost nothing can get them to recognize that it is false.

When parents fight for custody of their children, things can get nasty. The animosity between the parents can become so great that they look to find the worst in each other. One parent — usually the mother — will sometimes come to view even innocuous facts as signs that the other parent has sexually abused the child. When that happens, the parent is likely to ask the child suggestive questions, and a false allegation can result. We look carefully for signs that this has happened.

If the accused reasonably believed that the alleged victim was over the age of consent due to misrepresentation or deception, this may form the basis of a defense. This is particularly relevant in cases involving online or social media interactions.

This typically occurs when the complainant is a teenager. We look carefully for reasons for the complainant to lie against the defendant. Maybe the teen resents the limits the defendant has put on them; an accusation of child rape can get the defendant out of the teen’s life for good. Maybe the teen has been caught misbehaving and needs an excuse or wants to shift blame; a child rape accusation can cause sympathy to flow their way in place of the punishment they would otherwise suffer.