When the Sexual Contact Isn’t Disputed, but Consent Is
People tend to assume the hardest rape cases to defend are the ones where my client says nothing happened. Often it’s the opposite. In a lot of these cases, everyone agrees that sexual contact occurred. The fight is over whether it was consensual. That changes what I’m looking for from the start, because proving that two people had sex doesn’t answer the question of whether a crime occurred.
One of the first things I want to see is the communication between the two people. Text messages can be extremely important, particularly when the parties discussed sexual activity before the encounter. I want to know what they were saying to each other, whether they were making plans to meet, and whether there were explicit conversations about what they intended to do. And I want to see what they said afterward. Messages alone won’t prove that someone consented to a particular act, but they can supply context that is often missing from the initial allegation.
We also look for video from wherever the two people were beforehand. If they met at a bar or restaurant, I want to know whether cameras captured them before they left. Were they together voluntarily? How were they acting toward each other? Was either of them visibly intoxicated? I also want to talk to mutual friends or anyone else who was around them that night. Those witnesses can’t tell us what happened once the two people were alone, but they can help us test the accounts we’re being given.
Alcohol makes these cases particularly complicated. A person can appear willing and able but still be too intoxicated to legally consent. That’s a real issue, and it has to be taken seriously. At the same time, I’ve represented clients where both people had been drinking heavily, and quite frankly, I’ve questioned whether the investigation paid enough attention to the condition of both of them. Two intoxicated people don’t automatically create a defense to a rape allegation but the detective may need to know what the evidence actually shows about each of them.
Clients also put a lot of faith in medical evidence. They assume a medical exam will show whether sexual activity was consensual. It generally isn’t that simple. Consensual sex can produce physical findings, and the presence or absence of an injury has to be considered in the context of the specific allegation. DNA is a different problem. If my client acknowledges sexual contact, finding his DNA may not resolve anything. But if he previously told law enforcement that nothing sexual happened, that same DNA can destroy his credibility.
Which brings me to something I’ve changed my mind about over the years. Early in my career, I was told that a criminal defendant should never give a statement to law enforcement. I don’t agree with that as an absolute rule anymore. I certainly don’t think someone facing a rape allegation should sit down with investigators without talking to a lawyer first. But there are situations where a carefully considered statement can help, particularly when the client has information investigators need before they decide whether to pursue charges.
I remember representing a client who felt he had to give an interview because he believed refusing would make him look guilty. After hearing his explanation of what happened, I had to tell him something he wasn’t expecting. If he told law enforcement what he had just told me, his problem wouldn’t be that he looked guilty. His own account would establish facts supporting the allegation against him. That was a hard conversation. He didn’t want to hear it.
There are also cases where law enforcement should hear the defense’s side before an arrest or prosecution moves forward. If we have messages, witnesses, video, or other evidence that substantially changes how the allegation should be evaluated, presenting it early may make a difference. Before doing that, we have to weigh the risks of speaking, the evidence already available, and whether anything we provide could end up hurting the client. Sometimes silence is the right call. I just don’t think it should be automatic.
If you’re reading this because a detective has called and asked you to “come in and clear this up,” don’t call them back until you’ve talked to a lawyer. Whatever you say in that room may end up being the most important evidence in the case, and you can’t take it back.
Brett H. Knight is a partner at Jaffe, Hanle, Whisonant & Knight, P.C. His practice includes criminal defense in Alabama state and federal courts.
This article is provided for general informational purposes only and is not legal advice. Every criminal case is different, and past results do not guarantee a particular outcome.
For more information, contact an experienced Birmingham criminal defense attorney at Jaffe, Hanle, Whisonant & Knight, P.C. for a free consultation.
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