What Should You Do If You Are Being Accused Of A Sex Crime?
*** This article is specific to California law and is based on Forest Wilkerson and Joshua Mulligan’s experience defending sex crime cases from the Coachella Valley.***
Being Accused of a Sex Crime is a Serious Matter
Being falsely accused of a sex crime is one of the most horrifying ordeals any man or woman has to endure in our “justice” system. Sex crimes frequently carry exposure to high prison sentences – in many cases LIFE in prison – along with a host of other indignities and humiliations: online sex offender registry, complicated probation conditions, living restrictions, not to mention loss of job or career and deportation.
The Prosecution Of Sex Crimes Has Become Politicized
In the #metoo era, the media tells the public to “believe the victim.” The media also pushes the patently false narrative that less people are falsely accused of sex crimes than other categories of offenses. Many police and prosecution agencies receive grants and extra funding to pursue these types of allegations – more crime, more money! They have no incentive to believe the suspect or not pursue an allegation and are protected by immunity unless they intentionally and maliciously pursue knowingly false allegations. If an allegation is made, they can pursue it with impunity, even if the accuser later admits it did not happen.
Sex Crimes Are Unusually Vulnerable To False Accusations
Despite popular belief, sex crimes present the most fertile ground for false accusations. The vast majority of sex crimes have only one witness (the accuser) and no accompanying physical evidence to support the accusation. Sex crimes are really the only category of offense which can be (and many times IS) created from thin air. People can’t simply make up a bank robbery or murder. Police won’t arrest a drunk driver unless they catch him in the act. There is no arson without ashes. But, unique in sexual assault allegation (and domestic violence), there are real incentives for the people to lie. For example:
Gaining advantage in a child custody or family law case. Sometimes the most unbelievable allegation passes muster with elected judges who fear making the “wrong” decision. Many who make false allegations do not realize the criminal consequences to making an allegation they intend only to be used in family court;
Explaining or making excuses for an inappropriate sexual relationship. For example, when a person is caught cheating, or a young person has sex with a partner not approved of by parents or gets caught by parents having sex;
Money or other material gain. Harvey Weinstein recently paid out $44 million, the Catholic Church has paid out untold millions, and corporations, schools, and individuals across the country are writing out six and seven figure settlement checks every day for these kinds of cases. The school district in the Brian Banks case paid 1.5 million to his false accuser, who only admitted that she lied after he served 5 years in prison, destroying his life and NFL career. She was not prosecuted and never had to return the money because, astonishingly, the secret recording taken of her confession to perjury was not admissible in court (this is legally incorrect, but prosecutors and judges will do whatever they can to protect their convictions);
Victim status. We live in a world where there is power and status in being the victim of a sex crime. A rape or child molest victim wins the oppression Olympics. You doubt? “Mattress Girl”, a former Columbia University student, has made a whole career out of falsely claiming rape and then carrying a mattress around campus. The victim in the Brock Turner case (the Stanford Swimmer rape case) is writing a book about her experience.
Have you been charged with a sex crime? For a free consultation with a criminal defense attorney—contact Joshua and Forest today.
How to Protect Yourself If You Are Accused of a Sex Crime:
YOU HAVE THE RIGHT TO REMAIN SILENT, SO USE IT. You are not required to give any statements to police EVER. If a detective calls you and wants to ask questions about an incident, say “no.” If the officer or detective persists, tell him or her that you have already spoken to a criminal defense lawyer and been advised not to discuss the accusation / incident with anybody. If the police read you your rights, invoke them! The last sentence of the typical Miranda advisement is usually “with these rights in mind, do you wish to speak with me?” Your answer is always “no.” It is extremely unlikely that speaking to police will help your case, and you should never give police a statement without first clearing this (probably terrible) idea with an attorney.
WATCH OUT FOR “PRETEXT CALLS” OR REQUESTS TO WRITE AN “APOLOGY LETTER.” After your accuser has spoken with police, it is common for the police to set up a recorded phone call. Your accuser will call you and ask why you did it or give you a chance to tell your side of the story, or possible invite you to make up. If anybody calls you to talk about something they allege happened, end the phone call quickly and politely. Say something like, “I did not do those things, I do not want to speak with you,” and hang up the phone. The call is being recorded, so do not be a jerk or say something that will make you look bad. If you say something stupid, even if it isn’t directly about the accusations, the DA will try to use the recording against you later, just to try to make you look bad. Deny the accusations and get off the phone, quickly. Same with requests to apologize for what “happened.” Often people apologize for things they did not do, such as, “I’m sorry that you believe I did that to you” or “I’m sorry for my role in this situation.” Even though we routinely say sorry for things that we did not intend or did not do, be aware in this situation that police and prosecutors believe that if you apologize, you’ve confessed. If you think you have already gotten a pretext call, text, or made a false “apology,” contact a sex crime defense attorney immediately.
SPEAK WITH AN ATTORNEY ASAP. On these kinds of cases, you should get an attorney involved as early as possible, and you should be COMPLETELY honest with any attorney you contact if you want to get good advice. Anything told to an attorney, even in the initial phone call, is protected by attorney-client privilege. Meet with the attorney alone (not with your parents or significant other) and lay out the whole situation. If you know you won’t be able to afford an attorney, call the Public Defender office and ask to speak to an attorney. Many sex crime defense attorneys also offer a free consultation – use this service, but please don’t abuse it.
BEWARE POLICE PRESSURE TACTICS TO GET A STATEMENT . Police have several techniques to trick you into given a statement. The most important thing to remember is that police ROUTINELY LIE to suspects to elicit incriminating statements.
One common example is that the detective will lie and claim that your DNA was found on the accuser’s underwear or body part and ask you to explain “how that could have happened.” When you try to explain, the report will read, “the suspect lied and said the DNA must be from the dirty laundry, and was making up reasons for his DNA to be found on the victim’s [insert body part]”.
Another example is the police saying, “we have DNA, a forensic examination, and her side of the story, it looks really bad for you unless we can get your side of things. If you don’t give us your side of the story, we just have to lock you up now and the DA will file charges based on what she told us.” Don’t believe this! The DA will always file charges based on what the accuser told the cops, and they will use your statement to either find something incriminating or to find supposed inconsistencies to use against you later.
In one local case, the accused man repeatedly denied the accusations over three hours, saying things like, “that’s disgusting” and “that never happened” in response to the officer’s insistence he molested his daughter. In the report, the lying Cathedral City female detective wrote that he did not “outright deny” the allegations. The female detective also pretended to be a “body language expert” and claimed that the defendant was acting defeated and guilty, when the truth was that he was adamant and angry in his denials.
Almost always, these consensual interviews end with an arrest, regardless of how adamantly the accused denies the allegations or presents contrary evidence. You will not gain anything by talking to police. DON’T DO IT!
Preserve Favorable Evidence:
TEXT MESSAGES AND EMAIL. Make sure to back up any text messages and email you have from the accuser or witnesses. Keep in mind that if you are arrested your phone and computer will likely be seized as evidence. Back everything up to a cloud storage service to which you can later give your attorney or investigator access.
SOCIAL MEDIA. Save any favorable information immediately. Save a copy of the website or a pdf in your cloud drive with other evidence. Do this quickly after you learn of any accusation. Your access to profiles and comments can change if you are defriended or unfollowed by an accuser or witness.
PHOTOS. Again, back these up in the cloud drive.
VIDEOS. Back these up to your cloud drive.
WRITTEN NOTES OR LETTERS. These may be seized if police search your home. Photograph them immediately and back up with your other evidence.
PHYSICAL INJURIES. If you sustained any injuries in an altercation related to the incident, photograph it immediately, even if it is only a scratch. Get multiple angles in good light. If you have any injury which might possible merit a visit to the doctor, do it. Get that documented as best possible. An attorney can help document this evidence, as well.
Keep Police From Social Media Or Digital Evidence:
In addition to preserving your evidence, do everything you can at this point to protect your own privacy. Often, dumb jokes or offhand statements can be taken as admissions or used as evidence. I tried a case several years ago where a black man was accused of raping a blond white girl. The police found completely unrelated pictures of another blond white girl on the defendant’s phone. The judge permitted the DA to show these to the jury. The implication was gross and unnecessary. Don’t allow the police to search your things! Take these steps to protect yourself:
DEFRIEND OR UNFOLLOW ANY ADVERSE WITNESS. The police may use an accuser or witness’ social media login to view your postings and account. You need to limit this exposure. Of course, download any relevant information from the witness or accuser’s account before taking this step.
SET ALL ACCOUNTS TO HIGHEST PRIVACY LEVELS. Sometimes you need to dig deep into settings, but you can keep all or most of an account private.
BE CAREFUL IF YOU DELETE YOUR ACCOUNT. Deleting your accounts entirely might seem like a good idea but could be problematic. I NEVER advise a client to delete an account – this could be destruction of evidence, depending on the content destroyed. Furthermore, a witness might lie or distort the contents of a post. If you deleted it, the judge and jury will believe the witness. If you feel strongly about deleting an account, it should always be meticulously saved in another format before deletion.
ENCRYPT AND SET PASSWORDS ON ALL DIGITAL DEVICES. You have the right to password protect and encrypt your devices. Do it. On all of them. And don’t tell ANYBODY the password. If the police threaten you to get your passwords, do not give it up under any circumstances. Remember the advice above – YOU HAVE THE RIGHT TO REMAIN SILENT – USE IT.
Get A Referral For A Good Bail Bondsman
Bail in a sex crime case ranges from about $10,000 for a misdemeanor to $1,000,000 and sometimes more for serious felony accusations. You will have to come up with 5%-10% of that to get out of jail with a bondsman. If you think possible charges are coming, speak with a bailbonds company and be prepared to post a bond. An experienced attorney will have a ballpark figure to expect before charges have been filed so you can begin to prepare financially to keep out of jail while the case is pending. These cases can be long fights. You don’t what to be stuck in jail for a year or longer while the attorneys hash out a plea or prepare for jury trial. Ask an attorney who they trust – many have a preferred company to work with that is honest and helpful to clients.
Under even the best circumstances, being the subject of a sex crime investigation or prosecution is a nightmare scenario. Do what you can to protect yourself and your rights so you can get the best possible outcome in your case.
Wilkerson & Mulligan is the preeminent sex crime defense firm in the Coachella Valley. We take rape, child molestation, and sexual assault cases originating in Indio, Coachella, La Quinta, Palm Desert, Palm Springs, Thousand Palms, Indian Wells, Rancho Mirage, Desert Hot Springs, Coachella, Bermuda Dunes, Banning, Yucca Valley, 29 Palms, and Joshua Tree.