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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: November 16, 2012

WHAT TO DO WHEN YOU ARE ACCUSED OF SEXUAL ASSAULT

As promised, Attorney Sam’s Take continues this week’s discussion about what you should do if you find out that you have been accused of a Massachusetts sexual assault.

Obviously, the first thing you should do is retain experienced counsel to advise and represent you in the matter. I think I have pretty much exhausted most of the reasons why this is so important.

However, let’s assume that you have not yet been able to do so. What if the first you are hearing about the allegation is the investigator showing up at your door, or on your telephone, seeking to question you about it. You are stunned. You are not sure what to do. The calm officer is smiling and inviting you to give “your side” of the story. He even acts like he is likely to believe you.

The first inclination is to answer all your questions, either truthfully or not. My advise is to not do so until getting the services of a lawyer. However, if the investigator insists on saying a couple of things about the matter, it is ok to listen, not talk, to him. It may be some decent information you can bring to the lawyer. However, the trick is to not react.

“Why can’t I react?”

Because while you are trying to find out information from the investigator, she is trying to read you. And…you must assume…she is better trained at doing so.

Let’s say that you are told that some unnamed party has indicated that you sexually assaulted her.

Clearly, a response of “Oh, Trixie is lying about that. It was consensual” is a bad idea. You have not only told the investigator that you know who would be accusing you of assault, you have locked yourself into a defense.

Statements can be made directly or indirectly. You do not want to make either until you have an attorney.

“Can I do some preliminary investigation myself? Maybe there are some mutual friends that can either shed some light on the subject or maybe even convince Trixie to shut her mouth.”

That would be a mistake. First of all, any statements you make to said friends my end up being compelled to testify about what you said to them. All sorts of presumptions can stem from what they have to say. Further, any attempt to approach the complainant in any way will likely be seen as grounds for additional charges. You need to be paranoid here. Talk to no one about it except your lawyer.

“Yeah, but I know Trixie. She is just looking for some reassurance that I love her. Once I re-assure her, she will take back the accusation.”

Not terribly likely. Trixie has crossed a line. She has decided to claim that you sexually assaulted her and actually called the police. She is unlikely to explain to the police that she committed the crime of filing a false report…no matter how insecure she may have been.

“What if the person accusing me is someone for whom I am somewhat responsible? For example, what if it is a step child who’s insurance or other benefits I am providing? Can I stop providing for her?”

You should make no changes without consulting your lawyer. Doing so can be interpreted as evidence of consciousness of guilt, and so admissible at trial against you, or even the basis for another criminal charge.

“Well, other than calling the lawyer, is there anything I can do?”

Yes. You should sit down and write out a narrative of anything you can think of that may have led to these allegations. Any anticipation as to who made the allegations through the questions of why and what the complainant might be claiming.

This should be written in letter form and addressed to your lawyer. In fact, it should actually be a letter from you to your attorney. It will therefore be protected as attorney-client communication and not discoverable by the prosecution.

“It should like you are already assuming there will be a prosecution…that we won’t be able to talk the authorities out of it.”

You are correct. And it is a pretty good bet that you won’t. As your attorney will tell you, if your attorney has any real-world experience, you have to prepare immediately as if this matter is not only going to be prosecuted, but actually going all the way to trial. That may not actually happen, for a number of reasons. However, you have to deal with this as if it will be.

That is the best way to protect yourself.

Have a great, safe and law-abiding weekend!