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) 492 3000.

“I HAVE BEEN ACCUSED OF MASSACHUSETTS SEXUAL ASSAULT”

In my experience, this is the type of criminal allegation about which it is the hardest to “remain silent” about. Despite how many times these daily Attorney Sam’s Take blogs warn you to volunteer no statements to law enforcement before consulting experienced counsel, that advice seems to fly out of suspects’ heads as soon as the allegation flies in.

Perhaps it is the nature of the allegation. Maybe it is because the accusation of sexual assault is so inflammatory that even an acquittal often cannot undo the damage the mere allegation can bring upon your life. Even so, it is critical to remain as calm as possible when faced with such an allegation.

You might be surprised to think of all the ways such an allegation could come down the pike to obliterate life as you knew it. First of all, of course, you could have sexually assaulted someone. That will often bring the accusation. However, there are countless of other ways it might come.

Perhaps you had sexual relations with someone that was, you thought, consensual. Maybe it was not so consensual or it became not consensual retroactively after he or she had the chance to think about it. Perhaps you were both drunk and, after sobering up, or suddenly remembering a romantic partner, your rendezvous suddenly needed some explaining. Perhaps you had no romantic interlude, but slipped and accidently touched someone rather sensitive in a rather sensitive place. Maybe it was misinterpreted. Believe it or not, maybe there was no touching whatsoever that actually happened, but someone who wanted vengeance for some other reason decided to bring an allegation that you touched him or her.

The allegations could actually have nothing to do with romance or sex. Perhaps, for some other reason, you had occasion to touch someone in a sensitive place. Perhaps it was a child who was staying at your home. Perhaps there was the need to help change that child or give that child medicine in a manner other than orally. If the medication was given vaginally or through the rectum, that could be considered a rape.

So, the point is, however the accusation came about, what can you do about it? You know you cannot prove a negative. However, many people feel that if they simply “open up” to investigators, whether they be DCF or law enforcement, they will convince the investigator that their “truth” is the real truth. This is especially true when the investigator smiles, explains that they are only seeking the truth and feel they just need to get “your side of the story”. Then, once you give your thoughts about how you are innocent, they follow up with the catch-all non-answerable question, “Well, why do you think they would say this happened, if it did not happen?”

Many poor souls try to answer such a question. They stretch their minds to come up with potential reasons. Sometimes it is such guesses that end up sinking them when it comes to trial.

As we have discussed many times, by the time investigators come to ask you about sexual assault allegations of which you are being accused, they have pretty much finished the investigation. They have already decided what the “truth” is. All that is left is to get you to commit to some story so they can go out to try to prepare to disprove it. Then come the criminal charges. Often, the worst piece of evidence against the accused is the statement of the accused him or herself.

“Sam, isn’t that because that person is usually lying?”

No. Think about it. Whether or not the person did it, you asking that person to guess why another person would bring the allegation. Certainly, if the person committed the offense, that answer would be a lie. However, it would probably be a better thought out lie. In my experience, when asked the unanswerable question, the innocent party, in this time of great pressure who is perhaps totally inexperienced with the criminal justice system, will try to reason or imagine what would possess such a person to bring such a false claim. As a result, the “rationale” they offer is about as stressed as they are…and only makes them look more guilty.

Other folks, anticipating such a question, or seeking an answer themselves, will make an even greater mistake. They reach out to the complainant to ask them.

Big mistake.

They have just given the prosecution evidence of what it will claim “consciousness of guilt” and/or opened the door to more criminal charges.

I have to stress that doing any of the above under normal circumstances where perhaps common sense and fair-mindedness plays a part, might be considered reasonable, certainly understandable, reactions.

However, that is not this situation. This situation is one in which, while presumed innocent, the accused is assumed guilty by investigators and prosecutors. Anything that person does, therefore, will be examined in the light most explainable by guilt and through a lens which turns “reasonable” into “guilt ridden”.

“Ok, Sam, so what do I do when accused of sexual assault?”

Well, you know that the first thing I am going to tell you to do is to contact experienced counsel. But that is not all I would suggest you do.

It is, however, all I am going to suggest today.

We will continue this topic later this week. In the meantime, I offer you an invitation. If you have a question regarding this blog’s topic, why not send it to me at Samuel@sbgoldberg.com. If it is one which I think may be helpful to readers, not to mention yourself, I will answer it when we continue with this topic.

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