A lot of issues of consent can come up in regards to physical contact between people.
Cases involving something like a sexual battery usually involve people who were intoxicated at a party. They become intimate and then later on there are allegations of force upon the other for various reasons, whether it is guilt, feeling ashamed if it was a one-night stand or any number of different things.
Consent becomes a very big legal issue that is generally contested quite a bit.
Intent becomes a big issue when talking about conduct on the internet. There are many technical defenses when talking about chat room situations, or “To Catch a Predator” type cases. There are also technical defenses when talking about possession of child pornography.
Sometimes there are issues regarding the ability of a malware or a virus that was downloaded on a computer and somehow that information got downloaded onto their computer. Remote access could also become an issue on someone’s computer. Every case is different so a wide variety of allegations can be made.
I have handled cases where the alleged victim was actually intimidating my client and there was consensual contact before the allegation. This can come up, so there is a lot to look at and in all of these cases, it could be as simple as a two-to-three-page police report.
There could typically be multiple witnesses that may or may not have been interviewed by law enforcement that would need to be interviewed by the investigator on the defense side as quickly as possible as well.
When talking about the internet type crimes, there is typically a large amount or a high volume of records and electronic media that need to be reviewed, like access to the computer in a given household and who was using it.
Quite a bit can go into these types of cases and the potential defenses, and certainly, when we get into more forceful types of sexual offenses, we would have issues like DNA etc.
One of the biggest mistakes people make is by not contacting an attorney right away and thinking that if they just cooperate and speak to the police then everything will be fine, because the charges are false anyway.
In reality, the person does not know what evidence or information the police had, so they may end up having a prosecution against them.
In a recent case, the client said “It’s a media case”, and during the interview, he emphatically denied everything that was happening. I continued to ask about what was proceeding, and it turned out he had already participated in a pretext phone call and had contact with the alleged victim, and there was electronic communication. After all that he decided it would be important to contact an attorney.
This is the wrong way to go about it. First and foremost, a person should not reach out to the alleged victim or have any contact with him or her whatsoever. That would also have additional implications, not only with the underlying allegation but they could also be charged with intimidating a witness or attempting to dissuade a witness from testifying or providing statements to law enforcement.
A person should never try a “fix this yourself” type of an approach. They should not make any contact with law enforcement and I would also strongly encourage people to go back to their everyday routine, let the attorney handle the investigative side of this.
Trying to delete electronic media and things of that nature could also be problematic because it might count as destroying evidence. Talking to other family members or people who are involved on their own rather than letting an investigator and/or an attorney handle it can open up another legal can of worms that involves intimidating witnesses.
The mistakes all seem to stem back to not hiring an attorney right away, but then it would also be important to hire an attorney who knew how to handle these cases.
Accusers definitely sometimes decide to recant their statements and it has huge implications for the accused. If there was evidence the alleged victim was recanting or did not want to prosecute for various reasons, whether it was because they were stretching the truth, they were not telling the truth or there were other outside pressures, then it would be understandable that as much as this would be a stressful situation to be accused, the same could be true for the alleged victim going through something like this.
Sometimes the stress of the circumstances can lead to an alleged victim not wanting to participate any more so they can just move on. It is unfortunate, especially if something did actually happen to this person but that is just the way it is.
The prosecution’s office, most DA’s offices, have something called Victim-Witness, which is a program where they have independent representatives who assist victims of crimes and provide some emotional support and guidance for them that would help them to continue the prosecution.
This can become a tricky area because they are an arm of the District Attorney’s office. It would be an issue if the alleged victim did not want to speak with defense investigators, or they did not want to cooperate, provide any further information and were being supported and directed as such by the DA’s office or Victim-Witness representatives of the DA’s office. That become a tricky evidentiary issue.
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