What Should You Do if You are Charged with Rape?

The crime of rape is one of the most serious felonies on which a person can be convicted, not just because of the associated prison sentences which in most states are within comparable ranges as those for manslaughter and 2d degree murder , but also in terms of the long term collateral consequences including life time sex offender registration, GPS monitoring for parole and certain conditions of post-release, job-loss, limited employment opportunities, public housing exclusion, stigmatization, and societal ostracization. Here in Massachusetts, there are five (5) principal categories of rape, which carry a variety of sentences: child (statutory) rape under MGL Ch 265§23, which carries a maximum sentence of up-to-life in state prison, as well as a county jail alternative (Massachusetts does not have a so-called “Jack and Jill” mitigation provision); rape of child with force under MGL Ch. 265 §22A, which carries a maximum sentence of up-to-life in state prison, with no county jail alternative; aggravated rape of a child ( 5 or 10 yrs. age-gap) under MGL Ch 265 §23A, which carries a maximum sentence of up-to life in prison, as well as a mandatory minimum sentence to serve of ten years; forcible rape ( victim 16 or older) under MGL Ch 265 §22 (b), which carries a sentence of up-to twenty years in state prison; and aggravated rape under MGL 265 Ch 265 (a) involving forcible (non-consensual) rape that results in serious bodily injury, is committed via joint enterprise (so called “gang rape”) , or committed during the commission of certain enumerated felonies, which carries a maximum sentence of up-to life in state prison. Sentencing enhancements for so-called aggravating factors such as second or subsequent offenses and use of firearm(s) may also apply; eligibility for furloughs and work release is denied in such circumstances and parole eligibility dates affected. As a result, if you find yourself either charged with, or under investigation for rape, it is critical you find and retain the absolute best and most experienced sex crimes lawyer in your area. Bargain hunting and discount shopping under such circumstances should be at your peril. The consequences are far too severe, the ramifications way-too life-affecting to entrust your freedom and future to a junior attorney seeking experience he/she does not yet have at your expense or an inexperienced attorney who claims to have experience he/she doesn’t. In short, when it comes to defending sex crimes cases “experience truly matters.”

Representation by an experienced sex crimes lawyer---e.g., an attorney with substantial (and verifiable) jury trial experience with such cases, as well as a provable record of related successes in-the-courtroom---is essential in both the investigative/pretrial phase, and in the post-charge/trial phase, of any rape allegation(s). Because most rape cases are preceded by police investigation (rather than immediate arrest) in which detectives routinely reach out to “targets” for “their side of the story”, it is crucial that anyone so solicited by the police not only not speak with the police directly but also hire a veteran criminal defense lawyer who can, and will, do the talking for him. There are good reasons for this. Chief amongst them is a.) sex crimes investigators today are mostly members of Special Investigations Units who are hard-wired to “believe the victim.” What a target might say to police in response to their questions will not only make little difference in their ultimate decision to charge (Unless there is a provable case of mistaken identity or verifiable alibi, targets rarely talk investigators out of charging them but often talk them into doing so.), but will likely also be twisted or re-oriented in a way that will eventually be used against him in court; b.) even where a target has a viable consent-defense, sharing it with police pre-charge will likely have a reverse effect from that intended by helping “corroborate the victim” by establishing that sexual contact/intercourse did, in fact, occur which often is precisely what police investigators are waiting for before they file charges and then “leave it to a jury to decide”; and c.) roping oneself into a statement early-on so he becomes tied-down to it before the evidence against him is revealed/reviewed is rarely good defense strategy. An experienced rape lawyer not only knows all this, but also knows how to glean information from investigators (and to run interference for his client) without making any adoptive statements on his client’s behalf or showing “cards” he or she does not want to or need to, so soon. Moreover, ensuring that a well-known and highly respected and experienced lawyer is in your corner can not only slow down a rape investigation but also prompt investigators to proceed with caution; occasionally, it can result in them letting a rape investigation lapse altogether.

Hiring an experienced rape lawyer as soon as one becomes aware of an investigation/allegation against him---especially hiring an experienced rape lawyer who was also once an experienced rape prosecutor---is also critical in terms of developing a successful trial defense and defense strategy because such lawyers know “how the sausage is made” and can not only anticipate how the police /investigators will be proceeding but “get the jump” on them through intuitive counter-investigation and/or pre-emptive field investigation. This is particularly important in a world in which surveillance-video footage and cell-phone video is everywhere. An experienced rape lawyer knows to immediately start looking for, “pulling,” and/or moving to preserve any circumstantial video that might be out there which could tend to exonerate his client. Because experienced rape lawyers usually have reliable go-to private investigators, they also have an ability to conduct early field investigation and witness interviews (including trying to speak with the alleged victim and/or friends and companions) before charges issue---which from time to time can prevent that from happening altogether.

When/if charges do issue, there is no substitute for having a truly (and verifiably) experienced rape lawyer in your corner in the courtroom, whether to level-the-playing field through credibility, standing and reputation with judges, to effectively argue bail and conditions of release at arraignment, or to effectively rebut a dangerousness claim by the DA under MGL 276 § 58 A by being alert to strict “notice” deadlines, understanding the related rules of evidence for such hearings, knowing the applicable standard of review, being familiar with the two-prong review process (about which many lawyers aren’t) , and knowing which crimes/charges are exempt from such hearings. The importance of being represented by an experienced rape lawyer is even more significant during trial where an experienced trial veteran can help win a rape case in this age of #METOO and “believe the victim” by fully vetting prospective jurors upfront by proposing well-crafted juror questions and directing proper follow-up during individual voir dire; plus demonstrating from the start a level of ease and comfort in front of jurors that can only be developed through years of jury trial experience. Rape trials can also be won through a truly experienced rape trial lawyer’s knowledge of the specific rules of evidence in rape trials, the limited use of fresh/first complaint (“prompt outcry” in some states) testimony, recognizing the fine-line between aggressive/effective victim cross-examination and risking alienating jurors at a client’s expense, knowing and being able to request proper limited “use instructions” re evidence as it’s being introduced, the correct jury instructions (unique to rape cases) to ask for prior to deliberations, and perhaps most important, knowing from personal experience (as a former rape prosecutor) the “canned”/stock arguments a sex crimes ADA is likely to make during closing argument so they can be addressed and parried upfront, when the defense “closes first”, as is required in Massachusetts.

With almost forty (40) years of jury-trial experience, former state (sex crimes/murder) and federal prosecutor Brad Bailey has defended sex crimes cases throughout the entire NE Region, as well as in other states. He has a proven record of success/jury acquittals in rape cases and well as pre- and post- indictment dismissals. He is well-known and highly respected by judges and prosecutors in all courts at all levels throughout the Commonwealth and recognized by experts to be one of the Top/Premier Sex-crimes Lawyers in the State and Region. Should you find yourself under investigation or charged with rape, do not hesitate to call Brad Bailey Law PC, today!

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