When Defending Against Sex Crimes Allegations, Experience Matters

As a lawyer working within the criminal justice system who has been involved with sex crimes cases for four decades, first as senior felony trial Assistant DA responsible for homicide, rape, and narcotics trafficking prosecutions, and since as a long-time criminal defense lawyer who has defended sex crimes cases in all fourteen (14) Massachusetts Counties, as well as in each of the six (6) New England States and elsewhere in the USA, I can report from personal trial and litigation experience that rapes/sex assault cases are still amongst the most frequently sought, and filed, felony charges in the Nation. Indeed, virtually every major DA's Office in America has a dedicated Sex Crimes Unit, and often also Child [exploitation] Protection Units, all populated by "true-believer" prosecutors and investigators pursuing a single-minded mission of investigating and prosecuting sex-assault allegations. That, and the fact that today's Sex Crimes Prosecutors seem wholly detached from, and divested of, their very-real prosecutorial discretion in terms of deciding whether to ultimately file and/or pursue sex crimes cases against investigative targets, is the biggest difference I see in terms of how things are today, as opposed to how things were when I was a Rape-prosecutions ADA. Instead of responsibly taking time to determine if sex crimes allegations can reasonably be supported by proof-beyond a reasonable doubt (or applying a standard prosecutor's litmus test of "if I already have my doubts, can I ethically bring these charges; if I bring these charges while having doubts, won't a jury have doubt(s) too?"), most sex crimes prosecutors seem to take an approach of: "the alleged victim is sticking by her story; that's good enough for me." In other words, today, the approach to sex crimes in most DA's Offices, and by most Sex Crimes prosecutors, is "it is more important for me to support the alleged victim than it is for me to ensure justice is done." Or akin to the aphorism apocryphally attributed-to and unofficially adopted by the US Marines of "kill everyone and let God decide", the mantra of SVU prosecutors today when it comes to sex crimes appears to be "charge/indict all of them and leave it to the jury to figure it out". Needless-to say, the result of this approach can, and often does, result in grave miscarriages of justice, as well as life-altering consequences for those affected, especially given the potential for juror bias as influenced by #ME TOO and a far more aggressive and involved role by DA Office salaried Victim-witness advocates, who often act as counselor/advisor/coach to alleged victims in ways I don't believe were envisioned when such victim-support services were initiated when I was responsible for rape prosecutions.

Another difference from when I was a Rape-prosecutions ADA is the nature and type of sex assault/rape allegations being charged these days. While stranger rapes cases (the proverbial "assailant in the bushes") do persist and are still pursued (frequently with ride-share drivers as alleged perpetrators), the overwhelming number of rape cases charged these days involve either child-rape or acquaintance (date) rape allegations. The penalties for a conviction on child rape allegations remain amongst the toughest /strictest for any crimes, in all our fifty states. Moreover, they are often accompanied by (surmountable) obstacles such as staleness of claims ( in many states there is no statute of limitation for child rape/child sexual assault; the fact is that allegations can date back decade(s)), with no specificity requirements regarding time and place ( DAs can and do simply allege "on diverse dates between____and ____ at various locations within [county]); and the need for defense lawyers to walk a very fine line between aggressive and effective cross-examination of a child witness and not projecting as a bully or being perceived by the jury as "re-victimizing" the child. Date/acquaintance rape cases have their own nuanced complications (many involve intoxication/impairment, which is not a defense to what is a "general intent" crime; nor is diminished capacity applicable except in certain limited jurisdictions where helplessness is alleged and lack of knowledge of the same must be proven.) Moreover, date/acquaintance rape cases are usually "he said/she said". While I consider this to be advantageous to an experienced sex crimes defense lawyer, it can be offset by increased reliance by prosecutors on presenting fresh/first complaint or "prompt outcry" evidence not to prove the underlying allegations but to corroborate an alleged victim's testimony. In this age of "believe-the-accuser," this sometimes/often can be enough to tilt a jury towards conviction.

Today, with anything-goes internet advertising, there are plenty of so-called "sex crimes" lawyers. Very few have the actual experience they claim to have. When it comes to sex crimes allegations, "caveat emptor" applies. The stakes are too high, and the consequences too severe for you to wind up with a lawyer who fibbed or exaggerated his/her resume simply to get courtroom experience at your literal and figurative expense. Before you choose, ask for specifics on the sex crimes cases a prospective lawyer claims to have handled, including court of jurisdiction and docket numbers. Ascertain the nature and type of sex crimes allegedly handled. (There is a major difference between handling indecent assault and battery cases in district court and defending aggravated (age-gap) child rape cases in Superior Court.) Find out how many Superior Court jury trials he or she has had, as well as how many years he or she has actively practiced. Research the totality of their experience as lawyers; being represented by a former sex crimes prosecutor will give you a decided advantage. Do not bargain-hunt or shop for the lowest price quote (undercutting prices is a reliable sign of a lawyer's inexperience; indeed, their desperation). One would never seek the lowest-priced brain surgeon to operate on a loved-one's brain tumor. Why take a different approach in rape cases where the consequences here in MA are up to 20 years in state prison, or up to life, or a mandatory 10 yrs. to life, all with lifetime sex offender registration, too?

One of the most experienced sex-crimes lawyers in the New England Region, Brad Bailey, has been litigating sex crimes cases without letup since he began the active practice of law in 1983. If you are charged with, or under investigation for, an alleged sex offense, do not hesitate to contact Brad and the lawyers at Brad Bailey Law PC. Call us at (617) 500-0252 to schedule a consultation.

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