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A Veteran Sex Crimes Lawyer’s View of Rape and Sex Crimes Prosecutions, Today

cuffs and a gavel

As I continue to defend sex crime cases in every county in Massachusetts as well as in states throughout all of the New England region, I am constantly asked the same question by clients “how can they charge me when there isn’t any evidence?” While my initial answer is usually a slightly glib “because they can”, I always take time to then explain that for a criminal charge to issue, the police must merely demonstrate to a clerk/magistrate “probable cause” to believe the alleged perpetrator committed the crime alleged. This applies to all criminal charges, including rape. Probable cause is a much lower standard than the far stricter trial standard of “proof beyond a reasonable doubt”. Essentially, it means there is a reasonable basis/grounds to believe that “more probably than not”, the defendant committed the alleged offense conduct. As counterintuitive as that may seem in this age of CSI, that’s all that’s needed for a criminal complaint or arrest warrant to issue even when the most serious of felonies are alleged. This means that in a rape case(s), a charge can be based solely on the complaining witness’ word, alone.

This wasn’t always so. For several centuries, at Common Law, an accusation of rape had to be accompanied by an admission/confession by the accused to support a charge and sustain a conviction. Even after that changed, sex crimes prosecutors like I once was, were encouraged, but not required, to look for some degree of corroboration before deciding to charge sex assault cases. As I have written before, this no longer seems to be so. Instead, with the proliferation of special victims’ units and the advent of # METOO, prosecutors in Sex Crimes and Child Protection Unit(s) appear to have embraced the “we believe the accuser” mantra to such a degree that they are willing to charge any/all accusations of rape regardless of how scant the evidence might be. To them, it is better to go to trial and lose than it is to not believe the accuser. Clearly, the risk of gross injustice and miscarriage of justice has become acute.

Here in MA, sex crimes prosecutors do subject complainants to interdisciplinary SAIN interviews, a videotaped Q & A session viewed through one-way glass by a team of prosecutors, sex crimes detectives, and social workers with the accuser interviewed, alone, in comfortable and informal settings by a trained examiner. Previously used solely for child sex crimes victims as a process to help them become comfortable with the questions asked and/or to provide a forum to use anatomically correct dolls to help them initially articulate what happened or a comfortable and seemingly private setting to help encourage disclosure(s), the SAIN protocol ( which has no direct evidentiary use or value at trial) has instead morphed into a means of prosecutorial due-diligence for all alleged sex crimes victims, including adults, as a way to see if the accuser “holds up” and remains consistent, when gently questioned. If so, these days, charges usually follow.

While some alleged victims are either taken, or do present themselves to, the emergency room at local hospitals for an examination by a SANE nurse and/or completion of a rape kit, that’s not required; many rape cases are charged without this. To supplement, prosecutors attempt to “dress things up” by introducing first complaint, fresh complaint, or prompt outcry evidence of what the accuser allegedly first reported about the assault to a third party, not for the purpose of proving the assault happened but solely for the supposed limited non-hearsay purpose of helping the jury assess the accuser’s credibility. To sex crimes prosecutors, this is the best way to make what have increasingly become mere he-said-she-said prosecutions appear more substantive than they are.

Although an accused is afforded a pretrial opportunity to challenge whether there was sufficient probable cause to charge him with the offense conduct via criminal complaint when the case remains in district court, or via an indictment when the case is transferred to superior court---as all rape cases must be in MA to be prosecuted, such motions (called here McCarthy motions) are rarely granted. The granting of motions accusing police or prosecutors of misleading the Grand Jury (O’Dell motions) is even rarer. Because of this, absent an incentive to plead guilty---which increasingly harsher and/or mandatory sentencing for certain sex crimes often now informs, the best recourse is to take a “he said/she said” rape case to trial. As I have said in prior commentaries, this is a principal reason for an accused to decline to be interviewed, or to make any statements to the police prior-to, during, and/or after an arrest. You do not want to give sex crimes prosecutors who are more and more inclined to work with “nothing” other than the word of an alleged victim something to try to twist, exaggerate, manipulate, or develop into more evidence against you.

With the “playing field” already tilted against you in sex crimes cases, keeping it her word against yours is the best way to maximize your chance at exoneration; that and hiring the best, most experienced and seasoned sex crimes defense lawyer you can find and afford. (Longtime defense lawyers who were previously sex crimes prosecutors are usually the safest bet.) Do not bargain shop. Do not fall for slick-talking charlatans claiming experience they don’t have. Do your homework. Ask questions. Demand case-specifics and verification of the experience they claim since many new lawyers these days seem to have little compunction not to exaggerate and conflate their experiential background. This is your life and your freedom. Your future depends on it.

Brad Bailey is a former state and federal prosecutor, with 5 decades of active litigation experience in the criminal justice system. Once a homicide and sex crimes prosecutor himself, he has defended hundreds of sex crimes cases in every court at every level in MA as well as throughout the entire New England Region. For more information about Brad and the lawyers at Brad Bailey Law PC, please call 617-500-0252 or use our contact form here.
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