Author Clark & Noonan, LLC
Posted August 7, 2020
Category Sex Crimes Defense
Introduction to the New Jersey Sex Crimes Defense Guide
The sex crimes allegation (sexual assault or sexual contact) is treated like no other allegation in the criminal justice system.
Charged with a routine drug offense, for example, and the public (or a jury of your peers) may question the police tactics in searching you and are even willing to believe the police are capable of planting evidence. In fact, if you are charged with almost any other crime in New Jersey, the public is willing to give you the benefit of the doubt. They want to see the physical evidence (fingerprints, video, DNA) and they will scrutinize the credibility of the witnesses. But with the sex crime allegation, common sense and reason take a back seat to fear, emotion, illogic, and prejudice. There is something about the sex crime allegation that has the police and most people for that matter, willing to blindly believe a mere accusation, without any supporting evidence.
This is especially true when the allegation is made by a child or the parent of a child.
I have handled hundreds of sex crimes cases as both a prosecutor and a defense attorney. When I was a prosecutor listening to alleged victims of a sex crime, especially alleged child victims, I was immediately and subconsciously troubled by the nature of the allegation and I noticed how much the nature of the allegation and the age of the alleged victim affected my judgment. I struggled with staying objective and not rushing to judgment. I had to take a step back and start examining the evidence and potential motives of all the witnesses including the alleged victim.
As a criminal defense attorney, I have had an opportunity to meet many defendants who are falsely accused of sexual assault or sexual contact. The alleged victims sometimes come clean and reveal their motives for a false allegation and many of my clients have passed polygraph tests. I have also met many clients who are guilty but where the State will have a very hard time proving it. The steps they take in the investigation process could mean the difference between remaining free or going to State Prison.
The New Jersey criminal justice system is predicated on a presumption of innocence also knows as “innocent until proven guilty”. But with sex crime accusations, it feels like the police and prosecutor’s offices have forgotten this time-honored constitutional and legal principle and simply presume that a person is guilty if he is being accused. I have written this guide to give people charged or accused some guidance on what to do when they are confronted with this allegation in light of the unfairness of the process they are about to navigate.
I will break down the steps to take depending on where you are in the process: sexual assault suspect but not charged, charged but not indicted, indicted, and facing a potential trial.
If you are accused or charged with sexual assault or sexual contact in New Jersey, we can help.
What to Do When You Are a Suspect in a Sexual Assault or Sexual Contact Investigation in New Jersey – Pre-Charge and Pre-Arrest
The police in one of the many towns in New Jersey call you and want to speak to you about an investigation they are conducting.
They tell you that “it is no big deal”. Politely, they say “we just want to ask you some questions.” “Could you please come down to headquarters to speak to us?” They may go so far as to tell you that someone has made an “allegation” against you.
They may even tell you that it is an allegation of sexual assault or sexual contact (although oftentimes they won’t disclose this fact to you). They may add, “we just want to get your side of the story”.
Now, sometimes you may know exactly what and who they are talking about but, in many cases, you aren’t quite sure exactly who has made an allegation against you or what they could possibly have said you did to them.
So begins the typical start to a sex crime investigation in New Jersey. And the first, and most critical decision you have to make, can mean the difference between a case that ultimately goes nowhere and a case that leads to your incarceration, a lifetime of parole supervision, and registration as a sex offender under Megan’s Law.
The best legal advice I can give an accused person in this situation is simple and always the same. An accused should respond “no thank you, officer, I know an attorney (or have an attorney) and he told me that I should never speak to the police without an attorney being present.”
“I want a lawyer”. If it makes you feel better, you can say that you would like to speak with the police but “only after I have had an opportunity to speak to a lawyer”.
The problem is that refusing to talk to the police always seems like a mistake especially when a person knows that he did nothing wrong. All kinds of perfectly rational thoughts will go through the typical accused’s mind. “The police are going to think I am guilty of something if I don’t talk”. “Maybe I can tell them some things, deny any guilt and talk my way out of this.” “Or, maybe they are going to arrest me unless I go down to the station and talk.”
The decision to “cooperate” even becomes more difficult when the police say “why would you need an attorney if you didn’t do anything wrong?”
Rule #1 – If the police are talking to you, they believe you did it.
What the police fail to tell you is that they aren’t concerned at all with your side of the story. Sadly, most police departments in New Jersey who receive a complaint of aggravated sexual assault, sexual assault, or sexual contact, from an alleged victim or the alleged victim’s family member (especially a child victim) assume it must be true. You are immediately shrouded in a veil of guilt and nothing you are going to say will convince them that the victim is lying or mistaken.
Theoretically, you are presumed innocent in our criminal justice system. Practically speaking, however, you are almost always guilty in the eyes of law enforcement after a complaint against you has been made. In my 25 years of experience with sexual assault cases, I can confidently say that most police officers, and prosecutors for that matter, assume you are guilty if a person, with seemingly no motive, claims you sexually assaulted them. Rules of Professional Conduct require a prosecutor’s office to protect all parties and seek justice. Suspects, however, are a forgotten class of people once an investigation begins.
I am no longer surprised by law enforcement’s complete lack of objectivity in investigating a sexual assault offense. You would expect that they would objectively weigh the information they are receiving, conduct the appropriate interviews, gather any evidence that may exist, and then make a charging decision after careful deliberation. Sadly, this is rarely the case. Instead, after they receive a complaint from an alleged victim, a victim’s family member, or maybe a State agency obligated to report an allegation, they go into inquisition mode. They may charge you right away on the victim’s statement alone or wait until after they speak to you. Rather than letting the facts dictate the charging decision, they focus only on the facts needed to fit their criminal theory of your guilt and ignore any facts that contradict that theory.
I have cross-examined many witnesses over the years. The sex crimes detective, however, sometimes has a delusional thought process that defies reason or logic. In one case, for example, a detective testified that he had never (yes never) come across an alleged sexual assault victim who he did not believe. He went on to testify that he did not need to speak to all of the other witnesses or gather physical evidence because he believed the victim. If a child victim was telling him they were sexually assaulted then it must be true.
The danger of this thinking should be obvious. Often, during a messy divorce proceeding with major child custody issues, a parent will come to the police claiming the soon to be ex sexually assaulted their child. Children can be influenced to say things that are a product of how the question is asked as opposed to what really happened. There is an entire training method for questioning children to avoid suggesting a crime happened that may not have happened. The police are supposed to follow this method in order to make sure they don’t suggest to a child that a sexual assault has occurred. For obvious reasons, a detective has to be careful in speaking in a suggestive manner to a child. Sometimes children will look for clues as to what type of answer an adult wants to hear which can be extremely dangerous when it involves a life-changing allegation of sexual assault.
Understandably, parents are not trained in how to question their children about a sex crime but, oftentimes, the police ignore their training because they are not getting the answers they want to hear.
Contact a Sex Crimes Defense Lawyer
If you are accused or charged with sexual assault or sexual contact in New Jersey, we can help. Do not navigate this unfair process alone. Call Clark & Noonan, LLC immediately at 732-333-3011. The consultation is free but the legal advice may be priceless.