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Defenses to Criminal Sexual Conduct Charges

Protecting Yourself from Criminal Sexual Conduct Accusations

AS A CRIMINAL DEFENSE FIRM SPECIFICALLY CONCENTRATING ON DEFENDING MICHIGAN CRIMINAL SEXUAL CONDUCT CHARGES, WE ARE OFTEN ASKED: "WHAT ARE THE DEFENSES TO CSC CHARGES?" IN THE END, THE ANSWER TO THAT QUESTION IS MUCH SIMPLER THAN YOU MIGHT EXPECT...

First and foremost, we encourage our clients to avoid thinking they have something to defend or something to prove. However, this doesn’t mean a CSC Defense Attorney will come to pretrial proceedings and trial and do absolutely nothing - there is a lot of work to be done on the pathway to being found not guilty of criminal sexual conduct.

In legal terms, a "defense" is something that you, the accused, have a duty to prove by offering testimony and other evidence to better suggest your innocence. There are some limited situations in criminal law where you must prove certain facts in your defense. But excluding those few exceptions, we encourage our clients to remember that in our country, the prosecution has the burden of proving every element of the CSC charge against you beyond a reasonable doubt. If they cannot prove even one essential "element" (a fancy word for "fact") beyond reasonable doubt, then you're entitled to a NOT GUILTY verdict.

Prosecution vs. Defense: Who Proves What

A popular example is this: Imagine that a defendant and his attorney do absolutely nothing at trial. They make no arguments, question no witnesses, and sit there and play tic-tac-toe at the counsel table without saying a word. Even then, if the prosecution's case doesn't remove all reasonable doubts, the defendant is entitled to an acquittal.

Don’t worry, no defense lawyer would actually sit and do nothing. Rather, what we're talking about is a simple paradigm shift: The defense doesn't have any obligation to produce anything: That's the prosecution's job. It's like the prosecution is trying to build a "house" and convince the court and jury that their house is strong and sound against the winds of doubt. But rather than building and offering their own competing "house," the defense's job is more like the city inspector who shows up on the scene and lifts the flimsy panels to expose a termite infestation.

To the trained eye, the prosecution's "house" is typically nothing but a house of cards. This is not to say the accused shouldn't offer their own evidence when they are lucky enough to have it. But oftentimes, revealing these weaknesses can be accomplished largely through cross-examination of the accuser and the prosecution's other witnesses. Think of cross-examination as the very scrutinizing city inspection.

Defense Strategies for Criminal Sexual Conduct

Most people aren't legal experts, so when they ask, "What are the defenses to criminal sexual conduct in Michigan?" we interpret their question as, "How will we attack the prosecution's case and get me out of this mess?" The term “defenses” defines the larger topic of strategies used to attack the prosecution's case and raise reasonable doubts.

THESE STRATEGIES FALL INTO TWO MAIN CATEGORIES, WHICH WE ADDRESS BELOW:

  1. IT DIDN'T HAPPEN

  2. SOMETHING HAPPENED, BUT IT'S NOT CRIMINAL SEXUAL CONDUCT

It didn't happen is exactly what it sounds like. The "it" refers to the alleged sexual contact or sexual penetration that the prosecution must prove beyond a reasonable doubt. That is to say, the accuser is either lying or somehow mistaken about the alleged sexual contact or sexual penetration.

Generally, the defense exposes this by revealing weaknesses in the accuser's credibility, such as outright lying or having a history of prior false allegations of sexual assault. The defense may also raise doubts about the accuser's reliability, such as by using an expert witness to show how a child's allegation has likely been the product of suggestibility by a biased parent which often occurs during breakups or divorces. If you want to help your CSC defense attorney to best defend you, simply ask yourself, "What would people want to know about my accuser to help them understand why they should not be trusted?" While there are some restrictive limitations on your ability to expose this, such as the Michigan Rape Shield Law, your lawyer will handle that, but you should assume that almost any fact is fair game.

Something happened, but it's not criminal sexual conduct is more complicated. This refers to a situation where the prosecution can likely prove beyond a reasonable doubt that something meets the definition of the alleged "sexual contact" or "sexual penetration," but the prosecution is simply wrong about the surrounding facts and circumstances that they claim makes it illegal.

This wouldn't apply in a case of first degree CSC or second degree CSC, where the only issue is the alleged victim being underage, and there is no legitimate dispute about their age at the time. This is called "strict liability," which prevents the defendant from offering evidence that their accuser consented (since underage people cannot legally consent).

This defense for CSC refers to situations where, for example, there is no dispute that a man and a woman of legal age had sexual intercourse, but the woman now claims that she did not legally consent — essentially, that it was a "rape" (although Michigan sex crimes laws no longer use this term to define any particular crime). Perhaps the prosecution has DNA evidence from a SANE Examination (rape kit) or a statement from the accused acknowledging having sex, but sex alone is not a crime. In these cases where the prosecution claims sex by "force or coercion," relevant questions include:

  • What was the relationship leading up to the sex?
  • Where and how did the sex occur?
  • Were there any signs of physical restraint by the accused or resistance by the alleged victim?
  • Were drugs or alcohol involved?
  • Was the alleged victim "mentally incapable, mentally disabled, mentally incapacitated, or physically helpless" (as defined by law)?
  • Were police called immediately?
  • Was there a rape kit or DNA evidence? Where was the accused's DNA found or not found, and how does it compare to the accuser's story?
  • Is there evidence of calls, texts, or other communication before and after the sex? What do they indicate?
  • Did the accused and alleged victim see each other again after the sex? What were the circumstances?
  • Are there any particular reasons to believe the accuser has a motive to intentionally lie or otherwise be confused or regretful after the fact?

This list could go on forever. And unless you've been living under a rock for the past five years, you're probably aware that in light of events like the "Me Too Movement" and the Harvey Weinstein trial, the relative value of each of these factors in determining sexual assault cases is highly disputed among various groups right now. An effective defense attorney must know how to navigate these rough waters in times like these.

The Element of Consent in CSC Cases

Finally, you may have noticed that we've discussed "force or coercion," but we haven't really focused on consent as a defense theory. That's because the defense of consent in Michigan is in-fact one of those limited circumstances mentioned above where the defense has to offer evidence of it (i.e. to build their own "house" if you will). In other words, consent is an affirmative defense. Even if you could prove consent, it would not be a defense where the alleged victim is underage. But as you might imagine, consent is often a legitimate, determinative issue in cases where "force or coercion" is one of the elements the prosecution must prove for the degree of CSC you are charged with. This is a complicated topic.

For now, you should understand that there is a difference between simply raising doubts about the prosecution's ability to prove "force or coercion" beyond a reasonable doubt and showing evidence in support of an affirmative defense of consent. However, there is often a significant amount of overlap, and typically the only difference comes down to which side is calling the witnesses to the stand.

Our Sole Focus on CSC Can Help You. Call Today!

Most criminal defense firms consist of general criminal practitioners who handle everything from drugs to DUI to retail fraud. But in criminal sexual conduct cases where your life, liberty and property are at stake, an attorney’s lack of knowledge about the details of CSC cases could cost you these key rights.

At Prain Law, PLLC, your Detroit attorney specifically concentrates on defending those accused of CSC in Michigan, without the distraction of handling other unrelated criminal cases.

If you or someone you know is facing CSC charges, contact us immediately at (248) 731-4543.

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