Sexual assault lawyer tactics used to defend against false complaints

Since some sexual assault charges are based primarily on the word of the complainant alone, defence lawyers must point out inconsistencies in their statements. Alleged sexual assault victims will often have made numerous statements about what happened which form part of the case against the accused.

Prior to trial, this includes things said to:

1. The accused defendant
2. 911
3. The police at the scene/doorstep
4. Friends and other involved third parties
5. Text messages
6. Recorded voice conversations
7. Video statements at the police station (under oath/KGB or otherwise)
8. On social media
9. Written statements provided as evidence
10. During testimony at a preliminary hearing

A good defence lawyer will carefully examine all of these statements for contradictions, changes to their story, and logical fallacies. If the complainant keeps saying different things, they are less likely to be believed by the judge or jury.

Logical fallacies in the stories of sexual assault complainants

Since the truthfulness of the complainant’s words alone is often relied on to determine guilt, the accused’s lawyer must look to find logical fallacies in their story (if they exist). This includes examining the dates and times of what was said. If the complainant is lying about what happened, they may state as fact things that are simply impossible, particularly with regards to dates and times.

Comparison of the alleged victim’s statements to bank receipts, phone records, and video evidence

A good defence lawyer will try to gather as many time stamped records as possible to compare with the statements of the complainant in searching for inaccuracies and inconsistencies. This can include banking timestamps, times of usage of entry fobs/codes, cctv video evidence, phone call logs, and text messages sent on the night in question.

If there are discrepancies, the defence lawyer will want to put this to the complainant during their cross examination at trial. If things don’t make sense, this may alone be enough for an acquittal.

Getting sexual assault charges dropped prior to the trial date

In some cases, the defence may be able to convince the Crown Attorney (prosecutor) to drop the charges because the statements made by the complainant are overwhelmingly not credible (no reasonable prospect of conviction). Judicial input via a judicial pre-trial (JPT) may aid in convincing the Crown to withdraw the case. Such deals may be made with or without the accused entering into a peace bond.

Cross examination of the complainant at trial

Prior to conducting a cross examination, the accused’s lawyer should have a grasp of all previous statements and inconsistencies made. In cases where the Crown is aware of the inconsistencies in the complainant’s story, they may point these out to the complainant in advance to allow them to attempt to explain it to the judge or jury.

If inconsistencies are put to the complainant by the defence, they may offer new information (a different story) to explain them. Sometimes the complainant will testify that going to court has “opened their mind” to things they forgot to mention before. It is up to the judge/jury whether this raises a reasonable doubt or not.

Testimony of the accused

If the accused wishes to testify, and their story is believed, the judge/jury must acquit regardless of the believability of the complainant (as per R. v. W. (D.), [1991] 1 S.C.R. 742). In cases where the complainant’s evidence is not believable, the accused may choose not to take the stand at all. The burden is on the Crown to prove the accused committed the offence.

At trial, the defence will always have the benefit of watching the complainant testify before deciding whether to take the stand or not. Some complainants provide much better, more believable evidence than others (whether truthful or not). The system does not require the accused to testify or prove themselves to be innocent, but they may choose to take the stand if they feel the complainant’s testimony is capable of being believed.

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