Sexual Assault Defenses

The best defense in a sexual assault case is being unable to commit the crime. You can provide evidence or witnesses showing you were elsewhere during the alleged crime. This is an alibi. If the evidence is credible, the prosecution's case is much weaker.

A charge of sexual assault can be devastating for a defendant. Society has little sympathy for anyone charged with committing a sexual offense. Despite the legal rule "innocent until proven guilty," most people assume that anyone accused of a sex crime is guilty as soon as the handcuffs go on.

Being found guilty of a sex crime can have lifelong consequences. Criminal defense attorneys often advise their clients to plead guilty to other charges, such as simple assault or burglary, to avoid a sexual assault charge. But you may want to plead your case in court if you're innocent. How can you defend yourself in a sexual assault case?

This article reviews some common defenses in a sexual assault case and defense strategies for fighting a criminal sex crime charge.


In any crime, the most basic defense is claiming innocence. The defendant does not have to prove their innocence. The burden is on the prosecution to prove guilt. However, the case would not go to trial unless the prosecutor thought there was sufficient evidence of guilt, so the defendant may need to show they could not have committed the crime.

In one incredible case, a homicide suspect was cleared when TV show footage showed him in the stands at an L.A. Dodgers game when the prosecution claimed he was committing a murder 30 miles away. Alibi evidence can be critical to your case if it is reliable. Alibi evidence may include witness statements, video and audio recordings, and receipts showing your presence in locations.


Juries and prosecutors prize eyewitness testimony in sexual assault cases. Most people believe a victim will never forget the face of their attacker. As it turns out, this is not the case.

In 1984, a young woman was assaulted in her apartment. After the attack, based on her eyewitness testimony, police arrested a man named Ronald Cotton. Cotton was arrested and convicted of aggravated sexual assault and received a life sentence. In 1990, DNA evidence proved that another man, Bobby Poole, had committed the crime.

It turns out that eyewitness testimony and police lineups are much less reliable than law enforcement and juries believe. Criminal defense lawyers can challenge eyewitness testimony based on faulty lineups and expert testimony on the unreliability of human memory.

DNA and Other Physical Evidence

Everyone is familiar with TV shows where the doughty forensic examiner announces they've found trace DNA evidence, and now they know the identity of the rapist or murderer. Juries love DNA evidence, especially when it helps put rapists in jail. It seems like an unanswerable question: How did the defendant's DNA get on the victim unless they had sexual contact?

Recent advances have made DNA testing so sensitive that technicians can extract DNA after the slightest contact or even secondary contact with a contaminated item. In one bizarre case, a man was charged with rape when his DNA appeared in the results of a sexual assault test kit. The man did not know the victim and was 200 miles away when the rape happened. It turned out technicians had collected his DNA for an unrelated offense and improperly sterilized other lab equipment before testing the swab.

A defense attorney can use mishandled DNA and other evidence to create reasonable doubt in a sex crime case. You must inform your attorney if there were other criminal cases that could contain your DNA or account for trace evidence at the scene.


One of the most common defenses in sexual assault cases is that the victim consented. Consent in a sex crime has a different meaning than it does in other types of crimes or civil cases. For instance, both parties in a prostitution case have consented to the act, but it is still illegal.

Each state has its own laws on rape and consent. In general, consent to a sexual act must be voluntary, affirmative, and freely given. Both parties must be free to leave the encounter at any time.

Sometimes, you may think you had your partner's consent when you did not. There are five situations where all states agree a person is not able to give consent to sexual intercourse or sexual conduct:

  • If they are under the legal age of consent in your state: All states have their own age of legal consent, and the burden is on the older person to determine their partner's age.
  • If they are intoxicated or impaired: In some states, the perpetrator must determine the victim's status and decide if they are too impaired to consent.
  • If they are developmentally disabled or mentally incapacitated: Not all states have this restriction or may only limit contact between disabled people and their caregivers.
  • If the victim was unable to consent because they were unconscious or asleep: A person cannot give consent if they are unaware of what's happening.
  • If there was a power imbalance between the parties that made the victim feel they could not refuse: Threats and quid pro quo situations do not allow for legitimate consent.

In these situations, you cannot show consent in a legal sense, even if the victim consented. If you and the victim were drinking at a party and found yourselves in bed, you might have thought there was consent, but there was not. In these situations, your defense attorney has more work to do.

Proving Consent

Most states have strict liability rape and sexual assault laws. Defendants cannot argue they thought the victim consented or didn't realize they couldn't consent.

In cases of statutory rape, there is no defense. An underage victim cannot consent. There is some leeway for close-in-age cases, for instance, where the defendant is 18 and the victim is still in high school.

Colleges have started realizing that students, alcohol, and sexual activity are always present on campus and that a lack of consent does not always mean there was an intent to rape. In these specific cases, defendants' behavior matters. A case where students were making out at a party is different than one where the perpetrator followed the victim to their bedroom.

False Accusations

Although it does not happen often, there have been cases where the alleged victim makes up the crime for revenge or out of malice. These are not the same as cases of mistaken identity or lack of consent. In some instances, people have claimed to have been victims of sexual abuse when nothing has happened.

The most common cases for false accusations are divorces when one spouse accuses the other of sexual abuse of the spouse or children to gain an edge in a custody dispute. Allegations of sex offenses are also common attention-grabbers on social media. In most cases, criminal charges are not filed based on these claims since there is no evidence besides the claimant's statement.

Defense Strategies for Sexual Assault Cases

If you're facing sexual assault charges, your safest course of action is to stop talking and find a sex crimes attorney. You need legal representation immediately. The consequences of a conviction for sexual assault are severe and can impact the rest of your life. Long prison sentences and having your name on federal sex offender registries are in your future.

Your defense attorney must know everything about you and your case for your sexual assault defense to succeed. If you knew the victim before the charges, you must tell your attorney the details of the relationship. This is particularly true if you and the victim were intimate or had sexual relations.

Do not contact the victim, even through a third party. If they contact you, refer them to your attorney. Do not discuss the case with anyone or post it on social media. State laws may limit your options after you're charged, so find an attorney right away.

Charged With Sexual Assault? Contact an Attorney

Sexual assault charges have serious consequences. Contact a local sex crimes defense attorney who can answer your questions and help defend your rights.

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