Sexual assault is a difficult subject to talk about. However, it is also a discussion we need to have. Throughout our years of legal practice, we've represented countless clients in sex crimes cases, and we know all too well that in a sex crimes investigation, so much hangs in the balance.
You might be thinking: If I'm being investigated for a sex crime, then isn't my life already over?
Not necessarily, we say.
There's no denying that any sex crimes accusation is serious. In the state of Illinois, a first-time sexual assault conviction is a Class 1 felony with a sentence 4-15 years in prison, and sentencing increases sharply with each following conviction. Anyone convicted of sexual assault is also required to register as a sex offender in the Illinois sex offender registry -- sometimes for life. Realistically speaking, a sexual assault conviction will harm your future in countless ways.
However, an investigation does not have to lead to a conviction, and there are strategic ways of dealing with the police if you have been accused of sexual assault. To find out how you can protect yourself during a sexual assault investigation, just keep reading.
Dealing With A Sex Crimes Investigation? Here's What You Should Know
During a sexual assault investigation, every choice you make matters. In some instances, your actions can make or break the case. Knowing your rights and speaking with care can turn an investigation in your favor, while saying the wrong thing can do the opposite.
If you are dealing with a sexual assault investigation, here are seven key steps you should take to protect your interests:
DO know your rights
If you've ever seen a police procedural on TV, you'll know that when police officers make an arrest, they always recite the arrestee's Miranda Rights. These rights include the right to an attorney and the right to avoid self-incrimination, also known as the Fifth and Sixth Amendments of the U.S. Constitution.
While the amendments of the Constitution contain many components, here are the basics you should know and how they apply to a sexual assault investigation:
1. The Fourth Amendment / Search and Seizure
The Fourth Amendment protects your person and property from unlawful searches and seizures by law enforcement, bar some specific contingencies. Lawful searches and seizures must be backed up by a valid search warrant, which is issued by a judge if there is probable cause for a search.
What exactly does this mean for you, though?
Essentially, the police cannot search your house without either your consent or a warrant, issued by a judge, with probable cause supporting it. If they do, for some reason, forcefully search your house without a valid warrant, any evidence they seize is considered ‘fruit of the poisonous tree', and cannot be used against you for any reason. In addition, further evidence which results from this initial unconstitutional search is also considered “poisoned”.
2. The Fifth Amendment / Self-Incrimination
The Fifth Amendment is the commonly quoted ‘right to remain silent.' It is your right against self-incrimination. You often hear police officers recite this right as they make an arrest.
But, what if you haven't been arrested yet?
Because most investigations take place prior to a formal arrest, the subjects of investigations are often uninformed of their Miranda Rights. Even so, know that you are still protected by the Fifth Amendment, regardless of if you have been Mirandized. Whether you are under arrest or not, you have the right to remain silent.
However, there is one catch you should be aware of:
In the 2013 Supreme Court case Salinas v. Texas (133 S. Ct. 2374), the Court ruled in favor of law enforcement when a suspect in custody fell silent during questioning without formally invoking his Fifth Amendment rights and later had that silence used against him in court. As a result, your safest bet during police questioning is to clearly and explicitly state something to the effect of, “I am invoking my right to remain silent.”
3. The Sixth Amendment / Right to An Attorney
Lastly, the Sixth Amendment guarantees your right legal counsel.
At any point in an investigation -- or even if your case is already in court -- you have the right to an attorney. You can hire a criminal defense attorney to represent you, or you can have an appointed public defender if you meet the economic requirements.
If the police have already approached you, it is usually in your best interest to not speak with them until you retain an experienced sex crimes defense attorney who can be your advocate and guide you through the obstacles of an investigation.
And on that note...
DO get an attorney before the speaking to law enforcement
In any investigation, every little thing you do or say is likely to be picked apart by the police and used against you if at all possible. Ultimately, their goal is to build a strong case against you and charge you with a sex crime. You never know which seemingly-innocuous statement might be the last puzzle piece law enforcement needs to charge you. And for anyone without a law degree, it can be all too easy to make a fatal mistake without knowing it.
So what should you do to avoid possibly incriminating yourself to the police?
First and foremost, it is almost always a safe bet to invoke your Fifth Amendment rights and stop talking. After that, use your Sixth Amendment rights to your advantage -- seek out an experienced and aggressive criminal defense attorney.
And here's a tip:
Always, always ask about an attorney's track record and experience during your initial consultation. A quality defense attorney should have substantial experience in sexual assault cases, and they should be well-practiced in both going to trial and working out deals. It is essential to have a lawyer who knows how to handle any situation your case might throw at you.
DON'T procrastinate or be unprepared
If you are approached by the police, it is a good idea to contact and retain an attorney as soon as you can. Every minute matters. The sooner you hire an attorney, the sooner they can take action in your case.
On the other hand, if you are asked to go in for questioning, bringing an attorney who you have consulted and retained beforehand will give you a firm advantage. Consulting with your lawyer in advance gives you time figure out a strategy before meeting with the police. That way, you and your attorney will be on the same page, and you'll have a better idea of what you should say.
In comparison, if you ask for an attorney during your interrogation, you'll miss out on some of those advantages. You won't have that extra time to form a trusting relationship or develop a strategy. Your new attorney will, realistically, be a stranger to you.
DON'T speak without the guidance of your attorney
Like we mentioned previously, what you say to the police is critical and has the potential to make or break your case.
In fact, what you say is liable to come back and bite you if you're not careful. Even a comment or detail you think may be completely harmless can be detrimental to your case. You don't know how much evidence the police already have, and whether your words will be a valuable tool in their case against you.
Any experienced criminal defense attorney should know what is safe to say and what isn't. They can guide and coach you in how to respond during questioning, so you don't accidentally provide the police with ammunition to use against you.
DON'T assume the police are looking out for you
The job of the police in a sexual assault investigation is to prove you committed the crime. They are not there to help you or to be your friend. Regardless of if you are innocent or not, the police are looking to prove you are guilty. Therefore, anything you say really will be used against you to get a conviction in court. In some cases, your words can even be twisted to make you appear guilty.
It is critical to take what the police say with a grain of salt, even if what they are saying is intimidates you. Alternatively, don't get lulled into a false sense of comfort, either. Try to remain calm, stay logical, and listen to what your attorney tells you.
DO trust in your attorney
Your best anchor in a stressful investigation is an attorney whom you trust to fight for your interests, and your best shot at getting a good result in your investigation is to be forthcoming with your attorney and listen to what they tell you.
An experienced attorney will be able to assess your circumstances and give you honest advice based on the facts of your case. Of course, make sure you choose an attorney you find trustworthy, so you can feel confident in following his or her advice. And don't be afraid to be honest with your attorney, either.
Remember, any decent attorney is not there to judge you; they are there to fight for you.
Contact Dupage County Sex Crimes Defense Lawyers at Dolci & Weiland
With over 60 years of combined legal experience, the attorneys of Dolci & Weiland have helped numerous clients facing difficult sex crimes cases. Our attorneys can provide the aggressive legal defense you need in a sexual assault case and we fight to get our clients the best possible results. To speak to a sexual assault defense lawyer and schedule a consultation today, contact our office at (630) 261-9098.