rape

An Introduction to sexual assault and related offenses.

Massachusetts law harshly punishes a wide array of sex offenses including rape, dissemination of harmful materials to a minor, possession of child pornography and lewd conduct.

The terrifying fallout of a sex offense.

The prospect of facing an allegation of sexual misconduct can be devastating, isolating, and overwhelming.  You will feel that the public, your friends and your co-workers pre-judge you.  You may sense that even if exonerated, you will never be able to erase the stain that the mere accusation of such an offense created.  

Moreover, the penalties for those convicted of sex offenses are life-altering.  Arising from a variety of factors, including a sentiment that sex offenders have a high likelihood of re-offense, prosecutors will invariably seek, and judges will frequently impose, severe prison sentences.  Still worse, in our prison system, which continues to cast a dark shadow on our credibility in the world community, inmates have developed their own moral code, which considers sex offenders to be the lowest of the low.  As a result, the prison population will seek out and mercilessly terrorize convicted sex offenders.

In addition, most sex offenses carry lasting penalties which will haunt convicted offenders for a lifetime. Sex offender classification will result in you having to regularly report and provide personal information to the government.  Depending on your classification level, your picture and personal information will be disseminated on the internet and in other public media, forever branding you with a scarlet letter and alienating you from your community.  See sidebar 1.

Finally, another hidden, but terrible consequence of a conviction for most sex offenses is that most of these offenses are ineligible for sealing - regardless of the passage of time.  That means that, no matter how much of an exemplary life you lead, your criminal record will always show you are a convicted sex offender.  

Sidebar 1:

If you would like relief from sex offender classification, please feel free to reach out to us.  Much of the sex offender classification criteria are based on myths and misinformation.  We have successfully reduced our clients' previous classification levels, allowing them to resume a normal life. 

Sidebar 2: 

For an article describing the dangers of suggestive questioning of minors, see Goleman, Daniel. Studies Reveal Suggestibility Of Very Young as Witnesses (New York Times, June 11, 1993), available here.

Sidebar 3: 

For access to an oral argument in which we discredited the government's aggravated rape case against our client, click here. 

Dispelling the Government's assumptions and redirecting momentum to your defense.

within the past year alone, we identified proactive strategies which ultimately resulted in exonerating three of our clients of rape allegations.
— Murat Erkan

The serious nature of sexual misconduct allegations demands a most serious and thoughtful defense. Many lawyers pursue cookie-cutter strategies to defending their clients in these cases.  Invariably, however, reduction of these defenses to simple formulas is almost always a missed opportunity.  Instead, a viable defense can only be revealed by examining the unique constellation of facts and circumstances which surround your particular case.   In some cases, it makes sense to focus on identifying and highlighting weaknesses in the complaining witness' story.  In other cases, a more bold approach is counseled.  For example, within the past year alone, we identified proactive strategies which ultimately resulted in exonerating three of our clients of rape allegations.  In the first, our client was falsely accused of the terrible crime of raping his own daughter.  Our internal investigation revealed substantial evidence of a motive to fabricate on the part of the alleged victim.  We convinced the prosecutor to present that evidence to a grand jury, resulting in the grand jury's decision to "no bill," or decline to prosecute the case.  This meant that this particular client was exonerated without ever having to stand trial.  In a second case, our client was accused of date rape on a college campus.  Again, our investigation revealed information which called into question the veracity of the victim's allegations.  We turned over our information to the detective, which led to the alleged victim's decision to drop the charges against our client.  Again, by this strategy we were able to help our client avoid an arrest, and no charges were ever filed.  Finally, in a currently pending case, in which one of client's is wrongfully accused of raping his tenant's daughter, we uncovered the tenant's motive to fabricate the allegation.  This, combined with presentation of solid alibi evidence, convinced a judge to credit our defense and release our client from custody -- just two days after hiring us.  This bold, forceful showing struck a fatal blow to the government's case, which we expect will shortly result in dismissal of all charges. .  See sidebar 3. 

There are an infinite variety of issues that arise in sex offense prosecutions.  When dealing with charges of sexual assault of a minor, for example, it is critical to scrutinize the investigation leading up to the charges.  How did the allegations surface?  How was the questioning conducted?  In truth, only specially trained forensic interviewers should discuss allegations of sexual assault with children.  This is because there is a grave danger that even imperceptible elements of suggestiveness in questioning can create the risk of inserting a narrative into a young person that later becomes an explosive allegation.  As a former prosecutor, I handled hundreds of sexual assault investigations.  I sat behind the one way mirror, directing lines of inquiry to forensic interviewers when investigating charges of sexual misconduct.  I am familiar with the very real risk of suggestive questioning, and the family dynamics which can sometimes become fertile ground for creating unfounded allegations. See sidebar 2.  From this experience, I can identify any flaws in the investigative process which will call into question the validity of the serious allegations with which you are contending

Another recurring theme which we see in the courts is the intersection of the internet with sex offenses.  We have all seen the "to catch a predator" phenomenon, in which individuals are exposed for alleged inappropriate communication with minors.  As you can imagine, these offenses are also treated severely by the court.  However, it is quite common that there is more to these cases than the sensational headlines might suggest.  For instance, it is not uncommon for the police to cast a wide net with the hopes of making an arrest.  The officers will create fictitious profiles in chat rooms and other internet outlets, and seek out and initiate conversations.  Through these conversations, the officer may attempt to connect with and create an intimate relationship with someone.  Only when the hook is then set will the officer attempt to portray himself as a minor.  The result of this type of investigation may be to "catch a predator."  However, it is equally likely that an innocent person may be entrapped into a fictional relationship with a minor, even though that person had no prior interest in this type of connection.  This approach is nothing short of entrapment, and our firm will vigorously defend against manufactured prosecutions such as these.  There is enough wrong with the world that we don't need the government to lure us into committing crimes we never intended to commit.

What should I expect in Court?

Here, I will briefly explain some of the issues you may deal with in court when facing an allegation of sexual misconduct.

Pretrial release versus detention.  The Massachusetts bail reform laws now permit the prosecutor to ask a judge to hold you in the county jail without bail pending trial if you are charged with certain offenses.  Most sex offenses are eligible for pretrial detention.  The law states that you are entitled to a hearing in court, where the prosecutor is required to present evidence in support of his request for detention.  In practice, though, the prosecutor may simply ask the judge to detain you based solely on the allegations in a police report. 

As a former prosecutor, I handled hundreds of sexual assault investigations. I sat behind the one way mirror, directing lines of inquiry to forensic interviewers ... From this experience, I can identify any flaws in the investigative process which will call into question the validity of the serious allegations with which you are contending.
— Murat Erkan

Sometimes, however, the prosecutor will present witnesses at these hearings.  This can be to the benefit or disadvantage of an accused.  If the witness testifies, this may represent an invaluable opportunity for your attorney to lock these witnesses into statements that may help you at trial.  Cross-examining the government's witness at a detention hearing is, however, not without risks.  For instance, if a Commonwealth witness later become uncooperative with the government, the Government can simply use the pretrial testimony of that witness against you at trial.  Thus, many inexperienced attorneys fall into the trap of locking in evidence against their client, when an experienced attorney would know that foregoing that particular witness examination may result in a tremendous advantage at trial.  In these circumstances, an experienced attorney may seek to forge an agreement which allows for your pretrial liberty, while simultaneously protecting your chances of acquittal at trial by depriving the Government of the chance to lock in evidence against you early on.

In reality, an attorney must draw upon a great deal of sophistication, skill and experience to effectively handle a detention hearing.  There are countless considerations and potential pitfalls of which an attorney must remain aware if he or she wishes to competently navigate the intricacies of pretrial detention hearings.  For this reason, having the right attorney can make all the difference in the world.

A lengthy battle of attrition.  The Court process is notoriously slow to resolve even simple cases.  When dealing with serious and complex cases, the process is nothing short of glacial.  In particular, sexual assault cases are notorious for dragging on and on, sometimes for several years.  This, however, is often something of a necessity.  As I described above, the stakes of a sexual assault case are high.  Sometimes it is necessary to conduct an exhaustive vetting of the alleged victim's allegations.  School, counseling, employment and other treatment records may often provide a critical insight into the basis or motive behind the allegations.  Is the alleged victim suffering from a false memory as a result of some other past life trauma?  Has the alleged victim discussed with her counselor a controlling or violent relationship with a partner which caused her to falsely portray a sexual encounter with you as non-consensual?  The process of obtaining relevant information can be lengthy and cumbersome, causing significant, but necessary delays in your trial.  Other delays can arise as a result of the processing of forensic evidence.  Unlike what you might see on TV, the "CSI" teams do not turn over DNA results in the space of an afternoon.  The process often takes several months as the evidence proceeds through the police, to the crime lab and through peer review, and sometimes through comparative testing before finally being ready for use in court.  Finally, it is not uncommon for both sides to engage experts to add gravitas to their respective theories of the case.  This is another common reason for delay in the life span of of a sex offense prosecution.

Negotiation as a strategy to avoid conviction of a sex offense.  Trial is often, but not always the best strategy to resolve a sexual assault case.  Given the high stakes of trial where both sides have much to lose, it is sometimes fruitful to explore the possibility of resolving your case by way of a negotiated disposition.  In more serious cases negotiation will often fail to produce an acceptable outcome.  However, in less serious cases, or cases with extenuating circumstances, a negotiated resolution may produce highly favorable results.  For example, our office represented a young man charged with statutory rape, in light of a sexual encounter he had with a younger student.  In order to obtain a statutory rape conviction, the prosecutor need only prove sexual contact with a minor -- consent is not a defense.  Biological evidence and a confession confirmed that the sexual encounter occurred.  This rendered trial a non-viable option.  However, by engaging the services of a forensic psychologist, we were able to recast the circumstances of the encounter in a manner which helped the prosecutor understand that a rape conviction was unwarranted.  Instead, we were able to persuade the state to reduce the charge to misdemeanor assault and battery.  This avoided jail time, sex offender registration, and a felony record for our client.  This is one of many, many examples in which we were able to negotiate a solution which eliminated most, if not all of the dire consequences of sexual assault allegations.

A final note on the importance of being honest with your lawyer.

At my firm, we will always give our clients the benefit of the doubt.  Regardless of the facts of the case, we will pursue the best possible outcome for you.  In order to assist us in this process, I ask that you take a moment to consider the importance of being honest with your lawyer.  

At the end of the day, your lawyer can only act upon the facts of the case as he understands them.  By obtaining a full and complete description of the event from you, we will formulate the most effective strategy to deliver you safely from the charges.  We will know where to go and what to avoid.  It is critical that your lawyer always be the most knowledgeable person in the courtroom about the intricacies of your case.  An example from my experience as a prosecutor illustrates this point well.  I prosecuted a case where the alleged victim claimed she went out with friends, had too much to drink and passed out.  She alleged that in the middle of the night, she woke to find the defendant on top of her, vaginally raping her.  We charged the defendant with rape, based on the alleged victim's account.  In court, the defendant was adamant that the victim's story was made up.  He submitted to an interview, where we took a detailed account of his version of events from that night.  Once we got him on record denying any encounter, I obtained a court order to compel a sample of his DNA to compare with biological material we had collected from the victim.  Sure enough a match, and a conviction followed shortly thereafter.  The defendant's lawyer later told me that his client had a consensual sexual encounter with the alleged victim, which he was reluctant to admit to his lawyer.  Had this client been honest with his lawyer from the start, his chance of acquittal at trial would have been substantial.  He blew that chance, however, by failing to trust his lawyer.

I want you to know that, whatever your situation, we will never judge you.  We believe that every accused person is entitled to an uncompromising defense.  As a result, I want you to feel free to trust us with the truth, so that we can pursue the best strategy to protect you in court.