It happens with incredible frequency. A co-worker accuses another worker, a manager, or maybe even the owner of a company of sexual harassment or sexual assault. The matter is reported to HR, and if there is an allegation of unwanted touching or any physical contact, the police are called. Because of political pressure generated by the #MeToo movement, a criminal investigation is initiated. Fearful of the ramifications of not going forward, prosecutors file criminal charges. By now, the accused has been fired from his job, and his reputation has been ruined by local media coverage which reports frequently inaccurate police reports as true. The accused will find that friends and family are avoiding him, and sometimes even his wife will leave him. On two occasions, I have had clients commit suicide when subjected to this pressure.
One could argue that sexual assault is a heinous crime and that anyone who commits a sexual assault deserves what he gets (with the possible exception of death). The problem, however, is what if the accused is actually innocent? Reliable statistics on the false reports are non-existent. Government sources peg the rate at between 2 and 10 percent. Other experts place the rate much higher, up to 40 percent. Statistics do not come close to telling the full story. As a young prosecutor in the Navy, I was assigned to prosecute a chief petty officer for rape. On the eve of his general court-martial, the alleged victim told me she had made up the story. She made the allegation to avoid responsibility for some workplace deficiencies. I remember even now her statement that she “. . .never intended for it to get this far.” Meanwhile, a chief petty officer with more than twenty years of honorable service spent six months in a Navy Brig awaiting trial—he could have been sentenced to life in prison.
Unfortunately, many wrongfully accused men fail to understand the jeopardy associated with a false allegation of sexual assault or sexual harassment. They assume, wrongfully, that since they are innocent, the system will work and nothing will happen to them. They are wrong. Sexual assault and sexual harassment allegations are life-changing events and need to be taken seriously. They need to be attacked at their infancy, and no efforts can be spared in fighting these false allegations.
What Should the Person Falsely Accused of Sexual Assault or Sexual Harassment Do?
There is one thing the accused individual should do immediately. Hire an experienced and qualified sex crimes attorney. The attorney will be able to guide the client through the labyrinth of civil and criminal investigations that are likely to occur, but it needs to be the right attorney. Every case is different, especially when it comes to sexual harassment or sexual assault allegations. One thing that is present in every allegation is the need to determine all of the relevant facts, and this will require a thorough investigation into both the allegations and the alleged victim.
More important than what the accused should do is what the accused should NOT DO. In many cases, allegations of sexual assault and sexual harassment are weak, vague, and un-corroborated. This means that there are usually no witnesses to what happened. Police and prosecutors and HR officials (sometimes company lawyers) are aware of these weaknesses, and they will therefore attempt to solicit admissions either directly or through the victim. Sometimes they will have the victim call or text the accused with a vague, “you know what happened last night wasn’t right” in an effort to solicit an apology. The problem is that the phrase “what happened last night” might have been a sexual assault, an off-color joke, or something completely different. They apologize, which may be an expression of human compassion might be misconstrued as an admission of guilt.
The accused must not speak with the accuser, HR personnel, police, or prosecutors without counsel present. In fact, the accused should not speak with anyone about any accusation. Statements to third parties can be innocently or intentionally misconstrued. The attorney is the best person to speak with.
The accused must not conduct any investigation or do anything on his own to look into the charges or the accuser. As explained below, a prompt and thorough investigation into the accuser’s background and the allegations is vital; however, there is a right way and a wrong way to look into things. The accused, on his own, will always do it wrong. There is a fine line between investigating, witness intimidation, and obstruction of justice, and prosecutors love to include these charges in criminal indictments and complaints. In the civil context, HR officials might fire someone for retaliating against a witness even if the underlying accusation would have been dismissed.
Do not destroy any evidence. Another common reaction to a false allegation of sexual assault or sexual harassment is to destroy evidence the accused thinks may cast him in a bad light. Instead, all evidence should be preserved, regardless of its appearance. A flirty email or an inappropriate note, especially one that is taken out of context long after the fact, may appear bad, but they can usually be explained. If an inappropriate email is deleted, however, it takes on a much greater significance. Emails, texts, and other forms of communications can almost always be recovered by computer forensic experts as can the deletion. It gives the prosecutors the opportunity to argue: “if it wasn’t really bad, he would not have deleted it.”
Instead, all communications should be preserved. Let’s say that there was an inappropriate comment in an email chain six months before an allegation. If the defense counsel can demonstrate that the communication was isolated and that the accuser did not take offense at the communication, that is powerful evidence that it was not a big deal.
What Should the Defense Attorney Do when He or She has been Retained?
Every case is different, and this article is not intended to provide legal advice. However, accusations of sexual assault or sexual harassment are serious, and a proactive strategy is normally the best defense against false allegations.
The best defense of the accused usually involves investigating the allegations to determine what objective evidence of sexual harassment or sexual abuse may exist. It may include investigating the victim to determine whether she has previously made false allegations of harassment or assault. The accuser may have made statements on social media or to friends or acquaintances that undermine her accusations.
Some attorneys may shy away from this approach suggesting that a proactive approach is inappropriate or unprofessional. They may wish to rely on relationships with police or prosecutors and to allow the state’s investigation to go forward. Ultimately, each person accused will determine the course defense counsel will take in his case, but some of the most prominent defense attorneys in the United States have reportedly used private investigators and aggressive litigation techniques to represent reprehensible abusers. If the clearly guilty use these tactics to make cases go away, the innocent should do the same.
When a person makes a false allegation of sexual abuse or sexual assault, she should be viewed as an accuser intentionally lying to destroy the accused’s life, sometimes to advance her career and sometimes to get a large civil settlement. She is not an innocent victim to be coddled as the wrongfully accused is silently ushered off to prison.
In addition to a comprehensive investigation, the defense counsel may want to consider legal action against the accuser for defamation, interference with employment, or other civil causes of action.
What is a defamation action, and how does it Relate to False Allegations of Sexual Abuse of Sexual Harassment?
Because sexual harassment or sexual abuse is such a terrible personal violation, companies, the military, and state and local governments have done everything in their power to support the “victim” or the “survivor”. This has resulted in domestic violence centers staffed with social workers whose mission it is to support the accuser. Prosecutors’ offices have victims’ advocates on staff to support the accuser. An entire industry has sprung up around sexual harassment and sexual assault, including counselors who make the “victim” feel better, administrators at colleges and universities who are there to protect the victim, and HR professionals who also want to protect victims. There are even attorneys who make millions of dollars suing companies and individuals for sexual harassment and assault.
Unfortunately, this system that has sprung up to protect the innocent victim of sexual harassment and sexual assault also has the unintended side effect of emboldening accusers making false allegations. A person who might otherwise ask herself if she is doing the right thing can fall back on a system that will support her emotionally and financially. It frequently perpetuates wrongful prosecutions. There is no countervailing organized support for the wrongfully accused.
Sometimes, to break these unwarranted bonds of support, it will be appropriate for a wrongfully accused to consider filing suit for defamation against the person making false allegation and against those who repeat the allegations. In order to be successful in a defamation action, a wrongfully accused person will have to show: 1) that the accuser made statements about the accused; 2) that the allegations were defamatory in nature, meaning they injure the reputation of the accused; and, 3) that the statements were false. Depending upon the legal status of the accused, there may be constitutional hurdles to an allegation. Also, depending upon the particular jurisdiction, the wrongfully accused person may have to prove actual damages.
Defamation law is complex, and there are certain privileges that may apply. For example, a statement made to law enforcement or in court proceedings is generally “privileged”, meaning it cannot serve as a basis for a suit. On the other hand, statements made to third persons or on social media are not privileged. Most importantly, the accusation must be false. Therefore, one who is guilty of a sexual assault or sexual harassment cannot successfully file a defamation action, and in fact, may find themselves subject to suit or court sanctions for filing a frivolous case. In the right circumstance, however, a defamation action can be a powerful tool.
What about Plea Bargains or Trial?
Civil settlements of allegations of sexual assault or harassment or plea bargains are something that anyone accused of sexual assault or sexual harassment should consider; however, plea bargains, in particular, should not be entered into by the innocent. There are collateral consequences to a plea bargain, including registration of sex offender registries. An innocent person cannot “plea bargain”. As with other serious criminal cases, there are only three things that will happen when false allegations are made: the charges will be dismissed; the case will proceed to trial; or, the defendant will plead guilty. Therefore, the person wrongfully accused of sexual assault or sexual harassment must be prepared financially and emotionally to proceed to trial. The defense counsel must also be prepared ultimately for a trial.
How much is all of this going to cost?
If you are asking how much it costs to defend yourself in a sexual assault or sexual harassment matter because you are concerned about finances, you are probably asking the wrong questions. The better question is how much is my future, my family, my reputation, and my freedom worth? There are certainly attorneys out there that will handle even serious sexual assault cases for relatively small fees, but how does the thrifty wrongfully accused individual feel when he finds himself headed to prison because he wanted to save money?
We price our representation on the particular facts and allegations of each case, gauging how much time and effort will be required and setting prices accordingly. We focus on doing everything in our power to win. In addition to attorney’s fees, there are also likely to be costs for private investigators and perhaps forensic experts on the case. If you are looking for the cheapest attorney available, that is not us.
One final word. The best time for exoneration in a case is either pretrial, when the case is dropped, or at trial with an acquittal. I have tried over 200 jury trial, and I know how to win. I have also successfully represented the wrongfully accused on appeal and in habeas corpus actions. However, appeals and habeas corpus actions are long shots, and even when a conviction is reversed and an innocent person set free, by the time that happens, the wrongfully accused person will have spent years in prison, lost substantial income, and suffered irreparable damages to his most personal relationships. The earlier we are involved, the greater the opportunity for a successful result.