What to Do When You’re Being Investigated for Sexual Assault

Criminal sexual assault charges can change your life, costing you your job, your freedom, and sometimes even custody of your children. Knowing what to do when your being investigated for sexual assault can help improve your chances of defending against the charges, and minimizing the effect they have on you, your livelihood, and your family.

Do You Need an Attorney When You’re Being Investigated for Sexual Assault?

Learning that you’re being investigated for sexual assault can be overwhelming. But far too many people wait to talk to a criminal defense attorney until criminal charges are formally filed. By then, they may have talked to police, consented to searches, and more in the hopes that the police would see they didn’t do it. However, all that cooperation can just strengthen the case against you when police take statements out of context or find “evidence” that isn’t directly related to the crime.

That’s why you need to contact a criminal attorney at the first sign you’re being investigated for sexual assault. You can retain an attorney even before charges are filed – in fact, sometimes hiring an attorney at the investigation stage can keep those charges from ever happening at all. When hired early, a criminal defense attorney can help you defend your rights against unreasonable searches and self-incrimination, and help you build your best defense, should the case end up going to court.

Should You Talk to Police About Your Sexual Assault Charges?

Any time you think you are – or even might be – being investigated for a crime, you should avoid talking to the police without your attorney present, beyond confirming your identity. (There are special rules about what you must disclose during a traffic stop that are beyond the scope of this blog post.) This is especially important in sexual assault investigations. Often, the physical evidence in a sexual assault case is minimal. What you and the alleged victim say can make or break the case. But it can be all too easy to accidentally say things that can be used against you, especially when taken out of context.

That doesn’t mean you should never agree to an interview. Sometimes talking to police about their sexual assault investigation can shift suspicion off of you and onto a different “person of interest.” But you should never have that conversation alone. Instead, your attorney should be by your side, helping you consider your words carefully, and asserting your fifth amendment rights when necessary.

So what should you do if the police ask to talk to you about an open investigation? Clearly, and verbally express that you would like to not answer any questions until your attorney is present. Be firm, even if they come back a second time or claim they can clear everything up with a conversation. Simply repeat something like:

“I would like to assert my right to remain silent until I can speak with my attorney.”

You can use this sentence even if you haven’t hired a lawyer yet! It signals to the police that you are asserting your Constitutional rights to remain silent and retain counsel. If they keep pushing you for answers, anything you say may be able to be excluded from trial for violating your constitutional rights. Still, if there is any hint that you relented or gave up your rights, the exclusionary rule may not work, so stay quiet and polite.

What to Do if You Receive a “Proffer Letter” from the Prosecutor

Sometimes, especially in federal cases, a prosecutor may send you a “proffer letter” inviting you to offer evidence in exchange for a plea deal or lesser charges. You should be very careful if you or your attorney receive a “proffer letter” while you’re being investigated for sexual assault. Originally, these letters were used to invite criminal defendants and suspects to have “off-the-record” conversations with prosecutors to try to strike a deal. However, over time, they have become more of a weapon for the prosecution than a shield for the defendant. Depending on the specific language of the proffer letter, the prosecutor may be able to use anything you say – or even anything your attorney says – against you. That’s why if you don’t reject the proffer letter immediately, your attorney should at least meet with the prosecutor first to negotiate the scope, nature, and terms of your conversation and how any statements made during the conversation can be used in the future.

Should You Take a Lie Detector Test?

Similarly, police may offer to let you take a “lie detector” or polygraph test to prove your innocence. A polygraph exam measures your physiological responses to questions asked by the examiner – such as your heart rate, perspiration, and breathing. These responses are measured against “control” questions designed not to trigger a nervous system response. You should be very wary of any such offer.

Polygraph test results are inadmissible in Colorado Courts. Even if you pass a lie detector test, that success cannot be used to demonstrate your innocence in court. Nor can you testify that you offered to take a polygraph test.

However, anything you say in the pre-exam interview, the polygraph examination, or the post-exam interview can be used against you. That’s why police are so quick to offer these tests. They are trying to get you to waive your right to remain silent and answer their questions. By the time the police offer a polygraph exam, they already believe you are guilty. You will rarely convince them otherwise, but you may inadvertently say something that can imply guilt or challenge your credibility on the stand.

As with proffer letters and police interviews, there are some times when you’re being investigated for sexual assault when a polygraph exam could point the police’s investigation in another direction. However, even in these cases, you and your attorney should insist on hiring an independent polygraph examiner, rather than agreeing to be interviewed by an employee of the police department. Using a private polygraph test can minimize the danger of making statements that will be used against you, while at the same time giving you the benefit of biological recordings confirming the truth of your statements.

How a Lawyer Can Help You Find the Truth During a Sexual Assault Investigation

In each of these investigation techniques, police investigating sexual assault are trying to find evidence – most often your own statements – to support a report of criminal sexual conduct by the alleged victim. Sexual assault cases often don’t have a lot of physical evidence. That makes these statements especially important. Hiring a criminal defense attorney at the start of the investigation can help you develop your defense, and sometimes reveal truths that will make it hard – or even impossible – for the prosecutor to prove your guilt beyond a reasonable doubt.