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Falsely Charged With Sexual Assault – Rape In Colorado – How Does It Happen? How To Fight Back?

By Colorado Sex Crimes Criminal Defense Lawyer – Attorney – H. Michael Steinberg

Falsely Charged With Sexual Assault – Rape In Colorado – How Does It Happen? How To Fight Back? – This topic of Colorado Criminal Law is one of the most serious and difficult to explain. The fact that someone can throw your life into utter chaos by making false allegations of sexual assault when such allegations are absolute lies – is one of the “political realties” of our criminal justice system.

Falsely Charged With Sexual Assault – Rape In Colorado

What Is A False Allegation Of Sexual Assault?

False allegations of Sexual Assault most often occur in one of three ways:

(1) There is a complaint or report of forced sexual contact where no sexual conduct occurred at all;

(2) There is a complaint or report of sexual contact where the actual contact was consensual;

(3) There is a complaint or report by a particular person when the complainant is pointing the finger at one person fully aware that the actual culprit is someone else.

While there are many variations on this theme – these are the three basic ways false allegations “create” criminal cases.

In each one – no criminal conduct has occurred.

Other courts have defined false allegations of sexual assault in this way even more simply:

(1) that the alleged victim makes an accusation of sexual assault,

(2) that the accusation is factually untrue,

and

(3) that the alleged victim knew at the time the accusation was made – it was untrue.

Alan Dershowitz – a famous criminal defense lawyer – writes in Rape: Guilty Until Proven Innocent, that a “considerable number” of rape accusations are “false” or “exaggerated” He rightfully claims that “lies arise in rape cases more than in other ‘less emotional’ crimes and that in some circumstances women may confuse ‘aggressive seduction’ with “criminal sexual assault.

When A Victim Has A History Of False Allegations – Cross Examination At Trial

Impeachment evidence is known in the law as an attack on a witness’s credibility. The goal at trial is to establish that an alleged rape victim’s story isnot credible based on the existence of prior occasions when she or he made false allegations in other situations.

Colorado’s Rape Shield Law seeks to prevent this kind of attack – but there is a method – a procedure – contained in the law – that allows a Colorado criminal defense lawyer a way around the prohibition.

Here is a reprint of the relevant sections of Colorado’s Rape Shield Law:

18-3-407. Victim’s and witness’s prior history – evidentiary hearing – victim’s identity – protective order

(1) Evidence of specific instances of the victim’s or a witness’s prior or subsequent sexual conduct, opinion evidence of the victim’s or a witness’s sexual conduct, and reputation evidence of the victim’s or a witness’s sexual conduct may be admissible only at trial and shall not be admitted in any other proceeding except at a proceeding pursuant to paragraph (c) of subsection (2) of this section.

….At trial, such evidence shall be presumed to be irrelevant except:

(a) Evidence of the victim’s or witness’ prior or subsequent sexual conduct with the actor;

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.

(2) In any criminal prosecution for class 4 felony internet luring of a child, as described in section 18-3-306 (3) or under sections 18-3-402 to 18-3-405.5, 18-6-301, 18-6-302, 18-6-403, and 18-6-404, or for attempt or conspiracy to commit any of said crimes, if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim’s or a witness’s prior or subsequent sexual conduct, or opinion evidence of the victim’s or a witness’s sexual conduct, or reputation evidence of the victim’s or a witness’s sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial,

…the following procedure shall be followed:

(a) A written motion shall be made at least thirty-five days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the relevancy and materiality of evidence of specific instances of the victim’s or witness’ prior or subsequent sexual conduct, or opinion evidence of the victim’s or witness’ sexual conduct, or reputation evidence of the victim’s or witness’ sexual conduct, or evidence that the victim or witness has a history of false reporting of sexual assaults that is proposed to be presented.

(b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.

(c) If the court finds that the offer of proof is sufficient, the court shall notify the other party of such. If the prosecution stipulates to the facts contained in the offer of proof, the court shall rule on the motion based upon the offer of proof without an evidentiary hearing. Otherwise, the court shall set a hearing to be held in camera prior to trial. In such hearing, to the extent the facts are in dispute, the court may allow the questioning of the victim or witness regarding the offer of proof made by the moving party or otherwise allow a presentation of the offer of proof, including but not limited to the presentation of witnesses.

(d) An in camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown.

(e) At the conclusion of the hearing, or by written order if no hearing is held, if the court finds that the evidence proposed to be offered regarding the sexual conduct of the victim or witness is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.

….

Falsely Charged With Sexual Assault – Rape In Colorado – Understanding The Role Of Impeaching A Witness Based Upon Prior False Allegations

Impeachment of a witness based upon false allegations is different than direct or circumstantial evidence that a crime never happened. Impeachment evidence addresses and impacts the believability of a witness; while substantive evidence attacks the foundation of the proof of – the occurrence – or the non-occurrence – of the crime itself.

An example of substantive evidence is proof that a jury can rely on to find an alternative version of the what happened than the one the State of Colorado is asking the jury to accept. Still another method – by comparison – is a direct, credibility attack, may use a prior inconsistent statement which directly addresses the accuracy or truthfulness of the witness. Both of these attackes are different from evidence of prior false allegations of rape.

One state – not Colorado – put it this way -(recognizing the potential for false accusation evidence in a sexual assault trial):

“[T]he propensity of the complaining witness to cry “rape” is usually offered to impugn credibility…Evidence tending to establish a party’s theory, or to qualify or disprove the testimony of an adversary, is always relevant and admissible.

.The general evidentiary chain for false allegation material exposes that the alleged victim has been engaged in a plan or pattern when confronted with a particular set of circumstances – that these same circumstance exist here and therefore the alleged victim did it again in this case and therefore, this, too is a case of a false accusation..”

The Importance Of A Thorough – Defense Based Investigation – Can Never Be Understated

The right to cross examine to establish bias is one of the principal means by which the believability of a witness and the truth of his testimony are tested. A good investigation here is the key. It is expensive but it can reveal the kind of evidence of prior false allegations that a trial judge would find – not as the classic and perhaps repetitive and harassing interrogation, but a journey into the witness’ story which is intended to not only test the witness’ perceptions and memory, but – if false allegations in the past are uncovered by a thorough investigation – (and if they past muster under the Colorado Rape Shield Law) can be successfully used to so impeach and discredit the witness that the jury is compelled to acquit the accused.

Conclusion – Piercing The Rape Shield Law In Cases Of False Allegations Of Rape

In 1994 – a nine-year study was conducted by a Purdue sociologist Eugene J. Kanin. Kanin found that in over 40 percent of the cases reviewed, the alleged victims of sexual assault eventually admitted that no sexual assault had ever occurred (“Archives of Sexual Behavior,” Vol. 23, No. 1, 1994). In a similar study by Kanin of two large Midwestern universities – 50 percent of the allegations were recanted by the accuser.

The researcher concluded that – based on his research – “most of the false accusers were motivated by a need for an alibi or a desire for revenge.”

One effective way to go after an alleged victim who falsely files a complaint of sexual assault in Colorado – is to investigate her background and learn whether she has done this before – and if so pierce the Colorado Rape Shield Law and tell the jury about it..

Falsely Charged With Sexual Assault – Rape In Colorado

Denver Colorado Sex Cimes Criminal Defense Lawyer

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – [email protected] – call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

If you are charged with A Colorado crime or you have questions about being Falsely Charged With Sexual Assault – Rape In Colorado], please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 40 years of day to day courtroom experience – specializing only in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. So call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases. Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defenses for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving …being Falsely Charged With Sexual Assault – Rape In Colorado.