Following the withdrawal of all charges against Bruce Lehrmann, the question of how to get sexual assault charges dropped has been the subject of much conjecture.
The repercussions for anyone found guilty of a sexual assault offence are devastating to both their reputation and livelihood. Indeed, Mr Lehrmann suffered significant damage to his reputation despite only being charged and not being found guilty.
The legal process can be traumatic and intimidating. But having an experienced criminal defence lawyer for sexual assault charges in your corner can allow you to get charges withdrawn early.
How to get sexual assault charges dropped
You can get sexual assault charges dropped by:
- Obtaining evidence to support your defence (eg. Text messages, phone records, CCTV footage);
- Interviewing and preparing statements from potential witness;
- Briefing defence experts if required (eg. DNA, medical experts, pharmacologists);
- Drafting representations to DPP and/or police for the withdrawal of the charges.
The above steps are a tried and tested formula that have resulted in dozens of these charges being withdrawn and/or dismissed in just the last few years. You can view some of those cases by clicking here.
The most crucial aspect to defending any sexual assault is obtaining evidence that can cast doubt on the allegation.
This will involve analysing the statement of the complainant to find assertions that can be proven to be untrue. Most commonly, this is done through text messages and CCTV footage.
Often a complainant will allege that sexual activity was not consensual. However, text messages between yourself and the complainant before and after the allegation can paint a starkly different picture.
CCTV footage may also be inconsistent with the complainant's account. In some circumstances it may even provide an alibi for you. If police have not obtained this footage, an experienced criminal defence lawyer will be able to subpoena the footage so that it is not lost or destroyed.
Witness statements are often also essential to a successful sexual assault defence. Similar to CCTV footage, witness accounts may contradict the complainant's version of events. This can provide an objective account which can support your defence.
Defence experts can also be crucial in establishing reasonable doubt. A common example is DNA experts being able to cast doubt on a Crown expert's opinion. Often, a person's DNA may be found on a location that you did not touch. This may be explained by secondary DNA transfer which a defence expert can give evidence on.
Finally, once sufficient evidence has been obtained, legal representations can be drafted for the withdrawal of the charges. This involves an analysis of the evidence against previous cases and legislation to explain why the prosecution will not succeed. This is then sent to the DPP and/or police. Representations are also known as a 'no bill application'.
It generally takes the prosecution 6 weeks to consider representations. If they are successful, then the charges will be withdrawn and the matter dismissed. This can save significant time, expense and the stress associated with having these charges hanging over your head.
You can view some recent cases where sexual assault charges have been dropped and dismissed by clicking here.
Sexual assault and consent
Consent is a legal defence for sexual assault offences.
Section 61HI of the Crimes Act 1900 sets out the definition of consent for sexual offences: "A person consents to sexual activity if they freely and voluntarily agree to the sexual activity."
Other than proving simply that a person did not agree, some other grounds on which it can be established that a person does not consent to sexual contact include:
- The person does not say or do anything to communicate consent; or
- The alleged victim was substantially intoxicated by drugs or alcohol; or,
- The consent was elicited through intimidation, coercion, or threats of force; or,
- The consent was elicited through abuse of a position of authority or trust.
A person cannot consent to sexual contact if:
- They do not have capacity to consent because of their age (ie. Under 16 years of age or under 18 years of age if a 'special care relationship') or cognitive incapacity;
- They are asleep or unconscious;
- They have consented because of threats or they are unlawfully detained.
A person has "knowledge" about lack of consent to the sexual contact if:
- The person knows the alleged victim does not consent; or,
- The person is reckless as to whether the alleged victim consents; or,
- The person did not, within a reasonable time before or at the time of the sexual activity, say or do anything to find out whether the other person consents to the sexual activity.
Importantly, a court will take into account all of the circumstances, including any steps you took to determine whether the alleged victim consented. This reflects recent amendments legislating affirmative consent in NSW.
Consent is a very complex area of law. The stakes for sexual offences are extremely high – if you are found guilty there is a strong chance you will receive a jail sentence.
Our specialist sexual assault lawyers understand the stigma that comes with such allegations and the impact it can have on your employment and family life. It is crucial to speak to an accredited specialist in criminal law early. We are regularly able to negotiate with Police and the DPP to have the charges withdrawn.
Types of sexual assault
There are a number of different types of sexual assault, including:
- Aggravated Sexual Assault
- Indecent Assault
- Sexual intercourse without consent
- Sexual Touching
- Sexual Intercourse with Child
- Child Grooming
The following are defences to a sexual assault charge:
- Intercourse cannot be proved. We often use our medical and DNA experts to cast doubt on whether sexual intercourse occurred;
- Consent: We can argue that the alleged victim consented to the sexual intercourse. There are however some situations where this cannot be used as a defence (most commonly where the alleged victim was too intoxicated to consent).
- Honest and reasonable mistake: You held an honest and reasonable belief that the alleged victim was consenting. This defence has arguably become obsolete given the affirmative consent laws now in place.
- Identification: The Crown cannot establish that you were the perpetrator. We have a number of experts (such as DNA, fingerprint, CCTV and intoxication experts) who are able to cast doubt on identification in certain situations;
- Automatism: This is where the offending was involuntary. This can sometimes involve sleep disorders.
- Duress: You were forced to commit the offence
- Necessity: the commission of the offence was necessary in the circumstances;
- There was a proper medical purpose for the sexual intercourse.
Punishment for Sexual Assault
The maximum punishment for sexual assault in NSW is 14 years imprisonment.
There is also a standard non-parole period of 7 years imprisonment. This means that the starting point for the time you will serve in prison is 7 years.
Experienced sexual assault lawyers
Facing sexual assault allegations can be traumatic and costly. Without experienced criminal defence lawyers who have experience in dealing with police and the criminal justice system, you can find yourself in custody. Contact us now to speak to our friendly team.