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Credibility and Sexual Assault Cases in Wisconsin

Credibility of a Victim In A Sexual Assault Case

Our law firm, Nicholson & Gansner, hasan emphasis in defending people in Wisconsin against criminal charges of sexual assault of all types, both against adults and children. On television and in the movies, these cases are always portrayed as clear cut situations, typically with ample amounts of forensic evidence. Real life, however, is quite different. Many cases of sexual assault involve delayed reporting or delayed disclosure, that is, the victim does not make any allegations of assault until sometime later (sometimes years later), when it would be impossible to collect any physical evidence. Many people incorrectly assume that an individual making claims of sexual assault would not be enough to have charges brought against them. This type of case is sometimes referred to as a "he said, she said" case, meaning that the case largely comes down to the credibility of the alleged victim and the defendant.

What is Fair Game

To determine the credibility of an individual either in our everyday lives or in court, we may depend on a variety of factors: the person's age, occupation, potential motives to lie or tell the truth, past actions, and a host of other things. However if a sexual assault case is brought to trial, there are certain aspects of a person's life that are not fair game. An example of this would be the victim's sexual history, preference, or past accusations. The reason that our justice system prevents these topics from regular questioning in a criminal prosecution is, in part, a phenomenon sometimes colloquially referred to as "slut shaming". Essentially, this is to prevent a victim from becoming the victim of prejudices from a stigma that is associated with actions. That is, the law and the court seeks to prevent a complaining witness (another term for victim) in a criminal prosecution of charges of sexual assault from being blamed or re-victimized for other or past conduct. The law and the court hold that a complaining witness's past sexual conduct is not legally relevant to a determination of a defendant's guilty, or lack thereof, to specific criminal charges of sexual assault. For example if the alleged victim is a prostitute, the prosecution might seek to keep this information out of trial (to exclude it from trial, to prevent the jury from hearing about it), arguing that it is not directly relevant to the criminal charge at issue. The argument would also be that any attempt to present evidence to the jury that the victim, or complaining witness, was a prostitute would be an effort to embarrass the victim, to shame her, and to distract the jury from its job of determining whether the defendant is guilty or not guilty of the criminal charge. After all, a person may sell their body for money, but this does not mean that this person cannot be sexually assaulted. Similarly, a person who frequently engages in sexual encounters with different partners can also be sexually assaulted. The body of law that prevents an attorney from brining up these topics during a trial is referred to as Rape Shield.

The Exception to the Rule

Like most rules (certainly legal rules), there is an exception to Rape Shield. Prior to a trial the defense might draft, submit, and possibly argue a motion to introduce evidence of past or other sexual activity. If a defendant wishes to introduce evidence of other sexual activity (meaning other than the sexual conduct that forms the allegations and basis for the criminal charge) in a sexual assault case, the defense is required by law to file a motion asking the court for permission to do so. In this motion the defense would outline their reasoning as to why evidence about things such as the alleged victim's sexual history, or actions, is directly relevant to the case at hand. In some cases these motions will be granted outright, in some they will be denied, and in some a judge will outline what areas, and sometimes even specific questions, that would be allowed, or deemed off limits.

Defendant's Bias

Aside from Rape Shield questions, another frequent problem is a defendant's bias. When accused of a crime, especially one that he or she is innocent of, a Defendant is sure of their case and how it will be viewed. This is because the defendant was actually there in the moment and saw the events unfold. In certain circumstances, situations may be difficult to believe, or inconsequential inconsistencies seem very important, and this is where the defendant's bias comes into play. Knowing one's own character, tone, etc. a defendant may be overconfident, or incorrectly assume how a jury may interpret certain facts. In some cases this may spring from overconfidence, or hope, and in others, it is simply an ignorance of how the criminal justice system works. While there are certainly cases in which the facts of the case are exactly the way that it seems, more often than not, the intricacies of a case can be viewed in a more than one way. This is especially true if you, a family member, or a close friend, are accused of a crime.

Consulting a Lawyer

Most people never have to come into contact with the criminal justice system, and that is a good thing. What that does mean, however, is that most people are unfamiliar with criminal procedure, and how different facts are collected and viewed. For this reason, you must consult with a law office to fully understand your position, your options, and the risks you face. If you or someone you know is being investigated for sexual assault or is facing criminal sexual assault charges in Wisconsin, call the highly experienced Wisconsin sexual assault and criminal defense attorneys at Nicholson & Gansner.

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