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Paul D. Cramm

What Defenses Can Be Used In Defending Date Rape Cases?


One of the strongest elements for the defense is to issue a business record subpoena and collect all of the dialogue between the complaining party and the defendant. I will certainly issue a business record subpoena asking for all of the complaining party’s data related to the complaining party’s profile on the dating site. Sometimes prosecutors object to that. The rape shield law in Kansas significantly limits admissibility of a complaining witness’s prior sexual activity. There are limited exceptions to the rape shield law wherein a district court might find that otherwise prohibited evidence is probative and is relevant.

It’s important to get all of that information so that you can file the proper motion before a trial. You may also make an argument to the court that some of the activity leading up to the incident for which your client has been arrested is so remarkably similar that we may have a pattern of conduct bt the complaining victim. Even if that prior evidence is not admitted, I certainly believe that much of the voluntary, participatory, and oftentimes flirtatious dialogue between my client and the complaining party is a rich source of defense argument that the activity was consensual.

What Evidence Is Generally Used By The Defense And The Prosecution In a Date Rape Case?

In date rape and acquaintance rape, oftentimes DNA evidence is not as significant or pivotal as it is in a ‘stranger’ rape case. This is because the parties usually admit that sexual activity occurred, and the real issue is in determining whether or not it was consensual. If a defendant says, “We went out on a date but I never laid a hand on her, and we did not have sex,” then the DNA evidence may absolutely be the source of conviction or dismissal if we can prove that the sexual activity did or did not happen. If both parties are saying, “Yes, we were sexually active,” and one party is saying it was not consensual, then the DNA may not be as important.

We will want to get the sexual assault examination, which is completed at a hospital. There are certain physiological indicators that are more consistent with unwelcomed or forced sexual activity than with consensual sexual activity, so we certainly need to go through the sexual assault examination. This examination is often referred to as a rape kit, and it allows us to determine whether or not the physiological observations are consistent with the allegations made by the victim.

Should I Hire An Attorney Prior To Arrest In A Date Rape Case?

This is one of the most common misperceptions that I have faced throughout my 18 years in the practice of law. It is always better to hire a lawyer before charges are filed, and doing so does not make you look guilty. The fact that you hire counsel will never be considered by a jury. The problem is that good faith mistakes and errors that people are likely to make without a lawyer can sometimes be absolutely devastating to their defense. I would much rather have, for example, a police officer or an assistant district attorney raise an eyebrow because someone has gone out and hired a lawyer, than to have that person try to ‘go it alone’ before charges are filed. If they answer questions, give a DNA sample, and explain what happened, they may unwittingly provide the prosecutor with devastating evidence to be used at trial. So, absolutely always hire a lawyer.

What Mistakes Should I Avoid If I Have Been Accused Of Date Rape?

The most important thing to do is to discontinue any and all communication with anyone on these dating sites. You should certainly discontinue any and all communication with the person who has made the accusation. The fact of the matter is that you just don’t know if someone new is sending an innocent inquiry because they liked your profile, or if that ‘new’ person is a friend or a confidant of the complaining party. You don’t know if that’s the same complaining party who was using a friend’s picture and a false name and opened up a new profile.

I always tell my clients that I am the only person with whom they have confidentiality and privilege. I tell them not to discuss the accusations in the case or the events of the date with anyone except their lawyer. Anyone else could be called to the stand to elaborate on what the defendant has told them, and that will survive a hearsay objection. That is because those statements are deemed to be party statements or statements against interest. So, I tell my clients not to talk about what happened with anyone- not even their family members or closest friends.

For more information on Defenses Against Date Rape Cases, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (913) 322-3265 today.

Paul D. Cramm

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