Criminal Defense Sex Crimes

3 Effective Ways To Beat A Sexual Assault Charge

3 Effective Ways To Beat A Sexual Assault Charge
Edited by Saul Bienenfeld

There are several defenses that can counter a charge of sexual assault. Defendants in any criminal prosecution will usually profess innocence of the crime, and that is no different for a sexual assault case. In addition, sexual assault defendants may admit to performing the actions in question but claim that they didn’t amount to sexual assault because the alleged victim consented to the behavior. Finally, defendants may also choose to admit that they committed the crime, but argue that they should not bear responsibility because of insanity or mental incapacity.

1. Sexual Assault Defenses: Innocence

In a sexual assault case, the most basic defense is a claim of actual innocence. A defendant may argue that they could not have committed the crime because they were in a different location at the time the alleged crime took place, which is known as presenting an “alibi”. In order to mount an effective defense based on an alibi, the defendant must support the alibi with credible evidence that establishes that they were not with the victim at the time the crime took place.

For example, if Adam is accused of sexual assault arising out of events in New York on March 1, he can present evidence to the court that he was actually in Los Angeles on that day. Typically, the evidence provided to the court would include hotel receipts, plane tickets, credit card bills and witness corroborations.

Defendants can also claim that the victim has misidentified them as the perpetrator. Just like with the presentation of an alibi, the defendant must provide evidence to support this claim. If available, DNA evidence can accurately and reliably establish whether a defendant was present at the crime scene.


Since the prosecution has the burden of proving that the defendant is guilty beyond a reasonable doubt, if the defendant can raise a reasonable doubt as to whether he or she actually committed the crime, a jury should return an acquittal.

2. Sexual Assault Defenses: Consent

Sometimes defendants in a sexual assault case will admit to the behavior in question, but argue that the victim’s consent negates the charges. One of the elements of sexual assault is that the sexual behavior must occur against the will of the victim. Thus, if the defendant can demonstrate that the victim consented to the sexual contact, it will provide a solid defense to the allegations of sexual assault.

Showing consent can prove both difficult and controversial for the defendant, however. Defendants often can’t provide direct evidence of consent, so they will attempt to use the victim’s past sexual history as a way of showing that the victim gave consent for the sexual activities. This can backfire with a jury and paint the defendant in a negative light.

In certain cases, moreover, consent is impossible to prove. When the alleged victim is a minor, is somehow incapacitated, or is mentally challenged and incapable of understanding the sexual nature of the behavior, it’s impossible for the victim to consent to the defendant’s actions.

Standards to Establish Consent Vary by State

States differ on the level of awareness that the defendant must have concerning the victim’s inability to consent. In other words, if the defendant argues that they honestly believed that a minor victim was past the age of consent, different state laws hold that claim to different standards.


Some states have a strict liability standard, which means that defendants simply cannot argue that they didn’t realize the victim was incapable of consent. In these states, if the victim was incapable of consenting, no amount of good faith belief in the victim’s consent will aid in a sexual assault defense.

Other states will only allow a mistake regarding consent if the defendant acted less than negligently. As long as the defendant took reasonable care to determine that the victim was capable of giving consent, a mistake could still aid in their defense.

Still other states allow defendants to make a claim of mistaken consent as long as the defendant did not act recklessly in overlooking evidence of the victim’s inability to consent. If the defendant did not act in a wildly irresponsible manner, they can claim an honest belief that the victim gave consent.

3. Sexual Assault Defenses: Insanity or Mental Incapacity

Defendants in a sexual assault case can also claim that they had a mental disease or defect at the time of the crime that should remove criminal liability for their actions. Different states apply different forms of the insanity defense, but most states will treat an offender more leniently upon a showing that their mental disease or defect prevented them from understanding the criminal nature of their actions.

Thus, if a mentally challenged individual has no understanding that unwanted sexual contact is proscribed by the law, they could most likely mount an effective defense based on mental incapacity.


About the author

Saul Bienenfeld