What is the Defense Process in a Sexual Assault Case?

By Brock Benjamin
Founding Attorney

You’d be hard-pressed to find a charge that prosecutors fight harder than sex crimes, including sexual assault. There’s no evidence– this is the standard question. However, prosecutors move forward on the word of the “victim” (I prefer complainant). This is the the #metoo time frame after all. Whether in Texas, New Mexico, or on the federal level, sexual assault is a serious charge with a widespread impact. Not only does the charge carry the potential for serious penalties including incarceration and fines, but it can ruin a person’s reputation. These consequences can also follow the accused for a lifetime, having an impact on housing, employment, family dynamics, and more.

The public has a visceral reaction to sex crimes, and even when acquitted, the accusation may never fully go away. It is critical to seek out the assistance of an experienced sexual assault defense attorney to mitigate the charges’ impact as soon as possible. There’s little time to wait. These cases can present a real challenge to defend against if they ever reach a jury, due to social perceptions of sexual assault and unfair prejudices. Fortunately, there many avenues a skilled criminal defense legal team can explore to mount the strongest possible defense so you can reach the best outcome.

If you or a loved one have been charged with sexual assault, turn to a leader in the field of criminal defense at Benjamin Law Firm. You need an advocate who knows the law and who will fight relentlessly for the best possible outcome. Let us protect you, your reputation, your future, and your freedom. We are ready to start fighting for you today.

Sexual Assault Laws and Penalties in Texas, New Mexico, and Federally

Sexual assault refers to any non-consensual sexual acts committed by force, coercion, or by incapacitating the victim. It occurs when the victim did not or could not give informed and voluntary consent through the entirety of the sexual activity. The definitions vary slightly depending on the jurisdiction, as do the penalties.

In Texas, sexual assault is classified as either a second-degree or a first-degree felony depending on the individual circumstances of the case. For first-degree felonies, there is a mandatory prison sentence of between five and 99 years. For second-degree felonies, the mandatory prison sentence is between two and 20 years. Both carry a fine of up to $10,000. Similarly, in New Mexico, criminal sexual penetration is either a second-degree felony, leading to a prison term of nine to fifteen years, or a third-degree felony, with a prison sentence of three to nine years.

Federal law is more complex, as the penalties depend on which specific federal law was invoked in this case. The military has their own system for sexual assault with their own penalties. The penalties across all three jurisdictions may also be enhanced depending on certain factors including the age of the victim and the offender’s prior criminal record.

These charges cannot be expunged, and, if convicted, will remain on the offender’s record for their entire life. Sexual assault convictions will also almost always leave the accused with a long period on the sex offender registry, possibly even a lifetime. The registry poses significant social and practical challenges, as it is public, meaning that family, friends, employers, landlords, and the greater community can readily become aware of the conviction. This will also come up on any background check, and may present challenges in terms of employment, securing housing, travel, receiving government benefits, and may even factor into any future divorce or custody considerations.

The Sexual Assault Case Process

  1. Initial investigation. Once the crime is reported, the police, as well as your attorney, will conduct a comprehensive investigation of the case. They will gather evidence, get a statement from the victim, and speak to witnesses when applicable. The investigation may also reveal potential exculpatory evidence, which would support the accused’s innocence or create doubt concerning the victim’s statements. There may also be interviews conducted with the suspect or suspects.
  1. Charges and arrest. Once the police have a suspect identified, they can decide to file charges and issue a warrant for the accused’s arrest. They may also make an arrest on the spot if the accused was caught while the crime was being committed. Once the suspect is taken into custody, they will have their personal information recorded, have their fingerprints taken, and will receive a mugshot. Then a hearing for bail or bond may take place, where the accused may be released on certain conditions or kept in a local incarceration facility awaiting trial. 
  1. Finding the right representation. It is critical, as soon as the accused knows of the charges they’re facing, to secure representation from an experienced sexual assault defense attorney licensed to practice in that jurisdiction. The attorney will evaluate the evidence and guide the accused through the process. They will also build a strong defense, tailored to the defendant’s unique circumstances. A firm should have a private investigator that they use to talk to witnesses. Additionally, a polygraph can be helpful depending on the circumstances. The right representative will know and explain that all work by these individuals is privileged and not discoverable by the prosecution if handled correctly.
  1. Initial appearance and pretrial motions. Contrary to popular belief, the accused’s first court appearance won’t be the trial. It will be an initial appearance, wherein the court will officially read into the record the charges the accused is facing, and the accused will have the opportunity to enter a plea of guilty, not guilty, or no contest. This is followed by pretrial proceedings, where discovery or the exchange of evidence between the defense and prosecution is conducted. Both sides also have the opportunity to make motions, usually surrounding whether certain evidence can be excluded. 
  1. Negotiations. Only around two percent of criminal cases go to trial. Most are resolved by something called a plea bargain, where both sides of the case evaluate the evidence and come to an agreement for a punishment. The charges may even be lowered at this stage. Often, the agreed upon punishment is lower than what the accused would face if the case were brought to trial. These plea agreements are favorable to both sides as there are no guarantees if a case is brought to trial on which way the outcome would go. A plea also saves the defendant the time they would inevitably spend waiting for trial and saves the government the cost of conducting a trial.
  1. The trial. If a plea agreement is not reached, the case will proceed to trial. Both sides will have the opportunity to argue on whether the trial should be heard by a judge alone or a judge and jury. After that point, jury selection will begin (if applicable), and both sides will make opening statements and present their evidence. The prosecution bears the burden of proving that the accused committed the crime beyond a reasonable doubt, and the defense merely has to show that the prosecution didn’t meet that burden. After, witnesses will testify and be cross-examined by the opposing side, and closing arguments will be made. The judge or the jury will then deliberate before reading a verdict.
  1. The verdict and sentencing. Depending on whether the trial was a bench trial (before a judge and without a jury) or a jury trial, the judge or jury will read the verdict of either guilty or not guilty on each applicable charge. If found not guilty, the accused will be fully acquitted of these charges, face no penalties, and will have no criminal record of these charges. If found guilty, the defendant will be sentenced immediately after or at a later hearing. The sentencing phase may involve statements from the victim, family members, and those affected, both in support of or against the accused.
  1. Post-trial motions and appeals. There are certain motions that both the prosecution and defense may file following a verdict, whether guilty or not guilty. These generally relate to errors made in the trial process or legal nuances rather than the substance of the case. A guilty verdict does not mean that all hope is lost. There are also appeals wherein a higher court will evaluate the case and may vacate the conviction or grant a new trial, though they may take months or years to resolve.

How The Benjamin Law Firm Can Help You Mount a Rigorous Sexual Assault Defense 

There are many avenues to explore in defending against a sexual assault charge. An experienced attorney will discuss your options and help you decide how to best attack these charges. Some strategies include utilizing the presumption of innocence, poking holes in the prosecution’s case and presenting evidence contradicting their theory, such as consent or that the “assault” was committed during the course of medical treatment, creating reasonable doubt. It is critical that the prosecution prove that the accused had intent and knowledge, and if disproven, the prosecution cannot make their case. Moreover, there is always the potential to create doubt as to who was actually the perpetrator,

You may also be able to find procedural issues in the investigation such as issues with search warrants or the chain of custody of evidence, which can force certain evidence to be excluded. Similarly, you can demonstrate that the police’s conduct violated your constitutional rights, which can render essential evidence inadmissible in court. When the evidence appears to be too high to contradict, there are also certain affirmative defenses which involve admitting that the crime occurred but explaining it away in certain ways, such as showing the crime was committed under duress, mental incapacity, or entrapment. 

Experienced El Paso Sexual Assault Defense Attorney

Sexual assault charges are not treated lightly in Texas or New Mexico, and their impact, if convicted, can follow an offender for a lifetime. You need an advocate who will fight tirelessly to mitigate the charges’ impact. Based in El Paso, the Benjamin Law Firm, proudly serves clients across Texas and New Mexico, backed by decades of experience and successes. We provide comprehensive criminal defense services, along with practices in civil litigation and aviation law

With founding attorney Brock Morgan Benjamin at the helm, our team provides unparalleled service from a true expert in the field. Attorney Benjamin is one of few attorneys who carries the honor of being Board Certified in Criminal Law by the Texas Board of Legal Specialization. Not only is Attorney Benjamin at the forefront of the field of criminal law, but he brings a unique perspective and skillset to criminal defense, as he was once a prosecutor himself. He has firsthand knowledge of the tactics and strategies that prosecutors use to secure convictions, giving his clients a leg up in the process.

Contact us or call us at (915)-221-7462 today so we can get started fighting for the best possible outcome. ¡También podemos ayudarte en español!

About the Author
Brock Benjamin is board-certified in Criminal Law by the Texas Board of Legal Specialization.  His practice is primarily state and federal criminal law and appeals.Brock 

Posted in: Sex Crimes