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Strategies to Get a Sexual Assault Charge Dismissed

April 22, 2024

Ways to Get a Sexual Assault Case Dismissed in NJ

Sexual assault is unconsented to sexual contact or penetration. A prosecutor must prove all the elements of the crime to convict someone of sexual assault, specifically that unconsented to sexual contact or penetration occurred in a specific way with a particular victim. N.J.S.A. 2C:14-2 sets forth the different types of sexual assault, such as sexual contact with a minor under 13 years old, sexual penetration by force without resulting injury to the victim, sexual penetration of a victim under the perpetrator’s control, sexual penetration of a minor 16 to 18 years old and related to or under the control of the perpetrator, or sexual penetration with a minor 13 to 16 years old and the perpetrator is four years older.

Given the severity of sexual assault sentences—long prison terms, excessive fines, and sex offender registration–you need a powerful sex crime defense attorney to weaken or destroy the state’s sexual assault case. The consequences of a conviction can last a lifetime, so you should consult with a criminal defense attorney to plan your defense as soon as possible. Continue reading to learn more about some of the most effective ways to get a sexual assault charge dismissed, and contact Proetta, Oliver, & Fay to speak with an attorney about your particular case. We can be reached seven days a week online or by calling 609-850-8284 and consultations are always provided at zero cost.

What can Lead to a Dismissal of Sexual Assault Charges in New Jersey?

When you tell your attorney about what led to sexual assault charges, you may be relieved to hear that the state may dismiss the charges against you under certain circumstances. At some point in the proceedings, a defense attorney may show the prosecutor evidence supporting the defense or weaken the state’s case to obtain a consensual dismissal. Otherwise, a motion to dismiss may be necessary for a judge to decide. Here are the top reasons sexual assault charges get dismissed.

Inadequate Evidence

The first reason for a dismissal is the state’s lack of evidence to support any or all the criminal elements. The state’s burden of proof is steep. A prosecutor must convince a jury beyond a reasonable doubt that you committed the crime. That means the evidence must be complete and convincing, with no room for uncertainty. When they do not have sufficient evidence, a prosecutor may want to avoid taking a weak case to trial and risk losing. Thus, they may dismiss the case rather than risk the loss. When evidence of consent, sexual contact, or penetration is weak or missing, a jury is unlikely to convict, and the state may dismiss the case on its own or by a defense motion to dismiss.

Lack of Cooperation from the Victim

After all, most sexual assault incidents involve only two people and no other witnesses. For example, a victim may recant their sexual assault claim and not cooperate with the prosecution, insisting the sexual contact or intercourse was consensual. Without other evidence proving force, injury, or inability to consent (the victim was unconscious, too young, or otherwise incapable of consent), the prosecution may not have enough evidence to convict.

Victim Seeking to Drop the Charges

A prosecutor may have several problems with their case. One of them may be the victim’s change of heart. A victim may wish to drop the charges against the accused, but that may not automatically lead to a dismissal. The prosecutor may have enough evidence to convict you without the victim’s testimony or cooperation and is therefore obligated to prosecute the case.

Victim Credibility Issues

A victim may also prove unreliable as a witness. A jury learning of the victim’s substance abuse problem, emotional instability, mental health issues, or hatred of the alleged assailant, may not believe a victim’s account of the facts regarding sexual assault. Alternatively, the victim may be inconsistent, changing their story or the facts, or they may reveal a motive for falsely accusing the accused, such as vengeance. A victim’s credibility is essential to the state unless a prosecutor can prove the crime elements through other means, like forensic evidence or other credible witnesses.

Flawed Forensic Evidence

Forensic evidence may also be flawed and, therefore, unconvincing. Typical forensic evidence proving sexual assault is the rape kit DNA evidence. The police investigating a sexual assault crime find DNA evidence from the victim. Their body and clothing contain evidence collected after a medical exam and treatment. The rape kit for the exam includes containers and tools for evidence collection, like swabs and combs, and the examiner is a trained specialist in sexual assault examinations.

A defendant can raise doubt about the reliability of rape kit evidence if it was not collected or preserved according to accepted protocol. For example, a defense attorney may question the witnesses testifying to the rape kit collection as to the timing of the collection. When the rape kit exam occurs too long after the alleged sexual assault (over five days), the evidence may not be accurate and, thus, not compelling evidence of the perpetrator. Also, the examiner’s credentials may be insufficient, or a lapse in where the evidence was before reaching the crime lab or stored with the police pending trial may raise questions about its reliability.

Chain of Custody Issues

The procedure for collecting, analyzing, and preserving sexual assault evidence must be exact and error-free to prove who committed the crime and how. Before the evidence comes to the jury, the state must prove the chain of custody, meaning where the evidence came from, where it went, and who did what to it before it got to the jury. When the prosecutor cannot account for the chain of custody, the jury may suspect the evidence is tainted, for example, someone tampered with the evidence or mishandled it so it was not the same as initially collected.

Police Violations of Your Rights

Police errors may cause a case dismissal by poor or unlawful evidence collection. Police searches of people and places to seize evidence during those searches must be legal, meaning by warrant or legal reasons for not having a warrant. They must also read the accused their rights against self-incrimination and to an attorney once detention turns into an interrogation or upon arrest. A defense attorney may file a motion to exclude evidence seized unlawfully or discredit evidence that was unlawfully obtained.

Furthermore, blatant bias by the police, prosecution, or witnesses may be fatal to a prosecution’s case. Racial profiling by the police or remarks by witnesses about the accused’s race, ethnicity, economic class, gender, age, or sexual orientation may cause prejudice that affects the outcome of a case. Evidence of such bias may convince a judge or prosecutor to dismiss a case. 

Fact-Based Inaccuracies

Other defenses rest on factual contradictions to the elements of the crime. For example, you may be able to prove that you were somewhere else when the crime allegedly occurred. Convincing alibi evidence may warrant a dismissal, as would a faulty police lineup that leads to charges against the wrong suspect. Misidentification of the suspect would result in a not guilty verdict, so a prosecutor may dismiss the case when that happens.

New Jersey Sex Crime Lawyers to Determine Your Best Defense

The best strategy for your defense is not to rely on recanting victims or potential weaknesses that arise but to conduct a robust investigation. You have the right to discover the prosecution’s case, meaning to look at the state’s evidence. Your attorney can use the discovery to investigate the forensics, witnesses, police reports, and other evidence the prosecution relies on to make its case. They may also enlist their own experts to testify on your behalf during trial.

Ultimately, your attorney’s extensive experience and expertise will be the backbone of your defense. At Proetta, Oliver, & Fay, our criminal defense lawyers, including a former Deputy Attorney for the New Jersey Attorney General’s Office, are fully equipped to examine and find the exculpatory evidence to exonerate you or the damaging evidence to weaken the state’s case. Cross-examining witnesses is also crucial to raising doubts that lead to acquittals and we are ready to determine the optimal way to challenge your sexual assault charges. Talk to a skilled sex crime defense attorney at our Evesham Township office by contacting us at 609-850-8284 today.

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525 Highway 73,
Suite 104, Marlton,
New Jersey 08053
Phone: 609-850-8284
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Boulevard, Hamilton,
New Jersey, 08691
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Suite A, Point Pleasant,
New Jersey 08742
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180 Kings Highway,
Middletown Township,
New Jersey 07748
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