What should I do if the police want to interview me about a sexual assault?

What should I do if the police want to interview me about a sexual assault?

Imagine receiving a phone call from a police officer asking you to come to the station to be questioned in connection with a sexual assault complaint.

It’s a gut punch for the wrongly accused, and it happens more often than you might think. As a criminal defence lawyer who has successfully represented many clients accused of sexual assault, I can tell you that cases are not black and white the way they’re often portrayed in television dramas. Many fall into the “he said/she said” category, and those who are being investigated need a strong advocate to represent them.

Bear in mind that the consequences of a sexual assault conviction are serious, including jail time, a criminal record, social stigma, and registration in the National Sex Offender Registry. Your ability to travel internationally may also be hindered.

If you believe you’re innocent and have done nothing wrong, your first inclination might be to drive to the station and tell the officer what you know to clear up the matter as quickly as possible. But that may not be the best course of action or what serves your long-term interests.

How to handle a police interview

On television shows like Law & Order, you often see lawyers sitting next to their clients during police interviews, providing guidance for how to answer questions. In Canada, that’s not the way it works. While an accused person has the right to instruct counsel and to timely advice, they are on their own during a police interview.

The advice I give a client on the best course of action to take when police are questioning them depends on the individual circumstances of each case. Once I gather as many details from the police as possible, I ask my client to create a written account of what happened in as much detail as possible. As I mention in a previous column, I specifically caution them not to “edit” details they don’t feel are relevant or useful to the case, but to instead download everything they have. In many instances, something my client didn’t view as relevant ended up being a critical piece of information in their defence.

Typically, when the police call someone, they either advise the person they want to interview them in connection with an investigation or tell them they’re going to be arrested. At this point, we don’t have the Crown’s disclosure or any of the critical facts, such as who the complainant is and what the specific allegations are. Most of the time, my advice is not to say anything to the police. If you’re being charged, the officer believes there’s enough evidence to lay a charge. What we don’t want to do at this point is to offer up information that could later be used against an accused person. A good offence is the best defence.

Sometimes a person who is being interviewed as a witness in an ongoing investigation will say something to the officer that shifts the officer’s perception of their role from witness to accused. At that point, the officer has to stop the interview and warn them of their rights, including the right to speak to their lawyer.

Timeline of an investigation

Police investigations involving sexual assault allegations typically begin once a formal complaint has been filed. The police collect as much as information as they can from the complainant –– in both an oral interview and in a written witness statement –– to determine if there’s sufficient evidence to suggest a reasonable prospect of conviction if they lay charges.

If there are witnesses, the officers will arrange to speak with them and collect their statements. At this point, they will ask the accused person to present himself/herself for an interview or to be arrested, depending on the circumstances of the case.

The Crown considers sexual assault to be one of the worst types of offences. Evidence and procedural rules for sexual assault cases are very complicated so it’s vital to have a legal advocate with a thorough understanding of the rules to present your case clearly and concisely.

The courts will consider several factors when determining if an assault was of a sexual nature: the part of the body touched, the nature of the contact, the situation in which the contact occurred, the words and gestures accompanying the act, and if there were any threats made during the assault.

The outcome of every case is determined by the weight of the evidence, including the testimony of the complainant, the defendant and the witnesses, electronic messages, DNA evidence, medical and psychiatric records, as well as photos and videos.

Interview several lawyers to find the right “fit”

When police request that you attend the station for an interview, it’s a very serious situation that requires a considered response. You need to understand that regardless of your position about your innocence, they are conducting what they believe to be a legitimate investigation.

I suggest calling several criminal defence lawyers and giving them as much information as you know –– what the complaint is about, who’s involved, the circumstances surrounding it and anything else that’s relevant. Ask the lawyers how often they handle these types of cases. Not every criminal lawyer is experienced in sexual assault cases, so it’s important to work with someone who regularly handles these types of cases.

Though it can be challenging with your thoughts racing, it’s important to be consistent with the information you’re sharing with the lawyers you’re interviewing. Potential clients often say that each of the four lawyers they spoke with gave them different advice. Sometimes this happens because the person shares a specific piece of information with one lawyer, but not the others. All lawyers base their opinions on the information they receive. It’s impossible to gather all the facts in a 30-minute consultation with a lawyer because you simply don’t know them at this point.

There’s no magic formula for selecting the best lawyer. A gut check based on your level of comfort is often your best indicator. Being charged with sexual assault is a very serious matter and one that can take months to resolve, so it’s essential to feel a rapport with the person who will be defending you.

Failure to prepare is preparing to fail

It’s really important to prepare my client as to what to expect during a police interview and how they should answer questions. For most people, this is their first encounter with the criminal justice system, so they are –– by virtue of their lack of experience –– unprepared for what’s going to happen.

If I have advised my client to say nothing during the police interview, that doesn’t mean the officer will stop asking questions. Their job is to try to get information, and while they can’t outright lie to someone in an interview, they frequently apply pressure and play on people’s emotions to extract information.

For example, the officer might say something like, “This is your only chance to give us your side of the story,” but that’s not true. That’s why the trial process exists.

The officer might ask my client, “How would you feel if someone you knew was raped –– wouldn’t you want that person to apologize?” All of their tactics are meant to encourage a person to talk, but it’s best to follow your lawyer’s instructions in these matters. There could be several interpretations of your responses, but once you’ve made them, they’re hard to walk back, even if what you told them isn’t what you meant.

Police can sometimes misrepresent or exaggerate the truth. For example, in cases where a forensic sexual assault exam or rape kit was conducted, it’s not uncommon for the police to tell an accused person that they have their DNA. We know that the results of DNA take months, so at the time a sample is collected, it’s impossible to know if the DNA is a match.

The polygraph dilemma

Police officers will sometimes ask a suspect to take a polygraph, commonly known as a lie detector test. A person under suspicion might be tempted to comply, thinking it will save them from even having charges laid. I’ve had some cases where this has been true, but it’s not always advisable.

Here’s why. First, the results of a polygraph test are not admissible in criminal court to assist a judge or jury in assessing a witness’s credibility. In 1987, the Supreme Court of Canada concluded that, “The polygraph has no place in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses.”

But –– and this is a critical point to highlight –– any statements made by a suspect during the testing process may be used against him or her. Before the actual polygraph test, which consists mainly of questions requiring yes or no responses, there’s a pre-interview. There’s also a follow-up interview after the test. It’s in these two interviews that a person might volunteer what they believe to be “innocent” information that could derail their defence.

How can I help you?

Facing allegations of sexual assault can devastate your career and community standing and could even lead to imprisonment if you're convicted. As a sexual assault lawyer in Ottawa, I stand ready to build your defence. If under investigation or charged, contact me before speaking with the police. One of the outlined defences could apply to you, or we can tailor a strategy to your case. Reach out to me at 613.863.8595 for a free consultation.