The "rape-shield" law prevents inquiry into the alleged victim’s past sexual experience. And rightly so. However, evidence regarding the complaining witness's sexual-experience with the defendant is fair game as is any history of false reporting of sexual-assaults. And that’s right too.

Just as the swabs taken from a rape-kit can foreclose inquiry into whether or not sex-occurred, DNA evidence can slam dunk with whom the sex-occurred. Unless you have an "O.J." budget, or you in fact know it was not your semen swabbed from the alleged victim, spending money on challenging the procedures and techniques of the laboratory that did the analysis is not cost effective. In any event, consent is always an issue.

Securing an evaluation of the Defendant from a court approved psychologist is advisable if the prosecution’s case is strong. It will happen anyway upon conviction or plea-bargain for purposes of the presentence report. When you do it before the deal goes down you create more room to maneuver in seeking alternatives to prison.  

Sexual Assault on a Minor

If you are charged with sexual-assault on a child it is likely that at no other time in your life do you feel so alone. Every hand is turned against you. A phalanx of police investigators, social workers, therapists, and physicians may stand ready to either implicate or condemn you on what can be inconsistent, confused even fantastical allegations made by a child.

In the early eighties a series of sex-abuse hysteria cases hit the country: the McMartin Case in California, the "sex-ring" cases in Jordan, Minnesota prosecuted by Kathleen Morris (who later was called up on state inquiry), the Little Rascals case in North Carolina and others. In the aftermath of these cases the public became somewhat sensitized to the abuses that can occur in this area, particularly the planting of allegations in children by use of leading questions.

In Colorado in the 1988 case of Kogan v. People the state supreme court by a narrow majority recognized a defendant’s right to "bill of particulars", in which the prosecution had to elect a specific act on which a jury would have to find the defendant guilty. Kogan, however, recognized the problems inherent in prosecuting child sex-cases and left a lot of latitude regarding specificity required of the bill of particulars, especially in cases involving very young children. What is probably the most important "holding" of the lengthy Kogan opinion was the one made by implication: if there is evidence of an adult with an agenda (in Kogan,  the prosecution of a school teacher, it was a very activist principal who talked to the kids and the kids parents a lot) then the Court should be more demanding of the prosecution in the bill of particulars.

As in any other defense a diligent investigation of all facts with an eye to the sufficiency of evidence is the first step in preparation. Particular attention should be paid to the manner in which the authorities interviewed the child(ren). A lie detector test can, especially at the early stages of an investigation, direct inquiry away from a suspect. If a negotiated plea is the best course of action it would be very helpful to have psychological evaluations performed which can put both the defense and prosecution on "the same page" in regards to treatment plans and alternatives to jail.