Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford, and I am your Oklahoma sex crimes defense lawyer. We're working on a series this week about defending sex crimes in Oklahoma. This podcast is going to talk about the defenses. And, quite frankly, if you've been accused of rape, you only have one of two defenses. Number one: "it wasn't me." Or, two: "it wasn't rape."
In 2016, with the technological advances that we have, the defense of "It wasn't me" is almost obsolete. Law enforcement has abilities to identify the offender better now than they ever could before. So, and it's also very uncommon that rape allegations come from a "stranger" event. More times than you would imagine, these allegations come based upon someone that you knew. You know them either socially, they are someway affiliated with you or your friends or family. Or, oftentimes, they are, in fact, the people that we love the most - our children, our girlfriends, our friends. ,
So, this podcast we're going to talk about, "What do we do?" We're not going to spend a whole of time on the defense of "it wasn't me" for those reasons. We can prove it up with our DNA mostA of the time. Those aren't the cases that generally get litigated. The cases we see 9 times out of 10 is, "I'm falsely accused." And if you're falsely accused, how do you defend yourself? The problem with these cases, and there are lot's of problems with these cases, but a big one is the allegation tends to be something that takes place in private. Prosecutors oftentimes preach to jurors that it's hard for them to prove these cases because rape is a private act that happens in the dark corners of society. If you're guilty of rape, that's probably true.
But. what if you're falsely accused of rape? Many people are falsely accused of rape in this country. Although, rape is oftentimes been described as one of the most underreported crimes. I'm here to tell you it is one of the most falsely reported crimes. And it's incredibly hard to defend because we're dealing with a "he said/she said" scenario. And most of the times, even in false allegations, the accuser isn't saying this happened in a room full of people with a bunch of witness. So, you can't call folks in and say, "I was there. Billy didn't rape Susie. I saw everything."
So, now it's just a matter of what she said versus what you can prove. And this causes a lot of problems in defending these cases. Because, number one, you have a right to remain silent. You are not compelled to take the stand in your own defense. It is my belief that if we can avoid a criminal defendant mounting the stand, we should do so at all costs. There is nothing more uncomfortable than sitting in a witness chair and being subjected to cross examination. As a criminal defense lawyer, I have sat in that chair, and I have been subject to cross examination by very skilled lawyers, who are there and designed and trained to ask loaded questions and leading questions. And it's a very uncomfortable place to be. It's a dangerous place for a defendant to sit. If I can avoid you from having to take that stand to defend yourself, that's going to be my goal.
So, how do we do that? How do we defend against the false allegations? In this country we have this idea that you are innocent until proven guilty. Although, fundamentally, I think that is not a reality in practice. When it comes to sex crimes defenses, it's even less of a reality. A person accused of rape, or child molestation, or anything sounding in sexual abuse starts the game way far behind the starting line. People are not generally inclined to give that person the benefit of the doubt. And I know this because I've practiced this in social settings. You can go into a barroom full of people, and ask them for your attention for a moment, and just ask them questions. And you can say, "Can anybody in this room find a reason why you might be justified in killing somebody?" And hands will just pop up all over the place. People can justify murder. "I was defending myself." "I was defending my family." "It was an accident." There are lots of ways we can get there. My favorite defense in murder cases often times is, "The son a bitch had it coming." But in sex crimes cases that’s not where we're at. In no setting that I've ever conducted this little, mini-experiment, has no person ever raised their hand and were able to justify forcing yourself upon a woman. At no time have I ever had a juror raise their hand and say, "Yeah, I can understand why he might have raped her, and that be okay.”
Sex is very taboo in this country. It's even more taboo in Oklahoma. We reside in Bible Belt. It's not something we're supposed to talk about. Even though most of us enjoy it, it's not something we're generally supposed to enjoy. So, to talk about it openly and freely in a room full of strangers is almost impossible. And as you listen to some of our future podcasts, you'll hear how lawyers struggle with talking to jurors about these things. But you and I have to talk about it when we're defending you if you've been accused of such a horrid crime. You have to understand that you do not sit there and bear the presumption of innocence. It's very unlikely that anyone is going to be willing to help you, or let you off the hook.
So, what does that mean? Although the law doesn't say you have to prove yourself innocent. In practice, we're pretty much riddled with that burden. We have to present evidence to the jury that will make them disbelieve the accuser. They have to, not only disbelieve what she is saying, but like you well enough to let you off the hook. And that's a terrible, terrible place to sit as an innocent person falsely accused of a crime. How do we prove a negative? How do we prove a negative without you having to mount that stand in your own defense
There are a number of ways. When you have gone to the trouble of interviewing lawyers, and have come to an experienced Oklahoma criminal defense lawyer who has been qualified, by your standards, to represent you in such a specialized kind of case, part of our job is to not only get your version of events. But figure out where the truth lies, and why this accuser would lie against you. Why would someone make up such a horrible story, and put it on somebody else? What must you have done to deserve this kind of accusation? These are the questions the jurors have.
And part of our job is to be able to figure out that motive, and be able to present that story to the jury so they can not only allow you to go home and acquit you, but they also don't have to make a personal judgment against the accuser. And that's really important. It's really easy to imagine being angry at the person who pointed the finger and lied against someone in this way. We can go in there as criminal defense lawyers and attack her, and bully her, and get all of her different versions of events, and make her explain to this jury why she can't tell the same story twice. But it's my professional experience that jurors don't much like it when criminal defense lawyers get up attack the "victim". Even when you and I know she's not the victim of anything. The prosecution’s going to call her a victim. The cops will call her a victim. And the judge, against all of my objections, will likely refer to this woman as a victim. And nobody likes to be part of re-victimizing a victim. So, what do we do? Our job is to figure out what is her motive to lie. And we'll work together on that to figure out what it is. She's probably never going to mount the stand and admit it.
So, before we get to what are some possible defenses. I want to talk just real briefly about what is not a defense to rape. In a situation where you're engaged in sexual activity with a minor who has not reached the age of consent, consent is not a defense. It gets rather complicated dealing with Oklahoma law - who can't can consent to whom, to what, and when. But let's just assume for the purposes of podcasting that the accused is 25-years-old, and he's engaged in some sort of sexual activity with someone who he finds later to be a minor. And a minor simply means under the age of 18. If the law does not permit this person to consent, it matters not how much she asked for it. It matters not how much she wanted it. Or, if she was the instigator. You can have it on video, of her dancing, and jumping around, and being more than excited. If she is not of the lawful age to consent, consent is not a defense. This is called strict liability. In Oklahoma, many of our sex crimes cases fall under this term of strict liability - which means she was either old enough, or she wasn't.
A good example, of what I've seen on numerous occasions, is a man meets a woman in a bar. In Oklahoma, in order to be in a bar, she must be 21-years of age. And let's say your sitting at there at the bar when she walks in. And she walks up and orders her first drink. The bartender gives her, or asks her for her ID. She passes an ID over to him, looks at it, confirms that she's 21-years of age or older, and proceeds to serve her alcoholic beverages. Fast-forward a couple of drinks later, and maybe you've mustered up the courage to go visit with this pretty, young lady. In fact, she looks kind of young to you, and you just want to protect yourself, and make sure that she is who she says she is. And you ask to see her ID. Her ID indicates that she's 21-years or older. It's got her address, and it looks quite legitimate. One thing leads to another, and you find yourself engaged in intimate activities later on in the evening. And you take her home the next day, and drop her off at mommy and daddy's house. Mom and dad find out what happened. Look at you and seeing the graying in your beard, or whatever, that indicates to them that you are much older than her, and they call the police. They've got your tag number, they've got her phone, and of course, they've shamed her into telling them everything about it. You're drug into law enforcement, and you're being asked questions. And you say, "But she had an ID that said she was 21. The bartender was serving drinks. I relied upon that." When you're accused of rape in the state of Oklahoma, ignorance of her age is not a defense. It is a strict liability. She was either old enough to consent, or she wasn't. And nothing you say, and no set of the circumstances change that.
Another realm of issues that we have, and we'll talk more about child pornography in a future podcast, but child pornography is also a strict liability claim. You either possessed it, or you didn't. There is no gray area. If it is deemed that this is a person under the age of 18, and you're in possession of photographs, audio, or video, or still photos, of this individual, you are in possession of child pornography. There is no defense to that. Ignorance, again, is not a defense. It can mitigate the damages. It can be used in negotiating a plea deal for you. But it is not enough to get you acquitted in front of a judge or jury.
Another thing that you cannot do when you've been accused of rape, or some other sex crimes violation in the state of Oklahoma, is blame the victim, or the accuser. Oklahoma has very strict rape-shield laws. Meaning, that you don't get to bring in the fact that she's had sex with everybody on the football team, so she must have consented to you. Her previous sexual history is not relevant. And in trial, most of the time, the judge is going to rule it inadmissible. She could be a prostitute who consented to engage in repeated sexual activity with 25 partners. And when you get up to your turn in line, she decides she didn't want to have sex with you, whether you paid your fee to ride the ride or not, you don't get to have sex with her. She could have consented to 1-23, and you're lucky number 24, and she say, "No." And then she says, "yes" to 25 - none of that comes in. Her sexual history, and her sexual behavior, and her reputation for sexual behavior is not a defense.
So, what is a defense? This is were it really takes some artful skill. Our job together is to discover what the truth is. Whether you know it, or not, if you're being falsely accused, there's a good chance that there's a motive for her accusing you. So, we have to figure out what that motive might be. And these options are endless. We don't have time in this podcast to exhaust every possibility. These crimes, these allegations of sexual abuse and rape are very, very fact-specific. There's no way for me to give a "How To" defend these cases that would be applicable to every case.
What I can give you is some overviews; what we see a lot of times. A lot of times, one of the things we see is it's consent gone wrong. In that case, what do I mean? Well, much like our example of the young lady having the fake ID, if she ain't old enough, it matters not that she consented. It is a strict liability crime. Rape in the second degree falls into that category. Oftentimes, we see rape in the second degree between boyfriend and girlfriend. Wherein they think that they've waited for her to turn the right age, but they're just mistaken about the law. Her consent is not enough, and your ignorance of the law is not enough.
How else can consent go wrong besides her lying, or you being mistaken about what is legal and what is not? This category of defenses, I kind of refer to as "buyer's remorse." And not to belittle what's happening, but that's exactly what's happening. They consent to the activity, and the next day they wake up and decide this was a bad idea. Much like going and buying that big, fancy car. You get real excited by all the bells and whistles. And how fast it goes, and how new it smells, and it's so great, and you want to do this. And the day you wake up and you think, "Oh! I don't want to be riddled with this car payment. I shouldn't have bought that warranty. This is more than I can handle." Well, we don't get to go and do a take-back. Oftentimes, we see this where alcohol is involved. Everybody's had a bit too much to drink. The "yesses" are flowing. And the next morning the accuser regrets her actions. Why could this be?
Well, number one, maybe she doesn't pride herself in engaging in casual sex. Although, it is rather acceptable to a lot of folks, it’s really unacceptable to a number of people as well. Maybe, she got seen leaving your dorm room, and she doesn't want people to tell her boyfriend that she spent the night in your place. In order to protect herself, she now has to accuse you of drugging her, or holding her against her will, and having sex with her in a manner that was not within her consent because she doesn't want to face the fact that she cheated on her boyfriend. That can flipped around, wherein she doesn't want to accept the fact, or be riddled with the knowledge and the burden of knowing that she engaged in sex with a married man. She regrets her decision, and in her mind twists it around in a desire to protect herself and her reputation. And oftentimes, these women have no idea the damage they're causing. But that's a version of consent gone wrong.
Another way we see this is in a scorned woman. And this might still kind of be consent gone wrong, right? Maybe it's your girlfriend, and you've decided to break-up with her because you want to date someone else. And she doesn’t let you off the hook that easily. Maybe you were engaged in what you thought was acceptable, casual sex. I've seen in many cases, and we'll talk about one in particular in future podcasts, wherein if you had just stayed and showed her some respect, all of this would have never happened. In an environment where sex is such a casual thing and we see it everywhere. And hooking-up in this environment is a very acceptable part of sexual activity, not everybody is okay with the hook-up. If she thinks that it's more than what you think it is, and you reject her, she might have a desire to teach you a lesson. And maybe it's not even revengeful and hateful. Maybe it's her own personal way of dealing with her own self-disrespect for allowing herself to go that way. And we have to explore these options. And see if we can find evidence to support that as a motive for her lie.
Another area, wherein I see this, is when we have a prostitute. And a prostitute who has not been paid. A prostitute is oftentimes working for someone, and if you engage in that kind activity and think that she's an easy mark to walk out after her services are completed. That consent ended when you did not complete the transaction as agreed. It's much like walking into a Wal-Mart. You walk into a Wal-Mart, and you look at the price on the shelf, and it says this item will cost $20. And you say, "Oh, I like this item. It's worth $20." You don't get to go home and use the item before you pay the $20. Wal-Mart did not consent for you to have use of that item without first paying for it. So, when you refuse to pay, you have violated the communal contract that you've engaged in with Wal-Mart. The same thing happens with the prostitute. She did not consent to have free sex. When she reports back to her pimp, or her manager, or whoever we want to, or whatever name we want to give him, and she hasn't been paid, somebody's going to have to pay. There's a strong likelihood it's the man who stiffed the bill.
Unfortunately, another area in which we see false allegations of sexual abuse, or sexual abuse of children, occurs during a divorce. And it's incredibly difficult for people to imagine being in a situation wherein someone you once loved, would conjure up a lie to cause such damage and wrongdoing that will forever riddle the accuser with horrible, horrible perceptions from the community. We see it a lot of times when you're going through the divorce, and the oftentimes unfortunately, and this is not always the case, but it's easier to talk about wherein the women are falsely accusing the men. It is not impossible for men to falsely accuse women, either. But, that's not the norm. Oftentimes, what we see in this scenario is where a parent coaches their child to make allegations against the parent. Or, the other parent's newfound love interest in a custody dispute. Because what we know for certain, is that in family law cases a judge is required to do what is in the best interest of the child. And there is not a judge in the state of Oklahoma that is going to find that it is in the best interest of the child to reside in the house with someone whom the child has accused of molestation or rape. It happens more often than you think.
It is important, that when we go out and engage in the very adult activity of sexual encounters, that we do so with respect in our minds. I don't know how we, as a society, have gotten to the place where casual sex is so readily accepted, but that is where we are. And when we accept that level of casual sex, what we also must accept is the ability to falsely accuse somewhat strangers. So, my advice to people all the time is if you don't want to find yourself in a position of being falsely accused, start out by treating your women and your love-interests with respect. At the end of the day, most people don't want to be used and put away, or thrown away. If you're engaged in a relationship treat her with respect. The false allegations come from a place of hurt. They come from a place of a need to, maybe it's seek revenge, but maybe it's just to validate one's own actions when we can't face the consequences that we made bad choices.
What I have found is men who find themselves in this position have usually engaged in some sort of activity that is hateful, or rude, or just disrespectful. And women have an incredible amount of power to make these accusations. The power of accusations of sex crimes is greater than the power of accusations of anything else. Because even if we do everything right, and we get this case dismissed. And that is going to be our ultimate goal. I would rather the case be dismissed, than run the risk of putting you through a jury trial. But, if we get to that point and we’re successful, and you are vindicated. The rest of the world is just going to look at you as somebody who got away with it. So, you need think about our actions, and recognize that it could happen to you. It happens everyday in this country. And once it's happened, your life, as you know it, will never, ever be the same.
I've seen false allegations of rape be used to extort men. To extort women. Wherein we've cut off some sort of financial responsibility to someone in an attempt, oftentimes, to protect ourselves, and possibly in an attempt to stop enabling them so that they can stand on their feet. When people make these allegations they have no idea how fast and furious this snowball rolls down the hill, and builds and builds and builds and builds and builds. It is natural, once you're in it so deep, that to admit that you ever lied is so hard, that most people just can't do it. They can't face the fact that they've done this, in and of it's own self. Or, they've convinced themselves at this point that it really happened. Or, they recognized that it didn't happen. The case exploded greater than they could have ever imagined, and they're afraid if by telling the truth that they will then be in trouble for making false allegations.
So, that kind of wraps up possible defenses to a rape case, wherein, the defense is not "it wasn't me." You're an identified person that they know and they love, and a relationship exists. The defense can't be "it wasn't me." It must be something else. Although, the law doesn't say the burden shifts to us, it does in fact shift to us. And we have to work together to come up with the perfect defense. Tying back into what we've talked about in the past, you must, must, must be brutally honest with your defense lawyer when we're talking about this so that we can figure out really what's going on. And we're probably not going to figure it out in the first setting. It's going to take work. And it's going take investigation. And it takes time. But the best news I have for you is that it is not hopeless. Many people find that being falsely accused of something like this is not hopeless. Many people walk away from this without conviction. Many people away from this without having to register as sex offenders. Many people walk away from this without ever having to sit in that witness stand and defend themselves in front of a jury. But the only way that you can ensure that you have that opportunity is to make sure that you hire a qualified Oklahoma sex crimes defense lawyer. And when you do that, you can trust that you're in the best hands, and that the hope is still alive.
