How Do the Unique Challenges of Delayed Disclosure Childhood Sexual Assault Cases Work for you as a Defender?

Key Takeaways:

• Cases with delayed disclosure of 5 or more years become extremely difficult to litigate and extremely difficult to defend against.
• It is very difficult to prove a negative (i.e., that you didn’t do something). Those difficulties are much, much more difficult in delayed disclosure cases.
• Delayed disclosure cases make it difficult to present an alibi, because they usually quote a large window of time (often several months) rather than a specific date on which you are alleged to have committed the crime. It is also difficult to find Res Gestae witnesses (i.e., witnesses who were around when the crime allegedly occurred) for those large time periods.
• As difficult as it is to defend delayed disclosure allegations of sexual assault, it is also difficult to prosecute them. There are things a defendant’s attorney can use to their advantage to undermine and cast doubt on the prosecution’s case. This is why it’s essential to hire a true expert and a specialist in delayed disclosure childhood sexual assault allegations, if those are the charges you are facing.

Delayed disclosure sexual assault cases where there’s a lengthy period of time between the crime and the victim coming forward — anything longer than say, 5 years, but up to 10 or even 20 years — become extremely difficult cases to litigate and extremely difficult cases to defend.

It is very difficult to prove a negative (i.e., that you didn’t do something). Those difficulties are much, much more difficult in delayed disclosure cases. The idea of the presumption of innocence, the burden of proof being on the prosecutor and the burden of proof being beyond the reasonable doubt, all reflect this idea that it’s incredibly difficult to prove a negative.

That is, if you are being told, “You sexually assaulted this child. Prove you didn’t”, it’s very difficult to do that. The reason we say that you don’t have to prove you didn’t, that the prosecutor has to prove you did beyond a reasonable doubt, is because of the inherent difficulty of ever proving a negative, proving that you didn’t do something. Those difficulties and hurdles are multiplied exponentially in a delayed disclosure case.

When a case is 5 or 10 years old, it’s almost impossible to go back and see if the defendant had an alibi. These cases are typically not charged on a specific date. Therefore, if you were charged today in 2022 with having committed a sexual assault in 2012, it doesn’t say you are being charged with sexual assault on “July 1^st, 2012”, or any other specific date. Rather, the charging document will typically say, “Sometime between May 1^st 2012 and August 1^st 2012, you committed the crime of criminal sexual conduct in the first degree”. This would be a four-month window, during which you cannot begin to prove your alibis for the entire duration. Sometimes the window is even larger. It’s impossible to account for every minute that you were awake in a 2, 3, 4, 6, or even 12-month period of time.

So, in these cases, presenting an alibi defense becomes almost impossible.

The defense of “I didn’t do it” also becomes extremely difficult because it is so hard to identify Res Gestae witnesses. Res Gestae witnesses are witnesses that were present at the time the alleged crime was supposed to have been committed. So, if the prosecution charges that the sexual assault happened at a birthday party, a holiday event, a barbecue, or when you were babysitting – it becomes very challenging to find people that were at the party who could definitively say, “Yes, I was there and I didn’t see anything happen”.

Even if you are able to identify potential res gestae witnesses, their ability to remember, their memory, is usually severely compromised by that time. People usually only remember significant events in their life. So if the event was alleged to have happened on your 21^st birthday, which was on July 1^st, 2012, and you had a really fun birthday party that was the origin of lots of funny stories, you might remember a large part of that day, as may your witnesses.

But if July 1^st, 2012 was just another day, you are unlikely to remember many details about it, because you don’t know at the time that 10 years later, you’re going to need to remember what time you woke up, whether you went to work, whether you ate lunch, where you went to lunch, and whether you went out after work. If, say, you went to your cousin’s house after work, you are unlikely to remember what time you arrived at your cousin’s house and how long were you there. You are unlikely to remember what was on the radio, what was on television, what you ate, who you spoke to, etc. These questions become very difficult to answer.

You have these difficulties inherent to defending child sexual abuse cases to begin with: this idea that the burden of proof is on the prosecutor, and that the defendant is presumed innocent unless the prosecutor can prove their guilt beyond a reasonable doubt. As we’ve discussed, so much of that is thrown out of the window on child sexual abuse cases. In order to effectively defend them, and in fact in order to win them, you have to operate with the promise that you have to prove your client’s innocence, you have to show that the defendant did not do this.

In order for a jury to find someone not guilty of a child sexual abuse case, you can’t rely on the protection of the presumption of innocence or the burden of proof being beyond a reasonable doubt on the prosecutor. Rather, you have to affirmatively show that your client didn’t do what he is being accused of doing, and that he is factually innocent.

In a delayed disclosure case, you take that difficulty, and you multiply it by 10 or even a 100, depending on how long that delay is. It becomes a real challenge.

Now, there is some silver lining in that dark cloud. There is a little bit of good news if you are defending someone in a delayed disclosure sexual assault case. Jurors are inherently suspicious about a case that is old—that is, about delayed disclosure cases—unless there is a real substantial, believable reason as to why it didn’t get reported earlier, and why all of a sudden it got reported now, all this time later.

Most frequently, these cases come out of a circumstance involving therapy, or some other revelation arrived at through mental health treatment. A therapist may be working with someone and the patient may all-of-a-sudden claim, “I now remember that my uncle sexually assaulted me when I was seven years old, 10 years ago. He made me touch his penis and he made me perform fellatio on him.”

To be clear, in such a case, it is difficult to prove that the uncle did not sexually assault his niece when she was seven years old, and did not make his niece touch his penis or perform fellatio on him 10 years ago. However, while this is true, the jury will also approach the accuser with suspicion. They are likely to ask, “If this really happened, why did she wait 10 years to report it? The kid is now 17 years old. It happened when she was 7. She’s known that that’s bad touching for a long time, so why did it take this long for her to come forward?”

They may also question the methodology and ask exactly what was really going on in that therapy session to cause her to suddenly conclude or realize that her uncle severely sexually assaulted her.

Sometimes, the answer to that question—specifically, why it took so long for her to understand what happened and report it—is based in fact. Sometimes real victims of sexual assault—especially traumatic childhood sexual assault by a family member—won’t consciously remember the assault for some time. For example, it’s possible that the accuser was going to legitimate therapy, and she was working through her issues and arrived at a memory she repressed because she didn’t want to think about it at the time, as a coping mechanism for dealing with very painful chapter in her life. She didn’t want to remember the sexual assault, but the therapy helped her remember it, and as soon as she did, she filed charges.

But just as often, jurors are going to think, “What was it about the therapy that caused this accusation to be made? Was the therapy biased or pre-disposed to suggest that the sexual assault happened? It’s unfortunately very common—in fact, far too common—for certain types of therapy to plant the seed and suggest that something like this happened to someone when it never really did.

And so again, like anything else, these delayed disclosure cases are a double-edge sword. There are so many things that make them complicated and difficult to defend, but there are some things that you can take advantage of and use to your favor or your benefit.

This is why these cases, as much as any other kind of criminal case, demand that you hire a true expert, a specialist on defending delayed disclosure allegations of child sexual assault, if that’s what you’re being charged with.

If you’re not hiring somebody that is doing this as a significant part of their practice, you’re not hiring the right person.

For more information on Child Sex Abuse Law in Michigan, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.