Can I Really be Charged Based on Only an Accusation?

This article is for general informational purposes only and does not constitute legal advice. Every case is unique — consult a qualified Wisconsin criminal defense attorney for guidance specific to your situation.

One of the most common things people say when they come to a criminal defense attorney after being accused of sexual assault or a sex related crime is “how can they charge me based on nothing but the accusation?”

The state of Wisconsin can and does file sexual assault charges based solely on verbal accusations and testimony.  Understanding why that is and how to best respond is the first step toward building your defense.

Under Wisconsin and federal law, witness testimony is evidence. If a jury finds that testimony credible beyond a reasonable doubt, they can convict a person based on that witness testimony. Historically, courts have recognized that physical corroboration is not a requirement for prosecution or conviction in every type of case.

When an accuser is the sole source of evidence, the prosecution will build its case on the accuser’s testimony. Before trial, an experienced defense attorney will analyze prior statements, timelines, and other discovery for inconsistencies in the accuser’s story.   At trial, an attorney will use different strategies and tools to challenge the accuser’s credibility.  If available, the attorney will also offer more credible evidence which creates a more accurate or complete picture of what happened. Throughout negotiations and trial, an experienced attorney will work to  challenge the accuser’s credibility, raise reasonable doubt and obtain the best outcome possible for you. 

Sexual assault cases carry heavy social and cultural weight. Juries must frequently decide who is telling the truth in a case involving serious allegations and steep potential consequences. Juries bring their own personal assumptions, stereotypes or previous beliefs to their decision. An experienced and skilled criminal defense attorney will work to obtain the fairest jury possible through effective voir dire and use their trial skills to tell your story in a way the jury can hear and understand.

Consent can be an affirmative defense to sexual assault charges in Wisconsin which have consent as an element. An experienced defense attorney has the skills to build a consent defense using every available piece of evidence, which could include:

1. Communications before and after the encounter: Text messages, DMs, emails, and social media interactions can be powerful evidence. Messages before and after the encounter can contradict a claim that the encounter was nonconsensual and affect the credibility of the accuser.
2. The nature of the relationship: An experienced defense attorney will look at the nature of the relationship between the parties and analyze whether there is available evidence that could be helpful to a jury in determining credibility.
3. The accuser’s own statements and conduct: Evidence regarding the accuser’s words and actions before, during and after and incident should be carefully investigated and reviewed to determine  whether contradictions or other inconsistencies exist which support the theory of defense.
4. Possible motives to fabricate: A thorough defense attorney will investigate whether there personal conflicts, custody disputes, financial issues, or relationship grievances that could explain why someone would make a false accusation and use all available evidence to build a defense.
5. Witness testimony: It is the job of a defense attorney to conduct investigations to identify any witnesses who can give evidence regarding the credibility of the accuser’s statements or other relevant evidence to support the defense.
6. Physical and forensic evidence — or the absence of it: While the prosecution does not need physical evidence to charge out a case, the absence of evidence of force, trauma or DNA can be critical for the defense. If a medical examination does not provide evidence supporting the accusation or, better yet, contradicts the accuser’s claims, these are critical building blocks when building a defense.

Wisconsin’s OWI laws can raise unique double jeopardy questions. A first-offense OWI is a civil forfeiture, as are refusal related proceedings, and is therefore not subject to double jeopardy at all. The multitude of OWI related offenses which include an additional element, such as causing injury, may constitute a separate offense altogether, further increasing the risk of subsequent prosecutions.

A lawyer skilled in the intricacies of double jeopardy law is a must. Modern double jeopardy law is complex, and the pitfalls are many. Especially in the case of plea bargains, which is how most cases are concluded, a multitude of strategic choices are possible to minimize the risk of successive prosecutions: the choice of which charge to enter a plea to; whether to have read-ins (charges you are not convicted of but are “read-in” for sentencing purposes); setting the time-frame of the offense; and in some cases, an explicit agreement with the prosecutor that no other offenses will be charged under a certain set of facts.  

Being charged with a crime based solely on someone else’s accusation can feel profoundly unjust. Anger and frustration are understandable. Building a defense which gets to the truth requires skill and experience.  Our experienced Wisconsin criminal defense attorneys will fight to make sure those rights are honored and that the full truth is told.

Nelson Defense Group Attorneys have been handling Sexual Assault cases for decades in Hudson, Eau Claire, La Cross, and have both the skill and experience to help protect you. For a free consultation, call our office at 715.386.2694.

Written by Aaron Nelson, Attorney at Nelson Defense Group