Case Story: Dismissing a claim of Sexual Assault

We were all young once. And when we were, many of us engaged in premarital sexual activity. Our mom and dad might not like to hear it, but it’s true.

You go out, drink alcohol, and explore the world through the lens of your youth.

Part of this exploration includes meeting other consenting adults, getting to know one another, and sometimes engaging in consensual sexual activity. It’s perhaps taboo to talk about so openly, but it’s 100% true: people have sex with other people, and they have been doing so since the beginning of time.

And there’s nothing wrong with that.

It’s not illegal.

It’s not immoral.

To each their own.

But what about when the boundaries of consent are blurred? When one person remembers the sexual activity as being consensual, but the other one does not. And when overuse of alcohol permeates the entire encounter.

What then?

That’s what this case is about.

Our client engaged in sexual activity with an adult woman that he believed was consensual. But when the woman woke up the next morning, her perspective was different. For reasons unknown, she claimed the sexual activity was not consensual.

So she called the police, told her story, and caused our client’s arrest. He retained our services, and we immediately began working to clear his name.

And thankfully, we did just that.

Here’s how.

The Charge

Our client was a 20-something male living in downtown Fargo. After a night of heavy drinking, he walked back to an apartment he shared with a roommate. When he arrived, his roommate was already home and watching a movie in the living room with a woman.

The woman was a mutual friend of both our client and the roommate.

After the roommate went to sleep, according to our client, he initiated sexual activity with the woman. Also according to our client, the woman consented and willingly engaged in the activity.

When the contact was complete, our client fell asleep on the couch in the living room. The woman was also on the couch, sleeping on the other side.

What happened next is the reason we got involved.

When the woman woke up in the morning, she claimed that the sexual encounter the evening before was not consensual, and instead, our client had sexually assaulted her.

And her conduct matches this belief.

First, she woke up our client’s roommate and told him her version of what happened. Angered, the roommate called the police and reported the alleged sexual assault. The roommate and the woman then left the apartment and waited for police outside the apartment building.

All this occurred while our client continued to sleep on the couch in the apartment.

When police arrived, the roommate and the woman told their version of what happened the prior evening. Armed with this knowledge, but without a warrant, officers entered the apartment building, went up the stairs, opened the apartment door, and walked inside the apartment.

Three officers came into the apartment. Upon entrance, they noticed our client alone inside, still sleeping on the couch.

With two officers blocking the exit, another officer awakened our client and immediately began asking him questions related to the alleged incident. Before doing so, however, the officer did not tell our client that he wasn’t under arrest, nor did the officer read him his Miranda rights.

Believing he had no choice but to answer, and still intoxicated and half-naked from the night before, our client answered the officer’s questions.

When the questioning ended, the officers left the apartment, but told our client he was likely going to be charged with a crime. And the police kept their word, as a few days later our client was arrested for alleged sexual assault related to the encounter.

The Legal Challenge

Given the severity of the charges, our client’s mother got involved and worked to retain our law firm. Once retained, we began investigating the attacking the state’s case.

What we quickly realized is that the case was a quintessential “he-said-she-said” case. Nobody knew what happened that night between the two. And so it came down to the credibility of each individual and any statements made to police.

So when we reviewed the statement our client provided to police, the circumstances surrounding how it was elicited gave us heartburn. We didn’t like it for several reasons. First, our client didn’t let the police inside; his roommate did. Second, our client wasn’t in a clear frame of mind when questioned by police. Finally, and most importantly, our client didn’t answer the questions voluntarily after being apprised his constitutional rights.

Given this, we moved to suppress our client’s statements to police the morning after the incident. And our challenge was simple: police failed to read our client his Miranda rights before interrogating him and so everything he told the police was the product of illegal police conduct.

Now the police didn’t dispute that they hadn’t read our client his Miranda rights. And they couldn’t, because the bodycam footage was clear.

Instead, they argued they weren’t required to read them because our client was not “in custody” when they questioned him. And the reason they did so is because that is the determining factor in deciding when the police have to read a suspect the Miranda warning.

The state took a formalist approach. They said that since our client was not arrested, not in handcuffs, not in the back of a cop car, or not down at the police station, he was not “in custody” for purposes of Miranda.

We urged the judge to not cut the bologna so thin. Meaning that while our client might not have been formally under arrest or in handcuff, the circumstances surrounding his questioning would have led a reasonable person to believe they were “not free to leave” – which is the primary test when deciding whether a person is in custody.

These circumstances included:

• police inside without our client’s knowledge or consent

• police waking up our client and initiating the interaction

• our client being naked from the waist down and still intoxicated

• our client asking and being denied permission to stand up from the couch and get his pants on

• uniformed and armed officers blocking the exit to the apartment

• our client not being told he wasn’t under arrest, that he didn’t have to talk to the police, and that answering the officer’s questions was completely voluntary

We submitted our briefs to the judge and awaited a decision.

The Decision

The judge sided with us.

And the opinion tracked the arguments of both parties. The judge recognized that our client wasn’t in “formal custody” in the way the state identified, but stated that was too narrow of approach.

Instead, under the test of what a reasonable person in the same situation as our client would have felt, the court said that he thought a reasonable person would have felt like he or she was “in custody” at the time of questioning.

And since the court determined our client was in custody when officers questioned him, the fact that they didn’t Mirandize him before questioning him made the questioning illegal. And under the fruit of the poisonous tree doctrine, this made all my client’s answers inadmissible at trial.

In other words, the answers were the poisoned fruit of the illegal questioning.

Practically speaking, this meant that the state could still move forward with the case against our client, but at trial could not introduce any of my client’s answers as evidence about what did or did not happen the night of the alleged sexual assault.

The Takeaway

This ruling put the state in a tough position.

Usually, these cases are won or lost based on the statements of the defendant shortly after the alleged incident occurred.

And that’s what the state hoped for here, too.

But with the judge’s suppression ruling, that made that avenue impossible for the state. So they were left with trying the case and it being a battle of her word against our client’s word.

Now credit to the prosecutor, because she realized that this case would be difficult to prove “beyond a reasonable doubt”—the standard at trial. Without any evidence corroborating either person’s story, it makes for an uphill climb.

So the prosecutor did what we believed to be the honorable and ethical thing: she dropped the charges against our client in exchange for our client agreeing to probation, counseling, and a fine.

Importantly for our client, because the charges were dropped, nothing will ever go on his record. This matters because in sexual assault cases, unless the charges are completely dropped, an individual still must register as a sex offender.

That was a red line for us, and we were happy to find a creative solution to avoid that.

In the end, cases like this are tough.

We will never know exactly what happened in that apartment that night. Our client is adamant the sexual activity was consensual. And we’re sure the woman would say the exact opposite.

Regardless of where you land in that regard, there is one thing it seems we can all agree upon: mixing alcohol with sexual activity is a dangerous decision with often dire consequences.

Our client was spared (rightfully so, in our opinion).

Others aren’t so lucky.

Choice of lawyer matters, here especially.

We are proud to say we think our client chose right.