She consented, but now I’m being accused of “date rape”

It’s every man’s nightmare: a formerly willing sexual partner later claims the contact was not consensual in a range of possible ways, from coercion to outright sexual assault. Regrettably, this can and does happen, leaving otherwise innocent men and women in the unenviable position of being forced to defend themselves against an accusation that can and will haunt them forever, whether they are found guilty or not.

How can this happen?

Many courts are starting to replace the “No Means No” standard, in which clear verbal refusal of sexual advances or intercourse must be given, with “Yes Means Yes,” in which both partners must give clear consent prior to and during any sexual activities undertaken. Thus, a defense that the complaining partner did not explicitly refuse may be viewed askance by the court and even work against the defendant. Often, cases devolve into “he said she said,” in which it is one party’s word against the other. In this case, issues such as prior criminal history, drug and alcohol use or abuse and prior sexual conduct, including number of partners, may come under scrutiny. Today it is a sad fact that many men who are accused of date rape have committed no crime, but are treated as though they had.

How do I defend myself now?

Ideally, the best way to avoid such a charge is to avoid situations where it might become a problem, such as not sleeping or engaging in intercourse with anyone who has been using drugs or alcohol. Another way is to ensure you have clearly stated consent before any sort of foreplay or sexual activity and that such consent is given in a manner that could not construe coercion of any kind. Finally, engaging in physical intimacy only after extended dating is another way of ensuring safety and consent.

However, in cases where a complaint is lodged only after the consensual act is completed, examining the person’s prior pattern of behavior may be helpful. Does this person have children who are alleged to have been conceived during non-consensual sex? Has this person filed such complaints before? What was the outcome of these prior complaints? An experienced criminal defense attorney should always be consulted as quickly as possible after a complaint of this sort is filed, as every case is different and exigent factors may “slant” the fact of the case for judges and juries alike.