Preventing a Sexual Assault Finding, and Preparing for a Rape Prosecution

“I can tell you one thing for sure. There was no crime committed here.”

The Seattle police officer happened to be riding the courthouse elevator with me when he said this to me. I’ve been a defense attorney for many years, but never had a police officer said anything like that to me on the way to a sexual assault hearing.

This hearing’s subject was a request for what Washington State law calls a Sexual Assault Protection Order (SAPO). It’s a kind of restraining order.

Kristina (not her real name) was asking the court to impose a SAPO after she spent the night with our client, Tyler (not his real name either). Four days after their encounter in Kristina’s apartment in Seattle’s Capitol Hill neighborhood, she called the police to report that she had been sexually assaulted. Tyler admitted they had had sexual contact, but he believed she had wanted to as much as he did.

In seeking a SAPO, Kristina decided that she wouldn’t wait for the prosecutor to file rape charges; instead she was seeking a civil order prohibiting Tyler from contacting her. When Tyler first received her SAPO petition, he was shocked. He came into our office right away.

Defending against petitions for civil protection orders is challenging. Civil cases have a lower standard of proof than criminal cases. And often we are up against an unspoken presumption that a civil protection order does no real harm—better for a judge to “err on the side of caution” than to deny an order to someone who genuinely needs protection.

But it’s no trivial matter for a judge to decide that, more likely than not, you engaged someone in sex without consent. It’s essentially an official decision that you committed a rape.

And there are tactical reasons to contest the entry of a SAPO, even if the judge will likely impose it anyway. The hearing is an opportunity to discover information that proves valuable in defending against the criminal case, if one is later filed. This can be accomplished by examining witnesses at the hearing, getting them committed to a version of events.

In Tyler’s case, we obtained police reports before the hearing through a public disclosure request. Although the officer’s opinion that no crime was committed did not appear in his report and was not admissible in court, the report did contain the facts behind his opinion. I intended to make sure the judge got the picture.

According to the report, Kristina told the officer, “It seemed like it was consensual, but it wasn’t.” Kristina hotly denied to the judge that she had said that, but the officer testified convincingly that she had.

Kristina admitted in her testimony that she had given Tyler encouragement during the encounter and had let him stay the night with her.

By the end of the hearing, I had accomplished both of our goals: the judge did not find that there had been non-consensual sexual conduct, so he denied the order. And Kristina’s testimony, including my cross-examination of her, was preserved for use in the criminal case.

SAPO cases, like other cases alleging sexual assault, are not easy to defend, but putting effort into them can pay off, both right away and down the road.