Sexual Offences and Police Interviews: Why Getting the Right Legal Advice Early Matters

Being required to attend a police interview in connection with a sexual offence allegation can be overwhelming and distressing particularly in circumstances where a person is unfamiliar with the allegations and legal processes.

The early decisions a person makes about how to respond to police enquiries, and whether to attend and participate in a voluntary interview, may be critical to the outcome of the case, and have life-altering consequences.

It is important that people who are the subject of an investigation into alleged sexual offences are informed of their rights and receive advice in relation to strategy, particularly considering affirmative consent laws in Victoria which place a new evidentiary burden on those accused of sexual offences.

Understanding Police Interviews in Sexual Offence Cases

If a person is asked to attend a police station to speak to police or attend an interview, it generally means they are under investigation. These interviews are recorded and can later be used in court as evidence. Police conduct interviews for the purpose of gathering evidence, and to build a case against the person who is being interviewed. Any person intending to participate in an interview should obtain legal advice before attending the police station.

In many sexual offence cases, the issue of consent and whether an accused person had a reasonable belief in consent in the circumstances is a central matter in dispute. The affirmative consent model requires a person to take steps to confirm the other person was consenting to the sexual acts, and to be able to demonstrate what they said or did to check they had consent to the sexual acts. This is complex, and means pre-interview legal advice, and strategy, is crucial.

Case Study: A Strategic Decision That Avoided Criminal Charges

In a recent example, a client was contacted by police about a rape investigation. As he was a teenager, he attended a police interview with a parent and exercised his right to silence by making a ‘no comment’ interview. It is often the case that exercising the ‘right to silence’ is often an appropriate course, and this child had obtained standard legal advice before attending the interview. However, in this case, the absence of the child’s version of events limited the opportunity to address consent-related issues with police.

The client sought a second opinion from Doogue + George Defence Lawyers following his interview with police. He was supported by his family and anxious to take pro-active steps to avoid criminal charges, if it was possible.

Upon reviewing the allegations, considering his instructions and the broader context to the allegations, our lawyers advised that providing a version of events could significantly strengthen his position and potentially prevent charges being laid. Why?

1. The central issue was reasonable belief in consent; and
2. We provided police with evidence that aimed to persuade them that a prosecution would be unlikely to succeed.

We requested a second police interview and worked closely with the client to prepare:

1. A written statement outlining his account of events;
2. Review of digital material (e.g. text messages, videos, photos and location data) for supporting evidence; and
3. Interview preparation and technique.

During the second interview with police, our client presented a detailed and consistent account of events. His version undermined the complainant’s version of events and could be corroborated by other prosecution witnesses. Ultimately, the police decided not to authorise a brief of evidence, and no charges were laid.

This favorable outcome spared our client the stress of criminal proceedings and the long-term consequences of being charged with a serious offence. The young person and his family were thrilled.

What To Do If You’re Contacted by Police About a Sexual Offence

If you are under investigation or asked to attend a police interview, here are the critical steps you should take:

1. Do not attend the interview without legal advice.
   Even if police tell you it’s ‘just a chat,’ what you say can and will be used as evidence. It is not prejudicial to exercise your legal right to advice.
2. Do not rely on general advice.
   The decision to remain silent or provide a version of events depends entirely on your specific circumstances.
3. Contact an experienced criminal defence lawyer immediately.
   A lawyer can assess the allegation, advise on your legal risks, and help you plan the best course of action.
4. Do not discuss the case with anyone else.
   This includes friends, family, or the alleged complainant. Anything you say may be disclosed later.
5. Preserve any potential evidence.
   Save messages, photos, or communications that could support your version of events.