Question: Why Should I Exercise My Right to Remain Silent When Being Interviewed by the Police?

Police officersBased on my almost three decades of experience as a Vancouver Criminal Lawyer and a Sexual Assault Lawyer in Western Canada, there are two principal reasons why you should exercise your right to remain silent when you are being investigated for an allegation of sexual assault, sexual interference, sexual exploitation, invitation to sexual touching, child luring, or possession of child pornography.

The first reason is that when you are dealing with these offences, you may be presumed innocent in law, but you are presumed to be guilty by the investigating and prosecuting authorities. You are also caught up in a process that is extremely political in that the police and Crown Prosecutor’s officer are under immense pressure from the media and politicians to aggressively pursue prosecutions for sexual offences. In cases of sexual assault, sexual interference or invitation to sexual touching, once a woman or child has made an allegation of this nature against an adult male, the investigating police will take it at face value. Even if you were to provide a credible denial to the police, it’s not their job to decide who is telling the truth. Invariably, so long as the complainant’s claim that he or she was the victim of a sexual assault is internally consistent and not blatantly contradicted by other evidence, regardless of what you say to the police, they will refer the matter to Crown Counsel with the recommendation that you be charged with sexual assault or a similar sexual offence.

For their part, Crown Counsel’s policy is that they will only prosecute sexual assault or similar offences where there exists “a substantial likelihood of conviction” and that the prosecution be “in the public interest.”

In my long experience as a Vancouver Criminal Lawyer and Sexual Assault Lawyer in Western Canada, I have observed that, given the political nature of these cases, the vast majority of Crown Counsel will err on the side of caution, approve even marginal charges, and leave it to a judge or jury to decide. The fact that you end up suffering the expense, stress and stigma of a criminal prosecution does not factor into their decision to prosecute.

Like the police, Crown Counsel do not evaluate the strength of a sexual assault case based on your denial, no matter how credible; they base their evaluation solely on whether the complainant’s statement has at least some internal logic and cohesion and whether it is contradicted (to their knowledge) or corroborated by other evidence such that it could possibly be true. Again, whether your denial of the sexual assault could be true does not enter into it. Thus, anything that you might say will only be utilized by the police to help corroborate the complainant’s statement. If it contradicts the complainant, it will be ignored. In other words, speaking to the police will not help you; it can only hurt you. Usually it makes absolutely no sense to do it.

Note: In very rare cases, especially where the allegation relates to conduct that may or may not be sexual in nature, depending upon your intent, it may be appropriate to provide a statement. It is recommended, however, that this only occur upon the advice of a highly experienced sexual assault lawyer and with their involvement.

The second reason to exercise your right to silence during an investigation for a sexual offence, is that there are any number of ways that a person can incriminate themselves after being arrested on sexual assault charges. The most obvious one is by making a full confession to whatever crime you are being arrested or detained for. But a person can also incriminate themselves without even knowing it by providing other information to the police. Information that seems unimportant might corroborate or confirm some small but key detail of the sexual assault investigation or some aspect of the complainant’s statement, it may contradict some piece of evidence that can be independently proven, or it may provide information that only an actual perpetrator of the alleged offence can know.

“But I have nothing to hide,” may be your response.

The problem, or potential problem, from your perspective is that you don’t know the details of what the police have been told by the complainant or other witnesses, or what physical evidence might exist that could contradict or just appear to contradict something you say. Police interviews tend to be lengthy, exhausting and are carefully designed to break you down. These measures, which can be effective in overcoming a person’s desire to exercise his or her right to remain silent, can also lead to mental confusion, carelessness and inaccurate “admissions”. Often suspects are left in poorly heated police cell blocks with nothing to do for many hours before an interview occurs. Fatigue is factor. In this situation, you might easily misspeak or provide a careless or thoughtless response. This in turn might create a contradiction or potential contradiction, or simply appear to create a contradiction, perhaps with something else you have said or with some piece of evidence that the police have not revealed to you. Rather than try to explain the nuances and subtleties of the situation and what you meant to a judge or jury, it’s generally best to hold your tongue. There will be ample opportunity to provide your side of the story. Be patient and let an experienced sexual assault lawyer guide you on this journey.

While the above is commonly given legal advice by sexual assault lawyers, it is not necessarily advice given in all cases. Therefore, you should seek legal advice from an experienced sexual offence lawyer regarding your own specific circumstances and your own case before relying upon anything that appears on any legal website.

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