Yes and no. Yes, it may make you look guilty to the police. And no, that doesn’t matter.
That’s because when you are exercising your right to remain silent, you are exercising a constitutional right. Because you are exercising a constitutional right, the fact that you choose to remain silent in the face of a criminal allegation is not itself evidence that can be used against you. Even if the police were to think that makes you look guilty, what they think won’t make any difference in court. That’s because what they believe has no evidentiary value and won’t form part of the Crown’s case.
Besides, the vast majority of the time when you are being questioned by the police for a sexual assault, sexual interference or some other sexual offence, the police have already made up their minds that you are guilty. Since you are already guilty so far as they are concerned, what you say won’t help you anyway. If it incriminates you, the Crown prosecutor will use it as evidence. If it exonerates you, they won’t.
Bear in mind that if you do provide a statement protesting your innocence, the Crown won’t lead it as part of their case and except for rare exceptions, we can’t lead it as part of ours. In other words, your statement is only admissible evidence for the Crown; not for the defence.
The police during an interview like to say that “this is your chance to tell your side of the story”, making it sound like it’s your only chance. That is absolutely not the case. You will have your opportunity to speak in good time. That turn will come if we decide to call you as a witness at your trial. Or earlier if we feel that, after calm and careful consideration, we want to provide the Crown or police with information.
The interviewing police also like to emphasize that if they were in your position and were innocent, they would speak up and proclaim their innocence. Don’t be drawn in by that tactic. The police are not on your side here. Whatever contrary impression they might try to convey, they do not have your best interests at heart. Their agenda is simple: they are trying to draw you into conversation and get you to make admissions against interest that will help build the case.
If you have spoken to a criminal lawyer before being interviewed, the police know that you have very likely been advised to remain silent. They also know that you have very likely been given that advice regardless of whether you are guilty or innocent. When I am retained in advance of a police interview, I provide advice as to how to deal with the dynamics of a police interview and how to recognize the special tricks and techniques they have studied and practiced. Commonly, my advice distills down to this: “Say nothing, and if you feel the need to respond in some way with words, simply say ‘I’m exercising my right to silence’”. You can also expand it by saying, “On the advice of counsel, I’m exercising my right to silence.” Many clients feel more comfortable saying this because then it is clear that they are simply following legal advice by not speaking, rather than trying to hide something. While the police will emphasize that they don’t want to know what advice your lawyer gave you, that is simply a way to steer you away from relying on that advice.
In short, as a general rule, refusing to provide a statement to the police doesn’t make you look guilty; it makes you look like you are being smart and following legal advice.
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.