Mitigating Circumstances Involving Sexual Assault

“I promise! I’ll never do it again” is easy for you to say, and hard for your lawyer to convince a prosecutor that you mean it (this time) and, that your behavior is not going to be repetitive.

There are some types of crimes, especially those involving sexual assault, where one of the main issues a prosecutor and a sentencing Court are concerned with, is whether your behavior is repetitive and compulsive. In essence, what is the likelihood that you will ‘do it again’.

As a NJ criminal defense lawyer, I frequently start a defense in a case involving sexual assault with having my client evaluated to determine what caused the behavior, whether this was an anomaly to the client’s typical behavior, and a baseline risk assessment to evaluate the likelihood of any repetitive behavior on the part of the client. As a component of a defense strategy, I have found this approach to offer several benefits to the client, even if the client is asserting his or her innocence to the charged criminal offense(s), so long as the client takes the counseling seriously and is committed to completing it until discharged. In this regard, an opinion by the Doctor that is categorized as being accurate to a degree of medical certainty is priceless. In addition to arguing legal issues that arise from the State’s case, this type of approach gives me an additional argument to attempt to resolve the case in a way that provides the client with the best outcome. If the State’s case against the client is strong, or if the client has told me that he/she committed the offense, this gives me a starting point to have the client begin a counseling/therapeutic treatment program that I can use to convince the prosecutor that my client is not a risk of re-offense. If the client has told me that he/she is innocent, the risk assessment and counseling do not harm the client’s case, and provides me with a chance to convince the State that the Doctor’s opinion should be considered in evaluating the strength of the State’s case and potentially in determining whether to offer a diversion of the case into a program like pre-trial intervention.

In the worst of circumstances, where the client acknowledges guilt and the State has a compelling case, these types of assessments and pro-active counseling can be raised with the prosecutor during plea negotiations to get a reduced sentencing recommendation, and then raised as a mitigating factor with the Judge at sentencing. In the best of circumstances, where the client asserts innocence and the State’s case is weak, these type of actions by the client can make the difference in a diversion or a dismissal of the charges.

Howard W. Bailey is a highly regarded criminal defense attorney with offices in in Newark, NJ. For more information when charges are involving sexual assault, contact my office for a free phone consultation at (973) 982-1200 as soon as possible.

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