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Virginia uncorroborated sex assault claims need credibility

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Virginia uncorroborated sexual assault accusations cannot get a conviction without credible testimony

Virginia uncorroborated sexual assault claims cannot lead to a conviction without credible testimony from the alleged victim. As a Fairfax criminal lawyer, I know that for that reason, in 1977 the Virginia Supreme Court reversed a rape conviction finding the complainant’s incredible as a matter of law. Willis v. Commonwealth of Virginia218 Va. 560 (1977). The testimony of the complainant in Willis was riddled with material unexplainable inconsistencies. On top of that, the complainant took nearly a month to report the alleged crime and subsequently attempted to withdraw the criminal charge. “The failure to report an alleged rape by force and violence for an unreasonable period after the incident occurred casts suspicion and doubt on the truthfulness of the story of a prosecutrix unless there is a credible explanation given for such a delay. Brogy v. Commonwealth, 51 Va. (10 Gratt.) 722, 725-26 (1853). See also Broaddus v. Commonwealth, 126 Va. 733, 748, 101 S.E. 321, 325-26 (1919).” Willis, 218 Va. at 563. 

For Virginia uncorroborated sexual assault cases, what circumstances make the accusation not credible as a matter of law?

By the time lawyers finish law school, they are hardwired to expect most credibility issues to be matters for the factfinder to decide (matters of fact) rather than matters that are determined on their face (matters law). In the Virginia uncorroborated testimony case of Willis, the complainant’s credibility issue as a matter of law started with her waiting nearly a month to report the alleged crime. She compounded that with later trying to withdraw the criminal charge, testifying diametrically opposite at the trial and preliminary hearing about which of the two defendants raped her first, going back and forth at trial between whether she was clothed or unclothed when her first assailant approached her, and giving inconsistent testimony about whether the incident started downstairs or in the alleged victim’s bedroom, which was upstairs. She also gave inconsistent reasons for her delayed report of the incident.

Criminal defense lawyers should not bank on sex assault complainants giving uncorroborated testimony that is incredible as a matter of law

With Virginia uncorroborated sex assault evidence, “‘a conviction for rape and other sexual offenses may be sustained solely upon the uncorroborated testimony of the victim.’ Poole v. Commonwealth, 73 Va. App. 357, 368 (2021) (quoting Wilson v. Commonwealth, 46 Va. App. 73, 87 (2005)). ‘[B]ecause sexual offenses are typically clandestine in nature, seldom involving witnesses to the offense except the perpetrator and the victim, a requirement of corroboration would result in most sex offenses going unpunished.'” Kimble v. Commonwealth of Virginia, Record No. 0831-21-3 (Va. App., Aug. 2, 2022) (unpublished). Consequently, Virginia trial and appellate judges can be expected to hesitate to find sexual assault complainants’ testimony incredible other than in the most extreme of inconsistent testimony circumstances, for instance with Willis, supra. Kimble declines finding the complainant’s testimony incredible as a matter of law even though the complainant forgot about her sexual assault interview but testified at trial not recalling missing that interview and instead saying she had car problems and was in the process of moving. Additionally, the complainant told the police that lack of gas precluded her from obtaining a protective order against the defendant, but testified at trial that not obtaining such an order was because the defendant did not know where she was living and was not afraid of the defendant. None of the foregoing circumstances tipped the scales to obtain a finding of incredible complainant testimony. Instead, Kimble affirms his conviction.

What should I do if accused of sex assault with Virginia uncorroborated claims

If you are accused of sexual assault on Virginia uncorroborated claims, or any other serious crime, consult timely with a qualified lawyer before the police end up trying to question or arrest you. The clock is ticking about whether you take the right actions to reduce your criminal prosecution exposure, and obtaining the right lawyer can help reduce that exposure. Fairfax criminal lawyer Jonathan Katz welcomes requests to consult at such an early stage, and will discuss possible solutions to your being criminally accused.

Fairfax criminal lawyer Jon Katz fights like hell for your best defense against Virginia DUI, felony and misdemeanor prosecutions. Your initial in-person consultation about your court-pending criminal case is free, by calling 703-383-1100. 

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