Charged with Sexual Assault? A Toronto Lawyer Gives Advice
We recently conducted interviews with criminal defence lawyers to help provide advice to some of our readers on what they can do when faced with serious criminal charges such as sexual assault, indecent act or indecent exposure.
In this article, we sat down with Stephen Hebscher, a criminal defence lawyer with The Criminal Law Team to discuss what options someone has if they have been accused and how they can protect themselves.
Hello Stephen, thank you for taking the time to sit down with us today.
My pleasure! Happy to meet with you today.
First off, would you like to introduce yourself to our audience?
My name is Stephen Hebscher and I am a criminal defence lawyer located in North York, in the Toronto area. I have been practicing criminal law for over 33 years, and have helped many individuals seek the justice they deserve.
While I provide a variety of services for criminal defence, I specialize in defending clients charged with all manner of sexual assaults, as well as indecent act, and indecent exposure charges. I vigorously defend these charges on behalf of my clients and, when the circumstances are warranted, I get them the help they need, usually with the result that they avoid a criminal record.
Perhaps you want to comment on the current political and social climate that has culminated in the MeToo movement?
This movement simply means that I now fight even harder for my clients. For society as a whole, the MeToo movement is a positive one, however, the pendulum may have swung too far in the direction of eroding away at the presumption of innocence and the burden of proof.
In a criminal trial, the accused is presumed innocent until and unless proven guilty beyond a reasonable doubt. In our present climate, and with social media accusing everyone of bad behavior, there is a presumption of guilt.
My job is to ensure my clients get a fair trial, and that public opinion is left outside the courtroom. Every day I am fighting a battle with the police, prosecution and the criminal justice system to ensure my client is treated fairly.
To take it one step further, my primary philosophy is to get my client the best possible result in his or her case.
So let’s say I’ve been falsely accused of committing sexual assault? Where do I go? What do I do?
After dealing with the initial shock, you need to find a criminal defence lawyer who will fight for you, and get you the best possible result in the circumstances of your case.
While you may believe that you are innocent and the truth will come out in the end, I have a strong belief that once you are accused of a serious crime you need to have a lawyer who is aggressive, leaves no stone unturned, and takes nothing for granted.
By aggressive, I mean that the lawyer has to, from the beginning, formulate a winning game plan with the philosophy that the client’s future is on the line, and that this is going to be a battle between them (the lawyer and the client) and the powers of the state. In order to fight the charges against my client I have at my disposal a team of experts and private investigators; as well as psychiatrists, psychologists, and counselors, if necessary.
There have been many documented cases where innocent people have gone to prison because they decided not to seek the help of an experienced criminal defence lawyer in such an important moment in their lives.
Okay, so how do I deal with this? Where do I turn if I’ve been falsely accused?
First and foremost, if you believe you may be charged, you must call an experienced criminal defence lawyer immediately, and meet with him or her to discuss the possible allegations, and to develop a strategy.
It is absolutely imperative that you get “lawyered up”, i.e., you need to say nothing to no one, except to your lawyer. My approach is to prepare the client for the police interrogation process, and believe me, it not a simple matter of telling the client to shut up. The police have ways to make suspects talk (short of threats or the use of violence).
Most of my clients think that by telling the police their side of the story they will be exonerated, however, my experience is different. In the current political climate, more than 90% of allegations of a sexual assault will result in criminal charges, regardless of what the client tells the police.
There will be that rare situation where the police may consider the accused’s side of the story. It is my job to identify that opportunity and, at the same time, prepare the client for their interrogation. Otherwise, the client must remain silent and not incriminate himself.
If I am charged, what is the next step?
I will discuss with the officer releasing you from the police station with a court date or, if you have to go for bail, I will arrange with you to have someone at court to sign bail for you. After your bail hearing you will be given another court date. On that date, disclosure, which is the evidence against you, will be provided to me. After a thorough review, I will then review the disclosure with you and discuss the strategy of the case.
Some cases can be resolved without going to trial, however, in the present political and social climate, almost all sexual assault charges are being prosecuted, therefore I take the approach of preparing from the beginning of the case to do battle in court.
What are some of the strategies you employ to help win sexual assault cases?
It is not my intention to reveal any trade secrets over the Internet, but I will discuss them, at length, with the client. Suffice it to say that there are two particular strategies that are commonly employed in sexual assault cases:
One is to look for inconsistencies in the complainant’s statement(s) to the police versus their testimony. Many times this can be aided by the client’s knowledge of the case, and the complainant’s background.
Many sexual assault complainants have a perception that they are not believed by judges and juries, when, in reality, they were not believed because they either outright lied or are inconsistent in their testimony. It is my job to uncover the lies and inconsistencies, and to present a credible defence.
The second approach is to establish a motive to lie on the part of the complainant. Motive to lie can also be uncovered through the use of a private investigator, or simply by effective cross-examination.
What defences are available in sexual assault cases?
Many of these cases are a battle of credibility between the accused and the complainant because, usually, there is no one else who has witnessed the alleged offence. Sometimes, a case can be won simply by attacking the credibility of the complainant. As well, the defences of consent, mistaken belief in consent, or “it just didn’t happen” are employed.
However, central to the approach I take in most cases is to attack the credibility of the complainant, and, when necessary, prepare the client so he or she is credible in front of the judge or jury.
As an experienced criminal defence lawyer, I have been able to obtain acquittals in cases by convincing judges there was a reasonable doubt that the complainant did not consent to the sexual acts described. I have been able to show the complainant was not believable or, for various reasons, that the act never occurred at all.
What about DNA evidence? I have seen the power of it on shows like CSI.
Many times police and prosecutors will use DNA evidence to try and prove that the accused committed a sexual act with the complainant. This does not prove consent, which the crown has the onus of proving beyond a reasonable doubt.
DNA evidence may simply prove that the accused and the complainant had intimate contact. However, this is not always the case, as DNA can sometimes be deposited on a person in a very innocent manner.
Smaller samples of DNA have been deposited from the oils on a person’s skin, from a hair, a single cell of skin, or even from a sneeze! In these circumstances, the DNA may not even show that the accused had physical contact with the complainant.
At The Criminal Law Team, we have DNA experts at our disposal who have an intimate understanding of how to challenge DNA evidence.
Please tell us about your approach to defending indecent act, indecent exposure, and other types of sexual offences?
First and foremost, with respect to indecent act charges, the crown has to prove the accused intentionally committed an indecent act in the presence of one or more persons.
As with other types of sexual offences, the crown has to identify the accused as the perpetrator of the act in question, and that it was intentionally committed, usually for some sexual purpose. If that is proven, then my particular expertise is in employing psychiatrists to assess the reasons for the behavior, and, if necessary, to obtain counseling for the client.
The assessment by the psychiatrist will usually reveal a diagnosis of a particular sexual disorder, as well as provide recommendations for treatment, and an assessment of the risk to reoffend. These are all important components of defending clients charged with offences involving these types of behaviours.
I also have a number of counselors specializing in treating various types of sexual disorders who can counsel the client, and provide letters for court.
In the end, the goal is for the client, after counseling, to be assessed as low risk to reoffend, thus paving the way for the client to avoid having a criminal record.
Thank you very much for your time, Mr. Hebscher. If any of our readers want to reach out to you, where’s the best place to do so?
It doesn’t matter whether you are guilty or innocent. What matters is that you have the right to hire a lawyer to provide you with a vigorous defence.
If you or a loved one has been accused of sexual assault or indecency, you need a proven team that will fight for you. That team is The Criminal Law Team.