Sexual assault charges can dramatically impact your life. You may be facing a lengthy jail sentence, if found guilty. And, the social stigma of a sexual assault conviction and sex offender registration will stay with you forever.

If you have been charged with a sexual assault, it important to understand your rights and defenses. These defenses may vary, depending on whether you are facing criminal charges or have been served with a civil lawsuit.

What is Sexual Assault?

Sexual assault is defined as nonconsensual sexual contact performed by force, threat of force, or violence. Penetration is not required to prove a sexual assault. Groping or fondling over clothing and forced kissing may be considered sexual assault.

Potential Defenses in Criminal Claims

If you have been criminally charged with a sexual assault, you may have a series of defenses. However, every case is different—you should carefully evaluate the facts in your case to determine which defenses are available.

The Criminal Burden of Proof

In a criminal case, you must be found guilty beyond a reasonable doubt. This means that there must not be any reasonable possibility of innocence. The courts require this high level of proof because your rights and freedom are at stake.


By definition, a sexual assault is sexual contact without consent. If you can prove that the interaction was consensual, you cannot be convicted.

It is important to carefully evaluate the facts in your situation to determine whether consent was given. Consent must be communicated, but can be revoked at any time. Additionally, certain groups (like children, incapacitated adults, and some disabled adults) cannot legally give consent.

Mistaken Identity

Sometimes, an innocent person is charged with sexual assault. This can be due to mistaken identity or false statements. You may need forensic evidence, expert testimony, and witnesses to prove your innocence.

Mental Incapacity

Most crimes cannot be committed without intent. Intoxication is not a defense. However, if a mental illness or disability prevents an individual from understanding his or her actions, he or she may be found “not guilty.”

Mental incapacity defenses typically require expert opinions from doctors or psychologists. You may have to undergo a series of examinations that assess your ability to understand right from wrong.

Statute of Limitations

Criminal charges cannot be filed after the statute of limitations expires. In most states, the statute of limitations in sexual assault cases ranges from one to ten years. If the assault involved a child or mentally incapacitated person, the statute may be extended. (And, some states do not have statutes of limitations for sex crimes.)

Potential Defenses in Civil Claims

An increasing number of alleged victims are filing civil sexual assault lawsuits. In a civil or tort case, a plaintiff may be entitled to compensation for his or her damages—including pain and suffering. A civil lawsuit can be filed even if criminal charges were not pursued or a “not guilty” verdict was issued.

If you have been served with a civil sexual assault lawsuit, many of the criminal defenses (like consent and innocence) can be used. You also may have additional defenses that are unique to civil claims.

The Civil Burden of Proof

In a civil lawsuit, a plaintiff has an easier time proving liability. He or she must show that you committed a sexual assault by a preponderance of the evidence. In other words, there must be evidence that the plaintiff more likely than not was assaulted.

Comparative or Contributory Negligence

Comparative or contributory negligence is a controversial defense in sexual assault claims. However, some states allow it as a defense. If your state permits contributory negligence defenses, you may argue that the alleged victim was partially responsible for the assault. 

Statute of Limitations

Most states impose a two to three year statute of limitations in civil sexual assault claims. However, the statute may be extended if the plaintiff was a minor child, mentally incapacitated, or disabled. If the plaintiff files a lawsuit after the statute of limitations expires, the claim will be dismissed. Every state’s filing deadlines are different—make sure you know the procedural rules in your community.

Do I Need a Sexual Assault Defense Lawyer?

If you have been charged with a sexual assault, you may be facing jail time and civil liability. With so much at stake, it is probably in your best interest to hire a criminal defense attorney as soon as possible. If you are served with a civil lawsuit, contact a lawyer.