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  • Michael Thaler, Esq

Can I be Charged with Rape without Evidence?


In Massachusetts, many rape or sexual assault prosecutions are based exclusively on the word of the alleged victim. In such a case, the question is can a person be charged with rape without evidence to corroborate an alleged victim’s accusation? The short answer is yes, if a person has been accused of rape, then that person can also be charged with rape so long as there is probable cause.


What is Probable Cause?


The term “probable cause” shows up often in legal circumstances. But what does it mean? Probable cause is a very low standard, and one of its applications is as the legal standard that the Commonwealth must meet to charge someone in Massachusetts with a crime. It is defined as “[r]easonably trustworthy information sufficient to warrant a prudent person in believing that a crime has been committed and that the accused is the perpetrator.” District Court Standards of Judicial Practice, The Complaint Procedure (Oct. 2008). In general, a person can be charged with a crime in Massachusetts, even one as serious as when someone is accused of rape, so long as there is probable cause.


There is no special requirement for what type of evidence needs to be present for a probable cause determination in the case of a sexual assault with one notable exception. If the allegation is more than twenty-seven years old, then there must be independent corroborating evidence in addition to the alleged victim’s testimony. Absent the passage of over twenty-seven years, many rape cases that are not reported right away often proceed without evidence beyond the alleged victim’s testimony. If there has been a delayed report, it is rare that there will be DNA, fingerprints, or other types of evidence. An experienced sexual assault attorney will certainly highlight this lack of evidence and how it raises doubt of whether a person charged with rape is guilty of the alleged offense. As such, the courts have provided the Commonwealth with another tool to use against someone charged with rape.


The First Complaint Doctrine


The first complaint doctrine, which was defined by the Massachusetts Supreme Judicial Court in the case of Commonwealth v. King, 445 Mass. 217 (2005), permits the Commonwealth to have the first person to whom the alleged victim told of the alleged sexual assault to testify at trial. Normally, anything an alleged victim told to a third party is inadmissible at a trial because it is considered hearsay. However, under the first complaint doctrine, the first person that the alleged victim told about the encounter is entitled to testify to the content of that conversation.


The underlying rationale for the first complaint doctrine is that a delayed report of a sexual assault is not in and of itself a sign that the alleged victim lacks credibility. By having the first person informed of the allegation testify to what was said, it helps to determine the accuracy and reliability of an alleged victim’s testimony at trial.


So, while the answer to the question of whether a person can be charged with rape without evidence beyond the word of an alleged victim is yes, that does not mean that there are not ways to defend against the accusation before and during a trial. It is important that if you have been accused of rape or charged with rape in Massachusetts, that you reach out to an attorney experienced in defending sexual assault cases. Attorney Michael Thaler has both prosecuted and defended individuals charged with rape and other types of sexual assault cases in the Boston and Dedham area. For a free consultation, contact Attorney Thaler at 781-366-0806 or at mike@thaler.law.