A Detective Wants Your Side of a Sex Crime Allegation. Don't Give It Yet.

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The call usually sounds friendly. A detective says a report came in, it is probably a misunderstanding, and they would like to hear your side before they close it out. Sometimes they ask you to come by the station. Sometimes they start asking questions right there on the phone.

When the report is a sex offense allegation, that call is the most important moment in the case, and it comes before there is a case. Nothing has been filed. No lawyer has been appointed for you. What you say goes into the report a prosecutor reads when deciding whether to charge you, and with what.

No Charges Yet Means No Public Defender

Utah's right-to-counsel statute is written for people who have already been charged. The court tells a charged defendant about the right to a lawyer by the first court appearance (Utah Code § 78B-22-201). During an investigation there is no court case, so no public defender is assigned to you. The only lawyer working for you at this stage is one you hire.

It is also the stage where a lawyer can do the most good. After charges are filed, the defense is answering a case the State has already built. Before that, there is still room to affect what gets filed, and sometimes whether anything does.

You Do Not Have to Talk to the Detective

An interview during an investigation is voluntary, and you can say no. Because it is voluntary, detectives often skip the Miranda warnings. In Oregon v. Mathiason, the U.S. Supreme Court held that a man who came to the station on his own, was told he was not under arrest, and left afterward was not in custody, so no warnings were required. His confession could be used against him.

Detectives are also allowed to bluff. In Frazier v. Cupp, police falsely told a suspect that his companion had already confessed, and the Supreme Court held that the lie did not by itself make his confession involuntary. You may be told there is DNA or a video. There may not be.

Stay polite and do not try to explain. Tell the detective you want to talk to a lawyer first, end the conversation, and call one.

Watch for the Pretext Call

In many of these investigations the first contact does not come from police. It is a call or a text from the person who made the report, asking you to explain or apologize so they can move on. Police may be listening. Utah law lets police record a call when one of the people on it agrees (Utah Code § 77-23a-4(7)(a)), and the person who made the report can be the one who agrees.

An apology for a bad night or a fight can be read later as an admission to a crime. If the person who reported you reaches out, do not talk about what happened, by phone or by text. Save the message and give it to your lawyer.

Your Phone

Detectives want phones, because messages, photos, location history, and app data are where these cases get built. In Riley v. California, the Supreme Court held that police generally need a warrant to search the data on a cell phone. Do not unlock your phone for a detective or hand it over to clear things up. If officers show up with a warrant, do not resist or interfere. Call your lawyer.

Do not delete anything, either. Destroying or hiding something you believe will be evidence in an investigation is its own crime in Utah, tampering with evidence (Utah Code § 76-8-510.5), and a deleted thread usually looks worse than whatever was in it.

Waiting It Out Does Not Work

Most crimes have a statute of limitations. Many Utah sex offenses do not. Prosecution for rape, object rape, forcible sodomy, aggravated sexual assault, and sexual abuse of a child can be started at any time (Utah Code § 76-1-301). Investigations can sit for months and then move fast. A long silence does not mean the file is closed.

What Is at Stake

Rape in Utah is a first degree felony carrying five years to life in prison (Utah Code § 76-5-402). Rape, object rape, and aggravated sexual assault require registration on the state sex offender registry for life, with narrow exceptions (Utah Code § 53-29-203). A conviction that requires registration cannot be expunged (Utah Code § 77-40a-303).

What a Lawyer Does Before Charges

Once you have a lawyer, the detective deals with the lawyer instead of you, which keeps the case from being built out of your own words. Your lawyer also starts saving what helps you while it still exists: the whole message history in both directions, the people who were there before and after, location data, and anything showing the situation was not what the report describes. When the case goes to a prosecutor for a charging decision, there is sometimes a chance to put that information in front of them first.

Jim Tily handles sex offense investigations and charged cases in Utah state courts and in the United States District Court for the District of Utah. The consultation is free and confidential.

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This article is for general informational purposes only and does not constitute legal advice. Every situation is different. Contact an attorney to discuss the specific facts of your situation.