Should I take a plea agreement in a sex assault case?

The Threat

The main threat to the accused in all sex assault cases is incarceration and potential sex offender registry.

Additionally, most registered sex offenses are felonies. This leads the accused to worrying about their immediate future. Not only with a destroyed reputation and prison time, but also the long-term future of trying to obtain employment as a felon and registered sex offender.

At some point, the accused may come to the realization that life as they know it could be permanently altered by the criminal charges they are fighting.

The Way Out

The simplest and easiest way out is a win at trial. If the accused is acquitted, the threat of a felony conviction, sex offender registration and prison time all go away. However, there are no guarantees at a jury trial.

Usually a criminal attorney will fight for months to shape the parameters of the trial. Sometimes after months into the investigation, the defense attorney will find the criminal defendant has a great chance to win at trial.

Other times, the defense attorney’s independent pretrial investigation tells him that odds of winning at trial are less than favorable. In either scenario, a prosecutor is likely to offer the accused or the defendant a way out of the crucible of the jury trial. Most of the time the only way out other than a trial is through the plea agreement.

While plea agreements in rape cases can be extremely beneficial to the accused, they can also be dangerous and misleading.

Understand Every Aspect of the Offer

Prior to accepting any plea agreement, the criminal defense attorney will advise the client on how the agreement will affect potential prison time, sex offender registry, and other civil disabilities.

In some cases, the accused may be offered a plea agreement reducing a first-degree sexual assault to a third-degree sexual assault. In this scenario, the value of the plea agreement is that the accused was once facing 1-50 years for first-degree sexual assault is now facing 0-1 years for third-degree sexual assault.

Furthermore, this plea offer reduces the charge from a felony to a misdemeanor. While this may seem like a good deal to a defendant whose odds of winning at trial are extremely low, it still carries mandatory sex offender registration for 15 years.

Deals that Avoid Sex Offender Registry

If we change the facts of the plea offer above from first-degree sexual assault to third-degree assault (not sexual assault) the accused is pleading to a regular assault, which is not a sex crime on it’s face. However, because the initial charges were filed as a sex offense, if the factual basis that the prosecutor uses for establishing the assault include some type of sexual assault, the accused may unwittingly be walking into a mandatory sex offender registration that they don’t know existed.

In other words, a simple assault charge supported by a factual basis that includes elements of sexual assault can result in the accused being placed on the sex offender registry even though he was never convicted of an actual sex crime.

Avoiding Sex Offender Registry in Plea Negotiations

The criminal defense attorney who fails to advise the client of all the risks in a plea agreement may provide ineffective assistance of counsel.

A seasoned criminal defense lawyer knows that pleading from a sex assault to a regular assault can avoid sex offender registration so long as there is no factual basis in the record to establish that the underlying factual basis for the conviction is a sex crime or contains the elements of sex assault. However, sometimes avoiding sex offender registry is not enough.

For the citizen accused who cannot afford to go to prison for fear of losing their job, career, family or life, the plea agreement should also include what sentence the prosecutor will recommend.

Recommended Sentences

In some jurisdictions, prosecutors will agree to recommend a sentence of probation as part of a plea agreement or even a fine as part of the plea agreement. In jurisdictions such as Lancaster County in Nebraska, prosecutors refuse to make sentencing recommendations. However, even a sentencing recommendation for probation in a sex assault case does not guarantee that the accused will be sentenced to probation.

Judges do not have to follow sentencing recommendations in the state of Nebraska. While some state court judges almost always follow sentencing recommendations, other state court judges make it very clear that any sentencing recommendation by the parties has no effect on the judge’s decision at sentencing – which by law it doesn’t.

The bottom line is if a criminal defendant accused of a sex crime can get a plea agreement with a recommendation for probation in front of a judge who generally follows recommendations from prosecutors and defense attorneys, it is likely that the accused will get what he bargained for. However, if the judge does not regularly follow sentencing recommendations, the accused takes a risk even if the prosecutor promises to recommend probation.


Sex offense cases are complicated. Often the accused is facing civil disabilities from a felony conviction, reputational damage, imprisonment, and mandatory sex offender registration. The consequences of a finding of guilt in a sex offense are so severe, that it is not unusual for the accused to take the case to a jury trial with an all-or-nothing approach.

However, in some cases a plea agreement can achieve the accused’s goals. While plea agreements are an acceptable way to resolve a rape charge in some cases, they are not always a good idea and they accused needs to understand every aspect of the plea offer before agreeing to take the deal.

If you need to fight false rape allegations, contact the sex crime defense attorneys at Berry Law.

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