By the time someone is arrested on sexual assault charges, their family often assumes the investigation is finished. Detectives did their interviews. A charging decision got made. The government believes a crime happened.
A case Brian Bouffard, Associate Attorney at Law Office of Patrick J. McLain, PLLC, recently handled shows how wrong that assumption can be. The outcome turned on one detail: who had saved their messages, and who had deleted them.
“Having represented clients for decades, I’m often asked what would be the worst crime for an innocent person to be accused of. To me, being under investigation for a sex crime is the clear number one answer,” Brian says.
“Most people think of a rape allegation and picture a violent attack by a stranger out of the shadows. While cases like that do exist, they’re fairly rare. Far more commonly, they involve two people who know each other, and very often have been in a dating relationship.”
The Case: A Dating App Meeting, a Rent Dispute, and Two Different Stories
The case Brian describes began the way a lot of these cases do now: on a dating app.
“This case was a Tinder hookup that quickly moved to text messaging, which clearly indicated a mutual plan to have consensual sex,” Brian explains. “When the alleged victim asked him to pay her apartment rent and he declined, she called the police and told a story of a brutal assault, both unwanted and completely unplanned. She neglected to tell the police about her messaging with my client, where sex was eagerly agreed to by both of them.”
Once Brian and his client had the messages in hand, the strategy came down to timing.
“After receiving the screenshots of their messaging, my client and I decided that it made sense to reveal them at the outset of the case,” Brian says. “It took a bit of time for the detective to verify the authenticity of the messaging, but my client and I were both confident that the truth would come out, and it did. The government saw this case accurately as consensual sex that one party later regretted, which is not a sexual assault. All counts dismissed.”
As with any case, this result reflects the specific facts and evidence involved. No two investigations unfold the same way, and a different set of facts can produce a different outcome.
What He Saved, and What She Deleted
The messages did not just happen to survive. One side kept them. The other side got rid of them.
“The important thing is that he had saved all those messages, where she had deleted them from her phone to bolster her false story,” Brian says. “This is exactly the kind of thing that a seasoned defense attorney understands and less experienced ones often do not: investigators rush to judgment.”
For anyone under investigation right now, the lessons from this case are clear:
- Don’t delete messages, even ones that feel embarrassing or look bad without context.
- Don’t reset, trade in, or replace the phone that has them, and back up what’s on it.
- Don’t contact the other person to explain, apologize, or ask them to walk anything back.
- Don’t give a statement to investigators before you’ve talked to an attorney.
- Let your attorney decide what gets shared with investigators, and when.
What We Look for First: What the Investigation Left Undone
Before Brian builds a defense, he starts by examining the case the state has already built.
“When I receive any case, but especially a case where the stakes are this astronomically high, what I first look for is what the police did NOT do,” Brian says. “Much of criminal defense is finishing the job that an open-minded police detective would have done.”
That does not mean every investigation falls short.
“Occasionally my conclusion is that the police performed a solid investigation,” Brian says. “But nearly every case requires more investigation aimed at discovering the truth, not creating a predetermined outcome of a conviction. Sex crimes investigations are the ones most often plagued by this attitude, and are also the ones where the potential punishment, including registration as a sex offender, will be utterly life changing.”
In a case built on electronic communication, that means going back over ground the state may have skipped:
- Did investigators get the complete message history from both phones, not just what one side handed over?
- Were any messages deleted from either device?
- Did the two people communicate on more than one app or platform?
- Do call logs, photos, or location data support or contradict the timeline either side is telling?
Why a Trial Firm Gets a Different Result Than a Plea Firm
Brian traces the gap between a strong outcome and a weak one back to a distinction most firms will not say out loud.
“I have known numerous colleagues who don’t do that necessary and critical work for their clients,” Brian says. “Those defense lawyers almost invariably have something else in common too: they are plea lawyers, not trial lawyers. I’m not saying that I never plead cases. I’m saying that pleading a case out is never the first option. It should always be the last option, and only after a case has been worked up with an eye toward a jury trial. At Law Office of Patrick J. McLain, PLLC, none of us are plea lawyers. We are all trial lawyers.”
National data shows the large majority of criminal cases end in a plea rather than a trial, and Brian points to that statistic as the reason the distinction matters.
“Why is this distinction important when more than 97% of cases don’t actually go to trial?” Brian says. “Prosecutors know who the lazy defense attorneys are, the ones they aren’t afraid of and know they can push around. They also know the defense attorneys like us, who understand what it really takes to effectively defend someone accused. The bad plea deals go to the plea lawyers, because prosecutors know they’ll convince their clients to take anything. The good plea deals go to the lawyers who prosecutors know will force them to prove their case in front of a jury.”
“This reality is surprising to some, but it illustrates the importance of hiring the right lawyer who will work up your case the right way,” Brian says. “We take any criminal case to trial when that’s what our client wants, and it’s that willingness to fight that often leads to the right result, whether that’s a trial or a plea.”
Talk to Us Before You Say Anything to Investigators
A declined rent request turned into a rape allegation because one person told police a story the messages did not support. It ended in a dismissal because the other side had kept the record that told the truth.
If you or someone in your family is under investigation for a sex crime, what you preserve, and what you say, can shape the entire case. Call (214) 238-9392 or contact us online to talk through your situation before you talk to anyone else.
About Brian Bouffard
Brian Bouffard is an Associate Attorney at Law Office of Patrick J. McLain, PLLC, where he defends service members at courts-martial and individuals facing serious felony charges in Texas, including sex crimes. Before moving into defense work, he spent years as a Marine Corps trial counsel, prosecuting cases himself, a background that shapes how he reads the investigations he now challenges. He later served as lead defense counsel in a Guantanamo Bay case that ended in his client’s release after two decades of imprisonment without trial and holds an LL.M. in Trial Advocacy from Temple University’s Beasley School of Law.