By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Today I’m covering an extremely technical legal aspect of sexual abuse cases which tends to be problematic for the courts – double jeopardy. For the 40,000 foot view of all my blogs in the sexual abuse categories you can read here.
Why is Double Jeopardy Such a Headache in Sex Cases?
Double jeopardy has different applications. It prevents folks from being put on trial twice for the same crime. It also prevents defendants from being convicted and/or sentenced twice of the same crime.
There is a danger defendants are getting convicted and sentenced multiple times for the same singular criminal act simply because our legislature has written so many over-lapping criminal statutes.
For example (and I apologize in advance, as always, for the graphic nature of the subject matter), let’s say there is an act of molestation against a 13-year old which includes the actor causing genital to genital contact of the victim:
In that instance the following criminal offenses have been committed:
- Indecency by exposure (2-10 years TDC)
- Indecency by contact (2-20 years TDC)
- Aggravated Sexual Assault of a Child (5-99 years or life).
But did the legislature intend for there to be three distinct punishments or just one? If the answer is three punishments then a person could be sentenced to up to 129 years in prison. We hear these type of sentences in other States, but not Texas.
This is a routine challenge for prosecutors to properly legally strategize as well as Courts and defense lawyers to make sure these things are properly legally handled.
Prosecutors obviously don’t want a defendant acquitted merely because they fail to prove the highest possible charges. It’s a common tactic for prosecutors to “plead in the alternative” or to plead lesser charges as well as the higher charges for that very possibility.
But here’s the danger for the prosecutors – they risk having some of their good convictions vacated on appeal if those convictions punish someone twice for the same distinct criminal act.
Lesser Included Offenses
One of the challenges is because of what are known as “lesser included offenses” or “lesser included.” A lesser included means a charge within a charge. For example, if the prosecution alleges theft over $100 but less than $750 – but at trial it is shown the item stolen was only worth $98 – then defendant may be guilty of the “lesser included” charge of theft under $100.
It’s unfortunately not as clear-cut in sex crimes with regards to “lesser included” offenses. This is because the statutory scheme by the legislature simply didn’t draft the offenses the same way theft charges or assault charges are drafted.
The test for whether a charge is a “lesser included” offense is if one charge contains an element (a required unit of proof) which the potentially greater charge does not.
Areas Where the Law Gets Extremely Messy
One of the distinct problems with sexual abuse cases is there tend to be often not only multiple allegations of different acts of abuse – but those acts are often alleged to have been committed on different dates and frequently at different places. Because these cases deal with children who aren’t always the best at communicating the abuse they’ve suffered to the authorities, the courts and lawyers dealing with the cases have a hard time sorting out things too.
Often a prosecutor can charge the defendant with continuous sexual abuse of a child – which tends to “clean up” and legally simplify the charges and the jeopardy issues. Then again, it’s hard to blame a prosecutor, too, for simply alleging every charge they can articulate in every different way so as to make sure the defendant is convicted. But the prosecutor may be opening the door to double jeopardy issues down the road on appeal if they do so.
Why Double Jeopardy is an Important Issue
The way a case is charged by the prosecutor affects everything from plea negotiation, preparation of the defense and even frequently post-conviction if the defendant is seeking an appeal. Sorting out and quantifying the legal impact of the prosecution “throwing the book” at your client is simply part of defending these types of abuse cases.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He has been designated as a Texas Super Lawyer by Thomson Reuters.