By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Being convicted of a sex crime is unenviable to be sure. One of the reasons we fight so hard on sex charges and crimes is because the down side is so catastrophic.
I’m continuing my series on sexual abuse cases – today discussing the technical and legal aspects of what happens if you or a loved one have either been found guilty, been placed on deferred adjudication or have been released from prison.
Sex Offender Registration
Registration is controlled by Tex.Code.Crim.P. Chapter 62. It requires a sex offender to register with local authorities on a regular basis. Many cities have also passed ordinances requiring sex offenders to live a certain minimum distance from schools or playgrounds which is an intentional method of excluding sex offenders from living in their communities altogether.
Registration is filled with tripwires and is enforced often by bored police or nosey neighbors. Even homeless people must comply. Failure to register as a sex offender in itself is a 3rd degree felony (2-10 years).
It goes without saying registration is very stigmatizing. The stigma hurts not only the sex offender but punishes their family, too for being loyal. Families suffer the choice between abandoning their loved one or themselves suffering retaliation in housing and at work. Sex offenders are at heightened risk for suicide.
Deferred adjudication is a form of probation whereby a person pleads guilty but is not found guilty. The person is placed on probation for a specific amount of time. If they complete the probation the case against them is “dismissed.” Dismissed under Texas law for deferred doesn’t really mean what we all think – it just means the case is over.
Deferred in a sex case sounds great – but is really often a trap door. Name all 50 states in ten seconds. Name every President of the United States in 30 seconds. Sex offender probation isn’t quite that hard – but it can be extremely onerous and taxing.
The downside is if a person’s deferred is revoked – they are subject to the entire punishment range for the original offense. So, for a first degree felony (5-99 years or life) – the person could actually get a life sentence if they unsuccessfully attempt deferred adjudication.
Additionally deferred in every case also triggers sex offender registration.
Deferred is also a mechanism prosecutors use if they have weak cases to bait folks into pleading. If the person accepts the deferred and then has a hard time – the person can no longer argue they were innocent to a jury. The only issue before the court is whether the person violated deferred.
There are benefits to deferred. It isn’t prison and when the case is over the person can deny having been “convicted” although they cannot deny having been arrested, charged, or pleading guilty. If they are charged again with a sexual abuse charge – the deferred counts as a conviction.
Completing deferred on a sexual abuse charge does not entitle the person to have their case sealed, expunged, or otherwise hidden from the public in any way.
Sexual abuse charges where a person is eligible for deferred (depending on their criminal history) are:
- Aggravated sexual assault of a child;
- Sexual assault of a child;
- Indecency by contact;
- Indecency by exposure.
Sex Offender Probation
The main difference between sex offender probation and deferred adjudication is the person is convicted prior to being placed on probation. This has importance beyond being able to claim a person was never convicted of an offense. The conviction actually caps the defendant’s legal exposure to prison.
In other words if the defendant violates probation and is sent to prison – it would legally be capped at the underlying sentence. A person cannot be placed on probation for more than a 10-year sentence in any case. Thus, being “convicted” of a sex offense in some ways is actually better than being placed on deferred for a sex offense.
The requirements of sex offender probation are equally as daunting and difficult as if someone is on deferred.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is designated as a Texas Super Lawyer by Thomson Reuters.