Sexual Abuse Charges – Blog 7: The Confrontation Clause

November 28, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’m continuing my series of blogs today on sexual abuse charges.  I’ve broken down the categories into three:  the technical or legal components, the subjective nature of the evidence, and finally the advocacy related topics from the defense perspective.

Today I’m talking about the importance of the confrontation clause under the sixth amendment of the US Constitution to sexual abuse charges which is a common denominator in any sexual molestation charge.

What is the Confrontation Clause?

Your right to confront means the right to cross examine your accusers in open court.

I’m continually amazed by the depth of human intuition and understanding of the framers of our constitution.  Even back in 1789 they seemed to know not just the mob mentality of “the good guys” who prosecute or bring charges – but also some of the mental laziness which comes along with it.  What I mean is asking an accuser “what happened…” followed then by “and then what happened…” and “what happened after that…” doesn’t necessarily get you to the truth.

Cross examination allows the questioner to ask pointed, leading questions to state’s witnesses – questions the accused or witnesses from the state may not want to answer yet are required to do so.

One of my favorite quotes about cross examination:

Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth … Cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure.

– John Henry Wigmore

How Does the Right to Confront Impact Sexual Abuse Cases?

Your right to confront means the accuser likely has to testify in almost any case.  There are several rules in place in particular for cases involving child-witnesses.

  • The Testimony Has to Be Live

Courts have been clear:  the right to confront means the right to confront before a jury.  In fact, many of the opinions involving child sexual abuse cases where the prosecution has wanted to have a child testify via closed-circuit television are now particularly applicable as authority during the COVID-19 crisis.  Legally the consensus is a “Zoom” or virtual trial would violate these precedents set by child sexual abuse cases.

  • Outcry Laws

The prosecution is allowed to call witnesses known as “outcry” witnesses.  An outcry witness is any person over 18 years old who was the first adult to hear of the sexual abuse claim from a child.  Courts have construed outcry as a “process” so it’s not uncommon to have several outcry witnesses – some of whom are law enforcement interviewers – all come and testify in an effort to fortify the child’s claim.

An outcry witness can even contradict a child in cases where a child recants an outcry.

One important concept about an outcry witness is they can never replace a child witness altogether.  If the child witness does not or otherwise cannot legally testify – neither can the outcry witness.

  • A Child Witness Must be Competent to Testify

All witnesses have to be “legally competent” to testify.  Texas Rule of Evidence 601(a)(2) deals with children and the judge can examine them to see if they have “sufficient intellect” to testify concerning the matters at issue.  If the court determines the child does not have the ability to testify – then again – they are “unavailable” for confrontation rules and the outcry witnesses cannot replace them.

When is it Not Necessary for a Child Witness to Testify During a Sexual Abuse Case?

The prosecution is tasked with proving each element of a case beyond a reasonable doubt to the finder of fact (either a judge or a jury).  It would not be necessary for a child to testify where the elements of the case can be established through other witnesses with first-hand knowledge of the events – typically eye witnesses but also potentially medical experts if there is sufficient medical evidence in any particular case.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

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Sexual Abuse Charges – Blog 6: Indecency With a Child by Exposure

November 27, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Today we’ll talk about the basic law of indecency with a child by exposure in my continuing blog series about sexual abuse charges.  It goes without saying sexual abuse is an incredibly complex topic in every way – so you can reference this blog as an index to the others including this one.

What is Indecency By Exposure?

This is where a person either exposes themselves to a child or causes the child to expose themselves to any person.  The lynchpin to the exposure being a crime is it must be done with “intent to gratify or arouse any person.”  See Tex.Pen.C. 21.11(a)(2).

Like with Indecency by contact – the legislature felt it better for a jury to decide which situations constituted an offense and which didn’t.

Indecency by exposure is considered an act of sexual abuse for the purposes of the “continuous sexual abuse of a child” statute.

The “Romeo and Juliet defense” is available for indecency by exposure if the actor is not more than three years older than the victim and the victim is 14 years or older.

Sex Offender Registration – A Major Difference

One major difference between indecency by exposure and indecency by contact are the sex offender registration requirements under Chapter 62 of the Code of Criminal Procedure.  Indecency by exposure triggers a ten-year registration instead of a lifetime registration.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

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Sexual Abuse Charges – Blog 5: Indecency With a Child by Contact

November 26, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

There is too much ground to cover in blogging about the technical, practical, and the defense of sexual abuse charges to do the topic justice in just a hand-full of articles.  This is why I’ve chopped up the topic into a series and today I’m writing about the technical aspects of the Texas Law on Indecency with a child by contact.

What is Indecency by Contact?

Indecency by contact occurs where the actor either knowingly or intentionally – with the intent to arouse any person – makes actual “sexual contact with a child.”

Indecency is codified in Tex.Pen.C. 21.11.  Section (c) deals with the lynchpin of indecency with a child by contact by defining “sexual contact”:

(c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Unlike sexual assault of a child, aggravated sexual assault of a child, and “super” aggravated sexual assault of a child, though, Indecency by contact requires intent to “arouse or gratify.”

This is probably because the legislature understood when drafting the sexual assault charges – certain types of sexual contact (i.e. genital to genital or mouth to genital) a judge or jury could automatically infer the intent of the actor was to “arouse or gratify” based on the type of contact alone.

With indecency by contact, however, the legislature probably understood without adding the language that “sexual contact” includes the intent to arouse or gratify – they could potentially criminalize potentially routine, inadvertent, or innocuous contact between adults and children such as when a child gives a bear-hug to her grandma or a parent bathes their child.

Punishment for Indecency By Contact

Indecency by Contact is a 2nd Degree felony punishable between 2 and 20 years in the Texas prisons. Probation and deferred adjudication are possible depending on the person’s criminal history.  It requires lifetime sex offender registration.

*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.

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Sexual Abuse Charges – Blog 2: Aggravated Sexual Assault of a Child and “Super” Aggravated Sexual Assault of a Child

November 23, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Today I’m continuing my blog series on Sexual Abuse Charges.  Here is a guide to this series of blogs on sexual abuse charges where you can find more information on today’s blog and other related topics.

What is Aggravated Sexual Assault of a Child?

It is defined by Tex.Pen.C. 22.021(b).  Much of criminal law focuses on what we call Mens Rea – latin for “the guilty mind.”  This is to say there is a large focus on what defendant is intending through their actions.

In many sexual abuse cases – judges and juries are asked to figure out the intent of the defendant through their actions.

A good way to think of ASAC is the acts of sexual abuse define themselves.  In other words, you can infer the intent of the defendant through their actions alone.  My apologies in advance for the graphic nature, but Tex.Pen.C. 22.021(b) lists the following acts as Aggravated Sexual Assault of a Child:

[A person] (i) causes the penetration of the anus or sexual organ of a child by any means;

(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;

(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor;

As you can see by the descriptions, none of these actions are debatable that, if true, they constitute sexual assault.

What’s In a Name?

The name of the charge can be a bit confusing because it sounds like weapons, kidnapping or other extreme violence were involved in the allegation like they are with aggravated assault charges.

The term “aggravated” heightens and distinguishes the charges based on the child’s young age because it applies to children younger than 14.  Sexual assault of a child (non-aggravated) applies to children younger than 17.

There is an even higher charge than aggravated sexual assault of a child – and that is when a child aged 6 or younger is the victim.  This is commonly referred to as “Super” aggravated sexual assault of a child though the statute doesn’t bear the name.

Possible Punishment Ranges

  • Sexual Assault of a Child – 2 years to 20 years;
  • Aggravated Sexual Assault of a Child – 5 years to 99 years or life;
  • “Super” Aggravated Sexual Assault of a Child 6 years old or younger – 25 years to life (no parole).

ASAC is further confusing because it allows for deferred adjudication but not regular probation.  Translation – the only way you can get deferred adjudication probation is by pleading guilty and having the judge grant you deferred.

If a person is convicted of ASAC, either at a trial or from a guilty plea, then they must serve at least the minimum of 5 years in the Texas Department of Corrections.

A person convicted of ASAC is eligible for parole after 50% of their sentence is discharged.

Super ASAC has a minimum of 25 years with no possibility of parole, probation, or deferred adjudication.

All persons convicted or placed on deferred for any of these charges is subject to lifetime sex offender registration.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Super Lawyer by Thomson Reuters.

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Why Children Have to Testify in Sexual Abuse Cases

November 13, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Children must often testify in open court to satisfy the U.S. Constitution’s confrontation clause in the 6th Amendment.  The 6th Amendment has been repeatedly held to require a defendant be allowed to cross-examine their accuser in open court.

Other examples of the confrontation clause would be the arresting officer in a DWI arrest having to take the witness stand, a battered spouse having to take the witness stand in a prosecution against their abuser, or an eyewitness to a crime like robbery.

Emotional Trauma Versus Principals of Justice

Many folks feel like having to put the child on the witness stand is just an arbitrary rule with long-term emotional damage as a consequence from the trauma of having to testify.  Unfortunately they are often correct about the emotional trauma – I have spoken with many adults who had to take the witness stands as children and it is normally reported as an awful experience.

While I can’t make anyone feel much better about impact of the rule on the child – perhaps I can at least speak to the gravity of what the rules try to accomplish.

Why the Right to Cross Examine is Critical to Our System of Justice

My favorite quote about the right to confront is by Henry Wigmore, “Cross examination is, beyond a doubt, the greatest single engine for the discovery of truth.”  I couldn’t agree more.

While “cross examination” seems harsh understanding we’re talking about children – it really just means the difference between asking closed ended questions and open ended questions.

Consider in a sexual assault of a child case – the police, detectives and children’s advocates only ask the child “what happened next…..? and then what happened….? and what happened after that?”  It is probably a decent way not to suggest facts and details to the child, but doesn’t really scrutinize anything either.  It sort of assumes it all to be true without pressing any of the weak points of the story.

Now consider a child telling their parent they feel sick and can’t go to school.  Is the parent just going to ask how the child is feeling and regardless of what the child says accept it all as true?  Probably not.  The parent will probably conduct a bit of an investigation which tests the child’s claims.  Is there a fever?  Don’t you have a test today?  The chicken we had for dinner last night didn’t make anyone else sick?

Perhaps the child’s claims of being sick withstands the cross examination… then again, maybe the story withers.  This is how cross examination with pointed, leading questions can get to the truth.  Open ended questions, on the other hand, provide a stage for someone to make their sales pitch.

Can’t Someone Else Testify in Place of the Child?

Unfortunately not.  Another component of confrontation is cross-examining the actual witness and not a surrogate.

The law recognizes the surrogate simply will not know the details sufficient enough to provide a meaningful cross examination.  Was it light or dark outside?  Was the weather cold or hot?  Who else was in the room?  The surrogate typically won’t know the actual details and cross examining them is not the same as cross examining the accuser.

Separating Fact Versus Fiction About Children Testifying

A common misconception from the parents or legal guardinan of children having to testify is it would be like television or the movies.  That the accused will make threatening faces at the child or try to jump over counsel-table and charge the witness stand.  I’ve never seen or heard of anything like this remotely happening.

The truth is the accused is going through a range of emotions too like fear, uncertainty and who knows what else.

Other Rules about Children Testifying in Texas

Texas rules do allow grown-ups to testify in certain situations about what they child told them.  Those rules are allowed to essentially supplement what the child says and not replace what the child says.

It is also a criminal offense to try and persuade or influence any witness, child included, about their testimony.  It’s obviously a crime, too, to try and convince a witness to ignore a subpoena or not testify.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact a lawyer directly.

 

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