Sexual Abuse Charges – Blog 10: How Most Sexual Abuse Investigations Work in Texas

December 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Today’s topic in my continuing series on sexual abuse is the process for investigations in Texas.  Sexual abuse allegations typically follow a different pattern than investigations for things such as property crimes, drug crimes, or even other crimes against persons like robbery or murder.   This is because many Texas counties have built their own unique infrastructure specifically designed for sexual abuse cases.

Children’s Advocacy Centers

It’s hard to understand the investigation process in an abuse case without understanding a Children’s Advocacy Center (“CAC”).  A CAC is a combined law enforcement initiative.  It’s a central facility and organization where different police agencies can pool their resources under one roof specifically for the investigation and prosecution of crimes against children.  The CAC houses detectives along with other professionals who work with children in an effort to assist in criminal investigation and prosecution.

The CAC typically has liaisons with prosecuting agencies such as District or County Attorneys and it is not unusual for them to “roundtable” their cases where both prosecutors and law enforcement are present.  Most of the professionals who work directly with the children or the accused also testify in court on a routine basis.

My understanding is most, if not all, Children’s Advocacy Centers are non-profits under 501(c)(3) of the tax code.  Many testifying from the CAC are quick to point this out to a jury.  I argue to juries this claim is true for tax purposes but is a bit misleading because it leaves the impression the CAC is a neutral fact-finding group.  The truth is the Children’s Advocacy Center is really just a very unique police station.

What the Advocacy Center Does When they Get an Allegation of Abuse

Allegations of abuse (both physical and sexual) probably hit the CAC from all angles.  It could be a referral from Child Protective Services (CPS), a call to the police from anywhere within the county, or potentially they are even directly contacted by victim’s parents.

Forensic Interviews of the Complaining Witness

It’s very common for the CAC to conduct what is known as a forensic interview of a child they believe to have been sexually or physically abused.

A forensic interview is where a person sits down with a child and asks them open-ended questions and passively steers the conversation to to talking about the alleged abuse.  The interviewer does their best not to show judgment, approval, or anger towards the child’s claims.  The interviewer also does their best not to inject their own terms, phrases, or ideas into the conversation.

The purpose of the forensic interview is part human-polygraph and part legal strategy.  The forensic interviewer typically testifies as an “outcry” witness later in trial.

Suspect Interviews and Interrogations

It’s also common for a suspect to be brought to a CAC for an interrogation.  Perhaps this is because it is less daunting to lure a suspect into “Children’s Advocacy Center” than it is to a police station.  Many of these situations end with the suspect leaving in handcuffs whether or not the police get a confession.  Then again, I’m sure a suspect or two have managed to talk their way out of trouble too (but no lawyer who knows what they are doing will ever advise you to attempt this on your own).

Cross-County or State Investigations

It’s also common for CACs in different locations to coordinate with one another when they need to.  For instance if a child has since moved since the incident or allegation of abuse – the advocacy center where the child now lives may conduct the forensic interview(s) and/or interrogations of suspects.

Decision Making and Prosecution

The CAC staff and personnel go through their decision making process — whatever that may consist of — and they take whatever action they deem necessary.  That could consist of referring the case to a grand jury for prosecution, more investigation, or not proceeding with charges against someone accused.

Optimally an accused gets a lawyer involved as soon as they know the wheels are in motion at the Children’s Advocacy Center for a prosecution.  The lawyer can help talk “apples to apples” with the CAC detectives and try to do their best protect their client.

Of course, ultimately in America decisions about guilt and innocence aren’t made behind closed doors at a roundtable which doesn’t include the accused… which is why we see so much of advocacy centers and their personnel in the courtroom.

*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.

 

 

Comments Off on Sexual Abuse Charges – Blog 10: How Most Sexual Abuse Investigations Work in Texas | crimes against children, Indecent Exposure, sex cases, sex crimes, sex offender registration, Sexual Abuse of a Child, sexual assault, Uncategorized | Tagged: , , , , , , , | Permalink
Posted by niftybrady

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.

 

Comments Off on Sexual Abuse Charges – Blog 6: Indecency With a Child by Exposure | crimes against children, Indecent Exposure, sex cases, sex crimes, sex offender registration, Sexual Abuse of a Child, sexual assault | Tagged: , , , , , | Permalink
Posted by niftybrady

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.

Comments Off on Sexual Abuse Charges – Blog 5: Indecency With a Child by Contact | crimes against children, Indecent Exposure, sex cases, sex crimes, sex offender registration, Sexual Abuse of a Child, sexual assault | Tagged: , , , , , , , , | Permalink
Posted by niftybrady

Sexual Abuse Charges – Blog 4: Continuous Sexual Abuse of a Child

November 25, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

As you can tell by the title, I’m writing a series of blogs on sexual abuse charges.  You might be interested in a guide or index to these articles for more information.  Today’s topic is “Continuous Sexual Abuse of a Child or Young Children” (“continuous”), its legal definition, and a few of the technical legal aspects of this law.

What is “Continuous Sexual Abuse of a Child” According to Texas Law?

“Continuous” is a law drafted to prevent and punish someone who sexually abuses a child victim repeatedly over months or even years.  Most of these prosecutions involve an individual child though the law allows prosecution for multiple victims.  It is codified under Tex.Pen.C. 21.02.

The punishment range for continuous sexual abuse of a child is 25 years to life with no possibility of parole.

If a person commits two acts of sexual abuse of a child which occur over 30 days apart from each other than the person has committed continuous sexual abuse of a child or young children.

It’s drafted really differently than any other sex crime charge so I think the easiest way to understand it is through examples:

Examples of Continuous:

Example 1 –

  • Defendant commits act of sexual abuse on January 1 against victim A
  • Defendant commits act of sexual abuse on January 31 against victim A or B

Example 2 –

  • Sexual abuse on January 1 against victim A
  • Sexual abuse on January 10 against victim A or B
  • Sexual abuse on January 31 against victim A or B

Example 3 –

  • Sexual abuse on January 1, year 1 against victim A
  • Sexual abuse on January 10, year 1 against victim B
  • Sexual abuse on May 1, year 3 against victim C
  • Sexual abuse on July 1, year 5 against victim D

The easiest example is number 1.  Two acts of sexual abuse more than 30 days apart from one another.  Example 2 shows the existence of a third instance of abuse which isn’t more than 30 days apart doesn’t prevent prosecution for continuous though it does cause legal complications I’ll discuss in a minute.

Examples of what ISN’T Continuous:

  • Sexual Abuse on January 1 against Victim A
  • Sexual Abuse on January 10 against Victim A or B
  • Sexual Abuse on January 30 against Victim A, B, or C

Here, all the abuse is within 30 days.  For that reason defendant can be prosecuted for whatever crimes the abuse consisted of against the individual victims – but not continuous sexual abuse of a child or young children.

What is an Act of Sexual Abuse For the Purposes of Prosecution of Continuous Sexual Abuse of a Child?

The statute for “Continuous” lumps pretty much all of the acts of sexual abuse together for this type of prosecution.  My guess is the legislature did this so defendants couldn’t wiggle out of a Continuous charge by nit-picking and claiming certain acts done to certain victims were not the same or didn’t constitute sexual abuse.

Here’s what the law says about acts of Sexual Abuse under 21.02(c)

(c) For purposes of this section, “act of sexual abuse” means any act that is a violation of one or more of the following penal laws:

(1) aggravated kidnapping under Section 20.04(a)(4), if the actor committed the offense with the intent to violate or abuse the victim sexually;

(2) indecency with a child under Section 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child;

(3) sexual assault under Section 22.011;

(4) aggravated sexual assault under Section 22.021;

(5) burglary under Section 30.02, if the offense is punishable under Subsection (d) of that section and the actor committed the offense with the intent to commit an offense listed in Subdivisions (1)-(4);

(6) sexual performance by a child under Section 43.25;

(7) trafficking of persons under Section 20A.02(a)(7) or (8); and

(8) compelling prostitution under Section 43.05(a)(2).

Where This Law Gets Extremely Complex

This statute has been the subject for much legal crazy-making for lawyers and judges for many reasons.  Courts have done their best to end the confusion but it is still the subject of controversy.  I don’t want to get too bogged down in these issues for this blog – but I’ll generally describe them because they’re still very important.

Jury Unanimity Issues

A major headache with this statute is the jury is not required to agree which allegations have been proven beyond a reasonable doubt to a jury and which have not.  Instead, the jury must only agree beyond a reasonable doubt two or more instances occurred beyond the 30 days.

This is important because not only is it confusing, but because the US Supreme Court has been clear any factor which enhances a punishment range must not only be submitted to a jury but then proven to the jury beyond a reasonable doubt.

Notice Issues

Another problem with the statute is the term “sexual abuse” combined with the unclear or fuzzy nature of children’s allegation of dates makes it extremely difficult for a defendant to know specifically what they are accused of doing so they have an opportunity to defend themselves.

Notice is always a difficult topic in child sexual abuse cases because the defendant always needs to know exactly what they are being put on trial for.  The allegations in many continuous cases don’t do much better than telling someone, “we just think you’re a really bad child molester” and now we’ll put you on trial for it.

Overview of Continuous Sexual Abuse of a Child or Young Children Tex.Pen.C. 21.02

This is an extremely difficult statute in many ways to legally understand much less defend.  The subject matter and the punishment possibilities make defending these cases as critical as cases can be in the courtroom.

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

 

 

Comments Off on Sexual Abuse Charges – Blog 4: Continuous Sexual Abuse of a Child | Indecent Exposure, sex cases, sex crimes, sex offender registration, Sexual Abuse of a Child, sexual assault | Tagged: , , , , , , , , , | Permalink
Posted by niftybrady

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.

Comments Off on Sexual Abuse Charges – Blog 2: Aggravated Sexual Assault of a Child and “Super” Aggravated Sexual Assault of a Child | Assault, crimes against children, Indecent Exposure, sex cases, sex crimes, sex offender registration, Sexual Abuse of a Child, sexual assault, Uncategorized | Tagged: , , , , | Permalink
Posted by niftybrady

« Previous Entries