Sexual Abuse Charges – Blog 8: Double Jeopardy

November 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

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.

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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 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.

 

 

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