Sexual Abuse Charges – Blog 3: Sexual Assault of a Child

November 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.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 Sexual Assault of a Child in Texas?

Sexual assault of a child in Texas is committed when one of a number of sexual acts is committed between against a child who is younger than 17 but is 14 or older.  Another common term for this offense is “statutory rape” but this word doesn’t appear in the code.

For situations where an accuser is younger than 14, the applicable statute is typically aggravated sexual assault of a child.

I again apologize for the graphic nature of these descriptions, but Tex.Pen.C. 22.011(a)(2) defines the acts associated with sexual assault:

(2) regardless of whether the person knows the age of the child at the time of the offense, the person intentionally or knowingly:

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

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

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

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

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

Punishment for Sexual Assault of a Child

This is a 2nd degree felony in texas punishable between 2 and 20 years of prison and a fine not to exceed $10,000.  A person can be eligible for deferred adjudication or regular probation however it triggers lifetime sex offender registration.

Not Knowing the Age of the Child is Not a Defense

Statutory rape is what is known as a “strict liability offense.”  This means there is no necessary “mens rea” or culpable mental state needed to prosecute the offense.

Tex.Pen.C. 22.011(b) does require the crime be committed “intentionally or knowingly.”  This language refers to the physical acts themselves – not whether the actor knew the age of the complaining witness.

The legal reasoning which makes whether the actor knew the was under the age of consent irrelevant is because the state has such a heightened interest in protecting children – that courts believe it outweighs the defendant’s due process rights.

The “Romeo and Juliet” Defense

A more recent defense to sexual assault of a child is what is referred to as the “Romeo and Juliet” defense under Tex.Pen.C. 22.011(e)(2)(a).

This defense requires the following to be true:

  • The victim cannot younger than 14;
  • The defendant cannot be more than 3 years older than the victim;
  • The defendant cannot already be a sex offender;
  • the victim cannot be someone who legally could not marry the defendant.
  • The acts must be consensual

Other Defenses

The code provides other defenses to sexual assault of a child related to medical care and marriage.  Both are very specific as to what they require.

*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 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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Sexual Abuse Charges – Blog 1: The 40,000 Foot View

November 22, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Few topics get more visceral reactions than the mention of sex crimes and charges – particularly when they involve children.

I explain to jurors this is precisely what makes sexual abuse charges a Petri dish for injustice.  They involve very graphic and horrific abuse, if true.  There are highly emotional victims, witnesses, advocates, lawyers and even jurors trying to hash-out highly subjective claims, evidence, and psychology with life-altering consequences.

This is why sex abuse charges are in many ways the ‘wild west’ of criminal law.

Focusing on the Big Picture First

Today I’m starting a series of blogs about sexual abuse cases.  In condensing everything so it makes sense, I’m finding major gulfs between some of the more technical and legal aspects of sexual abuse cases and the clinical, practical and/or advocacy related issues.

There are common threads, patterns and themes which are common to abuse cases which span different types of legal charges and allegations.

For this reason, I think it makes sense to dedicate a series of blogs to the technical and legal aspects of child sexual abuse and then to discuss some of the over-arching common denominators to all of them and finally how we deal with those from the defense’ point of view.

Breaking it Down Further

In sum – I’m going to break down sex abuse law and advocacy into three main categories so hopefully it makes more sense:

Einstein – or the highly technical or legal aspects of sex abuse law;

Motzart – the highly subjective aspects of the often malleable evidence, psychology, and social aspects of the charges; and

Rocky – how we fight and advocate against the odds.

Blog Topics:

Einstein (What the Books Say)

Motzart (The Subjectivity and Emotion)

Rocky (How We Fight)

*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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Can the Police Track Your Phone?

November 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Yes, police can track your phone.

Smart phones, car infotainment systems, and computers have absolutely revolutionized criminal investigation and criminal law.

While these forensic practices are very cutting edge and revolutionary – they are still somewhat impractical depending on the case.  Legally there are obstacles for law enforcement too – but those are typically overcome.

The intersection between liberty and technology is always evolving and it always will.  Courts recognize people have privacy interests in our phones, cars and computers for which we increasingly rely – but the more advanced the technology – the more tempting and simple it is for law enforcement to attain.

For example, cell tower triangulation currently requires not only knowing specific information about the device but also requires getting records from the carrier.  A car infotainment download is very expensive but it can tell law enforcement anything the car has communicated to the driver such as GPS data, lane assist warnings or car door openings.

Tracking cell phones requires lots of work which might include search warrants for records and even fighting with the likes of AT&T or Sprint – but it is possible and can be extremely valuable to police.

I rarely see cell phone tracking in cases such as driving while intoxicated, theft, or even sexual assault.  Cell phone triangulation and tracking are common in homicide cases, kidnapping cases and other high-profile cases.  Also, civil lawsuits might have cell phone tracking evidence because a party is willing to shell out the money to pay for it.

*Jeremy Rosenthal is board 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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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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