Sexual Assault Definition

October 26, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Texas law defines sexual assault under Penal Code 22.011 below:

(a) A person commits an offense if:

(1) the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

The lynchpin of each definition is the lack of consent.  So what is the legal definition of consent?

Consent is defined by Texas Penal Code 1.07(11) as… “assent in fact, whether express or apparent.”  

The code goes on to further discuss “Effective Consent” meaning consent cannot be attained through force, threat, fraud, or mental defect.  Intoxication is a bar to effective consent where the person cannot make reasonable decisions due to the intoxication and the actor is aware of the impairment.  See Tex.Pen.C. 1.07(19).

Obviously youth is another bar to “effective consent,” but that is an extensive topic on it’s own so I won’t talk about it much today.  You can read more about the law on sexual assault of minors here.

So What Exactly is Consent?

Courts have been clear proof of consent cannot be defined through a set of magic words or with any bright line.  The Court’s position on what is or isn’t consent is a bit of a punt.  That is, the Courts are happy to say in most instances it is for the jury to decide whether consent did or did not exist or whether consent was ineffective due to some other circumstance.  In other words — it is in the “zone” where reasonable minds can differ.

The fact the Courts allow consent to be such a subjective concept essentially on a case by case basis is what makes it so terrifying for both the accused and the accuser.  An added layer of terror for the parties in a sexual assault case is many jurors are pre-disposed to automatically identify with one side or the other make a fair trial a real challenge.

Getting a Fair Trial

My primary goal in any case where consent is an issue is to get the best jurors possible for the case.  In a perfect world it would be a group of jurors I know will vote with me from the outset — but more realistically — eliminating the jurors who I believe will simply tune us out from the minute we step into the Courtroom.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 


10 Principles of Defending People: #1 Put Yourself in Your Client’s Shoes (But Only for a Moment)

June 9, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Over the past few weeks, I’ve been writing about what I think the top principles are when defending a person in the criminal justice system.

Here are no’s 2 – 10 to recap:

#1 Put Yourself in Your Client’s Shoes

There is much overlap in the principles I’ve suggested in this series.  You can make the argument this principle is really a combination of many of the other principles.

I must always remind myself my client and/or the people who love them often feel:

  • Scared
  • Confused
  • Angry
  • Uncertain
  • Embarrassed
  • Ashamed
  • Singled-Out
  • Hopeless
  • Worried
  • Anxious
  • Alone
  • Different
  • Abused

And even then I’m sure I’m over-simplifying what they must often be going through.  Criminal litigation is bet-the-farm type stuff.  People can lose their freedom and/or livelihood.

Lawyers have to appreciate just how important they are to their client and how much power they have in their client’s matters.  Just having an anxious client see my phone number pop up on their caller ID will ruin some people’s day even if I’m just asking a quick question or giving a small update.

Sometimes the simplicity of the golden rule is directly on target.  How would I, Jeremy Rosenthal, want someone handing the most important matter I could have in my entire life or even decade to conduct themselves?  Prepared… yes.  Organized… yes.  Knowledgable… yes.  Experienced… yes.  And on, and on and on.

Why wouldn’t I do my best to try and be the same way for another human who is experiencing many, if not all, of the emotions discussed above?

But Wait a Second…

There is an extremely important distinction.  I am not my client.

I am often asked by clients or their loved ones, “what would I do if I were in their situation.”  My answer is canned — but true:  “I’m not in your situation.”

I tell them I don’t know what keeps them up at night.  I don’t know what they want to be doing with their life in 10 years.  I don’t know if their great aunt Lucielle would spin in her grave if she knew they didn’t fight charges like the ones they’re facing.

The hard balance for any lawyer is putting themselves in their clients shoes and feeling the gravity of the situation — but remaining the detached expert who can give objective advice.  If I suffered from all of the emotional landmines I outlined above there is no way I could do my job.  I just have to remember they are always there.

Some lawyers do too good of a job putting themselves in their client’s shoes.  They stay there.  It can be problematic because the lawyer gets so wrapped up in the client’s problem — it becomes the lawyer’s problem too.  The lawyer loses objectivity, is less objective in their evaluations, arguments, and representation.

Lawyers need to put themselves in their client’s shoes… at least for a little while.

*Jeremy Rosenthal is Board Certified in Criminal Law and licensed by the State Bar of Texas.

 


10 Principles of Defending People: #2 Find Something to be Angry About

June 8, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m going over to me what are the top ten principles of defending people.  To recap the list so far:

#2 Find Something to Be Angry About

I went to law school because I hate injustice.  It is everywhere in the criminal system.  You only have to look.  In many ways I feel like I’m at my very best when I’m upset although I’m sure it just feels that way.

I don’t care how bad or hopeless a case may seem — there is virtually always something to be upset about.  It may be over-zealous punishment.  It may be battling prosecutors and police lost in an echo-chamber of righteous indignation.  It may be facing a complaining witness who tells half-truths to paint themselves in a better light at my client’s expense.  It could be getting upset because no one seems to understand the mental illness or addiction my client is suffering.  It could be because I feel authority figures are acting like bullies.  There are some cases where I even find myself at odds and in a power-struggle with a Judge.

The good news is most cases aren’t hopeless.  Show me a lawyer who gets fired-up about how his client has been mis-treated, and I’ll show you an effective advocate.

One thing I’ve learned through experience, though, is there are arguments which feel good to make; there are arguments my client enjoys hearing; and there are arguments that win the case.  Give me the latter every time, please.  Being upset has to be channelled and tempered with telling the most powerful and effective story for the jury.

I find apathy is the result of not finding something to be upset about while defending a case.  Again, the good news is I haven’t seen a case go to trial where I can’t find something to be angry about.

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed by the State Bar of Texas.


10 Principles of Defending People #3 Believe Your Client

June 7, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m going over to me what are the top ten principles of defending people.  To recap the list so far:

#3 Believe Your Client

Your client deserves to be believed.  Often no one else will do it beyond their family and loved ones.

My view is the failure to presume the accused innocent is the common denominator in any horror story you read about or hear about in the criminal justice system.  This goes for the jury’s failure, the prosecutor’s failure, the police’s failure… and yes… their own lawyer’s failure to presume the accused innocent.

People have a lot of help in their cynicism.  We’re barraged by story after story of terrible criminals, child predators, and repeat offenders.  Many stories about criminals make fun of them.  There is even a web page dedicated to laughing at people arrested at dumbcriminals.com.

There is much water-cooler or “locker-room” talk in the courthouse where many enjoy a good chuckle at a criminal’s expense.

But the cynicism takes a negative toll.  I cringe when I hear criminals being made fun of in the media or in the docket room — even if they are laughably guilty.  First is because the person they’re ridiculing is almost always human probably suffering from mental illness, addiction or worse.  Second is it desensitizes everyone and feeds the narrative “everyone is guilty,” and finally I don’t like it when people pick on easy targets.  Anyone can laugh at a person arrested for telling the police the drugs in their pocket wasn’t thiers… but if you want a challenge — try defending that person!

Do yourself and your client a favor.  Just believe them for starters and go from there.  If the facts you later flesh-out prove he or she is lying then deal with it at that point.

Don’t be part of the problem.  Presume your client innocent and do your best to prove he or she is telling the truth.

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization and is Licensed to Practice by the State Bar of Texas.

 

 

 


10 Principles of Defending People (#8 Be Optimistic & #7 Inoculation)

June 1, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’ve got two principles to share and they can be summed up the cliche, “Hope for the best but be prepared for the worst.”

I’m summing up what I feel are the 10 most important principles a criminal defense lawyer should follow in their practice in this series.  You can read about my previous posts so far on the topic here:

#8 Be Optimistic

You won’t find much doom and gloom on my blog.  I’m sure there’s plenty of anger, grand-standing and self-ritcheosness… but hopefully not much fear-mongering.

People often shake as they’re walking into my office.  A big part of it is because they’ve been on the internet or gotten legal advice from their best friend growing up.  They think I’m going to confirm their fears about having body and appendages severed by the prosecution.

I have yet to come across a case in the zillions I’ve evaluated where there isn’t some hope, some ray of sunshine, or something to be optimistic about.  Granted, these things are relative and  if there weren’t legitimate reasons for concern — no one would come and see me at all.

But people crave optimism from professionals they deal with.  There is nothing wrong with being optimistic and letting folks know where the sunlight is.

#7  Inoculate People For Bad News

Again, today’s topic is a ying and yang concept.  While there is nothing wrong with being optimistic — people also don’t come to a lawyer to be lied to.

Bad news is unfortunately part of the job.  It’s important to discuss unpleasant possibilities for many reasons.  What is also important is putting them into context and letting someone know how realistic certain outcomes may or may-not be.

I find it is important to discuss possible bad news before it happens.  This way the lawyer and client can come up with a plan for avoiding the possible bad result and time to come up with another plan should the bad result come to fruition.  This gives the client and/or their family a sense of some control and allows time for them to wrap their mind around things.

I call the concept inoculation.  It is like eating vegetables.  It’s no fun to eat veggies at the table but it’s very healthy in the long run.  Discussing possible bad outcomes in a constructive way yields long term dividends.

*Jeremy Rosenthal is Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed by the State Bar of Texas.