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.

 

 

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Sexual Abuse Charges – Blog 9: Registration, Deferred Adjudication, and Probation

November 30, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Being convicted of a sex crime is unenviable to be sure.  One of the reasons we fight so hard on sex charges and crimes is because the down side is so catastrophic.

I’m continuing my series on sexual abuse cases – today discussing the technical and legal aspects of what happens if you or a loved one have either been found guilty, been placed on deferred adjudication or have been released from prison.

Sex Offender Registration

Registration is controlled by Tex.Code.Crim.P. Chapter 62.  It requires a sex offender to register with local authorities on a regular basis.  Many cities have also passed ordinances requiring sex offenders to live a certain minimum distance from schools or playgrounds which is an intentional method of excluding sex offenders from living in their communities altogether.

Registration is filled with tripwires and is enforced often by bored police or nosey neighbors.  Even homeless people must comply.  Failure to register as a sex offender in itself is a 3rd degree felony (2-10 years).

It goes without saying registration is very stigmatizing.  The stigma hurts not only the sex offender but punishes their family, too for being loyal.  Families suffer the choice between abandoning their loved one or themselves suffering retaliation in housing and at work.  Sex offenders are at heightened risk for suicide.

 

Deferred Adjudication

Deferred adjudication is a form of probation whereby a person pleads guilty but is not found guilty.  The person is placed on probation for a specific amount of time.  If they complete the probation the case against them is “dismissed.”  Dismissed under Texas law for deferred doesn’t really mean what we all think – it just means the case is over.

Deferred in a sex case sounds great – but is really often a trap door.  Name all 50 states in ten seconds.  Name every President of the United States in 30 seconds.  Sex offender probation isn’t quite that hard – but it can be extremely onerous and taxing.

The downside is if a person’s deferred is revoked – they are subject to the entire punishment range for the original offense.  So, for a first degree felony (5-99 years or life) – the person could actually get a life sentence if they unsuccessfully attempt deferred adjudication.

Additionally deferred in every case also triggers sex offender registration.

Deferred is also a mechanism prosecutors use if they have weak cases to bait folks into pleading.  If the person accepts the deferred and then has a hard time – the person can no longer argue they were innocent to a jury.  The only issue before the court is whether the person violated deferred.

There are benefits to deferred.  It isn’t prison and when the case is over the person can deny having been “convicted” although they cannot deny having been arrested, charged, or pleading guilty.  If they are charged again with a sexual abuse charge – the deferred counts as a conviction.

Completing deferred on a sexual abuse charge does not entitle the person to have their case sealed, expunged, or otherwise hidden from the public in any way.

Sexual abuse charges where a person is eligible for deferred (depending on their criminal history) are:

  • Aggravated sexual assault of a child;
  • Sexual assault of a child;
  • Indecency by contact;
  • Indecency by exposure.

Sex Offender Probation

The main difference between sex offender probation and deferred adjudication is the person is convicted prior to being placed on probation.  This has importance beyond being able to claim a person was never convicted of an offense.  The conviction actually caps the defendant’s legal exposure to prison.

In other words if the defendant violates probation and is sent to prison – it would legally be capped at the underlying sentence.  A person cannot be placed on probation for more than a 10-year sentence in any case.  Thus, being “convicted” of a sex offense in some ways is actually better than being placed on deferred for a sex offense.

The requirements of sex offender probation are equally as daunting and difficult as if someone is on deferred.

*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 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 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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