Sexual Abuse Charges – Blog 12: Fist Fights Over Evidence

December 3, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

How do you corroborate your story with a completely he-said/ she-said debate about something which happened 5 years ago?

This is one of the big challenges of sexual abuse prosecution and defense.  Physical evidence such as DNA or other injuries which might be associated sexual abuse can be rare – particularly when an outcry is delayed for months or years.

So it’s often the case each side takes seemingly small or what may seem like insignificant scraps of evidence and do their best to magnify it by 10,000%  to try and corroborate their story.  The ensuing debate in the courtroom over just what the small shred of evidence might mean is what I call “fist fighting over evidence” and it’s the topic of today’s blog in my continuing series on sexual abuse cases.

The Challenge

Most offense reports I read allege something to the effect of the child making the outcry of abuse — and the report goes on to say the specifics of incident x happened “over the summer” or “sometime in March” or “a few months ago” in a certain location (i.e. aunt’s house, friend’s apartment) in a certain room of the home.  The reports then detail the specifics of the abuse if any are given by the child.

So if I’m having a conversation with a client who insists he is innocent – he can never answer the question, “where were you every day last summer and how can we prove that?”  He can never answer the question of “okay, even if you were at aunt’s house sometime in March – how can we prove victim wasn’t there at the same time and/or you and victim weren’t alone?” The task is virtually impossible in most cases.

So if there is any nugget of evidence which tends to show Defendant’s story is the truth – it becomes huge.

The Best Example – Brett Kavanaugh’s Calendar

Without getting into details of cases I defend – probably the clearest example of a “fist fight over evidence” would be Supreme Court Justice Brett Kavanaugh’s calendar which he contended was proof of his innocence against allegations of sexual assault and the US Senate then having a “fist fight” over what the calendar actually proved.

Staying away from the politics of it all – was the calendar proof Mr. Kavanaugh didn’t sexually assault Dr. Ford?  Maybe yes and maybe no – but my point is this is all he had other than his word.

The calendar even got parodied on Saturday Night Live.

Smart Phones – Evidence in a Box

A major difference between 1982 and the 21st century are smart phones.  Today we can tell if someone took the tollroad on a certain day, their GPS location at any given time, or pictures they took… etc.  So today we actually have a lot more potential to strive and attain some small nugget of proof which we hope can corroborate our story.

*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 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 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 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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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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