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 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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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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