Sex Crimes

          Sex crimes may be one of the most difficult types of cases to defend.  They are sensitive and complex cases that carry some of the harshest penalties in the criminal justice system.  The social stigma surrounding sex offenses- particularly those involving an allegation involving a child-  makes picking a fair and impartial jury extremely difficult.  Further, a conviction for a sex offense can stay with a person for their entire life.  When accused of a sex crime, it is crucial to retain an experienced defense attorney who has handled these types of cases, understands the issues involved, and knows how to structure the best possible defense.

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Questions? Afraid to ask?


Consent... When Age Matters

what you don't know might hurt you: strict liability

          When dealing with sex crimes, the ages of both the alleged victim and the defendant may play an important role in determining the potential penalties a person faces.  It is important to know that where age is an element of the crime, Florida treats these as strict liability crimes.  Specifically, the following examples would not constitute legal defenses to sex crimes in Florida, where the age of the victim is a relevant factor:

·         Ignorance of the victim’s age

·         A bona fide belief that the victim is over the specified age

·         Misrepresentation by the victim of his/her actual age  

          Picture this:  You are at a 21-and-over-only bar.   You meet a young woman who buys you a drink, tells you she is 22, and even shows you her ID.  You truly believe she is 22.  However, in reality, she is underage and used a fake ID to enter the bar and purchase alcohol - the same ID she showed you that night.  Of course, you had good reason to believe her, but if you were to engage in any sexual activity with her, you could unknowingly commit an extremely serious offense – a sex crime – and never even know it until you are arrested.

          Also, where a child victim is involved, the age of the child can severely impact the seriousness of the crime.  Sexual battery on a child under the age of 12 is a “Capital Sexual Battery”, with a mandatory life sentence upon conviction.

            Some important notes:

·         Although the word “capital” is used, this offense is not punishable by death

·         Because Florida no longer uses a parole system, a life sentence always means life- without the possibility of parole or release

          Molestation of a child less than 12 years of age is referred a Lewd or Lascivious Molestation, Victim Under 12.  The maximum punishment for this crime is life, with a minimum mandatory sentence of at least 25 years.  (See Florida State s. 794.011)


Crimes Involving the Internet

possession of child pornography

          Child pornography charges have risen dramatically as the Internet becomes more accessible and commonplace.  Criminal charges for child pornography may encompass the possession, production, and/or distribution of material depicting a child in a sexual act.  Whether the individual is in fact a child, and whether the act pictured is in fact a sexual act, are typically questions of fact for a jury to decide at trial.  There are expert witnesses who specialize in giving opinions on, for example, the age of a child in a photograph.  In other situations, it may be a matter of opinion whether, for example, a photograph depicts a sexual act, or an innocent one.  While this may sound odd, consider this example:

You take a photo of your young child playing in the bath, think it’s cute and send the photo to other people.  Maybe you also send a picture of another child playing in the bath along with your child.  Was this an innocent picture, taken to share with friends and family, or is it a criminal act?

          It is important to understand that the issues in these cases are not always clear-cut and should be thoroughly examined by an experienced criminal defense team.  Child pornography cases may require the opinions of experts in forensic data analysis, who can help to unravel documents full of IP addresses, file-sharing platform profiles, or screen names, as well as determine who had access to specific electronic devices. 

          While child pornography charges are generally third-degree felonies, punishable by up to five years in prison and/or five years of State probation, it is important to understand that prosecutors can charge each image as an individual count.  It would not be unusual for investigators to find one file containing 90 images that results in a defendant facing 90 counts of possession of child pornography - and up to 450 years in prison!  (See Florida State Statute s. 847.0137)

soliciting a minor

          Use of the internet to solicit minors for sexual acts gained widespread attention on television programs such as NBC’s “To Catch A Predator” with Chris Hanson.  In Florida, the solicitation of a minor to engage in sexual conduct is a second-degree felony, punishable by up to 15 years in prison and/or 15 years of State probation.  Specifically, Florida law defines solicitation as the

“use of an online service, internet service, or electronic device to seduce, solicit, lure, or entice a minor, or person believed to be a minor, to engage in unlawful sexual conduct.”  Florida State Statute s. 847.0135

          Generally, the suspect is actually communicating with an undercover law enforcement officer who is posing as a minor, or a minor’s parent looking to include their minor child in sexual conduct.  Although many defendants accused of soliciting sex from a minor online were never actually communicating with a minor, this is not a legal defense.  The law focuses on the suspect’s intent, making the actual identity of the person on the other side of the conversation irrelevant.  It is also important to understand that each conversation constitutes a separate act of solicitation, and an additional criminal count. 

traveling to meet a minor

          Investigations of this crime are closely related to that of Solicitation of a Minor.  Generally, after a law enforcement officer successfully begins a relationship with an online suspect, they will then attempt to set up a meeting where sexual activity is supposed to occur.  Traveling to Meet a Minor is a second-degree felony, punishable by up to 15 years in prison and/or 15 years of State probation.  Florida State Statute s. 847.0135

          One defense that may arise in these situations is the defense of entrapment.  Entrapment focuses on the predisposition of the suspect – in other words, was that suspect initially and independently planning to engage in sexual activity with a minor?  If not, there may be a defense.  Establishing entrapment as a defense can be difficult.  Considerations in exploring an entrapment defense may include the persistence of law enforcement in pursuing a relationship with a suspect, as well as any evidence that demonstrates initial reluctance, or outright rejection of, the idea by the suspect.  Read More About the Entrapment Defense Here


Evidence

Although every case is different, there are certain issues that are common in the category of sex crimes, particularly where the alleged victim is a child.  The following examples are just a few of the types of evidence that might come up in the criminal investigation of an alleged sex crime.

when a key witness is a child

          Prior to testifying, a child must be "qualified" by the Court.  This means that the child will be questioned -normally outside the presence of the jury- to ensure they understand the difference between the truth and a lie, and that they are otherwise competent to testify as a witness.  This helps to determine the potential reliability of the child’s testimony.  Also, while hearsay is typically inadmissible in a trial, a different set of rules applies to hearsay statements of a child victim.  These statements may be allowed, even where the child does not come to court to testify.  Read More About Child Hearsay Motions Here

medical and forensic evidence

          One common form of evidence that may substantiate claims of sexual abuse or assault is DNA evidence.  Where the accused claims that no sexual contact (consensual or otherwise) occurred, DNA evidence may be crucial.  Additionally, where the alleged victim is a child, consent is not a legal defense and DNA evidence can be a significant legal hurdle.  If investigators are able to obtain a sample from the alleged victim that they believe contains DNA profiles, they will almost certainly  apply for a warrant to obtain a sample of the accused’s DNA for comparison. 

          Given the importance of this kind of evidence, it is important to understand that DNA can, and must be challenged.  The reality is that DNA, like any other type of forensic evidence, has its limitations.  It is important to consider how the DNA was obtained, how it was handled, and the nature of the results of the testing (distinguishing a full profile match from a DNA mixture).  Also, depending on the situation, there may be legitimate explanations as to the presence of the DNA.

          When investigators believe a child may have been sexually abused, they normally have that child seek the services of a Child Protection Team, or CPT.  First, a child will undergo an interview by a CPT team member regarding the incident.  Second, a nurse who specializes in these kinds of examinations will conduct a physical exam to look for injuries or other signs of sexual abuse.  The nurse’s report will be available as part of the State’s discovery in any criminal case that results.  Likewise, a specialized nurse may also conduct a physical examination on an adult who claims to be the victim of sexual assault.  As with child examinations, the nurse will look for abnormalities and signs indicating sexual and/or physical abuse and will record the findings.

statements of the accused

          Investigators will almost always try to obtain statements from the accused that can later be used as evidence against them in a criminal case.  Although most people are generally familiar with the concept of a police interview, many are not familiar with a technique known as a “controlled call.”  A controlled call involves law enforcement officers, behind the scenes, directing an alleged victim or their family member in a phone or text conversation with the accused.  These conversations are recorded and monitored by law enforcement and are intended to obtain incriminating statements from the accused for use in a criminal case.  Although it is illegal to record a phone call without consent in Florida, these kinds of phone calls are permitted, when directed by an officer as part of an investigation.  See Florida State Statute s. 934.03(2)(c)

          Finally, once arrested, the accused will typically be interrogated by detectives.  Normally, these will be detectives who specialize in sex crimes (sometimes referred to as the "special victims’ unit") and are thoroughly trained in investigative techniques particular to these kinds of cases.  Detectives may conduct a long, detailed- and at times, intimidating - interrogation, all with the end goal of obtaining a confession.  They may be dishonest about the evidence they have (for example, telling a person that they have their DNA on the alleged victim, when they don't yet have results) or use the “good cop / bad cop” routine to obtain information from the accused. 

          The main point is this: when an accused is in an interrogation room, nearly everything the detectives say or do is an effort to get the accused to incriminate themselves.


        I think I may be accused ... When should I talk to an attorney?

          Generally, people hire a lawyer after they have been arrested.  When you are dealing with a potential allegation of a sex crime, however, you may be aware of allegations prior to an arrest, and the criminal investigation may go on for months.  While you are worrying about the implications of these accusations, law enforcement may be busy looking at every angle, doing everything they can to build a strong case against you.

          Hiring a lawyer during this pre-arrest process can have a positive impact on your case and can assist in protecting your rights during the investigation.  Ultimately, depending on the facts of your particular case, it could be the difference between being arrested and charged – or not.  If you believe you have been accused of a sex crime, contact an attorney immediately to determine the best course of action and to protect yourself at all times.


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