Articles Posted in Sex Crimes

California’s sex offender laws are among the strictest in the country. Even relatively minor sex offense convictions usually end up requiring a lifetime registration on the sex offender list. So what is a “relatively minor” sex offense you might ask. Well, consider the 18-year-old who is arrested for having consensual sex with a minor— that minor being his 16-year-old girlfriend. Or how about an adult of 19 who is convicted of making obscene and harassing phone calls to a minor, that minor being his younger brother’s friend and the acts, while immature, were done as a joke. While these acts and other similar crimes aren’t acts to be excused, they are hardly acts that suggest the offender poses a significant and lifetime risk of committing sex crimes. But that is how almost all so-called sex crimes are treated.

There are almost 100,000 sex offenders registered in California and this state is one of only four that requires a lifetime registration. The U.S. Justice Department estimates that more than a quarter of the sex crime registrants were minors at the time of the offense. According to the California Sex Offender Management Board, almost 900 of the registered sex offenders committed their last sex crime over 55 years ago. The strict requirements placed on sex offender registrants regarding where they can live has created an underclass marginalized by society.

How did the sex offender laws become so stringent in this country, and especially in this state? Even after serving the sentence for the crime, the sex offender is never relieved of the burden. The idea behind the registration laws is that sex offenders are likely to recommit sex crimes and therefore present an ongoing risk to society. But is this true?

The Sex Predator Next Door

In 1996, with the federal enactment of “Megan’s Law”, California began disseminating identifying information about sex offenders on CD-ROM on a monthly basis to all sheriff and police departments throughout the state. This information was made available to the public. Since then, the information available to the public has expanded to include information about individuals who have been convicted of a variety of sex crimes against both adults and children and is available to all via the Internet.

Since Megan’s Law was enacted, public awareness of sex offenders has increased and with that awareness has come more laws and restrictions on individuals convicted of sex crimes. In 2006, California voters enacted Proposition 83, known as “Jessica’s Law”, which placed mandatory residency restrictions on registered sex offenders. While it is certainly in the public’s interest to be protected from violent sexual predators, Jessica’s Law, which placed onerous restrictions on where a sex registrant can live, coupled with the readily available information to the public, created a class of homeless undesirables. The California Supreme Court noted that sex offenders registered as transient nearly tripled from 2,050 in 2007 (just after Jessica’s Law was passed) to 6,012 in 2011.[1]

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Facebook, Instagram, selfies—we live in an age of instantaneous electronic communication. The teens of today share the details of their lives via social media; they seem to spend much of their time snapping photos to share and conversing by text message. But some teens go beyond sharing the everyday details of their lives—they share the intimate details of their lives or the lives of others by engaging in what’s commonly called “sexting”. Sexting is the sending of a nude or revealing photo of oneself or of another person to someone via cell phone text messaging.

Certainly teen sexting is a cause for concern to parents and often ends up causing the teens involved a lot of embarrassment, but the consequences of teen sexting can be far worse than an angry parent and teenage embarrassment. While many states have laws that specifically address teen sexting, California does not. In the State of California, a teen who is caught sexting or, even simply possessing a sext message on his or her phone may face charges under the California sex offense statutes.

It is illegal in California to produce, possess or distribute “obscene matter[1]” of a child under the age of 18. (Pen. Code §311.1, 311.2 and 311.3). Violation of this law applies to any obscene image of a child, whether it’s a hard copy or an electronic image. When a text message depicts obscene images of a minor under the age of 18, the person who takes the photo, sends it as a text, or just simply possesses the text[2] can be prosecuted under the child pornography statute. The law applies to minors as well as adults.

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California Penal Code Section 243.4 defines sexual battery as the non-consensual touching of the intimate part of another for sexual arousal, sexual gratification or sexual abuse. It can be charged as either a misdemeanor or a felony, depending upon the circumstances.

Some people may find this hard to believe but, even a slight pat or slap on the butt of another could result in a charge of sexual battery. It would most likely be filed as a misdemeanor but any type of charge for sexual battery looks bad.

There was a time when a man slapping a woman or girl on her behind may have been considered, in some weird way, an act of flirtation. But now, if that person was a stranger or even if they weren’t, if the person being slapped on the bottom is offended by the act, she/he would be within their right to file a police report.

A U.S. Customs and Border Protection Officer was convicted this week of raping two women, and has been sentenced to 6 years in State Prison. The 33 year old Fountain Valley man plead guilty to the 2009 rape of a woman whom he met and then raped after she blacked out from alcohol intoxication. The second woman, a prostitute, he met in 2010 when he picked her up and drove her to an industrial area. When the woman became frightened and tried to escape, he raped her and then fled the scene. The woman immediately reported the rape to authorities. The DNA collected from the 2010 rape was linked to the DNA which defendant had provided in the 2009 rape investigation.

Although this case appears to be pretty straight forward, reviewing all of the evidence and carefully taking apart, bit-by-bit, the evidence could have resulted in a different outcome for this man. We know that this man had sexual intercourse with these women because of the DNA evidence. But, too often innocent people are accused of rape for a variety of reasons. Discussed below are some defenses to the charge of rape, as well as the elements that must be proved for a conviction of rape.

Legal Defenses to rape: There are a number of possible defenses to rape to be considered when one is accused of rape. Because there requires little to no evidence to accuse someone of rape, innocent people are falsely accused. Emotional issues often play a role in false accusations, whether it is intentional or not. The fear of someone finding out about the sexual relationship or the guilt associated with having a sexual relationship with someone, can result in a person being falsely accused. Mistaken identity is also common in these types of cases.

1. False Accusation: Unfortunately, there are situations where a person is falsely accused of rape. An example might be that, after having consensual sex, one of the parties has feelings of guilt because they were involved in a committed relationship. But, rather than admitting to the infidelity, accuses the other party of rape. Also, a false accusation could result after being pressured and coerced by another to say they were raped.

2. The Accused Believed There Was Consent: If the accused did not have a clear understanding that the accuser did not want to have sexual intercourse, this may be a defense. Although, any indication from a party, at any time, that they want to stop, would constitute no consent.

3. There was no actual intercourse.

4. Lack of Sufficient Evidence: If there is no physical evidence and no witnesses, then it becomes one person’s word against the other and therefore, too difficult to prosecute.

5. Mistaken Identity: Because rape victims are traumatized and emotional, it is not uncommon to unintentionally identify the wrong person. If there was poor lighting during the attack, identification is more difficult. If the attacker is wearing a mask, identification becomes extremely difficult. Also, police lineups are often prejudicial and result in mistaken identity.

What Does A Prosecutor Have To Prove For A Rape Conviction

To be convicted of rape, it must be proven that: 1) The parties engaged in sexual intercourse; 2) That the sexual intercourse was accomplished by physical force, violence duress, menace, fear of bodily harm, fear of retaliation or fraud. There must also be a lack of consent.

What Is Lack Of Consent– The obvious is that the victim did not give consent. Other than saying “No”, other situations include: 1) The victim was too intoxicated to consent; 2) Due to some sort of a mental disorder, the victim lacks the capacity to give consent; and 3) The victim was unconscious, asleep or fraudulently convinced that having sex was necessary or acceptable.

The consequences of a rape conviction can be severe and can permanently damage a person’s life. Because of the issues dealing with the emotional and physical evidence of such a crime, often innocent people are accused of this very serious crime. For this reason, it is strongly advised that anyone who has been accused of rape, whether or not an arrest has occurred, should consult with an experienced criminal defense attorney. Often, an attorney who has a good working relationship with the District Attorney’s Office, can speak with the District Attorney reviewing the case for filing, and present information that may result in the case being rejected.

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A Santa Ana City Councilman, who was also once an Orange County, executive, has been charged with sexual battery, along with several other felony counts dealing with sexual misconduct. He has been charged with 12 felony counts and 3 misdemeanor counts in the Orange County Superior Court.

California Penal Code Section 243.4 defines sexual battery as the non-consensual touching of the intimate part of another for sexual arousal, sexual gratification or sexual abuse. It can be charged as either a misdemeanor or a felony, depending upon the circumstances.

In this case, the Orange County District Attorney has filed the sexual battery charges as felonies. The difference between a misdemeanor and a felony filing lies with the way in which the victim(s) were touched against their will. As an example, in this particular case it is alleged that the defendant restrained his victims from leaving the room or the area in which the battery occurred. This elevates the charge to a felony.