Category : Sexual Offenses

Sacramento Falsely Reporting

ANTELOPE: A woman from Antelope, California might face criminal charges after confessing to Sheriff’s Department detectives that she told lies about being the victim of a sexual assault, and even fabricated a crime scene.

Woman Claimes She Was Sexually Assaulted in Home Burglary

This woman, 29 years old, told officers that she arrived home on September 17th to find two males burglarizing her home on Pepperidge Drive. According to Sergeant Tim Curran, the woman claimed that one of the men fled the scene but the other sexually assaulted her.

Inconsistencies in Victim’s Story and Evidence

Sergeant Curran could see multiple inconsistencies between the victim’s story and the available physical evidence. He claimed about the detectives, “A lot of it was just their instincts the day of the incident,” and “They had some questions in their minds and things just never added up.”

Woman Falsely Reports Crime

In a follow up interview, this woman admitted that she lied about the burglary and sexual assault, as well as her involvement in staging the crime scene. It is possible that this woman will be charged with Falsely Reporting a Crime, a misdemeanor in the State of California.

Mass Hysteria: Lessons Learned from the Day Care Center Sexual Abuse Scandals

In the 1980s and 90s, highly publicized trials of day care providers struck fear in parents from coast to coast. In 1983 in California seven workers at the McMartin preschool were charged with 115 counts of having sexual relations with children as young as two years old. In New Jersey in 1985, kindergarten teacher Margaret Kelly Michaels was accused of forcing more than 20 children to play sex games and penetrating them with knives and forks. In 1995 a pastor and his wife in Wenatchee Washington were accused of being at the center of a sex ring in which children were ritualistically abused and raped. Forty-three adults were accused of being involved in the sex ring, and 29,726 charges of sexual abuse were filed against them.

Many Sexual Abuse Cases Involving Children Were Unfounded

These cases represent only a small sample of an apparent epidemic of sexual abuse that plagued the country. The accusations were marked by lurid details of torture, satanic rituals, and elaborate sexual abuse scenarios. They involved hundreds of children, and led to thousands of charges filed. If the stories seemed to horrifying to be believed, it is because, in many cases, they were not true. The McMartin case wore on for seven years and is the longest and most expensive case in U.S. history. It resulted in no convictions. Margaret Kelly Michaels was convicted of 115 counts of sexual abuse and spent five years in prison, before the New Jersey Supreme Court overturned her convictions. The charges in the Wenatachee “sex ring” were deemed entirely untrue, and the case has been described as, “the worst example ever of mental health services being abused by the state …” (“Pastor and wife are acquitted on all charges in sex-abuse case,” New York Times, December 12, 1995.) Certainly some children in some cases had been sexually abused, but research showed that between 23 percent and 33 percent of child sexual abuse cases involved false allegations, between 2 percent and 8 percent of cases involved deliberate lies by children, and the majority of reported cases were unfounded (“False sex abuse accusations lead to revision of theories,” Psychiatric News, June 20, 2003).

Techniques Used to Gather Evidence Are Flawed

Years after these and similar sexual abuse cases the psychiatric and law enforcement communities were left to determine how their systems had led to and perpetuated this modern-day witch hunt. What research in the past decade has indicated is that most interview techniques and assumptions used in the child abuse investigations were seriously flawed. In overturning one conviction, the court of appeals concluded that the alleged victims were subjected to aggressive, highly suggestive questioning. When the children denied being abused, the investigators badgered them until they gave the “right” answer. In addition, “[i]nterviewers were gullible, asked leading questions, conducted multiple interviews that led to delayed disclosures with fantastical details, and failed to consider other explanations for the children’s behaviors.” (“False sex abuse accusations lead to revision of theories,” Psychiatric News, June 20, 2003).

What Caused the Day Care Abuse Hysteria?

The psychiatric community must share the blame with law enforcement. The day care abuse hysteria was partially brought on by the rise of “recovered memories” of sexual abuse. These memories were “recovered” when patients suffering from psychological problems were told by therapists that their symptoms suggested sexual abuse, and could be remembered through the use of suggestive techniques such as hypnotic regression. (“The danger of false accusations,” Boston Globe, April 22, 2002). But these therapists had “confused the absence of memory with repression of a traumatic memory, believed that memories were immutable and could be recalled from birth, and assumed a person who felt abused had indeed been abused.” (“False sex abuse accusations lead to revision of theories,” Psychiatric News, June 20, 2003). Moreover, recent studies by psychologists have demonstrated that traumatic memories can be implanted.

If there is anything positive to be gleaned from the sexual abuse hysteria, it is that many law enforcement agencies have developed standard investigatory protocols designed to avoid contaminating child testimony. These protocols include videotaping the questioning of child accusers in order to document the interview process. In addition, members of the psychiatric community have begun to treat recovered memories with more skepticism. While prosecutions based on false accusations are not completely behind us, there is reason to hope that lessons from the past will prevent mistakes in the future.

Victims of False Sexual Abuse Accusations

To the falsely accused, however, past lessons may be of little comfort. Victims of false accusations face a difficult legal battle and a public presumption of guilt that may be difficult to overcome. Defendants need the assistance of an attorney who understands the legal issues involved, and who has experience in defending the falsely accused. An experienced attorney will investigate the charges, aggressively dispute the allegation, and present an effective case in court. If necessary a defendant’s lawyer will defend him in the press and protect him from mistreatment. A criminal sex conviction can result in significant prison time, and the accusation alone can cause significant emotional damage. A skilled attorney will minimize the damage to the accused both inside and outside the courtroom, and will fight to ensure that justice is done.

Protecting Against False Accusations of Abuse

The Boy Scouts of America prohibit scout leaders from having one-on-one contact with scouts. All trips and outings must be led by at least two adult scout leaders. The Boy Scouts have several other policies designed, not only to protect its youth members from sexual predators and child abusers, but also to protect its adult leaders from false accusations of abuse. On one hand, the Boy Scouts’ policy reflects an awareness of the increasing vulnerability of adult males in positions in which they have contact with children. On the other hand, the policies reflect the growing and unhappy perception that adult males should not be trusted to be alone with our children. This perception has additional support. Child advocate, John Walsh, recently advised parents to never hire a male babysitter. Airlines have begun placing unaccompanied minors with only female passengers. Many soccer leagues are telling male coaches not to touch players.

Concerns Over Threat of Sexual Abuse Common in the U.S.

An unnatural preoccupation with the threat of sexual abuse in not new in this country. In the 1980s the United States faced an epidemic of sexual abuse accusations in day care centers. In high-profile cases across the country prosecutors charged day care providers with hundreds of counts of sexual abuse. In California, the McMartin Preschool trial dragged on for seven years, included accusations by hundreds of children, and resulted in not a single conviction. In New Jersey, a child care provider at the Wee School Nursery School was convicted of 115 counts of sexual abuse. Her conviction was overturned, but not until she had served five years in prison. A combination of questionable witness interviewing methods and general hysteria is now widely blamed on the false accusations and the lives they ruined. What was learned is that children cannot always be trusted to tell the truth, and that adults cannot always be trusted to know when they are lying.

Past Cases of False Sexual Abuse Charges

Despite lessons learned from the sexual abuse witch hunts of the past, false allegations remain a professional hazard for those who work with children in general, and males in particular. Teachers, counselors, coaches, child care providers, and those who participate in volunteer programs such as Big Brother/Big Sisters remain vulnerable to false accusations of abuse. It is a sad truth that, when it comes to accusations of child sexual abuse, defendants are considered guilty until proven innocent. Worse, proving one’s innocence can be a grueling and expensive ordeal. By the time a sexual abuse case goes to trial, the reputation of a defendant has usually already been destroyed. It is no wonder then, that many males have tried to protect themselves against the threat of false accusations.

Male Adults Risk Facing Allegations

In his 2007 Wall Street Journal article, Jeff Zaslow discussed emails he received from men who have grown fearful of encounters with children. One former Boy Scout leader indicated that “Today, I wouldn’t do that job for anything. All it takes is for one kid to get ticked off at you for something and tell his parents you were acting weird on the campout.” Another man indicated that he would not even allow himself to be alone in an elevator with a child for fear of being accused of behaving improperly. Other men are afraid to even make eye contact with unknown children. While these precautions may appear to border on the paranoid, they accurately reflect the climate of fear that currently surrounds adult male/child relationships. It could be argued that, when society as a whole points its finger at men, its children are likely to follow. From that perspective, an abundance of caution appears less paranoid, and more prudent. As the saying goes, an ounce of prevention is worth a pound of cure.

Be Careful What You Surf For: Online Undercover Operations to Trap Child Predators Can also Catch the Innocent

By: Vince Imhoff, Attorney at Law

Mary is a graduate student in sociology writing a research paper about using the internet for romance. She uses a search engine to locate romance oriented chat rooms. She visits these chat rooms and observes the communication in them for hours at a time. She notices that in several chat rooms, some of the chatters appear to be much younger than the intended age. Other chatters seem interested in getting personal information about the under-aged chatters. Mary researches this topic as well, looking at several sites and news articles about Internet Child Predators and child exploitation on the web. Much to her surprise, government authorities arrive at her home with a search warrant to seize her computer and search her home for signs of involvement in child exploitation. They remove home videos, cameras, personal photos and videotapes, clothing, and other personal articles.

Could the above scenario actually happen? How can the government know what someone is looking at on the internet? Once I turn my computer off, how can anyone know whats on it? Is this something that really goes on?

How Are Internet Users Tracked?

When a user uses an internet search engine, the computers that perform the search keep a record of the users computers IP address and of the search terms used. This information is stored and analyzed by search companies in order to determine how to make searches more efficient. Popular items searched are copied by the search engines and kept in huge memory caches on site to further speed up searching. All of this information remains stored indefinitely.

Most of us think of an Internet search engine as a 21st century version of a public library. Rather than flipping through the card catalogue and browsing the shelves, we enter a few key words in a search engine and find useful resources and information almost instantly. We also tend to think of the Internet as offering us even greater privacy than the library. After all, if there are billions of people on line in a given day, even if the government could trace one computer users activity, how could they possibly notice me? The library keeps a record only of books we check out, not those we took to the reading room and re-shelved or left behind. The Internet search engine, on the other hand, keeps a record of every single search by every single computer.

Government Uses Search Records to Locate Criminal Suspects

The government is very interested in viewing search records, and believes these records could help locate criminal suspects who may otherwise be undetectable. In a recent news story, Google, the largest internet search engine provider, revealed that it is resisting efforts by the government to access records of billions of searches performed by its users. Googles legal papers in the matter and other investigative reports have asserted that other search portals and Internet providers have already complied with similar subpoenas.

The government believes the information could help it track many types of criminal terrorists, Internet child pornography distributors, child predators and molesters, and even drug traffickers. Using sophisticated programs to comb through the mountain of data, authorities may be able to isolate patterns of search behavior that could point to people who are involved in crime. Privacy advocates, Google itself, and other critics decry the governments efforts as a massive invasion of privacy of millions of law abiding Americans of whom the government has no suspicion at all. Many people simply find it distasteful that the government is gathering information on its citizens as a whole, without any suspicion at all.

Other opponents of the initiative fear that if the public believes that the government is potentially watching everything that they search on the internet, that people will be more reluctant to take advantage of commerce and entertainment opportunities, and the growth in these businesses will slow.

Negative Effects of Being Under a Government’s Watchful Eye

Could an innocent searcher really get caught under the governments watchful eye through innocent searching? It may be possible. What if many members of the family are all using the same computer? So far as the internet knows, all of the users have the same IP address and would be the same identity. Suppose a government agent looking for people trying to hide drug money uses the search data to locate people who searched for information on money laundering and tax shelters within a specified period. Suppose your child searches for information on drug trafficking and money laundering for a report for school on current events. Suppose you use the same computer that week to look up information on tax deductions to prepare your taxes? While this is a simplistic example, the government is certainly not revealing what key words it is interested in, or how its algorithms work.

The US Constitution protects American Citizens against self-incrimination and suspicion-less government searches of our homes. Many privacy advocates fear that these intrusions into private information and gathering of information about citizens is a dangerous precedent, equivalent to McCarthy era searches of public library records and other investigation of private behavior. Only time will tell if Google’s stand is able to protect computer user’s legitimate privacy interests or not.

Sex Offender Registration: Is Sex Offender Registration Constitutional?

By: Tony Partipilo, Attorney at Law and Ariella Rosenberg

In 2002, David Ballard of Texas was sentenced to life in prison for his habitual failure to register with authorities as a convicted sex offender. Ballard was arrested in 1990 for the sexual assault of a teenage girl. He plead guilty to the charge and was sentenced to 10 years on probation. After violating his probation in 1993, he received six years in prison and was released on parole in 1998.

As a requirement of his parole, Ballard signed paperwork indicating a lifetime duty to register himself annually as a sex offender. After failure to register in 2001 when he moved to a new house, Ballard was arrested on charges of trying to evade authorities and a jury gave him the maximum sentence life in prison. On appeal, Ballards lawyer challenged the punishment, and in June his sentence was reduced to 12 years.

Federal Law for Registering Sex Offenders

In the last decade, federal law governing the registration of convicted sex offenders has grown stricter. In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. 42 U.S.C. 14071. The law required the registration of persons convicted of offenses listed in the statute, which include criminal offenses against a victim who is a minor and sexually violent offenses. 42 U.S.C. 14071(a)(1). States were given three years from September 1, 1994, to comply with the new law. 42 U.S.C. 14071(g)(1).

In 1996, Congress amended the Wetterling Act and passed H.R. 2137, more popularly known as Megans Law. Named for a 7-year-old victim, who was raped and killed by a convicted child molester living across the street from her family, the amendment required every state to develop some procedure for notifying the public when a sex offender is released into their community. The Amendment further provided that the information collected under a State registration program may be disclosed for any purpose permitted under the laws of the State. 42 U.S.C. 14071 (e)(1). Additionally, the State shall release relevant information that is necessary to protect the public concerning a specific person required to register under this section. 42 U.S.C. 14071 (e)(2). Since the passage of the 1996 law, all states have passed some form of Megans Law, adopting different procedures for the disclosure of sex offender information.

Under the current terms of federal law, a person required to register as a sex offender must comply until 10 years have elapsed since the person was released from prison or placed on parole, supervised release, or probation, or for life if the person has 1 or more prior convictions for an offense described, has been convicted of an aggravated offense described, or has been determined to be a sexually violent predator. 42 U.S.C. 14071 (b)(6).

Failure to register under a State program or failure to keep registration current shall be subject to criminal penalties in any State in which the person has so failed. 42 U.S.C. 14071 (d).

Is Sex Offender Registration Constitutional?

With the national enactment of Megans Law has come a backlash of challenges to states interpretations of the federal code. Convicted sex offenders have argued that registration requirements violate their fundamental rights. However, courts throughout the United States have generally upheld registration provisions.

In Michigan, a convicted sex offender, filed suit challenging the constitutionality of the 1994 Michigan Sex Offender Registration Act, MCLA 28.721, et seq., which requires convicted sex offenders to register with the local law enforcement agency where they reside. The Court rejected Lannis claim that the Act constituted cruel and unusual punishment, and also rejected arguments that the law violated the equal protection clause or the due process clause. Lanni v. Engler, 994 F. Supp. 849, 855 (E.D. Mich. 1998). Additionally, the Court rejected Lannis claim that the registration requirement was a form of double jeopardy, finding that the requirement was not overwhelmingly punitive and that the implied purpose is mainly regulatory. Lanni, 994 F. Supp. at 855.

Two recent Supreme Court rulings have also turned down challenges from sex offenders who argued that they deserved a chance to prove they werent dangerous and avoid having their pictures and addresses put on the Internet in state registration systems. In a 6-3 vote, justices rejected arguments by two Alaska sex offenders who contended that the Alaska registration law, which requires convicts to give police personal information four times a year or risk prison time, constituted a second form of punishment. Smith v. Doe, 538 U. S. 84 (2003).

The Court also ruled 9-0 that Connecticut did not have to hold separate hearings to determine the risk posed by convicted sex offenders who have completed their prison sentences before putting them in a registry. Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). Regardless of the severity of their crime, Connecticut sex offenders are all subject to the registration procedures provided for under the Connecticut version of Megans Law.

Conclusion

Despite the concerns of the ACLU and some federal and Supreme Court judges, the courts tend to consistently prioritize public safety over the rights of past sex offenders. In Congress, Senator Orrin Hatch and Representative Mark Foley have recently sponsored the Sex Offender Registration and Notification Act. If passed, this bill would further increase the registration requirements for sex offenders, requiring more frequent updates and lengthening the minimum duration to register from ten to twenty years. The bill would also introduce the use of tracking devices for first-time offenders and add a mandatory annual update to the taking of a sex offenders photograph and fingerprints.

Given the state of the law, where both the states and their federal counterparts are passing legislation for harsher sentences for those who fail to comply with mandatory registration requirements, it is crucial that anyone facing prosecution for a sexually based offense consult an attorney experienced in defending these types of charges. Moreover, any person who has been convicted of a sexual offense, whether or not it is a misdemeanor or a felony, should consult with an attorney to insure that they are in compliance with the current registration requirements in their jurisdiction. As the Ballard case demonstrates, failure to comply with registration requirements could lead to prison sentences that are even greater than the time imposed and served for the initial crime for which they were convicted.

New York: Can a Convicted Sex Offender Expunge the Sex Offense Conviction?

By: Edward Martinovich, Esq. and Ariella Rosenberg

Convicted sex offenders in Binghamton, New York could risk re-arrest if they pull off the highway to a gas station or stop for a cup of coffee. How can this occur, you wonder? The New York legislature just passed a new law that makes it illegal for convicted sex offenders to live, work, or even drive in the city. Binghamton, NY is not unique in the passage of such laws. The goal of these types of laws is to restrict the offenders ability to live in or pass through local communities; communities within which women and children reside. The emotional tension runs so deep that when one local community passes such a law, the neighboring communities do the same. The end result is few if any communities remain where a convicted sex offender can put down roots and continue his rehabilitation while out on parole. Thus, it is very important for one who has been convicted of a sex offense to know and understand the many laws that affect his life and his movement.

What Is Expungement?

Criminal records can have a profound and lasting effect on an individuals life, be it on an employment application or in a background check, or by someones prying eyes looking at them on the internet. Even without a conviction, a criminal record often reveals any arrest or citation, despite the fact that the accused may have been acquitted of the crime in question or the case may have been dismissed. To address the harsh consequences of this situation, New York State has incorporated the process of expungement into its criminal code.

Expungement generally is used to describe the process by which some convictions can be dismissed or some criminal records can be sealed. When a criminal record is sealed pursuant to a court order, the effect of the sealing is that the general public cannot access the record. However, sealed records may be used by government agencies when background checks are performed for government jobs or when law enforcement agencies are investigating criminal allegations. Thus, even in cases where a sealing is ordered, it is not sealed for all purposes. More importantly, the rules change when a juvenile (under 18 year old) is involved versus when an adult criminal record is involved. Sealing in the juvenile court is not commonly referred to as expungement.

Further, although a conviction may be changed to a dismissal as a result of the expungement process, the words on the record may still remain. Thus, the arrest and the dismissal may still appear when the individuals criminal background check is run.

Moreover, the rules and requirements of expungement, and even the very definition of expungement, vary from state to state. This article is devoted to the New York State provisions of expungement as they specifically relate to sex offense convictions. For issues arising outside the state of New York, and for answers to legal questions in all states, it is always advisable to contact an attorney licensed to practice law in the state at issue and experienced in the subject matter of the inquiry.

Who Is Eligible?

Juvenile Offenders and Youthful Offenders

Juvenile offenders in New York can be as young as 13 years old, when they are alleged to have committed the most serious of crimes (i.e., 1st degree murder). Youthful offenders are at least 16 and less than 19 years old. Every youth is eligible except in certain circumstances. It is a determination of the court to decide whether a youth will be treated as a youthful offender and will be granted a youthful offender sentence. When a youth receives youthful offender adjudication, it is a substitute for a criminal conviction. See NY Criminal Procedure Law Section720.10. However, in situations where a youth has been convicted of rape in the first degree, sodomy in the first degree or aggravated sexual abuse, the court must consider a number of factors before youthful offender treatment is granted. These factors are: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution. Where the court determines that the eligible youth is a youthful offender, the court shall make a statement on the record of the reasons for its determination, a transcript of which shall be forwarded to the state division of criminal justice services, to be kept in accordance withthe executive law. NY CPL Section 720.10(3).

In cases where a defendant is granted youthful offender status, all records are automatically sealed upon adjudication. See NY CPL 720.35. This provision exists to insure that young offenders do not carry the stigma of a criminal record with them throughout their lives.

N.Y. Crim. Proc. Law 720.15(1) provides generally for the sealing of records involving juvenile offenders and youthful offenders, and for the privacy of the proceedings conducted against these younger offenders.

Adults

The sealing of all records in a criminal case, including those involving sexual offenses, occurs when the outcome of the case is favorable to the defendant, that is, when all of the charges have been dismissed, where there has been a complete acquittal, or where there has been an overturning of the judgment of conviction after an appeal or other court order. NY CPL 160.50. In such cases, the defendant has the right to the sealing of every photograph, all fingerprints and palm prints, and all official records and papers. See NY CPL 160.5 (1) (a-e).

Much more difficult than cases of acquittal is the possibility of expungement where an actual conviction has been entered. In cases where there is a conviction for an infraction or a violation (not a misdemeanor or a felony), except the violations of loitering and driving while impaired, the sealing of records is permissible. See NY CPL 160.55. There are certain instances where a misdemeanor conviction may be reduced to a violation after the period of probation is over and all the terms are completed. If this occurs, then the sealing of records will also occur pursuant to law.

There are certain sexual offenses that are defined as misdemeanors (and not felonies) by New York State. These include sexual misconduct, defined as sexual conduct with another person without their consent and sex with animals and dead human bodies (NY Penal Law Section 130.20); forcible touching, defined as intentionally, and for no legitimate purpose, forcibly touching the sexual or other intimate parts of another for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire (NY PL130.52); sexual abuse in the third degree, defined as sexual contact without consent (NY PL130.55); and sexual abuse in the second degree, which is sexual contact with a person incapable of consent or of a minor under 14 (NY PL 130.60). There may exist situations where these can be reduced to violations; however, in all motions to reduce the charge the prosecutor may oppose the motion. Further, even in cases that are reduced to violations and thus are technically appropriate for sealing, the prosecutor can also present arguments to the court as to why the interests of justice demand that the records not be sealed. Therefore, in practical application, in cases originally involving misdemeanor sex offenses, the expungement or sealing of the records may not occur.

Further, in cases where there is a conviction of a felony sexual offense, the possibility for expungement is even more limited. Expungement is usually only available if one has received a pardon from the governor.

What You Can Do

As one can see from the brief discussion herein, the law and procedure governing the expungement or sealing of records in New York is quite complex and involves more exceptions than rules, especially in matters involving unlawful sexual conduct. Thus, it is always good judgment to seek the advice and counsel of an attorney licensed to practice law in New York State, and one experienced in the area of criminal law generally and sex crimes more specifically. If you think that your case may be eligible for expungement, contact an attorney. Expungement does not occur automatically. It requires in most cases a written motion or application pursuant to stringent legal requirements. To promote ones individual rights, you must be proactive in seeking legal guidance to ensure the best possible chances of clearing your record.

Solicitation of Prostitution Solicitation, Prostitution, Pimping and Pandering

By Vince Imhoff, Esq. & Dan Rhoads

In 1993, an undercover Beverly Hills police officer posing as a wealthy Japanese businessman contacted Heidi Fleiss. He offered to pay $6,000 so that Fleiss would send four women to meet him and some colleagues at a hotel. In June, Fleiss sent the women to the Beverly Hills Hilton, where the men had a room. The undercover agents posed as clients and specifically asked for sex.

Once the women agreed, other agents stormed in from the adjacent room and arrested the women, whose actions the police had recorded. The next day, Fleiss was arrested and charged with, among other things, five counts of pandering. She pled not guilty to all counts but was indicted. At trial, Fleiss raised a defense of entrapment; and the jury was split. In a compromise, the jurors voted to convict Fleiss for three of the pandering counts. The judge sentenced her to three years in prison and a fine of $1,500.

What is pandering?

In California, pandering is a felony punishable by three, four, or six years in the state prison. Cal. Penal Code 266i(a). The most basic pandering offense is “procur[ing] another person for the purpose of prostitution.” 266i(a)(1). The statute also prohibits causing, inducing, persuading, or encouraging others through promises, threats, violence, or any scheme to become involved in prostitution. 266i(a)(2)-(6).

Pandering versus Pimping

A person who arranges a meeting between a prostitute and a john and who takes a cut of the prostitute’s revenue can be charged with both pimping and pandering. In California, pimping means knowingly receiving compensation from another’s prostitution. The California law describes pimping in two ways.

First, “[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person . . . is guilty of pimping.” Cal. Penal Code 266h(a). So, a person who makes any part of his or her living through revenues generated by prostitution is a pimp in violation of the law.

Second, any person “who solicits or receives compensation for soliciting for the person is guilty of pimping.” Id. This section means that a person who works to find clients for prostitutes is illegally pimping.

Sex in the Champagne Room?

In the 1990s, Steve Kaplan’s Gold Club in Atlanta was the most illustrious gentlemen’s club in the country. Kaplan cultivated the club’s allure by establishing a client base full of superstar athletes, like former basketball players Patrick Ewing and Dennis Rodman and baseball player Andruw Jones. Kaplan sought the loyalty of those athletes by arranging sex between them and the club’s dancers.

In 2001, federal prosecutors charged Kaplan and many of his accomplices, including dancer Jacklyn Bush, with violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act. Included in the predicate offenses were violations of most of Georgia’s anti-prostitution statutes.

One story about Kaplan’s business methods involves Rodman. A former dancer, Amanda Pappas, testified that she was paid $500 to have sex with Rodman and Bush. A limousine took the retired athlete and the two dancers to his hotel and later returned them to the club. Rodman paid Pappas in the club’s “gold bucks,” which Bush exchanged for cash.

The club’s operations, including soirees like the one with Rodman, implicated both Bush and Kaplan in various crimes. By performing a sexual act for money or other items of value, Bush committed prostitution under Georgia law. Ga. Code 16-6-9. Kaplan was guilty of keeping a place of prostitution because he exercised control over the club, which offered seclusion or shelter for the practice of prostitution. 16-6-10. By gaining the patronage of famous athletes, which raised the profile of the Gold Club, Kaplan knowingly received a thing of value from a prostitute, “without lawful consideration, knowing it was earned in whole or in part from prostitution,” in violation of Georgia’s pimping law. Ga. Code 16-6-11. Kaplan was also guilty of pandering.

Contact with the Customer

Managers at a California gentlemen’s club fared better than Kaplan when a court decided that no prostitution was involved in their business. Brent Wooten, a manager at the Flesh Club, was charged with pimping and pandering after undercover officers paid to watch two of the club’s strippers perform sex acts on each other. The charges were dropped when the court found that no prostitution had occurred.

The case turned on two definitions. First was the definition of ‘prostitution’ as including “any lewd act between persons for money or other consideration.” Cal. Penal Code 647(b). Then, based on case precedent, the court held that, “a lewd act, an element of prostitution, requires touching between the prostitute and the customer, even if the customer is simply an observer of sexual acts between two prostitutes.” Wooten v. Superior Court, 93 Cal. App. 4th 422, 431 (4th Dist. 2001). The court concluded that, “because there were no lewd acts, i.e. no touching between the dancers and the customers, the conduct alleged herein failed to constitute ‘prostitution.’” Wooten, 93 Cal. App. 4th at 436.

The prosecution answered that one of the dancers had offered to perform a sex act on one of the officers. The court agreed that such an offer, if true, would constitute prostitution; but the defendants/club managers were charged with pimping and pandering. The court ruled, “that offerstanding aloneis insufficient to support a charge of pimping or pandering because there was no evidence that defendants knew that [the dancer] had made such an offer.” Wooten, 93 Cal. App. 4th at 438.

In a nod to strip clubs, the legislature added a provision stating that committing prostitution “does not include sexual conduct engaged in as part of any stage performance, play, or other entertainment open to the public.” Cal. Penal Code 653.20(a).

Solicitation

Solicitation originally meant an offer of sexual services by a prostitute. However, modern courts have held that “a statute making it an offense to solicit an act of prostitution is equally applicable to a man soliciting a prostitute as to the prostitute herself.” 63 Am. Jur. 2d Prostitution 9.

Some statutes clearly state which behavior they prohibit. On the eve of Super Bowl XXXIII, Falcons safety Eugene Robinson drove to Key Biscayne and offered an undercover officer $40 for oral sex. Under Florida law, Robinson was guilty of an attempt “to purchase the services of any person engaged in prostitution.” Fla. Stat. 796.07(2)(i).

California has a blanket solicitation statute, which applies both to prostitutes and their clients. Reyes v. Municipal Court, 117 Cal. App. 3d 771 (2nd Dist. Year). The misdemeanor of solicitation has three elements. First, a person must have specific intent to engage in an act of prostitution. Second, the person must “manifes[t] an acceptance of an offer or solicitation to so engage.” Cal. Penal Code 647(b). Finally, some act must be done “in furtherance of the commission of an act of prostitution.” Id.

Act in Furtherance of Prostitution

When a statute requires an act in furtherance, the corroborative act can become an issue to dispute at trial. Most courts agree that, “the clarifying or corroborative act need not occur after the agreement was made.” In re Cheri T., 70 Cal. App. 4th 1400 (2nd Dist. 1999). Merely getting into a car before an offer is made is not an act in furtherance, but telling a driver to drive to a dark place is. Id. A masseuse who quotes prices for sex acts during a massage, but leaves on her clothes and does not actually perform any sexual acts, has not done an act in furtherance of prostitution. Adams v. Commonwealth, 208 S.E.2d 742 (Va. 1974).

Effects of Prostitution Charges

Prostitution and solicitation are misdemeanors, but pimping and pandering are felonies. If a minor under 16 is involved in the offense, the defendant might have to register as a sex offender.

A person who wants to fight prostitution charges needs a dedicated criminal defense attorney who will make the prosecution prove all the elements of the crime charged. The worst effect of a conviction on a prostitution charge is usually the stain of such a lurid offense on a person’s criminal record.

Statutory Rape Sorting Out the California Unlawful Sexual Intercourse Law

By Vince Imhoff, Esq., and Dan Rhoads

Age Aint Nothing but a Number: The title of Aaliyahs first album was a not-so-subtle justification of her relationship with R. Kelly. When she was 15 and he was 25, the two were married secretly; but her parents annulled the marriage when they found out about it. Years later, R. Kelly was arrested when a videotape that allegedly featured a sexual encounter between him and a young teenage girl surfaced. This arrest came after Kelly settled a suit with a woman who claimed that Kelly impregnated her when she was 16.

Like R. Kelly, Roman Polanski has enjoyed celebrity long after being charged for statutory rape. Polanksi plied a 13-year-old girl with alcohol and Quaaludes before having sex with her at Jack Nicholsons house. Out on bail, Polanski fled to France and has never returned to the United States to face his sentence.

Statutory Rape Penal Code, Section 261.5(a)

Because Polanskis victim was under 14, his crime against her was actually lewd or lascivious acts committed with a child. In California statutory rape, or unlawful sexual intercourse, is: an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. . . . [A] minor is a person under the age of 18 years. Cal. Pen. Code 261.5(a).

Taking the statute literally, whenever unmarried minors consent to sex, they would both be guilty. However, [f]or there to be a violation of [ 261.5], one minor must be denominated a perpetrator and the other a victim. The fact that a minor may be a victim does not ipso facto exclude a minor from being charged as a perpetrator. In re T.A.J., 62 Cal. App. 4th 1350, 1364 (1998).

The question that this reasoning raises is: when both parties are consenting minors, which one is the perpetrator?

Due to the reasons underlying the law of statutory rape, the male is at greater risk to be dubbed the perpetrator. Until 1993, the statutory rape laws singled out women as the victims, making men the de facto perpetrators in all cases of underage heterosexual intercourse.

Like most states, California has made its law gender-neutral. Now, although boys who are alleged victims are not viewed the same way as girls who are victims, explains Mike Sinacore, under the law there is no distinction (CBS News). Sinacore is the prosecutor in the case against Debra Lafave, a 23-year-old schoolteacher in Florida who had sex with a 15-year-old male student.

Crimes and Punishments for Statutory Rape Convictions

Where the perpetrator is no more than 3 years older or younger than the victim, statutory rape is a misdemeanor. Cal. Pen. Code 261.5(b). When the minor is more than 3 years younger than the perpetrator, the offense is a wobbler, which means that it can be charged as either a misdemeanor or a felony.

When the perpetrator is 21 or older and the minor is younger than 16, a misdemeanor charge can be penalized by 1 year in county jail. 261.5(d). A felony charge for such an offense carries a punishment of 2, 3, or 4 years in prison. Id.

In cases where the age difference is more than 3 years, but either the perpetrator is under 21 or the minor is over 16, a felony charge can be punished by either 16 months, 2 years, or 3 years in prison. 261.5(d). If charged as a misdemeanor, the offender faces up to 1 year in jail. Id.

Civil Penalties for Adults Guilty of Statutory Rape

Adults guilty of statutory rape might also face fines and civil penalties.

The civil penalties increase with the difference in age between the perpetrator and the minor. When the perpetrator is an adult and the minor is fewer than 2 years younger, the maximum civil penalty is $2,000. Cal. Pen. Code 261.5(e)(1)(A). Where the difference in age is between 2 and 3 years, the perpetrator may be fined up to $5,000. 261.5(e)(1)(B). If the minor is more than 3 years younger than the adult, the penalty can be as much as $10,000. 261.5(e)(1)(C). The stiffest civil penalty, a $25,000 maximum, is invoked where the perpetrator is over 21 years old and the minor is under 16. 261.5(e)(1)(D).

Statute of Limitations for Misdemeanor Statutory Rape

In the case of misdemeanor statutory rape, the statute of limitations is 1 year from the occurrence. Whenever statutory rape may be charged as a felony, meaning whenever the age difference between the parties is more than 3 years, the statute of limitations is 3 years.

Mistake of Fact

Although statutory rape was historically a strict-liability crime, California now recognizes a defense where the perpetrator participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief. People v. Hernandez, 39 Cal. Rptr. 361, 364 (1964). This acceptance coincided with the raising of the age of consent. Accordingly, the crime of committing lewd or lascivious acts with a child under the age of 14, Cal. Pen. Code 288(a), remains a strict-liability offense.

Conclusion

The purpose of statutory rape laws has historically been to protect young women, who lacked the maturity to consent to sex. Although most states have changed their statutes to make them gender-neutral, males remain at a higher risk for being prosecuted for engaging in teenage peer sex.

Because of the need for bright lines in the law, teenage couples must wait to have sex until each turns 18 to avoid breaking the law. The laws purpose is to protect minors and not to prohibit relationships in which one party is much older than the other.

In California, there is no peer-sex exemption; so, one minor can be prosecuted for having sex with another consenting minor. An adult found guilty of statutory rape faces civil penalties in addition to jail time.

Because of the way the law is set up, the prosecutor has broad discretion in trying statutory rape offenders. The prosecutor can choose not to bring charges where they are not appropriate. In many cases, the state also has the decision of whether to charge the crime as a misdemeanor or a felony. If the prosecutor chooses to take a hard line, a person accused of statutory rape should hire a defense attorney who will be aggressive in protecting the defendants rights.

Sex, Lies, and Justice: How False Rape Allegations Hurt Both Innocent Men and Victimized Women

By: Vincent Imhoff, Esq. & Dan Rhoads

Cassandras Curse

Cassandra was a prophetess who could not be believed. Apollo had given her the gift of foretelling the future, and the gift could not be revoked. When she broke Apollos heart, he quite cleverly robbed her of her credibility (Hamilton). So, when Cassandra predicted her own demise, no one rushed to help.

Cassandras curse is an apt metaphor for the skepticism that often meets allegations of both rape and sexual harassment. The incredulity toward complainants is an acknowledged reason that many rapes are never reported. The reasons for the curse are likely more mundane than that it is some deific punishment (Romner). Scholars who point to the heritage of coverture (Schafran) and to legal attitudes that accord less value to the speech of socially subordinate groups (Hunter) have identified significant explanations for the phenomenon. Whether or not false allegations of rape also contribute to the plight of real victims is worth examining.

An Extraordinary Crime

Rape can be both a touchy issue to discuss and a complex charge to defend for several reasons. The act of rape is simultaneously intimate and unspeakably violent. It is the only form of violent criminal assault in which the physical act accomplished by the offender is an act which may, under other circumstances, be desirable to the victim (Shapo). Eyewitnesses are very rarely present.

The laws concerning rape are unique. The overwhelming majority of rape statutes on the books do not expressly state any generally applicable mental state (LaFave), and most American courts have omitted mens rea altogether (Estrich). Because a rape trial is a contest of credibility and the decisive issue is what the victim did or did not do, it often appears that the complainant, not the defendant, is on trial.

Statistics about False Allegations

The data on false allegations of rape are contentious. Alan Dershowitz has said that, according to FBI surveys, eight percent of all rape charges are completely unfounded (Dershowitz) (compared to 1.6% of assault charges). Other studies with different methods have placed the percentage as high as 60% (Zepezauer). Of course, there are lies, damned lies, and statistics; and the advocates for rape victims are highly skeptical as to the probability that a woman would ever bring a false accusation. Regardless of the precise percentage, a general awareness of insincere complaints of rape is prevalent.

Cassandra Down Under

In the early 1990s, some jurists in Australia might have crossed the line between intelligent Bayesian and insensitive sexist. At the South Australian Supreme Court, Justice Derek Bollen, after giving jury instructions favorable to the defendant, opined about womens propensity to allege rape falsely. He then told a lengthy story, which he claimed to be true, about a woman in England who had gone to great lengths to make a series of false accusations of rape. His brethren, Judge John Bland of the Victoria County Court, said while sentencing a perpetrator, in common practice . . . no often means yes (Mack). An outcry ensued. The cases were appealed, and the comments were censured. But, in the immortal words of Justice Cardozo, you cannot unring a bell.

If any such comments have come from an American bench, they have not been well publicized. But it is possible that some American jurors, operating on the same rationale, silently share these beliefs. Rape charges that turn out to be false certainly do nothing to accelerate progress in attitudes.

Drugs and Alcohol

Liquor and drugs may be potent agents of incapacitation, but they are also common ingredients of the ritual of courtship. The traditional routine of soft music and wine or the modern variant of loud music and marijuana implies some relaxation of inhibition. With continued consumption, relaxation blurs into intoxication and insensibility. Where this progress occurs in a course of mutual and voluntary behavior, it would be unrealistic and unfair to assign to the male total responsibility for the end result.

Model Penal Code

The presence of intoxicants complicates matters further. In the most sober rape cases, the jury has the unenviable task of determining which party is more credible about what he or she was thinking during an intimate time in the past. When one or both of the parties are intoxicated, both issuescredibility and intentbecome even more difficult to judge.

Most courts distinguish between defendants who administered the drug to the alleged victim and those who did not. A further distinction is made between administering the drug with and without the alleged victims consent (LaFave). These distinctions make sense in grading the seriousness of the offense, but they all share a common flaw.

In any of the above circumstances, it is possible that the victim consented to sex and gave every indication that the encounter was desired, and even that the accused was too intoxicated to know that his presumed partner was legally incapable of consenting. If the victim later regrets the encounter or cannot remember clearly the circumstances attending it, only evidence of intercourse is necessary to convict because rape is a general-intent crime.

Denouement

Rape is a difficult subject to discuss and an even more difficult crime to defend. Many aspects of the law of rape are inconsistent with other crimes and even counterintuitive. The most important evidence at trial is testimonial, and disinterested witnesses are usually nonexistent.

For the foregoing reasons, rape has historically been considered an easier crime to allege than it is to defend. Due to a statistically murky track record, rape accusers are often viewed skeptically. Victims of rape are not helped by allegations that are ultimately proved false. It is likely that perceptions resulting from false allegations contribute to Cassandras curse.

Works cited:

Dershowitz, Justice, Penthouse, September 1991, at 52.

Estrich, Rape, 95 Yale L.J. 1087, 1097 (1986).

Hamilton, Edith. Mythology. Signet: Chicago 1969. p. 202.

Hunter, Gender in Evidence: Masculine Norms vs. Feminine Reforms, 19 Harv. Women=s L.J. 127, 155 (1996).

LaFave, Criminal Law, 4th ed., at 853 (2003).— at 866 (2003).

Mack, Gender Awareness in Australian Courts: Violence Against Women, 5 Crim. L.F. (1995).

Model Penal Code ‘ 213.1, Comment at 315 (1980).

Romner, The Cassandra Curse: The Stereotype of the Female Liar Resurfaces in Jones v. Clinton, 31 U.C. Davis L. Rev.123 (1997).

Schafran, Credibility in the Courts: Why Is There a Gender Gap? Judge J., Winter 1995, at 5.

Shapo, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va. L. Rev. 1500, 1503 (1975).

Zepezauer, Believe Her! The >Woman Never Lies= Myth, Institute for Psychological Therapies Journal, Vol. 6: 1994.

Statutory Rape: Reporting Myths & Facts

By: Vincent Imhoff, Esq. & Sapana Shah

In efforts to reduce the crisis of teenage pregnancies and epidemic of welfare-dependant fatherless families, the laws governing statutory rape have become exceedingly strict and more aggressively enforced in the last decade. In effect, nearly every state has instituted a broader category of definition and has extended the time to find and punish perpetrators. Despite this expansion of explicit laws proscribing statutory rape, the potential for conviction of a defendant depends on various legal issues: the year of commission, the status of relationship with the child, the role of the accuser in legal proceedings, the evidence used to support the charge, and prior criminal history of the defendant.

Definitions of Statutory Rape

Statutory rape laws define the age below which an individual is legally incapable of consenting to sexual activity; statutory rape laws assume that all activities with individuals below this age are coercive, even if both parties believe their participation is voluntary or consensual. The penal code or criminal code of each state dictates the specific sexual acts that constitute a felony or misdemeanor offense of statutory rape. A common misconception is that the age of consent is the single factor that determines the legality of sexual activity. However, there are only 12 states that have a single age of consent. For instance, in California, statutory rape is defined as: An act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor, a person under the age of 18″ (Penal Code 261.5(a)). New York also, has a single age of consent: If the victim is under 17 and the perpetrator is any age, this constitutes a misdemeanor sexual offense (Article 130, New York Penal Code). In the remaining 39 states, the legal nature of sexual intercourse is determined by age differentials between the child and defendant, the minimum age of the child, and/or the minimum age of the defendant. In Texas, for instance, the age of consent is 17 and the minimum age of child is 14 with an age differential of 3 years; thus, individuals who are at least 14 years of age can legally engage in sexual activities if the defendant is less than 3 years older than the accuser (Texas Penal Code 22.011(a)(2)).

Statute of Limitations

It is often the case with statutory rape cases that memories fade, evidence gets destroyed, and thus defendants may lose the tools to supports their case. Therefore, many states impose a statute of limitations for prosecution in order to ensure that the lawsuits are based on a credible testimony and evidence and to ensure the integrity of the U.S. Justice System. In the last decade, however, the impetus to prosecute statutory rapists has resulted in either the lack of statute of limitations or an extension of the limitations period. For instance, the statute of limitations for California permits prosecution of the crime within six years after its commission (California Penal Code 800), which is 3 years longer than its original time limitation. Additionally, under the DNA Exception rule, California further permits prosecution of statutory rape within one year of the date on which the identity of the suspect is conclusively established by DNA testing or within 10 years of the offense, codified under California Penal Code 803 (2001). For defendants who may currently face a statutory rape lawsuit, it is significant to note that it is possible prosecution may not be permissible if the commission of sexual act occurred before the extended statute of limitations was instituted. As the Supreme Court held in Stogner v. California No. 01-1757 (US Sup. Ct. 06/26/2003):

A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution…Such features produce the kind of retroactivity that the Constitution forbids.

Other Legal Issues Concerning Statutory Rape

Beyond the proscription of statutory rape defined by states definitions and the respective statute of limitations, other legal issues are equally imperative with respect to prosecution. First, most states make exceptions to their statutory rape laws if the adult and child are legally married during the time of commission of sexual conduct. Among many states, California and Texas stipulate this exception in their state penal codes. Secondly, the role of the accuser in legal proceedings and the type of evidence put forth are significant factors that may affect the outcome of the case; if the sexual act is clearly consensual and the child refuses to testify, it is possible that the defendant will stand free of conviction. Moreover, individual jurisdictions in many states prosecute cases based on their own criteria; therefore, while there may be some evidence that confirms the legally age-inappropriate sexual behavior, a combination of factors including the age differential between the child and adult, year of commission, and prior criminal history of the adult may determine the outcome of the case, depending on the state and county. Lastly, because the nature of the sexual act may determine whether it is a felony or misdemeanor offense, cases with insufficient evidence or lack of testimony from the accuser may result in reduced charges.

Conclusions

The unfortunate result of the stringent statutory rape laws is the accusation of suspects made long after the commission of the sexual act, leading to unreliable testimony and unfair prosecutions. Furthermore, retroactive application of current statutes of limitations violates the Ex Post Facto Clause of the Constitution, and thus should eliminate any possibility for prosecution of a crime committed before the implementation of the extended statute. Due to the potential for an unfair trial and the complex legal issues surrounding each statutory rape case, it is imperative that the defendant consults with qualified counsel as soon as possible. The methods in which the defendant can additionally protect his or her self is by exercising the right to remain silent, by not investigating own case, gathering documentation of good character, (such as reference letters, employment history, community service, etc.), and keeping a diary of all significant events and potential witnesses.

Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense law.