Sex is one of the most personal and delicate subjects. For most people, sex is not a regular topic of conversation. Privacy – bordering on extreme secrecy – is the norm. When a person is accused of a criminal sexual act, their world can seem like it is collapsing. Whether it is a matter of public record like an arrest, or the accusation is still being investigated, the word usually gets out. People jump to the conclusion that the accused must be guilty. Friends and family may even abandon them. This “fear and loathing” that surrounds sex crime prosecutions has to be met at every step in defending the accused. Overly aggressive police, a prosecutor who never doubts the victim, unwanted publicity, the client’s emotional state, and an alleged victim with a hidden agenda are some of the issues which have to be managed to get justice.
The criminal defense team at Rawls, Scheer, Clary, & Mingo have decades of experience defending people accused of sex crimes. They believe it is a mistake to treat them like ‘any other felony charge.’ That begins with caring for the client in a compassionate and non-judgmental way. Over those years, they have often dealt with the unique problems that these cases bring, like computer forensics, DNA evidence, skewed research used by prosecutors, forensic child interview procedures, and prejudicial media coverage to name a few. Three of RSFM’s lawyers are Board Certified Specialists in State and Federal Criminal Law and each of them has handled dozens if not more than a hundred sex offense cases.
Given the extremely serious consequences of a sex offense conviction and the legal complexity of what a defendant is facing See below), the criminal defense lawyer has to work on many levels to get the best possible result. First and foremost, these are cases where false allegations are more common and every effort has to be made to clear the client. Many cases arise where the police are still investigating. By conducting an independent investigation, an experienced defense lawyer can sometimes present facts that cause the prosecutor to reject the case and never charge the suspect/client. This is called getting a “declination.” Even if a person is already arrested before the lawyer gets involved, the prosecutor can sometimes be convinced to dismiss the charges by undermining their confidence that they could win a trial.
If the lawyer is careful about the evidence they share during their investigation and even if the prosecution goes ahead, the work done early will strengthen the defendant’s case at trial. As with most criminal cases, however, plea negotiations take place. The result of the defense investigation may weaken the State’s position and dramatically improve the plea offer.
Forensic scientific evidence is often part of the prosecution’s case. The defense lawyer has to have a thorough understanding of such things as DNA, serology, injuries associated with sexual assault, and forensic psychology in order to spot the weaknesses. Then it becomes necessary to hire experts to better understand how a weakness can be exploited and prepare to testify. Again, previewing these issues during negotiations will at least put pressure to reach a more favorable plea.
All alleged crime victims have a right to be informed about their case. They will usually give input to the prosecutor as decisions are made about how to proceed, and also speak to the judge at sentencing. Many sex offense cases involve victims who are friends or family members of the defendant. Though the charges are always a source of pain and high emotions, it is a mistake not to work to heal or moderate those feelings wherever possible. An experienced defense lawyer can often guide this process as an intermediary or moderator if done tactfully and mindfully.
Claims of sexual assault are sensational by nature and the press likes to cover them. The alleged victim’s name is always withheld for privacy reasons, but the defendant’s name and often a booking photo is often splashed in the newspaper and on TV. This exposure both puts more pressure on the prosecutor to hammer the defendant and poisons potential jurors. At every stage in the process – whether the case is still under investigation or an arrest has been made – it is helpful to reduce that publicity by avoiding the client’s encounters with the press. When media coverage is unavoidable, it can be helpful for the lawyer to respond in measured tones to give the public some perspective on the case and help them withhold judgment until all the facts come out.
“Sex offenses” is a very broad category. The physical assaults of rape, fellatio, cunnilingus, and some other sexual touchings are serious felonies if they are perpetrated using force or threats. Those acts may also be criminal if they are committed on a victim who is too intoxicated (or otherwise not competent to know what they are doing – even if they say the word “yes” or are the instigator of the activity. Kissing an unwilling person is a sexual assault and the punishments if convicted are life-changing, even though it is not a felony.
“Acquaintance rape” is a term meaning that someone the alleged victim knew – a boyfriend, a husband, or casual acquaintance – is accused of sexually assaulting them. When two consenting adults are engaging in sexual activity, either person can change their mind or say “stop.” If their partner does not stop or goes beyond what the other person consented to, it is technically the same offense as a forcible rape by a stranger. These cases are hotbeds of false allegations and tragic misunderstandings.
Any sexual act involving someone under 16 (in North Carolina) is a crime regardless of whether that minor consents. If a 15-year-old lies about their age to a 21-year-old, any sexual acts between them are criminal. These charges involving minors in which consent or an honest mistake of age is not a does not matter are called “statutory sex offenses.”
Photographs of anyone under 18 years old which are sexual in nature are illegal under Federal and North Carolina State law. This material is called “child pornography.” Helping make child pornography, sharing it, and possessing it are all very serious felonies.
Many people are spending time in the shadows of the internet using it for sexual gratification. In addition to the widespread use of it to collect and distribute child pornography, some people are using the internet to commit sexual offenses and the law has developed to criminalize a lot of this activity. Most common is the chat-room soliciting minors for sex, sensationalized in the NBC television show, To Catch a Predator. Federal and State task forces have been investigating this activity for years. These detectives go online posing as minors in internet forums. When a person “bites” and engages in sexual activity (trying to meet up, video chatting, and exchanging nude photos), they are prosecuted under State and Federal laws which carry very heavy sentences, even if they never met or actually intended to meet to “minor.”
“Sexual tourism” is another form of offenses against minors. Child molesters who travel (or attempt to travel) to foreign countries for the purpose of exploiting children are prosecuted in Federal Court. In recent years, the Federal Government has begun prosecuting Americans who live overseas and commit these offenses, even where they did not travel from the US thinking they would ever do it. In such cases, the Government charges them in the US and either extradite them from the foreign country or arrests them when they return.
Simply because sex that goes beyond what consenting adults have agreed to is so devastating to the victim, sexual crimes are subject to some of the most severe punishment under the law. Under North Carolina law, a forcible rape (and any other act involving penetration) using a weapon or leaving the victim in an unsafe place is a Class B1 felony carrying a mandatory minimum active prison sentence of 16 years for a person with a clean prior record. There are some very rare extenuating circumstances that would reduce it as low as 12 years, but a judge sentencing for such an offense cannot give less than 12 years and the Department of Corrections cannot release the defendant earlier. Rapes, where there is no other aggravating factor beyond perhaps the use of threats, carry a typical minimum of 5 years in prison.
Most sex offenses against children are Class B1 felonies and carry the typical 16-year minimum. The major exception is the North Carolina crime of “indecent liberties with a child.” This offense involves any touching and some non-contact activity which, though not involving “penetration,” is done for sexual purposes. Indecent liberties is a Class F felony and in certain cases, might result in a sentence of probation instead of prison.
When a person is released from prison for felony sex offenses, North Carolina law requires that they are supervised by the Division of Adult Corrections for at least 5 years. There are many restrictions that are imposed during that time. The same applies to those sex cases where the sentence was probation.
Every person convicted of a sex offense is required to register as a sex offender for at least 10 years. The list is called the “sex offender registry.” Some of the most serious offenders remain on that list for the rest of their lives. These people have to register with the Sheriff of the county in which they live and/or work. They are not allowed to live in a house within 1000 feet of property on which a school or daycare is located. The reality is that finding rental housing that is both legal and run by a landlord that will rent to a person on the registry is very hard.