Category

Sex Crimes

Dec 12
9
sexting laws texas

When Is “Sexting” a Crime in Texas?

By | Sex Crimes

sexting laws texas“Sexting” has become a very popular activity amongst teenagers and young adults in the last several years. This generation sees it as just another ordinary part of life with cell phones. For parents, prosecutors, and law enforcement officers, however, sexting is a dangerous habit that has wide-ranging effects. While sexting has the potential to severely damage lives and reputations, the very nature of it makes it difficult for authorities to adequately address the problems it causes. This article will explore what sexting is, how common it is, the applicable laws, and the practical implications of applying those laws to common instances of sexting.

What Is Sexting?

Sexting is derived from the words “sex” and “texting.” It means the sending of nude or sexually explicit photos or sexually suggestive text messages by text, email, or instant messenger using a mobile device. Many times, the person depicted in the photographs has either consented to the photo being taken or has taken the pictures of themselves. Typically, the person in the photograph, either on their own initiative or at the request of another, takes the photo and then voluntarily sends it to a significant other or a person they are attracted to. The intent is generally for the picture to be kept private by the initial recipient.

The problem with sexting arises when the photograph is either posted on the internet, usually through a social media platform, or is shared with others through text or email. In many cases, this posting or sharing is not consented to by the person depicted in the picture.

How Common is Sexting?

A study done by Drexel University in 2015 found that over 80% of adults surveyed admitted to sexting within the last year. The study was presented during the American Psychological Association’s 2015 convention. According to GuardChild.com, 20% of all teenagers have sent or posted nude or semi-nude photos or videos of themselves and 39% of teenagers have sent sexually suggestive messages through either email, text, or instant messaging.

Criminal Laws Applicable to Texting in Texas

In the State of Texas, there are several laws which could be used to prosecute instances of sexting, especially if it involves a minor. These laws can range from a Class C misdemeanor to a first-degree felony.

Unlawful Disclosure or Promotion of Intimate Visual Material

Texas law makes it unlawful for a person to intentionally disclose photographs or videos of a person engaged in sexual conduct or with their intimate parts exposed without the consent of the person depicted if the person in the photo/video had a reasonable expectation that the material would remain private, the person depicted is harmed and the identity of the person in the photo/video is revealed through the disclosure. This is a Class A misdemeanor.

Sale, Distribution, or Display of Harmful Material to a Minor

A person who sells, distributes, or shows “harmful material” to a minor, knowing that the material is harmful and the person is a minor, or displays harmful material and is reckless about whether a minor is present who would be offended is guilty of this offense in Texas. This is a Class A misdemeanor unless the person uses a minor to commit the offense, and then it is a third-degree felony.

Sexual Performance by a Child

The offense of sexual performance of a child is committed when a person employs, authorizes, or induces a child under the age of 18 to engage in sexual conduct. In this context, “sexual conduct” includes the lewd exhibition of the genitals, anus or breast. This offense is a third-degree felony, but if the victim was under the age of 14 at the time of the offense, then it is enhanced to a second-degree felony.

Possession or Promotion of Child Pornography

A person commits the offense of possession or promotion of child pornography if he intentionally or knowingly promotes or possesses with the intent to promote material that depicts a child engaged in sexual conduct knowing that the material depicts a child. This is a third-degree felony, but it can be enhanced to a second or first-degree felony.

The Sexting Law – Electronic Transmission of Certain Visual Material Depicting Minor

This is Texas’ “sexting” statute. Under it, a person under the age of 18 commits an offense if he intentionally or knowingly possesses or promotes to another minor visual material that depicts a minor engaged in sexual conduct by electronic means if he produced the material or knows that another minor produced it. This is a Class C misdemeanor, but it can be enhanced to either a Class B or Class A misdemeanor in certain situations.

Practical Implications

An instance of sexting in Texas can be prosecuted under any of the above laws. However, there are problems with each of these statutes that makes it difficult to prosecute sexting cases under them. These problems are what led the Texas legislature to create the sexting law several years ago.

Problems with the Sexting Law

However, there are two major problems with this law. First, the sexting statute only applies to persons under the age of 18. This means that an 18-year-old high school student who shares sexting photos with others in his high school cannot be prosecuted under this law. The second problem with it is that it creates a defense to prosecution if the person in possession of the visual material destroys it. So, the law that makes sexting illegal also allows those who break the law to get away with it by destroying the evidence. Because of these problems, it is almost impossible to prosecute someone under this law.

Problems with Using the Other Laws to Prosecute Sexting

The main issue with using the other laws laid out above to prosecute sexting cases is that they were not created to address this specific behavior. So, it becomes a situation where prosecutors are having to shove a square peg into a round hole to make it work in many cases. For instance, the Unlawful Disclosure or Promotion of Intimate Visual Material law requires that the person in the pictures had a reasonable expectation that the photos would remain private. GuardChild.com found in their compilation of sexting statistics that 44% of teenagers believe it is common for sexually suggestive text messages to be shared with others, and 35-40% of them feel that it is common for nude or semi-nude photos to be shared with others beyond the intended recipient. These beliefs undermine the “reasonable expectation of privacy” prong of the law.

Similarly, the Possession or Promotion of Child Pornography statute is problematic when used in sexting cases because it does not include any protections from prosecution for the victim. This means that when a teen age girl takes a nude photo of herself and sends it to her boyfriend, who then shares it with other students, the girl who took the photo of herself is as guilty of promotion of child pornography as the boy who shared it with others. Most people would agree that the victim shouldn’t face charges for child pornography. Yet, prosecutors must either prosecute both of them or do nothing.

Sex Offender Registration for a Sexting Conviction

Another major practical ramification of sexting is that if a person is convicted or adjudicated for sexting under the possession or promotion of child pornography law, he will be required to register as a sex offender for life if the person is prosecuted in the adult system or for ten years past the end of his sentence if he is adjudicated as a juvenile. Depending on the facts of the case, this can be a very harsh consequence for a behavior that is so common in this modern world we live in. But it is important for anyone who engages in sexting, and their parents, to realize that sex offender registration for life is a very real possibility if prosecuted.

Conclusion

While many parents may not know that sexting even exists, the fact remains that it is much more common than we would like to think. It can have devastating consequences for the person depicted in the photos, and for anyone who shares or possesses these photos. Many teenagers engage in this behavior without realizing what the ramifications can be.

This is one area where the law hasn’t caught up to technology yet. So, the job of protecting our children from the harms associated with sexting still falls primarily to parents. It is important for parents to educate themselves about the practice and then talk to their teenagers and pre-teens about the dangers of sexting.

 

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Nov 17
22
Sexsomnia Sleep Sex

“Sexsomnia” or “Sleep Sex” May Be a Defense to Sex Crime Allegations

By | Sex Crimes

Is Sleep Sex a Real Thing and How Can it Apply to Sexual Allegations?

Sexsomnia Sleep SexYou may have heard of sleepwalking, or sleeptalking, but what about sleep sex? The idea of sleep sex or “sexsomnia” is typically worth a few laughs when you first hear about it, but it is a very real disorder within the parasomnia umbrella of disorders (classified by the DSM-V).  Google it (with caution, of course).  You’ll find many articles discussing real people that suffer from sexsomnia.

What is “Sexsomnia?”

Also called “sleep sex,” sexsomnia is a type of parasomnia, where the brain is caught in transition between sleeping and waking states. As with other parasomnias — including sleepwalking, sleep talking, and, sleep driving — someone who is sleep sexing can seem fully awake and aware, even as he or she is masturbating, or fondling, initiating intercourse with, or even sexually assaulting a bed partner. But he or she truly is asleep.

See Web MD.  There have been several sleep studies and scholarly articles on sleep sex as experts learn more about sexsomnia.

How Does Sleep Sex Apply to a Sex Crime Allegation?

As you can imagine, some criminal defense attorneys have used sexsomnia as a defense to sexual assault allegations. Prosecutors are even being trained on how to overcome the sleep sex defense. But sexsomnia does not apply to every case. The factual allegations often do not support sexsomnia as a viable defense to sexual crimes cases.  But sometimes they do.  An article published in the Journal of Clinical Sleep Medicine in 2014 explored 9 criminal cases in which sexsomnia was used as a defense to sexual allegations.  The jury found the defendant not guilty in 7 of the 9 cases.

To establish a viable sexsomnia defense, the defense should be prepared to present witnesses that can establish a pattern of unusual sleep behaviors for the accused.  Further, the defense should look for other things that are known “triggers” for sleep sex, like alcohol use, sleep deprivation, emotional stress, and certain medications. This is a starting point to consider pursuing such a defense and should be coupled with all other typical defense investigatory avenues.

While a sexsomnia defense may cause the jury to chuckle as they think about a person having sex while the person is asleep, it can carry the day if the facts support the defense.  It should not be used as a gimmick.  With the right experts and the right witnesses, a sleep sex defense might just be the truth that sets a person free.

Sep 28
6
Texas Sex Offender Registration

Which Crimes Require Sex Offender Registration in Texas?

By | Sex Crimes

Texas Sex Offender RegistrationIt’s no secret that there are certain offenses that require individuals to register themselves on the sex offender registry. However, what are those offenses? How long is a person required to register?

What Offenses Require Sex Offender Registration in Texas?

In Texas there are over 20 offenses that require registration as a sex offender. Additionally, registration could be required as a condition of parole, release to mandatory supervision, or community supervision. Further, even if a person was convicted for a crime outside of Texas you might be required to register as a sex offender if the elements of that offense are substantially similar to an offense under Texas law that requires registration.

Under the Texas Code of Criminal Procedure these are called “reportable convictions or adjudications.” Article 62.001(5) of the Code defines these to be a conviction or adjudication, which includes deferred adjudication, that is based on various offenses outlined in the section.

How Long Does a Person’s Duty to Register as a Sex Offender Last?

Many of the offenses requiring registration as a sex offender have a lifetime registration requirement but some have a “10-year” requirement. The 10-year requirement depends not only on the alleged offense but also on how the case is disposed. If the duty was based on an adjudication of delinquent conduct (defined by Tex. Fam. Code §51.03) then the duty to register ends on the 10th anniversary of the date on which the disposition was made or the date of completion of the terms of the disposition, whichever is later. If the duty is based on a conviction or deferred adjudication, then the duty to register ends on the 10th anniversary of the date the person is released from a penal institution, or is discharged from community supervision, or the court dismisses the criminal proceedings, whichever date is later.

Additionally, there is a 10-year requirement for persons, who would otherwise be subject to lifetime registration requirements, who were a juvenile at the time and their case was transferred to a criminal district court pursuant to Section 54.02 of the Texas Family Code. Tex. Code Crim. Proc. Art. 62.101(b). Under this requirement the duty to register ends 10th anniversary of the date the person is released from a penal institution, completed probation, or the date the court dismisses the charges against them, whichever date is later. Id.

Below is a chart that lists offenses requiring registration and the applicable time period the law requires a person to register.

Sex Offender Registration Requirements in Texas

LENGTH OF REGISTRATION SEXUAL OFFENSES

Lifetime Registration

See Tex. Code of Crim. Proc. Art. 62.101(a), 62.001(5), (6)
  • Continuous sexual abuse of a young child or children. TPC 21.02
  • Indecency with a young child under. TPC 21.11(a)(1)
  • Sexual assault. TPC 22.011
  • Aggravated sexual assault. TPC 22.021
  • Aggravated kidnapping under TPC 20.02(a)(4) with intent to violate or abuse the victim sexually
  • Burglary under TPC 30.02(d) if offense was committed with the intent to commit one of the above listed felonies
  • Sexual performance by a child. TPC 43.25
  • An offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice if the offense’s elements are substantially similar to the above felonies.
  • Trafficking of a person under TPC 20A.02(a)(3), (4), (7), or (8)
  • Prohibited sexual conduct. TPC 25.02
  • Compelling prostitution under 43.05(a)(2)
  • Possession or promotion of child porn. TPC 43.26
  • Indecency with a young child under TPC 21.11(a)(2) if the person received another conviction or adjudication that requires registration
  • Unlawful restraint, Kidnapping, or Aggravated kidnapping if there was an affirmative finding that the victim or intended victim was younger than 17 and the person receives or has received another conviction or adjudication that requires registration. TPC 20.02, 20.03, 20.04
  • Obscenity under TPC 43.23(h)

10-Year Registration

 

See Tex. Code of Crim. Proc. Art. 62.101(c), 62.001(5)
  • Indecency with a young child in a manner not listed under lifetime registration. TPC 21.11
  • Unlawful restraint, Kidnapping, or Aggravated kidnapping if there was a finding that the victim or intended victim was younger than 17. TPC 20.02, 20.03, 20.04
  • An attempt, conspiracy, or solicitation to commit one of the above listed offenses in this chart
  • Online solicitation of a minor. TPC 33.021
  • Prostitution under TPC 43.02(c)(3)
  • Second indecent exposure under TPC 21.08 or an offense with substantially similar elements under the laws of another state, federal law, the laws of a foreign country or the Uniform Code of Military Justice but not if the second resulted in deferred adjudication.
  • An offense of the laws of another state, federal law, the laws of a foreign country or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of the offenses described above, but not if the offense resulted in deferred adjudication.

What Exactly Does the Duty to Register Require?

A person required to register must register with the municipality or county where they reside or intent to reside for more than seven days. Among other things the registration must contain the type of offense the person was convicted of, the age of the victim, and a recent color photograph of the person. Tex. Code Crim. Proc. Art. 62.051. If the person spends more than 48 hours in a different municipality or county three or more times in a month they must provide the local authority with certain information. Art. 62.059. In addition to registering, the person must comply with a request for a specimen of their DNA. Tex. Code Crim. Proc. Art. 62.061; Government Code §411.1473. Also, if the Department of Public Safety has assigned a person a numeric risk level of 3, public notice must be given of where that person intends to live. Art. 62.056. Further, there are restrictions on type of employment for certain registrants. Art. 62.063.*

As you can see there are many consequences that come with a conviction, deferred adjudication or adjudication for delinquent conduct for one of the above listed offenses and there are additional requirements that could be imposed depending on the particular alleged offense. These very specific requirements provided under the Texas Code of Criminal Procedure must be followed so that a person does not violate the registration requirements and face additional criminal consequences ranging from a state jail felony to a first degree felony. Art. 62.102. If it has been alleged that you committed one of these offenses, it can be extremely overwhelming but also important to understand what lies ahead for you. Contact our criminal defense attorneys today to ensure that you fully comprehend what is being alleged, what consequences could be attached, and what your options are in your specific situation. Additionally, contact us if you are currently required to register and have questions about what duties are required of you.

*Note this blog does not provide all requirements and additional requirements for certain offenses. To find all requirements see Article 62 of the Texas Code of Criminal Procedure.

Aug 13
156
United States Age of Consent Map

What is the Age of Consent in the United States?

By | Sex Crimes

Is There a Uniform Age of Consent for all 50 States in the United States?

No, there is not a uniform age of consent. The “Age of Consent” is the minimum age at which a person may consent to participation in sexual intercourse. A person younger than the legal age of consent cannot legally consent to sexual activity. The age of consent in the United States ranges from 16 to 18 years old depending on the state, meaning that a person 15 years of age or younger cannot legally consent to sexual contact. Each state enacts its owns laws which set the age of consent.  If someone engages in sexual activity with a person younger than the age of consent in that state, the person could be charged with Statutory Rape or other offenses depending on the nature of the contact.

What follows is a map depicting the age of consent for all 50 states and a chart outlining the same.

*Note: This chart was current as of 2016, but could be subject to change over the years. Please do not rely on this chart to make any decisions that could impact your life. Check your own state’s age of consent laws to make sure you are fully informed, because ignorance of the law will not be a defense for you if charged with a child sexual offense.

United States Age of Consent Map

United States Age of Consent Map

United States Age of Consent Chart

STATE LEGAL AGE OF CONSENT
Alabama 16
Alaska 16
Arizona 18
Arkansas 16
California 18
Colorado 17
Connecticut 16
D.C. 16
Delaware 18
Florida 18
Georgia 16
Hawaii 16
Idaho 18
Illinois 17
Indiana 16
Iowa 16
Kansas 16
Kentucky 16
Louisiana 17
Maine 16
Maryland 16
Massachusetts 16
Michigan 16
Minnesota 16
Mississippi 16
Missouri 17
Montana 16
Nebraska 17
Nevada 16
New Hampshire 16
New Jersey 16
New Mexico 17
New York 17
North Carolina 16
North Dakota 18
Ohio 16
Oklahoma 16
Oregon 18
Pennsylvania 16
Rhode Island 16
South Carolina 16
South Dakota 16
Tennessee 18
Texas 17
Utah 18
Vermont 16
Virginia 18
Washington 16
West Virginia 16
Wisconsin 18
Wyoming 18

 

“Romeo and Juliet Law” in Texas | An Exception to the Age of Consent in Texas

As mentioned in the chart above, the age of consent in Texas is 17. Texas, as well as many other states, has created a so-called “Romeo and Juliet” law, an exception to the statutory rape and age of consent law. Romeo and Juliet laws are targeted toward teenagers and young adults who engage in sexual relations with someone under the age of consent (17 in Texas), but who are still close in age to the sexual partner. The Romeo and Juliet provision creates a close in age exemption and keeps these would-be offenders from being classified as sex offenders.

Under Texas law, if a person over the age of 17 has consensual sexual intercourse with someone under the age of 17, but there is also no more than a three-year age difference between the two partners, the Texas Romeo and Juliet law will not allow the older person to be charged with statutory rape or be classified as a sex offender.

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Jun 20
4
Child Sexual Assault Deferred Adjudication Sentence

Is Deferred Adjudication an Authorized Sentence if Victim is 3 Years-Old?

By | Sex Crimes

Trial Judge Properly Imposed Deferred Adjudication in Sexual Assault Case, says CCA

Child Sexual Assault Deferred Adjudication SentenceAnthony v. State (Texas Court of Criminal Appeals, 2016)

Note: This article contains sensitive subject matter dealing with the sexual assault of a minor.

Defendant Pleads Guilty to Sexual Assault Allegations in Exchange for Deferred Adjudication

In 2009, John Anthony was indicted for aggravated sexual assault of a child under fourteen years old. In a plea agreement, Anthony pleaded guilty to the charge in exchange for the prosecution’s recommendation of deferred-adjudication with community supervision. Generally speaking, deferred-adjudication is a type of probation in which a defendant enters a plea of guilty, but the judge defers the ruling for a set amount of time. If the set amount of time passes without further criminal activity or other technical violations by the defendant, the judge sets aside the plea and dismisses the case. For Anthony, the trial judge ordered a deferred period of eight years.  During this time, the defendant would remain on community supervision, under the watch of a probation officer. The judge listed the victim’s age as three years old on the official trial judge’s order for deferred adjudication—not “under fourteen years old” as was listed on Anthony’s indictment.

Several years passed until 2013, when the State moved to adjudicate because Anthony allegedly violated his community supervision directives. Finding the new allegations to be true, the judge adjudicated Anthony guilty and sentenced him to life in prison. Once again, the judgment listed the victim’s age as three years old, not fourteen years old as was listed on Anthony’s original indictment.

Age Discrepancy on Judge’s Orders Leads to Sentence Reversal

Anthony appealed his adjudicated sentence with court-appointed counsel, who eventually filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). While reviewing the Anders brief, the court of appeals became concerned about the discrepancy in the victim’s age listed on the judge’s orders and on the original indictment. Specifically, the court of appeals was concerned that the trial court’s “finding” that the victim was three years old meant that under section 42.12 of the Texas Code of Criminal Procedure, the trial judge was entirely precluded from imposing deferred adjudication in the first place. TEX. CODE CRIM. PROC. Art. 42.12, § 5(d)(3)(B) (West 2006 & Supp. 2015). Additionally, the court of appeals was concerned that the age discrepancy error led to a potential flaw in sentencing. Further, the sentencing flaw potentially pointed to the fact that Anthony’s trial counsel could have been ineffective, possibly inducing Anthony into pleading “guilty” to a deal that should have never been made at all. Accordingly, the court of appeals reversed the trial court’s judgment. The State petitioned the Court of Criminal Appeals to review the case.

Can the Trial Court Place a Defendant on Deferred Adjudication for a Sexual Offense involving a 3 Year-Old Victim?

Now, the Court of Criminal Appeals must determine whether the potential age discrepancy error on the original indictment and on the trial judge’s orders created a procedural error during sentencing, possibly leading to ineffective assistance of counsel. If the age discrepancy is problematic procedurally, what should happen to Anthony’s original sentence?

Here, the Court of Criminal Appeals says that the trial judge properly imposed deferred adjudication. Because the indictment read that the victim was “younger than fourteen years old” and because there is nothing in the trial record to indicate that the State intended to prosecute under more stringent statutes with more stringent punishment guidelines, the CCA holds that the original sentence is proper. Further, the CCA deems Anthony’s previous trial counsel to be effective. Accordingly, the CCA strikes the “three year old” victim language in the trial court’s order, amending the language to reflect that the victim, “was younger than fourteen years of age at the time of the offense.” TEX. CODE CRIM. PROC. art. 42.015(b); TEX. R. APP. P. 78.1(c). Anthony’s sentence of life imprisonment stands because his deferred adjudication was properly imposed in 2009.

May 03
2
Juvenile Sex Offender Conditions

Strict Monitoring of Juvenile Sex Offender Internet Usage is a “Heavy Burden,” says Fifth Circuit

By | Sex Crimes

In United States v. Sealed Juvenile, the 5th Circuit Court of Appeals discusses how much oversight is too much when it comes to juvenile sex offenses.

Juvenile Sex Offender ConditionsPlease note: This article discusses sexual abuse of a child. Generally speaking, the reason the court system treats juveniles differently from adults is because of the hope of rehabilitation and restoration of the juvenile offender to society. With everything from school to job searching on the internet these days, should juvenile sex offenders be able to be on the internet? Is strictly monitoring a juvenile sex offender’s internet usage, down to the keystroke, an imposition on constitutional rights, or is society providing oversight to a juvenile defendant with the hope of rehabilitation?

A Juvenile Sexual Assault Occurs on a Military Base

While living with his family on a military base, a fifteen-year-old sexually assaulted a four-year-old. He was charged with violating 18 U.S.C. §§2241(c), 5032 (2012), “engaging in a sexual act with a person who had not attained the age of 12 years.” The juvenile defendant had a history of psychiatric illnesses, such as Oppositional Defiant Disorder and Bipolar disorder. He had a pattern of sending sexually explicit letters to classmates at school. Before sentencing the district court ordered a probation officer to render a special report, which concluded, “in the last year the juvenile’s problems transformed from being anger-oriented to being sexually-oriented.” In a plea agreement, the juvenile pleaded guilty to a lesser offense of “abusive sexual conduct with a minor who had not attained the age of 12 years,” violations of 18 U.S.C. § 2244(a)(5) (2012) and §5032.

The District Court Imposes Strict Sex Offender Conditions to Probation

The district court deemed the defendant a “juvenile delinquent” and sentenced him to eighteen months in a juvenile treatment facility and a term of juvenile delinquent supervision until he turned twenty-one. Further, the district court imposed four special conditions to his supervision

  1. a restriction on the defendant’s contact with children,
  2. choice of occupation,
  3. prohibition on loitering in specific places, and
  4. the use of computers and internet.

The juvenile appealed to the Court of Appeals for the Fifth Circuit, arguing that the district court had not provided adequate reasons for imposing the special conditions at the sentencing hearing, and failed to explain how the special conditions were reasonably related to the offense.

Under 18 U.S.C. § 3563(b), courts may place discretionary conditions on probation, so long as the conditions are reasonably related to the factors set forth in such deprivations of liberty or property and are reasonably necessary. In doing so, the sentencing court must consider the nature and circumstances of the offenses and the “history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1)(2) (2012).

The Big Issue Before the Fifth Circuit | Were the Special Conditions of Probation Reasonably Related to the Offense?

The big issue before the Fifth Circuit was whether the conditions imposed by the district court were reasonably related to the offense, and if so, were they reasonably necessary. Did the district court provide adequate reasons for imposing the four special conditions? As the case was a matter of first impression, the Court examined each special condition and concluded in a surprising manner with regard to the internet and computer use.

Condition One: Restriction on Contact with Children

Under the first special condition, the juvenile was “not to have contact with children under the age of sixteen without prior written permission of the Probation Officer.” Further, he was required to “report unauthorized contact with children to the Probation Officer.” On appeal, the juvenile argued that this special condition was a “much greater deprivation of liberty…than reasonably necessary.” However, the Court disagreed with the juvenile. “Considering the threat posed by the juvenile based on his conviction [and other noted behaviors on record], we affirm this condition.” Also noting that the juvenile could attend school with permission of the Probation Officer, the Fifth Circuit agreed with the lower court.

Condition Two: Choice of Occupation

Under the second special condition, the juvenile was “restricted from engaging in an occupation where he has access to children, without prior approval of the Probation Officer.” On appeal, the juvenile argued that the special condition was not reasonable and necessary because the offense was not related to work and that he would run a risk of never being able to be employed. The Court disagreed because the juvenile would be able to work upon prior permission from his Probation Officer. The Court affirmed the district court’s condition.

Condition Three: Prohibition on Loitering in Specific Places

Under the third special condition, the juvenile was not to “loiter within one-hundred feet of schools, parks, playgrounds, arcades, or other places primarily used by children under the age of sixteen.” The juvenile argued that the special condition was not reasonably related to his offense because his offense did not occur at a school. The Court disagreed. “The juvenile’s history of sending sexually explicit letters to girls at school means that he poses a threat to children at school.” The Fifth Circuit affirmed the lower court’s special condition.

Condition Four: Computer and Internet Use

Under the fourth special condition, the juvenile was (1) not to possess a computer with internet access without the prior approval of the Probation Officer; (2) to submit to searches under the direction of the Probation Officer that could include software scans of his technological devices; (3) to consent to a key logger on his personal devices and to consent to a search of each internet query; (4) to inventory and to provide receipts for all devices and bills pertaining to the internet and technology.

The juvenile argued that the restrictions on his computer and internet use were not reasonably related to his offense, and that the special condition would prevent him from job searching, completing homework, and emailing his therapists. The juvenile argued that even though he could access the internet, to do so would place a heavy burden on him to request permission each time he accessed the internet, or to report any misstep such as an errant search or a “pop up” on the internet.

The Fifth Circuit points out that the juvenile is mentally ill and needs some internet oversight. “We affirm the monitoring provisions because we recognize [they] ensur[e] that the juvenile complies with the restrictions against accessing sexually explicit materials.”

However, the Fifth Circuit agreed with the juvenile on some of the internet and computer usage restrictions. “We must recognize that access to computers and the Internet is essential to functioning in today’s society.” The Fifth Circuit ordered the district court to construe the special condition so that the juvenile does not have to request permission from a Probation Officer each time he accesses the internet, removing what the Court deemed “a heavy burden” on the juvenile. Next, the Court modified the special condition that required the juvenile to provide receipts and payment records to the Probation Officer, “because the purpose is to verify that there have been no payments to an internet service provider, and payment for proper use should be made by the juvenile…there is no other basis to justify the restriction imposed by the [special condition].”

In sum, while the Fifth Circuit mostly affirmed the district court’s holding, it made some significant modifications where technology is concerned. Speaking to the hope of future rehabilitation, the Court added, “the juvenile may seek modification to any of the conditions, and the district court may lessen the burden of the [special conditions] if [his] behavior improves over time.”

Feb 12
8
Statutory Rape Texas

The Statutory Rape Dilemma in Texas

By | Sex Crimes

Statutory Rape TexasOf the various types of criminal cases we defend in Fort Worth, Texas, Statutory Rape can be one of the more frustrating. First, a word of clarification; the term “Statutory Rape” does not actually appear in the Texas Penal Code. What I refer to as Statutory Rape is actually Sexual Assault of a person under 17 years of age (and over 14 years of age) under Section 22.011(a)(2). To understand what I mean about our frustration, consider this example (based on a true story).

The Story of Sam | A Common Statutory Rape Example

A 22 year-old attractive young man, let’s call him Sam, is filling up his car (a BMW) at a gas station when an attractive young woman (Nadia) approaches him and tells him how she admires his car. Nadia then tells Sam that she thinks he is cute and gives Sam her phone number. Nadia is younger than Sam, but he’s not exactly sure how much younger. She is fully developed and is dressed in mature clothing. Over the next few days Nadia and Sam send each other text messages. The messages are flirty at first and then Nadia turns the conversation toward sexual things. Sam is a bit surprised by how forward Nadia is, but he welcomes the banter. Sam then asks Nadia how old she is because he’s always heard the old adage “16’ll get ya 20.” Nadia tells Sam that she is 18 and says that she’ll show him an ID indicating the same when they get together. She then asks Sam to come pick her up in his BMW and take her to a park near her house. Sam agrees.

At the park, Nadia shows Sam her Texas ID, which says that she is indeed 18 years old. Sam and Nadia then engage in consensual sex, after which Sam takes Nadia home. Sometime during the next few days, Nadia’s mother gets ahold of her cell phone and notices the messages between her and Sam. When she confronts Nadia, Nadia admits that she and Sam had sex. Nadia’s mother is furious and calls the police to report Sam for child sexual assault. The police conduct a quick investigation wherein Sam admits to having sex with Nadia. After all, he thought he was doing nothing wrong since she was 18. The police then arrest Sam for statutory rape for having consensual sex with a 16 year-old. Nadia is only 16.

Statutory Rape is a Strict-Liability Offense

Statutory rape (Sexual Assault under Texas Penal Code Section 22.011(a)(2)) is a strict liability offense in Texas. What does this mean? It means that a person is guilty if:

  1. The person is older than 18 years of age; and
  2. The person intentionally or knowingly has sex with someone younger than 17 years of age.

*There is an exception to the law is the actors are less than 3 years apart in age, meaning that if the minor is 16 and the partner is 19 (but not more than 3 years older) then he will not be charged.

Other than the 3-year age gap exception, there are no other exceptions to statutory rape in Texas, hence strict liability. There is no Consent defense; consent is irrelevant for this offense. There is not Mistake of Fact defense when the minor lies about her age and no Mistake of Law defense for when the actors don’t know what the age of consent is in Texas. That is why we call this one of the more frustrating offenses in the Texas Penal Code.

Let’s take Sam’s case. Sam genuinely had no idea that Nadia was only 16. In fact, short of asking for her birth certificate, he showed due diligence in finding out her age before they had sex. He asked about her age and even saw her identification, which we now know was a fake ID. How can the state punish Sam when he tried to do everything right (fornication arguments aside)?

We often encounter this scenario or one like it. Our Fort Worth sexual assault defense attorneys have been able to get charges reduced under these circumstances. Many times, if we are hired before the grand jury considers the case, we will request to make a presentation to the grand jury and highlight these facts, urging the grand jury to no-bill the case and dismiss it. When we are negotiating with prosecutors on these types of cases, we do everything we can to get the charge amended to a different offense that doesn’t require sex offender registration (e.g. Injury to a Child). We have had considerable success in doing this, but it can be fact dependent (and personality dependent).

Sex Offender Registration for Consensual Sex with a Minor

Make no mistake; a conviction for statutory rape requires the offender to register as a sex offender in Texas. In fact, Statutory Rape is a lifetime registration offense. So although it may seem like a minor offense based on an age technicality, it is terribly serious. Further, even if your attorney is able to get your case reduced to a non-sex offense and you do not have to register as a sex offender, the court might still require you to undergo sex offender caseload on probation. You should fight this requirement as the sex offender caseload can be extremely difficult (and frustrating), especially when you never had the intent to commit a crime in the first place.

Free Consultation with a Fort Worth Statutory Rape Defense Attorney

If you are under investigation or have been charged with a Statutory Rape offense, contact our team of Tarrant County criminal defense attorneys. Our attorneys have the knowledge and experience to defend your future and your name with care and compassion. Contact us today at (817) 993-9249.

Feb 10
8
Sex Offender Passport Law

New Law Requires Certain Sex Offenders to Have Identifying Mark on Their Passports

By | Sex Crimes

Sex Offender Passport LawOn February 8, 2016, President Obama signed International Megan’s Law after it unanimously passed in Congress. International Megan’s Law has been put into place to prevent child exploitation and other sexual crimes through advanced notification of traveling sex offenders. The law will implement new notification requirements for sex offenders as well as require unique identifying marks on sex offender’s passports.

Read the language of the bill here.

Who is Required to Have an Identifying Mark on Their Passport under the International Megan’s Law?

The new law provides two categories of “covered” sexual offenders that will have to have this mark on their passport:

  1. Sex offenders convicted of a sex offense against a minor; and
  2. Any individual that is required to register in the sex offender registry of any jurisdiction in the National Sex Offender Registry because of an offense against a minor.

What Are the New Requirements for Sex Offenders Traveling Abroad?

Covered sex offenders must now provide to the appropriate official any information relating to their intended travel outside of the United States, including anticipated dates and all flight information, address or other contact information while outside of the U.S., purpose for travel, and any other travel-related information. The sex offender must update any changes to this information. If a sex offender knowingly fails to provide such information they shall be fined, imprisoned for not more than 10 years, or both.

What Will Occur When Sex Offenders Decide to Travel Abroad?

The Angel Watch Center will be established to perform activities required by the law to gain information on sex offenders traveling abroad. The Center, not later than 48 hours before scheduled departure, will use all relevant databases, systems and sources of information to:

  • Determine if individuals traveling abroad are listed on the National Sex Offender Registry
  • Review lists of individuals who have provided advanced notice of international travel, and
  • Provide a list of those individuals to the United States Marshals Service’s National Sex Offender Targeting Center (Targeting Center) not in the system to determine compliance with sex offender registration requirements.

When Will Advanced Notice Be Given to Destination Countries?

The Center may give relevant information to an individual’s destination country if the individual was identified as having provided advanced notice of international travel, or if after completing the Center’s activities described above, the Center receives information pertaining to a sex offender from the Targeting Center.

Additionally, the Center may immediately give relevant information to the destination country if the Center becomes aware of a sex offender traveling outside of the U.S. within 24 hours of their intended travel and simultaneously completes the Center’s activities, or if within 24 hours of intended travel, the Center has not yet received the information pertaining to the sex offender from the Targeting Center.

What is the Process for Issuing Passports to Sex Offenders?

The Secretary of State cannot issue a passport to a covered sex offender unless the passport contains a unique identifier. Further, a passport previously issued without an identifier may be revoked. The unique identifier has not been determined yet.

The Secretary of State may reissue a passport without a unique identifier if an individual reapplies for a passport and the Angel Watch Center provides written determination that the individual is no longer required to register as a covered sex offender.

What About Sex Offenders Entering Into the United States?

Upon receiving notification that an individual who has committed an offense of a sexual nature is attempting to enter the United States, the Center will immediately share all of the information on the individual with the Department of Justice and other Federal, State, and local entities as appropriate.

Conclusion

Under this new law, sex offenders who have committed offenses pertaining to a minor child will now be required to give notification of any intended international travel and will likely have to have a passport with a unique identifying mark. Sex offenders who already have passports should be prepared for reissuance of one with the identifying mark. This mark will alert officials that this individual has committed an offense against a child. Further, destination countries will be notified of any relevant information on the sex offender. It is important to stay up to date on the requirements and implications set forth by International Megan’s Law to avoid any unintentional violations of the new requirements.

The law is still new and right now there are more questions than answers.  Interested parties should be diligent to stay informed as the implementation of this law is rolled out.

Dec 09
4
Fort Worth Failure to Register as Sex Offender Defense Lawyer

Failure to Register is Not a Separate and Distinct Sex Offense

By | Criminal Defense, Sex Crimes

Is Failure to Register as a Sex Offender a Sex Offense Itself?

Fort Worth Failure to Register as Sex Offender Defense LawyerAt his trial, Eric Putnam pleaded guilty for “failure to register as a sex offender,” a violation of 18 U.S.C. § 2250 that “carries a statutory range [of punishment] for supervised release of five years to life.” 18 U.S.C. § 3583(k). A Pre-Sentence Investigation Report (“PSR”), calculated Putnam’s punishment for supervised release at 15 years, treating his conviction of Failure to Register as an additional sex offense under section 5D1.2(b)(2). PSRs are reports used by federal courts to assist the court in measuring a defendant’s punishment under the US Sentencing Guidelines Manual. Courts have discretion in determining type and length of punishment, sometimes deviating from the recommendation of the PSR. For Putnam, the district court adopted the PSR, sentencing him to ten months imprisonment followed by a supervised release term of 15 years.

See the Fifth Circuit’s opinion in United States v. Putnam

Putnam appealed the 15-year term of supervised release, contending the district court erroneously treated his conviction for Failure to Register on the sex offender registry as a separate sex offense in and of itself. Because Putnam failed to object to the length of the sentence at the time of trial, essentially waiving his right to appeal the sentence on the merits, he must show (1) that a “plain error” was made at the sentencing phase of his trial, and, (2) that the “plain error” affected his substantial rights. United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013); United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc). The “Plain Error Doctrine” refers to Federal Rule of Criminal Procedure 52(b) that permits federal courts of appeals to consider “plain errors” even though they were not brought to the district court’s attention at the time of trial.

Here, the government “concedes that a plain error [did] occur with respect to the Guidelines calculation for the length of…the supervised release term.” In earlier case law, the Fifth Circuit has held, “that failure to register under the Sex Offender Registration and Notification Act does not qualify as a sex offense under section 5D1.2(b)(2) of the Guidelines.” United States v. Segura, 747 F.3d, 323,329-31 (5th Cir. 2014). The Court agrees with the government and with Putnam—that a plain error did in fact occur at trial, and that the recommended sentence on the PSR should have included a supervised release from one to five years, instead of the range of five years to life.

Next, the Court explained, “Putnam has met his burden of showing that the [plain] error affected his substantial rights…[because] but for the district court’s misapplication of the [Sentencing] Guidelines, Putnam would have received a lesser sentence.” United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011) (per curiam). A defendant meets the burden of showing that plain error affected his substantial rights when:

  1. the district court mistakenly calculates the wrong Guidelines range;
  2. the incorrect range is significantly higher than the true range; and
  3. the defendant is sentenced incorrectly. Id.

Here, Putnam fulfills all three requirements—the district court miscalculated his range of punishment; the range was significantly higher (three times the correct amount); and Putnam was sentenced incorrectly. Although the courts may use discretion in sentencing—sometimes giving a longer sentence to a habitual offender, or someone with a long criminal history—Putnam had only one prior, lesser conviction. The district court did not have a compelling reason to go above the correct sentencing guidelines.

Lastly, the Court determined whether the plain error affected the “fairness, integrity, and reputation of the judicial proceeding.” Courts “often exercise…discretion to correct error when it result[s] in a custodial sentence in excess of the correct Guidelines recommendation.” United States v. Hernandez, 690 F.3d 623, 621-22 (5th Cir. 2012). Here, “miscalculation of a supervised release” is [un]common…but [nevertheless] is a substantial restraint on liberty.” United States v. Segura, 61 F.App’x 119, at *1 (5th Cir. 2003).

In sum, the Court concluded that there was, indeed, an error in Putnam’s case that resulted in a sentence ten years above the correct Guidelines range, “satisfying all the plain error inquiries.” The Court vacated the sentence and remanded to the district court for proper sentencing.

Nov 30
0
Texas Sex Trafficking Statute

Is Texas’ Sex Trafficking Statute Overbroad?

By | Sex Crimes

Appellate Court Raises a Constitutional Eyebrow at Texas’ Sex Trafficking Statute

Texas Sex Trafficking StatuteRobert Francis Ritz met a young girl on an online dating website. She was fourteen years old at the time while Ritz was Forty-four. The two began to meet up in person and began to have a sexual relationship. Ritz would pick the girl up from her parents’ house, drive her back to his house, have sex, and then drop her back off at her house. For this conduct, a jury found appellant Ritz guilty of continuous sex trafficking and assessed punishment at life in prison. Ritz appealed to the 3rd District Court of Appeals in Austin.

See the court’s opinion in Ritz v. State

How Does the Texas Penal Code Define Sex Trafficking?

The Texas Penal Code provides that a person commits continuous trafficking of persons “if, during a period that is 30 or more days in duration, the person engages two or more times in conduct that constitutes an offense under Section 20A.02 [trafficking of persons] against one or more victims.” Tex. Penal Code § 20A.03(a). A person commits trafficking of persons “if the person knowingly . . . traffics a child and by any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by” an enumerated section of the Penal Code. Id. § 20A.02(a)(7). The Penal Code also provides that “‘[t]raffic’ means to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means.” Id. § 20A.01(4).

Under this broad language, Ritz falls into this category. Ritz argues, however, that he did not traffic this girl and should not be found guilty of human sex trafficking. He argues that the legislature surely did not intend this anti-human-trafficking statute to apply to cases like this where there is no “illegal trade of human beings for profit or for sex trafficking.” Further, he argues that this outcome would lead to “absurd consequences” and increase the punishment range for all sexual offenses involving a minor.

Essentially, Ritz is argued on appeal that this statute was intended for people trading other humans, not for a person driving a girl around so they can have sex together. The Court of Appeals concedes that although this act is “reprehensible,” it is not what is normally thought of as human trafficking because there was no organized crime, prostitution, or forced labor. The court also concedes that the language in the statute may be so broad that nearly every adult who has sex with a minor will be considered a human trafficker.

Nonetheless, the court concludes that as long as this statute is constitutional, then they must enforce it as it was written and not how it should have been written. The court also offers that it could have been possible that the legislature did want to increase the penalties for persons who commit sexual crimes with minors under the “trafficking” umbrella.

Effectively after this case, most every person who has committed a sexual crime with a minor will be eligible to be punished under the trafficking umbrella which faces harsh penalties as seen here. The court noted that Ritz did not challenge the constitutionality of the statute so the court did not look into it. Attorneys facing this same dilemma might raise this constitutional argument to have a better chance on appeal.