Potential Charges and Defenses to Sex Crimes in California

For those who require a defense against a sex charge, there are a number of potential defense strategies your Bay Area attorney can use to counter it. First, however, you stand a greater chance of having these charges dismissed or reduced if you retain an attorney with an in-depth knowledge of the San Francisco courts and experience defending sex crime charges.

Given the social stigma attached to sex crime charges, a conviction could wreak havoc on many aspects of one's life. Professional and personal relationships, as well as educational pursuits, could be compromised by a successfully prosecuted sex crime charge. This is why a high caliber attorney is indispensable if you mean to protect your livelihood and your reputation from the ramifications of a sex crime conviction. A well-prepared defense strategy and an experienced defense lawyer combined can best help you challenge sex crime allegations.

Despite society's tendency to assume the worst of someone accused of a sex crime, these allegations are not always as straightforward as portrayed by the prosecution or the media. Factors such as consent, the accuser's credibility, and character of the accused all must be examined, weighed and considered before passing judgment on the accused (in both a court of law and public opinion). Wrongful convictions and false accusations occur all the time. Jurors, however, may already be inclined to view an alleged sex offender skeptically or unfavorably because of the intense social stigma toward those who commit sex crimes. No one deserves to be condemned until all of the relevant facts of the case have been uncovered and proven.

Special units have been established in state and local (county) prosecutors' offices to investigate and prosecute sexual offenses. If convicted of a sex crime, you will usually be required to register as a sex offender and report your information to law enforcement agencies. Your residence may be available on the internet for anyone to look up. (Pursuant to California Penal Code § 290.46, the state's repository for sex offender information is readily available online as a provision of Megan's Law. Megan's Law mandates that the public be notified about specified sex offender registrants.) The embarrassment of having to register as a sex offender is just one of many reasons you must seek immediate legal help if you have been accused of a sex crime.

Common Sex Crimes

Lewd Conduct

A person may be charged with lewd conduct if they personally engage in such conduct or solicit another person to engage in it. A variety of offenses fall under the umbrella of lewd conduct. All instances of lewd conduct under Penal Code 647 will be charged as misdemeanors, meaning they carry a maximum penalty of one year in county jail. Depending on the circumstances of the case, a person convicted of lewd conduct may be required to register as a sex offender under Megan's Law. Improper sexual conduct in a public restroom or on a beach may be charged as lewd conduct.

  • Committing a lewd act on a child for purposes of sexual gratification, as specified in Penal Code § 288 PC, is a felony punishable by 3, 6 or 8 years in prison.
  • Indecent exposure of one's genitals or breasts in public can result in a misdemeanor under Penal Code § 314 PC.
  • Intercourse or sex acts, including masturbation, may be prosecuted under Penal Code 647.
  • Soliciting lewd conduct may occur in the form of asking another to expose their genitals, buttocks or breasts in public for the purpose of one's own sexual gratification.

Child Pornography

Production, distribution, and possession of child pornography is prohibited per federal (18 U.S.C. §§ 2252, 2252A, 2256, 2260) and state law (California Penal Code § 311.11). If you are charged with a child pornography offense, the prosecution can charge you either with a felony or misdemeanor depending on the facts of your case. Factors that would cause the prosecution to charge a suspect with a felony include such things as: number of images in your possession, specific acts depicted in images, a prior conviction for the same offense, and status as a registered sex offender.

A misdemeanor results in up to one year in county jail and a fine up to $2,500, along with probation, community service, and lifetime registration as a sex offender. A felony can result in the same except imprisonment is at a state prison, not county jail. The latter is generally the minimum sentence that can be imposed. if aggravating circumstances are present, you could face up to 6 years in state prison. Aggravating circumstances include possessing more than 600 images with 10 or more images depicting prepubescent minors or minors under 12 years of age; and/or images of a minor under 18 years of age engaged in sexual sadism or sexual masochism.

Rape

Penal Code § 261 PC criminalizes forcible sexual intercourse with an unwilling participant that occurs by way of force, threats or violence or in the absence of consent. If a person cannot consent because they are mentally incapacitated, unconscious or intoxicated, it also considered rape.

  • Forcible rape occurs when intercourse is "accomplished against a person's will by means of force, violence, violence, duress, menace or fear of immediate and unlawful bodily injury," per Penal Code § 261(a)(2) PC
  • Rape by use of drugs is defined as intercourse that occurs when a person cannot resist or consent because of an intoxicating or anesthetic substance, under Penal Code § 261(a)(3).
  • Rape of an unconscious person covers a broader spectrum of offenses than it seems to imply. A person need not be physically unconscious for the perpetrator to be found guilty. If the victim is 'unconscious of the nature of the act' for any reason, the charge may apply. A victim may be asleep or physically unconscious. Alternatively, they may be physically alert but unaware of the sexual nature of an act, "due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no purpose," pursuant to Penal Code § 261(a)(4)(D) PC.
  • Rape by threat of harm occurs when the perpetrator threatens to kidnap, falsely imprison, inflict extreme pain/serious bodily injury or kill the victim or any other person in the immediate future, under Penal Code § 261(a)(6) PC.
  • Statutory rape is defined in Penal Code § 261.5(a) as unlawful sexual intercourse with a person under the age of 18 who is not the perpetrator's spouse. It is a misdemeanor to engage in sexual intercourse with a minor when there is an age difference of no more than 3 years. If the minor is more than 3 years younger than the perpetrator, they will either be guilty of a felony or misdemeanor, with a sentence not to exceed 1 year in a county jail. Depending on the ages of those involved, a fine ranging from $2,000 to $25,000 may apply. The maximum fine of $25,000 applies in cases in which the minor was under the age of 16 and the adult was over the age of 21.
  • Forcible penetration with a foreign object, as outlined by Penal Code § 289, is a crime that involves three elements: (1) penetration of vagina or anus, however slight; (2) by using an unknown object (e.g., a finger, sex toy, or other object); (3) through the means of force. Generally, a defendant has been accused of placing an object into the vagina or rectum of another person against his or her will or without him or her having the mental capacity to provide legal consent. Violation of Penal Code § 289 is a felony and is punishable by three, six or eight years in state prison and fine of up to $10,000.

Sexual Assault & Sexual Battery

According to California Penal Code § 243.4, touching another person's intimate parts against that person's will is prohibited and can result in a charge of sexual battery. The statutory definition of "intimate part" refers to "sexual organ, anus, groin, or buttocks of any person, and the great of a female." California Penal Code § 243.4(g)(1). Penalties for a conviction depend on the specific circumstances and whether or not it is classified as a misdemeanor or felony. A misdemeanor sexual battery carries a maximum county jail sentence of either 6 months or one year and a fine up to $2,000, or $3,000 if the victim was an employee. A felony sexual battery carries with it an imprisonment sentence in state prison of two, three, or four years and a maximum fine of $10,000.

Child Molestation

Child molestation is always a crime in California. There are two specific laws, however, you should be aware of: (1) continuous sexual abuse; and (2) annoying or molesting a child.

According to California Penal Code § 288.5continuous sexual abuse of a child occurs if (1) the child was 14 years old or younger at the time of the alleged abuse; and (2) the accused resided in the same home as the minor child and or had recurring access to the child and (3) engaged in three or more acts of substantial sexual conduct with the child or engaged in three or more acts of lewd or lascivious conduct as defined by Penal Code § 288(a) with the child (see the above on lewd conduct) and the three or more acts occurred over a period of time of not less than three months in duration.

It is a crime in California to annoy or molest a person who is under the age of 18 years. According to California Penal Code § 647.6 PC, physical contact is not necessary, words alone can lead to a conviction. The prosecution must prove the following (1) the defendant engaged in conduct that was directed at the child; (2) a normal person would have been disturbed -- without hesitation -- by the defendant's conduct; (3) the defendant's conduct was motivated by an abnormal sexual interest in the child; and (4) the child was under the age of 18 years. Absent aggravating factors, a conviction can result in one year in jail and a fine up to $5,000.

Prostitution

Under Penal Code 647(b) PC, it is illegal to accept payment in exchange for the completion of a sexual act. There are a number of offenses associated with prostitution. It is a misdemeanor under California Penal Code § 653.22(a) PC to loiter in a public area for the purpose of prostitution. At a maximum, loitering with this intent is punishable by up to one year in jail. It is likewise illegal for one to knowingly accept money that was earned from prostitution; this misdemeanor relates to the offense of pimping.

Pimping, as defined in Penal Code § 266h(a) PC, is a felony currently punishable by three, four or six years in a state prison. It occurs when someone solicits acts of prostitution on behalf of another and/or knowingly derives their livelihood in whole or in part from the proceeds of another person's prostitution.

Defenses to Sex Crime Allegations

Although every sex crime case is different, there are a number of credible defenses that may apply in your specific case. The success of these defenses will depend on the skill of your attorney. Adequate trial preparation including extensive research and the use of a defense investigator, psychologist or other forensic experts may be used to build you the most compelling defense.

Victim Consent

In cases where the accuser is neither underage or incapacitated in some way that makes him or her incapable of consent, then consent is the primary factor in a sex crime charge. If the defendant claims that the accuser consented to the sexual act or conduct, then the defense attorney may attempt to develop this defense.

Establishing "victim" consent or the lack thereof can be tricky from a legal perspective; there are rarely witnesses, and it is often a he-said/she-said scenario. Refuting a lack of consent, however, can be controversial, and there are inherent difficulties with the government regulating the meaning of consensual sex.

The defense attorney will often emphasize indirect evidence of consent, such as the accuser's actions both before and after the incident or the nature of the accuser's past and current relationship with the defendant. Targeting the sexual behavior of the accuser can be very contentious in this context, especially where jury perception is concerned.

Though it is sometimes difficult to prove the accuser consented, it can be done with an experienced and skilled sex crimes defense attorney.

College Campuses

In 2014, the California State Senate passed the "Yes Means Yes" law, to codify the vague standards by which consent was established in university policies. The law requires that "affirmative consent" must be established, shifting the burden of proof to the defendant.

Statutory Rape Consent Defense

The Marital Exception

Although California holds the age of consent at 18, there is an exemption for married couples if one partner is under the legal age of consent. There is no minimum marital age in the state, but the minor must obtain parental consent and a court order in order to marry. If a legal marriage is in place, the older spouse cannot be charged with statutory rape. Penal Code Section 261.5(a) specifies that sexual intercourse with a minor is only unlawful if the minor was not the spouse of the perpetrator.

Mistake of Age

California is one of the very few states that permits Mistake of Age as a defense to statutory rape charges, provided the accuser lied about his or her age or a reasonable person would believe that the alleged victim was over 18 years of age.

Mistaken Identity

It could be a potential defense to a sex crime charge if the defendant can prove that he or she was misidentified as the perpetrator. In cases where the identity of the person who committed the sexual assault is in question, the defense may provide evidence to demonstrate that there was a case of mistaken identity. DNA evidence can be extremely compelling in this regard.

Child Custody Context

During bitter custody battles, it is not unusual for one parent to accuse the other parent of unlawful sexual behavior. Such an accusation can cause a parent to lose parental rights. If it is an unfounded or false allegation, the defense attorney will attempt to prove that the child custody dispute motivated the false claim.

Lack of Criminal Record

Although this is not a defense in and of itself, the lack of a criminal record can help the jury's impression of the defendant's character. Other testimony or evidence that corroborate the defendant's morally upright character can be persuasive to a jury, such as reputation, an excellent academic record, and overall community support.

Contact an Experienced, Aggressive Sex Crimes Defense Attorney in San Francisco Today

San Francisco sex crimes attorney Seth P. Chazin will conduct a thorough investigation of your sex crime case, keeping a keen eye out for evidence that could potentially exonerate you. Sex crime charges require specialized legal counsel. The ramifications of a conviction are wide-reaching and potentially devastating to many areas of your life. Having defended thousands of clients over a 30-year legal career, Seth P. Chazin understands how much is at stake for you when you face criminal charges.

If you have been charged with a sex crime in the Bay Area, do not hesitate to contact San Francisco sex crimes attorney Seth P. Chazin immediately for a free consultation.

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