Sex Crimes: Serious Crimes with Weak Evidence



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Prosecutors will tell you that criminal sexual assault and criminal sexual conduct does not occur in public. As a result, there are seldom witnesses and it is necessary to protect victims making allegations. However, is the nature of the offense truly a basis to permanently mar an innocent; defendant's record in a country where we have a strong presumption that the individual is innocent until proven guilty? Review this article on allegations of criminal sexual conduct.

The Minnesota Office of the Legislative Auditor has the following statistics on sexual conduct and sexual assault crimes:

* The number of reported sex offenses in Minnesota increased almost threefold between 1971 and 1984, but has remained relatively constant since then.

* The number of sex offenses (sexual assault, rape, sexual conduct) reported to the police increased from 2,303 offenses in 1971 to 6,589 offenses in 1984. In 1993, 6,439 sex offenses were reported, of which 49 percent resulted in an arrest.

* Between 1981 and 1992, adult convictions for sex offenses involving force remained at the level of 145 to 190 each year, but convictions for child sexual abuse nearly tripled, rising from 160 to 461, and convictions for interfamilial sex abuse increasing from 3 to 154.

* Reflecting these trends, about 90 percent of the alleged victims of convicted sex offenders were children or adolescents. Nearly all of the victims of adjudicated juvenile offenders were under 18 years old, as were 84 percent of the victims of adult offenders (with 46 percent under age 13). Nearly all convicted sex offenders (97 percent) were male and most of their victims were female, although 18 percent of the victims of juvenile offenders and 13 percent of the victims of adult offenders were male.

What is, perhaps, most alarming is that studies have concluded that perhaps one quarter of all allegations of sexual assault may be based on false information. This is particularly alarming when you consider that prosecutors regularly push such cases to trial on extraordinarily weak evidence. In no other area of criminal law, are allegations of a crime treated with such reverence without any significant inquiry into their validity. As a lawyer known for his stance on false allegations, I have been received numerous emails and phone calls from fathers who have been accused of crimes against their children by the other parent in order to seek advantage in a custody battle or divorce case. Nowhere are false allegations more common.

Prosecutors will tell you that criminal sexual assault and criminal sexual conduct does not occur in public. As a result, there are seldom witnesses and it is necessary to protect victims making allegations. However, is the nature of the offense truly a basis to permanently mar an innocent; defendant's record in a country where we have a strong presumption that the individual is innocent until proven guilty?

The consequences of a conviction are severe. A person convicted of a sex offense must provide a DNA sample. They must report as a criminal sexual offender, submit to a polygraph test, and undergo psychosexual evaluations and treatment. Additionally, if imprisoned the individual may face a life sentence in the form of a sexual offender commitment at the end of that prison term.

Given the weak evidence in many criminal sexual conduct cases, prosecutors often offer please to lesser offenses. This, however, has become a trap under Minnesota law. Regardless of the plea that is offered, the person must report as a criminal sexual offender if that was the offense originally charged. the end result is that a person accused faces the ugly proposition of proceeding to trial on very serious criminal asexual conduct charges with penalties that may exceed 13 years OR take a plea for limited or no prison time, but the consequence of being branded a criminal sexual offender and having to report as one. Certainly, that is a fatal blow to most career aspirations and is certainly inflicts heavy damage on the individuals civil liberties. As a direct result an aggressive defense is necessary in cases where allegations
of criminal sexual conduct occur.

Criminal sexual conduct in Minnesota is divided into five degrees depending upon the age of the victim, age of the accused, whether force is used, and the existence of any special relationship between the parties, such as parent-child or physician-patient. In Minnesota, judges are required to double the punishment imposed on a pattern sex offender, which is someone who repeats or is likely to repeat a sex crime, or someone who plans the crime. Moreover, if convicted of a sex crime, offenders must register with police departments across the state.

First Degree. First Degree sexual conduct/assault requires sexual penetration with another person. Remember - A mistake regarding the complainant's age or consent by the underage person is not a defense to a sexual conduct crime.

Age Difference. The complainant is under 13 years of age and the actor is more than 36 months older than the complainant; or the complainant is at least 13 years of age but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority.

Fear of Great Harm. Circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another.

Armed with Weapon. The actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit;

Personal Injury. The actor causes personal injury to the complainant, and either of the following circumstances exist:

* The actor uses force or coercion to accomplish sexual penetration; or
* The actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless;
* The actor is aided or abetted by one or more accomplices and force or coercion is used or the accomplice is armed with a dangerous weapon.

Significant Relationship. A significant relationship generally means that the parties live together. It is a crime if the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration.

Penalty. Not more than 30 years and a fine of not more than $40,000. There is a presumptive executed sentence of 144 months.

Second Degree. Second degree criminal sexual conduct/assault does not require penetration. Instead, it involves "sexual contact." Sexual contact has been defined by case law to mean touching of the genital area, breast, inner thigh, or buttocks with a sexual intent. The sexual touching may occur on the flesh or through the clothing.

Age Difference. The complainant is under 13 years of age and the actor is more than 36 months older than the complainant; or the complainant is at least 13 years of age but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority.

Fear of Great Harm. Circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another.

Armed with Weapon. The actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit;
Personal Injury. The actor causes personal injury to the complainant, and either of the following circumstances exist:

* The actor uses force or coercion to accomplish sexual penetration; or
* The actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless;
* The actor is aided or abetted by one or more accomplices and force or coercion is used or the accomplice is armed with a dangerous weapon.

Significant Relationship. A significant relationship generally means that the parties live together. It is a crime if the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration.
Penalty. Not more than 25 years and payment of a fine of not more than $35,000.

Third Degree. Third degree criminal sexual conduct is similar to first degree in that it requires sexual penetration. Penetration is liberally construed to include penetration of the anal or genital openings and specifically includes digital and oral penetration. Third degree sexual conduct is generally charged for behavior that is not as extreme as first degree sexual assault.

Age Difference. The complainant is under 13 years of age and the actor is more than 36 months older than the complainant; or the complainant is at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant. In any such case it shall be an affirmative defense, which must be proved by a preponderance of the evidence, that the actor believes the complainant to be 16 years of age or older. Consent by the complainant is not a defense.

Force or Coercion. The actor uses force or coercion to accomplish the penetration
Mental & Physical Infirmity of Victim. The actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.

Position of Authority. The complainant is at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.

Penalty. If the actor in such a case is no more than 48 months but more than 24 months older than the complainant, the actor may be sentenced to imprisonment for not more than five years. Otherwise a person convicted may be sentenced to imprisonment for not more than 15 years and a payment of not more than $30,000.

Fourth Degree. A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the fourth degree if any of the following circumstances exists:

Age Difference. The complainant is under 13 years of age and the actor is no more than 36 months older than the complainant. Neither mistake as to the complainant's age or consent to the act by the complainant is a defense. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced. Additionally, if the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant fourth degree sexual conduct may be charged. Consent by the complainant to the act is not a defense. In any such case, it shall be an affirmative defense which must be proved by a preponderance of the evidence that the actor believes the complainant to be 16 years of age or older.

Force or Coercion. The actor uses force or coercion to accomplish the sexual contact.

Mental & Physical Infirmity of Victim. The actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.

Position of Authority. The complainant is at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.

Significant Relationship. The actor has a significant relationship to the complainant and the complainant was at least 16 but under 18 years of age at the time of the sexual contact.

Penalty. A person convicted may be sentenced to not more than ten years and a payment of a fine of not more than $20,000.

Fifth Degree. A person is guilty of criminal sexual conduct in the fifth degree:

(1) if the person engages in nonconsensual sexual contact; or

(2) the person engages in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.

"Sexual contact" does not include the intentional touching of the clothing covering the immediate area of the buttocks. Sexual contact does includes the intentional removal or attempted removal of clothing covering the complainant's intimate parts or undergarments, and the nonconsensual touching by the complainant of the actor's intimate parts, effected by the actor, if the action is performed with sexual or aggressive intent.

Penalty. A person convicted may be sentenced to imprisonment for not more than one year and payment of a fine of not more than $3,000. The charge may be increased to a felony with imprisonment for not more than five years and payment of $10,000, if the person has prior violations.

AGGRESSIVE DEFENSE

In today's world much hysteria and controversy swirls around sexual abuse. A person accused may find that even if acquitted they are looked upon with suspicion and fear. The allegation itself can carry with significant stigma and social repercussions. Too often, prosecutors charge out criminal sexual conduct cases based solely on an allegation. There is often little physical evidence. Though it may seem the case is weak, an aggressive and proactive defense is necessary. That may include hiring experts to review witness interviews for suggestive language and improper techniques.

If you are accused take these steps:

(1) Do not give any statements to law enforcement and do not discuss the case with any other people until you have retained legal counsel;

(2) Hire an experienced criminal defense lawyer;

(3) Write down the names of potential helpful witnesses;

Only after retaining a lawyer should you make written notes regarding the allegations. These should be provided to your lawyer.

ABOUT THE AUTHOR: Attorney Maury D. Beaulier
Maury D. Beaulier is recognized as a leader in criminal defense across Minnesota. He is a sought after defense attorney on criminal sexual conduct matters and works with psychologists and other professionals in defense of such claims.

Copyright Maury D. Beaulier, Attorney at Law
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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