Most of Georgia’s sex crimes are listed in Section 16-6 of the Georgia Code. Some of these crimes are relatively minor misdemeanors. Others are among the most severe felonies in the state. Yet despite the varying degrees of severity, in many respects, all sex crimes are alike to many judges, jurors, employers, and other people. So, if you are charged with a sex crime in Georgia, the charge is always serious, regardless of the circumstances.
As outlined below, these offenses have some common defenses. In one way or another, these defenses all pertain to the high burden of proof in criminal court. Prosecutors must establish every element of every offense beyond any reasonable doubt. And, most sex crimes have at least three or four elements. If a Marietta criminal defense attorney creates reasonable doubt on one of them, the defendant is not guilty as a matter of law. Additionally, only one juror must have such misgivings. Georgia law requires unanimous jury verdicts in most cases.
Reducing the available evidence is usually one of the most effective defenses in any criminal case. That’s especially true in sex crimes cases. These matters almost always involve extensive pre-arrest investigations. At a minimum, officers responding to disturbance calls must determine what happened before they put the cuffs on anyone. These investigations often involve search and seizure issues or Miranda issues.
Fourth Amendment search and seizure issues often come up in possession sex crimes cases, like possession of illegal pornography.
Typically, officers must have search warrants to seize physical evidence. These warrants must be based on probable cause. The uncorroborated statements of a confidential informant usually do not constitute probable cause. If the search warrant is invalid, or officers did not bother with a warrant in the first place, a recognized exception must apply. Some common search warrant exceptions include:
- Consent: Owners or apparent owners may voluntarily and affirmatively allow police officers to search their property. Apparent owners are people like a driver operating someone else’s car. Voluntariness means just that. If an officer threatens to get a warrant, the consent is coerced and not voluntary. As for affirmativeness, the consent need not be written, but it must be clear and unequivocal.
- Plain View: Officers who are lawfully in a certain place at a certain time may seize contraband in plain view without warrants. These searches often hinge on the stop’s legality. Usually, officers must have reasonable suspicion to detain people. The “plain view” itself could be an issue as well. For example, if Officer Susan sees a rifle butt protruding from under a seat, the object could be legal or illegal.
- Exigent Circumstances: This exception basically combines the previous two. If officers reasonably believe someone might be in trouble, they automatically have consent to enter the premises for purposes of a security check. During these sweeps, they may seize any contraband they see in plain view.
Other sex crime investigations involve Miranda issues. Prior to any custodial interrogation, officers must read defendants their Miranda rights (you have the right to remain silent and so on). If they fail to administer the proper warning in a language the defendant can easily understand, any evidence they subsequently seize is most likely inadmissible.
Let’s break down these elements. “Custody” means the person does not feel free to leave. “Interrogation” means asking questions, even if the questions are unrelated to the criminal matter.
So, in order to comply with Miranda, officers must usually read people their rights immediately upon first contact. Since that hardly ever happens, a Marietta criminal defense attorney must closely scrutinize police investigations.
Lack of Evidence
Frequently, in cases like DUI and drug possession, a police officer is the primary or only witness. Police officers are basically expert witnesses. They have usually received training and have testified in court hundreds of times previously.
Many sex crimes are different. Usually, the alleged victim is a material witness in these prosecutions. State law sharply limits questions related to the alleged victim’s sexual past. These questions are usually ineffective anyway. Jurors normally rally to the alleged victim’s defense in these situations. However, fertile ground still exists.
About 80 percent of sexual assault cases feature a personal relationship between the alleged victim and defendant. In some cases, the proportion is closer to 90 or 95 percent.
Frequently, both parties had been drinking. So, their memory and perception is questionable. The alleged victim’s motive could be an issue as well. Very few alleged victims fabricate stories to gain an advantage in another situation, like a family law case or a disciplinary procedure. But these things happen.
These angles, and other like them, do not need to “discredit” the victim. The prosecutor has the burden of proof. A defense attorney must only create reasonable doubt.
Doctrines like entrapment and consent are usually the last line of defense in sex crime cases. The defendant must admit guilt and claim the behavior was legally justified. That’s a tough sell to many jurors.
Entrapment often comes up in solicitation cases, especially online cases. These matters have proliferated in recent years. Most people spend over two hours a day in chat rooms and on other social media platforms.
This defense applies if a police officer enticed the defendant, and the defendant had no predisposition to commit the crime. Officer enticement is usually not too hard to prove. Many officers will do whatever it takes, including lying to the defendant, to make an arrest. No predisposition is harder to prove. If the defendant was in a sex-themed chat room, the defendant had some predisposition to commit the crime.
As for consent, Georgia law does not define this term. The rape statute indirectly defines consent as forcible conduct that’s against the alleged victim’s will.
In most instances, forcible conduct means physical force or the imminent threat of physical force. The “will” portion could be against the alleged victim’s will or a statutory inability to consent due to age, mental incapacity, superiority relationship (e.g. boss and worker), or physical incapacity.
Sex crime defendants have legal options. For a free consultation with an experienced criminal law attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.