Is Georgia Tough on Sex Offenders?

Remarkably, the answer to this question is “no,” at least comparatively speaking. The Peach State has very tough criminal laws in most areas, but sex crimes isn’t one of these areas.

California was the first state to pass a yes means yes law. Generally, these laws make it much harder to establish consent, one of the most common, and most effective, defenses in sexual battery cases. Georgia doesn’t have such a law, at least not yet.

Many states still impose lifetime registration laws, a trend that began in the mid-1990s. An early proponent of such laws was Patty Wetterling, whose 11-year-old son was kidnapped, sexually assaulted and murdered in 1989. Recently, Ms. Wetterling has been a vocal critic of such laws.

However, let’s not get to carried away. Georgia’s sex offender laws are brutal. Furthermore, many people believe that sex offenders, regardless of their crime, are the lowest form of life on earth. Since prosecutors know jurors would be on their side, they rarely offer favorable plea deals, at least initially.

Nevertheless, a Marietta criminal defense lawyer has two chances to reduce, or eliminate, the harsh consequences of a sex crimes conviction. We’ll examine these two chances in this post.

Trial Defenses

Sex crimes, like most other criminal offenses, could involve procedural, substantive, and /or affirmative defenses.

Procedural Defenses

Fifth Amendment violations are common in sex offense matters, particularly sexual battery and other violent cases.

Typically, alleged victims give names to investigators. Then investigators corner these defendants in public or “ask” them to come in for an interview. In either case, before defendants open their mouths, investigators must inform defendants of their Miranda rights.

The Supreme Court has made it clear that officers must Mirandize suspects prior to custodial interrogation. “Custody” means the defendant doesn’t reasonably feel free to leave. Most people don’t feel free to walk away from police officers or walk out of the stationhouse.

The exclusionary rule applies in these cases. Any statements the defendant made are inadmissible at trial, unless officers read a current version of the Miranda rights in a language the defendant understands. Furthermore, if investigators use that illegal interrogation to obtain physical evidence, that evidence is inadmissible, under the fruit from a poisonous tree doctrine.

A word of caution. The Supreme Court has also made it clear that defendants who don’t expressly claim their Constitutional rights waive them. The claim must be specific. Investigators can keep asking questions if the defendant remains silent or asks for a Marietta criminal defense lawyer.

Substantive Defenses

Fundamentally, most sex crimes are possession or actus rea (criminal act) matters. The state must prove every element of either offense beyond any reasonable doubt.

It seems corny, but to explain this burden of proof to jurors, we sometimes play the last thirty seconds of this SpongeBob clip.

The state must establish its case board by board. If any board is unsteady for any reason, SpongeBob can’t make it to the other side. Additionally, prosecutors cannot skip to the end. They cannot display a mirage of a pineapple and expect SpongeBob to live in it.

The board analogy works very well in possession cases. To prove criminal possession of child pornography or another contraband item, the state must prove:

• Possession,
• Control, and
• Knowledge.

Computer images are a good illustration. Sometimes, the illegal image is a thumbnail that’s impossible to see clearly. Other times, the illegal image was in an attachment the defendant didn’t open (or at least the state cannot prove the defendant opened it).

The alleged victim’s testimony is always the critical bit of evidence in an actus rea matter. Maritta criminal defense lawyer must walk a fine line in these situations. They must undermine the alleged victim’s testimony without angering and alienating jurors.

An attorney must also be flexible and have a good feel for the panel. Some jurors tolerate lines of questioning such as “what were you wearing.” To other jurors, any probing into such areas is hands off.

Affirmative Defenses

Consent, the most common affirmative defense in sex crime cases, illustrates the way affirmative defenses work in criminal cases.

By the book, consent is a voluntary and affirmative agreement to engage in a specific act. Let’s break these elements down.

If the alleged victim asked for sex (which is unlikely), the consent was clearly voluntary. If the defendant drugged the alleged victim to the point of unconsciousness (somewhat likely), any consent was clearly involuntary. There’s a lot of territory between those two extremes.

In this context, affirmative agreements are difficult to prove or disprove. People don’t sign waivers before they have sex, although maybe they should.

Usually, consent is ongoing. If you agree to something once, like giving a neighbor an easement, you agree to it forever, until you withdraw that consent. Criminal law consent is specific to place, time, and act.

Getting Off the Sex Offender List

If the defendant pleads guilty or is found guilty, a review board examines the case and assigns a threat level, as follows:

• Level I (no extreme violence and little risk of reoffense),
• Level II (some violence and/or risk), and
• Level III (sexual predator).

In Georgia, Level II and III designees must wait ten years before they can apply for removal. So, a Marietta criminal defense lawyer vigorously advocates for a Level I designation.

Since everyone likes a good comeback story, we often stress the before and after. Perhaps Sid overcame a drinking problem or Raul got back on his medication.

All designees can petition for removal, but the judge decides whether to grant this petition, based on factors like:

• Any other sex crime convictions or minor (under 18) victim convictions,
• Use of any weapon during the sex crime,
• Unfiled sex crime charges, even if they were dropped due to lack of evidence,
• Physical harm to the alleged victim,
• Any moving of the alleged victim, and
• Physical restraint of the alleged victim.

Here’s the bottom line. If the probation officer agrees to the removal and the alleged victim has no objection, the judge usually approves the request. Anything less, and you’re in for a fight.

Sex crimes have devastating, but avoidable, consequences. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Convenient payment plans are available.