Most people have very strong beliefs about sex crime defendants. Most of these beliefs are inaccurate. According to one study, most people “view sex offenders as a homogeneous group with regard to risk.” Furthermore, most people believe all sex offenders have high recidivism rates and don’t benefit from any form of treatment. This category is not one anyone wants to be in.
Most offenders are eligible for removal from the dreaded and feared sex offender list. In general, only violent sexual offenders who are at a high risk of re-offense must permanently stay on the list. However, judges have a great deal of discretion in this area. So, even if you meet the minimum qualifications, there is no guarantee of removal.
So, the best way to get off the sex offender list in Georgia is to not get on it in the first place. As outlined below, a number of possible defenses are available in contact sex crime cases. A Marietta criminal defense lawyer can leverage these defenses during plea negotiations or at trial and successfully resolve your case.
Lack of Evidence
This defense is perhaps the most effective one in all criminal cases, and particularly in contact sex crime cases.
Usually, there is very little evidence in these matters, aside from the alleged victim’s testimony. Georgia’s rape shield law usually prevents a Marietta criminal defense attorney from asking questions about the alleged victim’s sexual preferences. However, the law does not prevent a lawyer from attacking the alleged victim’s credibility.
The vast majority of contact sexual offense prosecutions are “date rape” prosecutions. Generally, there are witness who saw flirtatious conduct. This conduct does not establish consent as a matter of law. But it does make the defense easier to prove. More on that below.
More importantly on this point, both the alleged victim and defendant were usually drinking. Therefore, the alleged victim’s memory and perception are an issue. The defendant’s mental state is a question mark as well, but the defendant doesn’t have the burden of proof.
Occasionally, some physical evidence is available. This evidence is often compelling in statutory cases, like a prohibited age gap or a prohibited relationship. But it is much less useful in other sexual battery cases. At the risk of sounding crude, physical evidence establishes the “sex” component but not the “battery” component.
Tainted Evidence
Physical evidence, such as rape kits and torn clothing, often have chain-of-custody issues. This evidence normally changes hands several times. The more times a baton is passed during a race, the greater the likelihood a runner will drop it. Actually, given the high burden of proof, if a Marietta criminal defense lawyer establishes that someone simply mishandled the baton, that might be enough to fatally taint the evidence.
Consent
This affirmative defense is relatively easy to prove. Georgia law does not define consent, at least with regard to sexual activity. Section 16-6-1, Georgia’s rape law, defines this crime as having “carnal knowledge” of a woman “forcibly and against her will.”
The force could be ongoing or one time. People who are intoxicated often lose their inhibitions. That point brings us to the second component of this definition. The force must also be extreme enough to satisfy this element.
Since there is no definition, earlier flirtatious behavior could cause jurors to give more credence to a defendant’s side of the story.
The news is not all good. As mentioned, consent is an affirmative defense. The defendant must admit that s/he engaged in wrongful conduct, and then argue that the conduct was legally justified. That’s a very difficult path to walk. So much depends on juror attitudes.
Before employing such a high risk, high reward strategy at work, it’s best to thoroughly review the situation with your Marietta criminal defense lawyer.
Statute of Limitations
Truthfully, the statute of limitations does not come up very often in criminal matters. Contact sex offenses are a notable exception. Frequently, alleged victims do not come forward for many years as they struggle with the memories of the event. Georgia law has three different statutes of limitations (SOL) in this area:
- Alleged victim under 16 – no SOL if the alleged offense occurred before 2012, at least in most cases,
- Unforced rape – seven years, and
- Forcible rape – fifteen years.
The definition of “force” is different in this context than it is in the consent affirmative defense. Usually, a forcible rape means the alleged victim was completely incapacitated. Usually, either a drug or physical violence causes that incapacitation.
SOL is an absolute defense. Once the clock strikes midnight, that’s it. So, as the statute of limitation approaches, many investigators get in a hurry and get sloppy. In other words, there is an informal SOL as well.
Miranda Violations
As mentioned, contact sex offense prosecutions often have delayed starts. They usually have prolonged investigations as well. Officers generally do not arrest defendants on the spot. They need time to collect evidence.
Police interrogations, which are usually non confrontational, at least at first, provide much of this evidence. Frequently, the defendant’s non-verbal statements are as important as his/her verbal statements. For example, when officers approached the defendant, did s/he immediately agree to come in or did s/he make excuses and try to delay the process?
Multiple interrogations are common in these situations. Defendants might speak with several investigators, several hours apart. Investigators hope to wear down the defendants. Additionally, investigators hope to catch defendants in an inconsistency. There are only so many times you can tell the same story without slightly changing the details.
Verbal and non-verbal statements are protected under the Fifth Amendment. Officers must inform defendants of their right to remain silent when custodial interrogation begins. So, uncles an investigator Mirandizes a defendant before asking any questions, the investigator is probably too late.
Any illegally obtained evidence is inadmissible in court. Any evidence that investigators obtain as a result of an illegal interrogation is also inadmissible. It is fruit from a poisonous tree.
Contact sex crimes are very frightening, but various defenses are available. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. Virtual, home, and after-hours visits are available.
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