Articles Posted in Sexual Assault

statue-of-liberty-4-1420903-m.jpgHowever, Texas’ public lewdness statute proscribes a wide range of conduct, including the consensual touching of breasts outside the clothing in public. Sec. 21.01. defines: (1) “Deviate sexual intercourse” means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object. (2) “Sexual contact” means, except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. (3) “Sexual intercourse” means any penetration of the female sex organ by the male sex organ.

The Fifth Circuit noted the Texas’ Attorney General decision in the Matter of Silva-Trevino, whereby Texas’ highest lawyer opined that even indecency with a child is not a per se a crime of moral turpitude, because the law proscribes any sexual contact with a child even if the actor reasonably believes the child to be 17 or older. The court then distinguished a BIA decision relying on California’s indecent exposure statute, noting that the Texas statute does not require conduct to actually be “lewd” despite its title, and that the California statute required an actor to director the victim’s attention to his genitals.

The case was remanded to determine the specific criminal acts Mr. Cisneros was convicted of performing, and for further action consistent with the opinion. Warning: do not consider this case to be an open invitation to sneak into our country and contact the anus of a waterfowl with your mouth.

passport-2-807486-s.jpgSalvador Cisneros came to the United States to realize the American dream, and part of his dream might have ranged from fondling breasts in public to joining the mile high club. Having been discovered in the United States without permission to be here, he applied for a “cancellation of removal” under the Immigration and Nationality Act. Due to his record of being convicted of public lewdness under 21.07 of the Texas Penal Code in 2006, the immigration judge denied his petition categorically, stating that public lewdness was per se a crime involving moral turpitude,and therefore makes one subject to deportation.

Texas Penal Code 21.07 states: (a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his: (1) act of sexual intercourse; (2) act of deviate sexual intercourse; (3) act of sexual contact; or (4) act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl. (b) An offense under this section is a Class A misdemeanor.

Thus, the immigration judge states it was a crime of moral turpitude to be convicted in any manner under this section. However, the Fifth Circuit reversed this decision by noting that the Board of Immigration Appeals’s definition of a crime of moral turpitude is conduct that “is inherently vile, base or depraved” as well as contrary to societal standards.

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The issue of intoxication and consent came up recently in the Fort Worth Court of Appeals in Anderson v. State, 2012 WL 1222148. In Anderson, two men met two ladies at a bar during a night of drinking. One young lady ended up somehow at the residence of one of the men, along with her friend who appeared to have gone consensually. Anderson claimed they had consensual intercourse, but his accuser said she woke up during unconsensual intercourse and tried to fight him off. The end result was that, “as authorized by the indictment, the jury convicted Anderson of intentionally or knowingly causing the penetration of Miller’s female sexual organ … while knowing that he did so without her consent and that she was either unconscious or physically unable to resist or that she did not consent and was unaware that the sexual assault was occurring. (citations omitted)” The court of appeals noted the established law that “[w]hen assent in fact has not been given, and the actor knows that the victim’s physical impairment is such that resistance is not reasonably to be expected, sexual intercourse is ‘without consent’ under the sexual assault statute. Elliott v. State, 858 S.W.2d 478, 485 (Tex.Crim.App.), cert. denied, 510 U.S. 997, 114 S.Ct. 563, 126 L.Ed.2d 463 (1993).”

We don’t know what happened in the hotel room in San Antonio between these two football players and the alleged victim. What we do know is that just because a person is too intoxicated to resist a sexual encounter, that is not consent to sexual activity. Not only is unconsciousness not consent, being intoxicated to the point of being unaware that the sexual assault is occurring is not consent.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

McCoy.jpgOn a night before the Oregon State Beavers played the University of Texas in the Alamo Bowl, two longhorn players went out drinking. At a bar, they met a young woman who eventually invited them back to her hotel room. That was either a sign that the young lady was interested in a night of romance, or a very bad judgment call by a likely impaired young woman who did not realize what she was doing. Early the next morning, she reported to the San Antonio police that she had been sexually assaulted, and did have bruising on her body. Some say the scenario appears to be an obvious “set up” job on athletes, perhaps another Duke University lacrosse-team episode, while others are outraged that an invitation to one’s hotel room could so easily be taken as a sign of consent.

What the case probably comes down to, however, is Texas “consent” law. That is, we all know that an adult has to consent to sexual activity for that activity to be valid. In a night filled with intoxication, young hormones, college athletics and things that come with it, things may appear complicated. While it is always ideal to get a verbal, express consent to sexual activity, the case law has defined what is NOT consent to sexual activity, and it is not limited to the word “no.”

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

salem_witch_museum.jpgThe convict-at-all-costs mentality that surrounds these cases is why many defense lawyers will tell you that aggravated sexual assault of a child trials have become the Salem Witch trials of modern times. One on trial in Texas for aggravated sexual assault of a child might as well be on trial in 17th century Salem, Massachusetts for the charge of consorting with Satan. One’s friends, neighbors and even family often come in and bear false witness against the accused for whatever motive or because they believe the child, and when the accused speaks in his defense, well we would expect someone consorting with Satan to deny that they were consorting with Satan.

The State will argue that we should expect no hard evidence or eyewitnesses because we would expect such perpetrators to do their deeds in secret with nobody around, because nobody consorting with Satan would allow there to be any witnesses to their crime lest they reveal themselves as evil doers. So we shouldn’t expect any evidence in such cases except the testimony of young children, and we all know that children do not lie (even when a parent prompts them to do so) (in fact, research indicates that a supermajority of children under 6 will repeat to another that uncle Bob put something yucky in their mouth when prompted by a parent). Such are the difficulties of such cases, making some forget that American justice has always placed the burden on the government of providing legitimate evidence to prove beyond any reasonable doubt that a person committed a crime to a fair and impartial jury.

So, when faced with the heinous accusation of aggravated sexual assault of a child, particularly in Texas where politics and religion can intermix with career law enforcement/child welfare workers who commit perjury to protect their jobs, a plea-bargain offer for paroleable time or probation may appear an attractive option to some, even when innocent. But a plea to such a crime or lesser included offense is never really an attractive option. So, if you or your family member faces such a false accusation, you need an attorney highly experienced criminal law specialist and with a winning record in such cases.

toddler.jpgLast session, the Texas Legislature enacted Texas’s version “Jessica’s Law,” which increased the penalties for the crimes of aggravated sexual assault of a child under 6 and continuous sexual assault of a child. While most of us agree that a legitimate charge of such an offense should warrant a harsh punishment, those falsely accused of aggravated sexual assault of a child or continuous sexual assault of a child are painted into an even harder corner simply by being indicted. While these cases can be difficult to prosecute for various reasons, the legislation raises the issue once again of should we create such a stacked deck of state witnesses/false or highly questionable expertise, combined with draconian punishment schemes, whereby we dramatically increase the chance of false convictions to keep more of the guilty from getting away.

Under the new law, if an innocent person is convicted of such a crime, on no more evidence than the false testimony of a child (normally coached by a parent with motive to fabricate, and the children coming to believe the story themselves), he faces a minimum of twenty five years incarceration in the penitentiary. This time is served without the possibility of parole or “good time” credit. Thus, claiming your innocence and going to trial means you face a strong chance of dying in prison if a jury – who does not want to believe that a young child could tell such a story if false – takes the invitation of the prosecutor to rely on their own bias, prejudice and sympathies to convict. We all have strong feelings about such cases, and it is difficult to set aside these feelings and give a defendant the presumption of innocence and true “beyond a reasonable doubt” burden of proof due to our fears of children getting hurt.

Also highly concerning is that political prosecutors (elected in Texas) love to obtain such convictions that they can sell to the voters to show that they are “tough” and protecting your children – regardless of the innocence or strong evidence of innocence of the person accused. When State witnesses are shown to have committed perjury in appeals or subsequent proceedings, such actions are generally swept under the rug and the public is kept unaware. In “he-said/she-said” cases such as these, witnesses fabricating on the State’s behalf can be particularly lethal, where juries are searching for testimony to convict on. Jurors often take the “cloak of the State” as carrying more credibility than the average person off the street, and these witnesses know that (and know that they are unlikely to be prosecuted if exposed) when they twist and manipulate to help convict someone accused of such a horrible crime.

jail.jpgFalse accusations of sexual abuse plague our court system, locally and statewide, putting innocent people at risk of life in prison and wasting resources that could be used prosecuting legitimate cases. The typical false allegation case arises when kids are “coached” by an authority figure to make a false claim against another, with a motive for the adult to coach the child. Research shows that, after such coaching, children can start believing that the sexual assault took place the more often they are told (and tell themselves) the false story.

A case apparently on point is the Mineola Swinger’s case, which originated in Wood County, but went to trial in more prosecution-friendly Smith County, Texas. As reported on WFAA.com, the case began (supposedly) when four children in foster care accused a handful of adults of training them to perform sexual acts on stage at a nightclub in Mineola, a horrific tale which shocks the conscience upon reading its details.

However, the true background of the story is that these children’s professional foster parents, believed by defense lawyers to have coached the story, were themselves being investigated for abuse charges out of California during the relevant time period, and none of the children’s allegations have been corroborated by any evidence outside of the other children’s statements. Additionally, their foster mother was improperly allowed to sit in on their interviews by the Ranger investigating, further taining the evidence. Regardless, three citizens, based on the children’s testimony, trial court rulings which favored the State even when obviously contrary to clearly established law, and potential prosecutorial misconduct in suppressing key evidence favorable to the accused, several people were sentenced to life in prison. They were fortunate to have appellate lawyers who brought much of the misdeeds to light on appeal in State of Texas v. Patrick Kelly.