Military diversion is a legal procedure whereby a criminal defendant might have his criminal charges avoided (dismissed) if he is, or was, as a member of the United States service, he suffers from a mental disorder as a result his military service, and the criminal charges are related to the mental disorder from which he suffers as a result of his military service.
Note: This article is brief overview of military diversion as it applies to California misdemeanor sex crimes.
Diversion in General
Essentially, to ‘divert’ criminal charges, means to circumvent, or 'go around,' the prosecution process at an early stage of the proceedings (pretrial). To do this, the court suspends criminal proceedings and grants the defendant time to complete probation-like terms (without jail). If the defendant successfully completes a 'diversion program,' his criminal charges are dismissed and he his criminal record reflects a non-arrest for the criminal charges (with limitations).
Note: Diversion procedures are available in different forms in California, including judicial diversion, mental health diversion, drug diversion, and so on. Different diversion programs have different requirements and limitations.
Note: Unlike Judicial Diversion or Mental Health Diversion, Military Diversion may apply to misdemeanor sex crimes, including sex crimes for which sex offender registration pursuant to penal code 290 would otherwise be required.
Military Diversion Law (PC 1001.80)
Per California PC 1001.80, a criminal defendant who is charged with a misdemeanor might have his criminal charges dismissed, if:
The defendant was, or currently is, a member of the US military (PC 1001.80(a)(1))
The defendant may be suffering from sexual trauma, traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), substance abuse, or mental health problems as a result of his or her military service (PC 1001.80(a)(2) Abbrev.).
Nexus to Crime
PC 1001.80 law does not mention a requirement that the defendant’s criminal conduct be related to his military service. Nevertheless, if there is no nexus, or close relationship, between the crime and the mental disorder suffered by the defendant as a result of his military service, then the court will not likely grant military diversion.
Example: Billy is a medically disabled military veteran. His disability is that he suffers mentally from military-service related PTSD after close combat firefights while in the military. Billy solicits an undercover officer for prostitution services, and he charged accordingly. At court, Billy requests pretrial military diversion to avoid criminal prosecution.
Result: Billy’s sexual penchant for prostitutes is not related to his PTSD; therefore, military diversion treatment for PTSD will not likely address Billy’s unrelated criminal behavior and military diversion is probably unsuitable for Billy.
Misdemeanor Charges: Military diversion only applies to criminal cases that are charged as misdemeanor crimes. In some situations, a crime may be charged as either a misdemeanor, or alternatively, as a felony. These are known as “wobbler” crimes. Military diversion applies to wobbler crimes so long as the initial charge is classified as a misdemeanor.
Example: David is charged with misdemeanor statutory rape pursuant to PC 261.5(c). Statutory rape may be charged either as a misdemeanor, or alternatively, as felony in California. However, because David is charged with the misdemeanor version of statutory rape, he might qualify for military diversion. On the other hand, if David is charged with the felony version of statutory rape, even under the same law (PC 261.5), then he would not qualify for military diversion.
Note: Keep in mind that if David were charged with felony statutory rape in the example above, then he would not qualify for military diversion even if he subsequently had his felony charges reduced to misdemeanor charges under a PC 17(b) request.
Military diversion comes with ‘conditions,’ or requirements, which are tailored to the defendant’s mental health needs and the facts of the case. This means the court may order the defendant to 1) attend mental health treatment that is designed to treat and remedy the defendant’s criminal behavior, 2) remain free from new criminal charges, 3) pay restitution, etc.
In addition, the defendant must be willing to waive (give up) his ‘speedy trial rights’ to allow sufficient time to complete the diversion program. If the defendant is unwilling, or unable to, comply with military diversion conditions, then the court will find that the defendant is unsuitable for military diversion.
Note: The court must give preference to a treatment program that has a history of successfully treating veterans who suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service, including, but not limited to, programs operated by the United States Department of Defense or the United States Department of Veterans Affairs (PC 1001.80(f)).
Revocation of Military Diversion
If the court finds that the defendant is not performing satisfactorily, or if the defendant is charged with any new felony or misdemeanor crime during the diversion program, then the court end the military diversion program for the defendant and reinstate criminal proceedings against the defendant (PC 1001.80(c) Abbrev.)
Criminal Charges Dismissed
Upon successful completion of a military diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The defendant may indicate in response to a question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense (except as specified below).
A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate (PC 1001.80(i) Abbrev.).
Note: The defendant shall be advised that, regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer’s application request. Also, successful military diversion does not relieve the defendant or his of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer (PC 1001.80(j) Abbrev.).
Length of Military Diversion
The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years. The responsible agency or agencies shall file reports on the defendant’s progress in the diversion program with the court and with the prosecutor not less than every six months (PC 1001.80(h)).
Qualifying Misdemeanor Sex Crimes
As stated, pretrial military diversion may be allowed in misdemeanor sex crimes cases. This is true even if the sex crime allegation is of the type that would otherwise require sex offender registration upon conviction. This means that the following misdemeanor sex crimes might qualify for military diversion if all other requirements are met:
PC 261.5(c) Statutory Rape
PC 265.1(d) Unlawful Sexual Intercourse
PC 289(c) Sexual Penetration by Object
PC 288.4(a)(1) Arrange to Meet Minor
PC 287(b)(1) Oral Copulation with Minor
PC 314 Indecent Exposure
PC 243.4(e)(1) Sexual Battery
PC 243.4 Misdemeanor Sexual Battery
PC 286(b)(1) Sodomy with Minor
PC 647(a) Engage in Public Lewd Act
PC 315 Operate a Brothel
PC 288(c)(1) Lewd Act with Minor
PC 647(j)(4) Revenge Porn
PC 647(j)(2) Photo Person in Underwear
PC 647(b) Engage in Prostitution
PC 647(b)(3) Solicit Minor (Prostitution)
PC 290(b) Sex Offender Fail to Register
PC 286.5 Sexual Assault of Animal
PC 647(j)(1) Peek into Bathroom
PC 311.6 Engage in Live Obscene Act
PC 289.6 Sex Offender on School Campus
PC 311.11(a) Possession of Child Porn
PC 311.5 Advertise Obscene Material
Note: Other non-sex offense misdemeanors may qualify for military diversion. However, for purposes of this article, only qualifying sex offenses are mentioned.
For more information on pretrial military diversion, or California penal code 1001.80, as it applies to misdemeanor sex offenses, contact our sex crimes criminal defense attorneys today for a free consultation.
Our successful and passionate sex crimes defense lawyers have helped hundreds of defendants charged with all manner of felony and misdemeanor sex crimes in the Inland Empire, including sodomy (PC 286), oral copulation (PC 287), lewd act on a child (PC 288), child porn possession (PC 311.11), sexual battery (PC 243.4), prostitution (PC 647(b)), statutory rape (PC 261.5), and more. Call today!