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Sex Crimes Defense Strategies

Sex crimes defense strategies and defense options fall into three broad categories: Insufficient Evidence Defense, Affirmative Defense, and Procedural / Technical Defense.


Insufficient Evidence Defense: An “insufficient evidence” defense appears where the defendant relies on the lack of prosecution evidence, and which is otherwise required to prove the defendant's guilt beyond a reasonable doubt.


Beyond a Reasonable Doubt: In a criminal case, to find the defendant guilty of an alleged offense, the district attorney must prove every element of the alleged offense to a very high degree of certainty, such that any remaining doubt as to the defendant’s guilt is unreasonable to the trier of fact (juror or judge).


Example: In a lewd act upon a child under 14 years of age case (PC 288(a)), the only witness against the defendant is the alleged victim (a "he said / she said" case). The alleged victim has major credibility issues (i.e., inconsistent statements to police, motive to fabricate, reputation for dishonesty, etc.). With this sets of basic facts, a juror could easily decide that the totality of the evidence is insufficient to prove the defendant's guilty beyond a reasonable doubt.


Note: Sometimes a criminal case begins with what appears to be sufficient evidence to prove the defendant’s guilt beyond a reasonable doubt. But, after closer analysis, the evidence against the defendant has major credibility issues (witness credibility issues, scientific credibility issues, unreliable documentary evidence, etc.).


Example: In an annoying or molesting a minor case (PC 647.6), the district attorney must prove that the defendant knew, or very likely knew, the alleged victim was a minor (under the age of 18). If the district attorney’s evidence in this regard remains uncertain, then the defendant is entitled to an acquittal.


Affirmative Defenses


An “Affirmative Defense” appears where the defendant admits to some, or all, of the alleged facts, but claims a legal justification for his or her actions. Common “affirmative defense” options include, entrapment defense, mistake of fact, consent, insanity, severe involuntary intoxication, and more.


Entrapment Defense: An entrapment defense focuses on the misconduct of law enforcement, which encourages the defendant to commit the crime, and where the defendant was not predisposed to commit the crime encouraged.


Example: In a solicitation for prostitution case (PC 647(b)), the defendant admits that he offered an uncover police officer money for sexual services (prostitution), but the defendants claims that he was not predisposed to solicit prostitutes, and that he would not have solicited a prostitute, if law enforcement had not encouraged or promoted the crime by way of their tactics (Entrapment).


Mistake of Fact Defense: A mistake of fact defense appears where the defendant operated under an honest and reasonable, but mistaken, belief, as to the circumstances under which he committed his crime, and if the circumstances were as the defendant reasonably believed them to be, then the defendant would not have otherwise been in violation of the law.


Example: In a statutory rape case (PC 261.5), the defendant genuinely, but wrongly, believed that minor, with whom he had sexual intercourse, was not a minor. Under these basic facts, the defendant might be entitled to a dismissal of the statutory rape allegations (Mistake of Fact Defense).


Defense of Consent: The defense of consent applies where the alleged victim freely and voluntarily agrees to engage in sexual conduct, with knowledge of the nature and circumstances of the sexual conduct.


Example: In a rape by force or fear case (PC 261(a)(2)), the defendant can show, through third party witnesses or video evidence, that the alleged rape victim had voluntarily entered into sexual intercourse with him, and that the alleged rape victim is not otherwise incapable of granting valid consent (Defense of Consent).


Note: Certain persons cannot legally consent to enter into sexual conduct. These persons include minors under the age of 18, unconscious persons, severely intoxicated persons, involuntarily confined person (inmates), mentally disabled persons, and more.


Example: In a lewd and lascivious act upon a minor under 14 case (PC 288(a)), the defendant claims that the alleged victim “consented” to sexual conduct. Result: Defendant’s defense of consent will be ignored by the criminal court because the minor cannot legally consent to sexual conduct.


Insanity Defense: A insanity defense appears where the defendant cannot form the mental state required to commit the alleged offense due to a diseased or defected mind that affects his or her ability to understand the difference between right and wrong, or his ability to understand the nature and quality of his conduct.


Example: In an indecent exposure case (PC 314), the defendant undresses in a public area because he truly, but wrongly, believes that his clothes are possessed by the evil spirits. His belief that his clothes are possessed by evil spirits is the result of a mental disease or defect (i.e., schizophrenia). Under these basic facts, the defendant should be entitled to an acquittal of the alleged indecent exposure allegation due to his mental insanity (Insanity Defense).


Severe Intoxication Defense: A “severe intoxication” defense might apply where the defendant’s alleged criminal conduct is the result of severe and involuntary intoxication to the level where the defendant cannot understand the nature and quality of his or her conduct.


Example: in a sexual battery case (PC 243.4), the defendant “gropes” a coworker’s butt at a Christmas party. The defendant’s conduct occurred at a time when he was suffering from severe intoxication after someone secretly put an intoxicating substance in his coffee. As a result of the defendant’s severe and involuntary intoxication, he was not able to form the specific intent to arouse the sexual desires of himself or his alleged victim (a requirement in sexual battery cases). Result, the defendant might be entitled to an acquittal as he could not form the mental state required to commit the crime (Intoxication Defense).


Procedural / Technical Defense


A procedural or technical defense appears in sex cases where the collection of the district attorney’s supporting evidence, or the prosecution process itself, is barred or rendered unreliable for some legal reason. The result of which either causes a dismissal of the criminal allegations, or a weakening of the prosecution evidence.


Procedural and technical defenses to sex crimes allegations are too numerous to explore beyond only the highlights in this brief article, but the most common of these defenses include, search and seizure violations, “Miranda” violations, coerced confessions, demurrer (barred prosecution), statute of limitations, Serna Defense, and Ex Post Facto Defense.


Search and Seizure Violations Defense: A search and seizure violation defense appears where the defendant’s constitutional rights against unreasonable warrantless searches or seizures of evidence is violated, and which results in the prosecution’s evidence being “suppressed" (rendered inadmissible as evidence against the defendant).


Example: In a possession of child pornography case (PC 311.11), the police confiscate the defendant’s cell phone for evidentiary clues to the defendant’s criminal conduct. The police have no warrant, or exception to the warrant requirement when they confiscate the defendant’s cell phone. Thereafter, the police find evidence of child pornography on the defendant’s cell phone that the district attorney intends to use as evidence against the defendant. Result: the evidence captured from defendant’s cell phone should be rendered inadmissible because it was obtained in violation of the defendant’s right against unreasonable search and seizure (Fourth Amendment Violations]


Miranda Violation Defense: A “Miranda violation” Defense appears where the defendant 1) makes a statement to police, 2) during police interrogation, 3) while the defendant was in police custody, and 4) when the defendant was not first advised that he or she has 1) the right to remain silent, 2) the right to an attorney, even if he or she cannot afford an attorney, and 3), that anything he or she says will be used against him or her in court (Miranda Rights)


Example: In an oral copulation case (PC 287), the defendant is arrested and taken to the police station in handcuffs. Defendant is questioned by police about allegations that he performed oral copulation against another person without consent. The police question the defendant without reading him his "Miranda Rights." During the police interrogation, the Defendant confesses to the oral copulation allegation. Result: The defendant might have his confession suppressed (rendered inadmissible as evidence) because the police officer, questioned the defendant, while the defendant was not free to leave (in custody), and without advising the defendant of his right to remain silent [Miranda Violations Defense]


Coerced Confessions: A “coerced confession” defense appears where the defendant makes an incriminating statement to the police during interrogation, but the surrounding circumstance of the interrogation is so coercive that is renders the “confession” unreliable (i.e., extremely long police interrogations, promises of leniency in exchange for “confession,” atmosphere of interrogation was threatening, misrepresentation of the available evidence against the defendant, etc.).


Note: A coerced confession does not necessarily render the defendant’s statement inadmissible. Rather, the coercive nature of the interrogation renders the incriminating statement unreliable in the presence of the judge or jury.


Example: In a continuous sexual abuse of a child case (PC 288.5(a)), the police arrest and interrogate the criminal suspect for twelve hours without food or water, the police purposefully misrepresent to the defendant that there are several witnesses to his alleged conduct, the police promise leniency with the criminal court judge if he “confesses,” (or promise to release the suspect if he “confesses”), and the police threaten to prosecute other members of the suspect’s family if the suspect does not “confess.” Result: The defendant’s “confession” is unreliable because it is the result of undue police coercion.


Demurrer: A demurrer is a legal block to the prosecution’s legal authority to prosecute.

Example: In a continuous sexual abuse of a child case (PC 288.5), the defendant is charged with multiple counts of PC 288.5 that are alleged to have occurred over the same time period against a single victim. Result: The prosecutor should be stopped from further prosecution under all but one count of PC 288.5. This is because PC 288.5(c) specifically forbids the district attorney from criminally charging the defendant in this manner (Demurrer Defense).


Statute of Limitations: The statute of limitations is a law (statute) that limits the ability of the district attorney to prosecute due to the passage of time. The statute of limitations, or time frame within which the district attorney must file criminal charges, is complex in most felony and misdemeanor sex crimes.


Example: In a misdemeanor statutory rape case, also called “unlawful sexual intercourse" (PC 261.5(c), the district attorney files criminal charges against the defendant four (4) years after the last alleged offense. Result: The defendant should have his misdemeanor statutory rape charges dismissed because the statute of limitations for statutory rape is three years in California (Statute of Limitations).


For further information on the statute of limitations defense as it applies to any specific sex crime and alleged facts, contact our sex crimes criminal defense lawyers for a free consultation.


Serna Defense: A “Serna” Defense appears where the district attorney files a criminal case against the defendant within the statute of limitations (See above), but the district attorney does not otherwise timely prosecute the criminal charges, and the untimeliness of the district attorney’s prosecution results in prejudice to the defendant.


Example: In a harmful matter sent to a minor with intent to seduce case (PC 288.2), the suspect is criminally charged two years after the police learn of the defendant's alleged conduct. Unfortunately, the delay in the criminal prosecution resulted in the defendant's loss of evidence that could have been used in his defense had there been no unreasonable delay in prosecution (i.e., documentary evidence, loss of favorable witness location, loss of memory of the event, etc.). Result: The district attorney’s unreasonable delay in prosecution, which was otherwise charged within the statute of limitations for a PC 288.2 crimes (3 years), caused prejudice to the defendant (lost exculpatory evidence), and the defendant’s criminal case should therefore be dismissed (“Serna” Defense).


Ex Post Fact Defense: The defense of Ex Post Facto appears where the defendant is charged with a criminal offense that was not crime at the time when the offense is alleged to have committed. Ex Post Facto also appears where a procedural requirement, which did not exist when the defendant is alleged to have committed the criminal offense, makes it more difficult for the defendant to defend, or where the punishment sought against the defendant is greater than what the punishment was when the defendant is alleged to have committed the crime.


Example: When the defendant is charged with the criminal enhancement of substantial sexual conduct (PC 1203.066), which makes a probation sentence unavailable after a sex crimes conviction, the defendant may not have that enhancement used against him to deny a probation sentence, if at the time of the defendant’s alleged conduct the enhancement did not exist (Ex Post Facto Defense).


More Defenses to Sex Crimes


In addition to the common defense strategies and defense options to sex crimes allegations listed above, other less-common defenses include, jury nullification, lack of jurisdiction, misjoinder of crimes or victims, duress, necessity, alibi defense, double jeopardy, and more.


Impeachment of Evidence: To “impeach” evidence means to demean its validity or reliability. When evidence is impeached, it lends itself to the Insufficient Evidence Defense.


Impeachment of evidence comes in many forms, including the showing of 1) the bias or prejudice of a witness to dimmish his or her credibility (motivation to misrepresent the fact), 2) the unreliability of the witness’ memory (i.e., drug induced memory, mental deficiency of the witness, contaminated memory of a witness, adopted memories of the witness, statement is the product of improper questioning [leading, argumentative, compound questioning], etc.), 3) the untrustworthiness of documentary evidence (phone records use, plated or incomplete evidence, lack of accuracy of photos, videos, maps, etc.), 4) the contamination and unreliability of scientific evidence (DNA, serology, seminal fluid, hair fiber evidence, etc.), and more.


Example: In a lewd and lascivious act upon a minor under 14 case (PC 288(a)), the main witness against the defendant is his stepdaughter. The defendant and the alleged victim’s mother are embroiled in a child custody dispute over their biological minor child (not the stepdaughter). The allegations of stepdaughter are made immediately after her mother’s filing for child custody of the alleged victim’s stepsister. Result: The showing of the timing of the alleged victim’s allegations, in connection with the alleged victim’s mother’s filing for child custody of the victim’s stepsister, tends to impeach the credibility of the alleged victim’s allegation (Motive to Misrepresent the Facts).


Plea Bargain Defense Option: A plea bargain in a criminal case occurs where the defendant agrees to plead guilty, or “no contest,” to a criminal allegation, in exchange for a particular punishment. Plead bargaining can include the negotiations for an altered criminal charge (charge bargaining), a lighter sentence (sentence bargaining), or both.


A defendant cannot be forced to plea bargain. However, in some cases, the defendant might consider entering into a plea bargain agreement, if available. Factors to consider when weighing plea bargain options in light of an offered punishment include:

  • The defendant’s criminal history (especially criminal history related to prior sex crimes convictions)

  • Whether there exists any reliable corroborating evidence to the alleged victim’s allegations (i.e., reliable multiple witnesses or multiple victims, reliable scientific evidence that supports the allegation, etc.)

  • The presence of any motive to fabricate a statement against the defendant (child custody dispute with alleged victim’s mother, revenge, etc.) 

  •  ability of available witnesses to testify coherently and reliably (i.e., victim reputation for dishonesty, victim or defendant’s version of events is incredulous, victim or prosecution witness has history of dishonesty (criminal history), victim or defendant’s appearance is off-putting to jurors [gang tattoos, etc.])

  • The presence and reliability of any statements or conduct the defendant made that tends to incriminate him or her (confession, declaration against interest, hiding evidence, fleeing the scene, etc.)

  • The presence of any procedural or technical defense that reasonably exists that limits the prosecutor’s ability to prosecute, or diminishes the available evidence against the defendant (reasonable likelihood of success on a “Miranda” violation, demurrer, illegal Search and Seizure motion, etc.)

  • Finally, most sex crimes allegations will lend themselves to multiple defense strategies and defense options, at least in the pretrial stages. But perhaps the most important defense strategy in any criminal case is for the defense attorney to prepare, prepare, and then prepare a little more.

Diversion Options: Diversion is a criminal court legal procedure whereby a defendant's criminal charges are 'diverted' from the path of prosecution. If the defendant is allowed to divert his prosecution, then he will be placed on a probation-like sentence with 'conditions of diversion.' If the defendant is successful with his diversion sentence, then his criminal charges will be dismissed, and he might avoid criminal prosecution.


Diversion is allowed in some sex crimes cases, depending on the type of diversion program sought (i.e., judicial diversion, mental health diversion, or military diversion), whether the defendant is charged with a misdemeanor or felony, whether the sex crime requires mandatory PC 290 sex offender registration, and other factors.

Note: Diversion is not a true defense in the sense that the defendant's criminal charges are dismissed, or the defendant is found "not guilty." Rather, diversion is a legal process that allows the defendant to avoid prosecution under certain conditions. Also, because diversion, if successful, does not result in criminal prosecution, many of the direct and indirect consequences of criminal prosecution are usually avoided (i.e., professional licensing consequences, criminal protective orders, military service consequences, and more).

For more information on defense strategies and defense options against California sex crimes allegations, contact out highly experienced and successful sex crimes attorneys today. Our team of dedicated defense attorneys, include winning trial attorneys, practice exclusively in the Inland Empire courts, including all criminal courts in San Bernardino and Riverside County. Your consultation is fee and discreet. We have helped hundreds of defendants charged with felony and misdemeanor sex crimes, and we can help you too. Call today!


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