Four Things You Need To Know If You Are Charged With A Sex Offense
If you or a loved one are charged with a sex offense you are undoubtedly concerned about the prospect of imprisonment. But that is only one of the four discrete harms faced by any accused sex offender. There are three other harms that are as significant, and each should be discussed with your lawyer.
Sex offenses come in many forms, ranging from urinating in public, in some jurisdictions, to forcible rape. Unfortunately, all these various offenses are frequently lumped together. Programs designed for violent offenders are often indiscriminately required for anyone convicted of a sex offense.
Here are the four harms: imprisonment, a felony record, registration as a sex offender, and being required to undergo sex offender treatment as a condition of probation. Often, defendants are so terrified of imprisonment, they do not spend enough time focusing on the other harms that will befall them if they enter a plea or are convicted a trial.
Imprisonment. Nothing prevents a prosecutor from overcharging a case. We call this colloquially "throwing the book" at someone. Thus, for one event, a defendant can be charged with a series of crimes. Often the more serious charges carry mandatory minimum prison sentences. A person facing five years mandatory jail time might willingly, and gratefully, plead guilty to charges not including the mandatory minimum. Many a defendant has walked out of court with a suspended sentence when the state dropped a charge carrying a mandatory minimum only to face nightmarish terms and conditions of probation. Be sure you understand the factual basis supporting each charge. Ask your lawyer whether the state has overcharged in a way that violates your right to be free from double jeopardy. (The answer is almost always no, but you still need to check.)
Felony. A felony conviction is a potent bar to participation in many professions. It will also keep you from voting and from enjoying certain federal and state benefits. Most state penal codes are drafted in such a way that related offenses are graded on a scale of culpability, with first degree offenses being considered more serious than offenses in the second, third or fourth degree. There are sometimes misdemeanor offenses lurking at the low end of the culpability scale. Always press in pre-trial negotiations for the state to consider a plea to a misdemeanor in those cases in which you are willing to consider a plea. At trial, be sure to ask your lawyer to review with you any lesser included offenses that you might ask the judge to submit to a jury. Remember: the state almost always overcharges a case. Putting a lesser charge before the jury might well spare you a felony if you are convicted.
Sex Offender Registration. The law is particularly savage. Lawmakers are forever pressed into hysteria when a new sensational sex abuse case hits the newspaper. They adopt a one-size-fits-all strategy for classifying those convicted of an ever-widening array of crimes. A serial rapist is the same as a 17 year-old boy who made love to his minor girlfriend. Judges acknowledge the cruelty of these laws in private conversations, but few will do anything about it when it counts. Everyone is afraid of retribution at the polls or at their next retention hearing. Laws differ in both the state and federal courts about what offenses require registration and for how long. Many states also have law-enforcement only sites that are not disclosed to the public via the Internet. If you need to register, press your lawyer to get you on a non-public list for a limited period.
Sex Offender Treatment. This condition of probation catches many defendants by surprise. It is sometimes slipped in at the very last minute after a plea bargain when a judge requires compliance with "such conditions as probation deems necessary." A person facing such treatment can expect demeaning treatment by scarcely trained and often poorly education folks with the equivalent of undergraduate degrees. A probationer might be required to fill out a detailed questionnaire about their sexual history and fantasies. You might be required to admit things you never did or face prison. And then there are group treatment sessions in which Romeo sits cheek by jowl with Jack the Ripper. And don't try complaining to the court that all these conditions are unfair or are not what you bargained for. The courts are rarely receptive to such claims.
Sex offender cases are terrifying. Clients face enormous prison terms. The rules of evidence are stacked in favor of the complaining witnesses, with special rules of young alleged victims and limits on what can and cannot be said about the past of the person accusing you of a crime. And lawmakers show increasing willingness to extend statutes of limitations to the breaking point. Don't recall where you were 30 years ago? Who can? But an alleged victim can claim you touched her or him in ways the law prohibits.
The four harms facing all sex offenders need to be addressed promptly in any defense strategy. It may be that intelligent negotiations with the state can minimize these harms if you are willing to consider a plea to some offense. Of course, in cases in which a plea is out of the question, it still pays to keep your eye on these four harms. If you are unfortunate enough to be convicted, you'll want to avoid as many of them as possible.