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.

Also listed under: Sex Offenders and Justice

Comments: (8)

  • I'm trying to remember what I heard once before. S...
    I'm trying to remember what I heard once before. Something about having to charge with a lesser crime if elements fit...
    Posted on April 18, 2010 at 9:32 am by Avendora
  • Avendora The law does not require the prosecution...
    The law does not require the prosecution to charge a lesser offense. However, in general, if the elements of the lesser included offense "fit," and either party requests that this charge go to the jury, the court must submit the lesser offense. This is doctrine regarding lesser included offenses.
    Posted on April 18, 2010 at 9:37 am by Norm Pattis
  • Thanks for the clarification. Question: If Burgl...
    Thanks for the clarification.
    If Burglary 1 was charged, but Burglary 2 is the "lesser included offense," would that also have to go to the Jury? Or would that be Double Jeopardy?
    I apologize for the simple questions, but I'm trying to learn.
    Posted on April 20, 2010 at 7:58 am by Avendora
  • A If it is in fact a lesser included offense, bot...
    If it is in fact a lesser included offense, both go to the jury. The jury then first considers the more serious offense. If it finds the defendant not guilty of the more serious offense, it then considers the lesser. It is not double jeopardy, although that is a more difficult analysis.
    Posted on April 20, 2010 at 8:05 am by Norm Pattis
  • The mindless treatment of Westchester Probation is...
    The mindless treatment of Westchester Probation is compounded by their requirement that sex offender probationers take polygraphs every 6 months! Their own organization admits that these maintenance polygraphs are the least accurate use of the procedure, yet they continue to do it.
    Posted on April 20, 2010 at 10:08 am by SHG tenant
  • SHG- If the least accurate use of procedure yield...
    If the least accurate use of procedure yields the highest Parole/Probation Violations, why not use it? (From their point of view)
    Posted on April 20, 2010 at 11:45 am by Avendora
  • The article offers this advice: "If you need to re...
    The article offers this advice: "If you need to register, press your lawyer to get you on a non-public list for a limited period."
    This is good advice, but It doesn't go far enough. States can and do change registration laws all the time, and these changes are usually applied retroactively. At the whim of the legislature, an offender can be moved from a private registry to a public one, and his term of registration can be changed from ten years to life.
    Posted on June 26, 2010 at 5:23 pm by David Hess
  • Hi - New here and find your information very inter...
    Hi - New here and find your information very interesting.
    My husband, June 2007...was non-jury, tried/ convicted / and has a five year probation.
    His crime / chatting with an officer posing as a 14 year old girl. Biggest mistake on my husbands part. He committed his crime while at work. He lost his job of 37 years. And now...he has to attend weekly ' therapies' per his probation. These sessions are 5/6 men / and the man running the session is very verbally abusive, and I am not really sure what this is to accomplish. I would think these sessions would cover more of; where do you think you can go from here...or 'what have you learned' sort of things. But we do know here in Pennsylvania the cost of the sessions are $1,000 per month - of course the state pays the cost. We see the bill as it is mailed to us monthly. The group is comprised of men that did long time in prison and find it interesting when they ask my husband ' you mean you never raped anyone?' And he is classified after only an hour with the court psych. as an SVP. A bit ago, 2 detectives came to our home to verify residence, they gave him good advice and told him to write local senators and try to get reduced to sexual predator. I did that but nothing has come of it. It is important for official candidates to remember what is important when it is voting time. Overturning something like this does not look good for a public official.
    My husband is living out his life after 61 years, and he has never been in trouble. He has is a good person, a good father and helps wherever he can and is feeling very persecuted and will until he dies. There was / is no mercy being on the sex offender list for his lifetime. And I know/ feel we have lost touch with some friends we considered dear, things change. Our three grown children are surrportive and have to help financially. That hurts the most. He never arranged to meet anyone and sometimes I do wish we took it to trial jury. What is tough is for him is to not find a job like the one he had. He did his job very well, was respected and admits to being stupid and when he stated he found chat rooms while sometimes bored at lunch, that did not matter. I know there will never be any relief. Next, he has to come up with $500.00 for a polygraph. He has no idea why or what the information he supplies will be needed for. He,us live our days always scared and it is tough to be Hopeful. Thanks.
    August 13, 2010 2:23 PM
    Posted on August 13, 2010 at 7:32 am by Becky

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