Rape: A Lawyer who Defends Against False Accusations

The #MeToo movement has been a welcome corrective to a society that for too long has ignored substantiated accusations of sexual misconduct.  Whether in the workplace or in the personal realm, sexual assault – including harassment, abuse, battery, and rape – should never be tolerated.

But, at the same time, in our rush to correct a culture and society that has failed to protect women (and men) from sexual misconduct, we need to be careful about doing away with the principle due process.

Due process at root is the concept that a person’s liberty (or property interest) cannot be taken away without some sort of adjudicatory process in which the accused is given notice of the accusations made against him or her and the ability to be heard before a neutral arbiter (often a judge) who issues a judgment.

In the criminal context, due process in North Carolina means that the charge must first be presented to a magistrate before an arrest warrant can issue, must next be presented to a Grand Jury before an indictment can be returned, and must finally be put before a jury of twelve citizens before a verdict can be returned.

Due process also requires that the accused have notice of the specifics of the accusation and, also, receive the discovery – police reports, interviews, notes, and other data – collected by investigators during their inquiry into the accusations.

Defense of a rape or sexual offense depends on the nature of the accusation and the accused’s explanation.  Where the accused asserts his or her complete innocence, it is never too soon to begin preparing a response, to include interviews with character witnesses, the use of a private investigator to track down details surrounding the alleged encounter, and, even, the use of a polygrapher to help make the case for innocence.

Sex Offenses in North Carolina

Raleigh Sex Offense Lawyer

Sex offenses, whether they involve accusations of sexual conduct with a child or with an adult, are the most frightening of all charges, in part because they involve the notorious sex offender registry.

I address the issue of child pornography separately, which also involves possible registration as a sex offender.

The accusation of rape is life altering; in response, people accused of sexual misconduct can sometimes hurt their case by seeking to explain their conduct, or deny conduct, when interviewed by an investigator. Before speaking with a law enforcement officer, child protective services social worker, or anyone about the case, a person accused of a sex offense should consult with an experienced criminal defense attorney.

How can I prove my innocence in a sex case?

An investigation into a sex-related offense is a scary process that is fraught with pitfalls. In many cases, police lack forensic evidence. Consequently, investigators are trying to determine who is telling the truth based on inconsistencies or differences in stories.

Proving a negative is often difficult, and in many cases impossible. Therefore, speaking about a sex-related offense with investigators can often lead to inadvertent admissions that the person was present with the alleged victim, that some conduct did not occur, even if the person being investigated does not believe the conduct involved a criminal offense.

It is crucially important when approached with a sex-related accusation or investigation to consult with an attorney, rather than attempt to prove your innocence by talking to investigators without a lawyer presence.

What are the potential consequences of a sex related conviction?

In the case of forcible rape, North Carolina imposes a mandatory minimum of 25 years in prison, followed by sex offender registry upon release. Lesser crimes may involve jail time, and will likely involve some sort of sex offender registry. Even low level sex-related felonies generally require sex offender registration that may be reviewable only after 10 years.

How can I avoid the sex offender registry?

For certain types of sex offenses, the registry is mandatory. Any conviction involving rape, indecent liberties, or the possession, distribution or creation of child pornography (in North Carolina, the crime is called exploitation of a minor/child) will include registration as a sex offender.

That registration will limit where you can live, where you can physically be, and various employment opportunities. In short, sex offender registration is like a kind of virtual jail that follows you around.

Even the misdemeanor sexual battery involves sex offender registry.

Avoiding the sex offender registry will, in many cases, mean trying to avoid a conviction altogether, since registration is a statutory requirement associated with the conviction to certain offenses.

Should I talk to Child Protective Services (CPS)?

If the allegation against you involve a child, you may be approached by child protective services. It is important for you to not make any statements to anyone, including CPS, without the advice of a criminal lawyer who handles these types of cases. You may make statements that can be used against you in criminal court.

The decision to talk to CPS is one you should only make with the advice and consultation of a lawyer. The lawyer will probably want to be present during any interview, if you decide to be interviewed by CPS.

CPS has tremendous power that is almost unfettered. As a result, CPS may threaten to place you in the Responsible Individuals List, or threaten to prevent you from having contact or custody of your own children. You certainly need to talk to a lawyer before talking with CPS.

Should I take a lie detector?

A lie detector, also known as a polygraph, is not a very reliable device, but is often used as an investigative tool. The results are inadmissible at trial. However, you may be asked to undergo a polygraph examination. If asked, talk to your lawyer. In general, moving forward with a polygraph exam runs the risk that the detective will ask you why you are being “deceptive” if you deny the allegations. You may try to provide an “answer” to satisfy the detective’s question.

You may elect to undergo a lie detector test, and in fact your lawyer may advise you to retain your own polygrapher where police have not offered a lie detector. However, you should do so only with the advice of a lawyer.

Police may also ask you to undergo a voice stress analysis. This device is worse than unreliable. It is junk. You should talk to a lawyer before you decide to undergo any lie detector or voice stress analysis exam.

How can I avoid the sex offender registry?

North Carolina, like all states, has a sex offender registry. Registration is mandatory if convicted of certain offenses, including misdemeanor sexual battery, indecent liberties with a child, and violent rapes.

For less serious felonies and non-violent sex offenses, the minimum term of registration is 10 years. The North Carolina sex offender registry imposes certain requirements, limitations on where you can live, restrictions on the professions (including, professions involving contact with children) and licenses you can obtain.

While there are cases of people who have been convicted of felony sex offenses, placed on the sex offender registry and later admitted to the North Carolina bar as practicing attorneys, obviously this is a rare outcome.

In most cases, an allegation of sexual impropriety or assault is life-altering.

Since most people are obviously worried about a felony conviction and potential jail time, they overlook the potential impact of the sex offender registry. A felony or misdemeanor conviction for a sex offense can never be expunged in North Carolina.

While voting rights are restored at the conclusion of the punishment phase of a felony conviction, gun rights are no. It is a state and federal crime to possess a firearm if you are a felon, and this includes ammunition. You can be punished at both levels, and such punishment does not implicate double jeopardy protections. Project Safe Neighborhoods is a program in Raleigh, Fayetteville, Wilson, Greenville, and Wilmington that involves the federal prosecution of convicted felons who possess firearms.

Even with all those restrictions imposed by any felony, the sex offender registry is much worse. When considering a potential Raleigh criminal lawyer consider a lawyer who has experience handling complex sex cases, including cases involving the sex offender registry.

North Carolina Sex Offender Consequences

A sex offense conviction – whether after a full jury trial or after a guilty plea – will have life-long consequences that go beyond a normal conviction. It is crucial that you understand all of those consequences before deciding how to resolve a sex offense or rape charge, and that you consult your Raleigh criminal lawyer about the possible impact sex offender registry will have.

Felony Conviction

With the exception of Sexual Battery (a class A1 misdemeanor), all other sexual assault crimes in North Carolina are felonies. Obviously, a sex offense conviction will therefore carry with it all of the consequences of a felony conviction (and more), including:

  • A convicted felon for the remainder of a person’s natural life (under current law).
  • Loss of citizenship rights (voting) upon conviction, until the prison sentence or probationary period ends.
  • Loss under federal and state laws of the rights to possess ammunition or firearms.
  • Loss of ability to be licensed in certain professions that prohibit convicted felons.
  • Reduction in employability depending on the field and kind of work.
  • Loss of ability to serve in the armed forces.

STATIC-99 and Risk Assessment

If convicted by plea or by trial, the offender will be interviewed by a member of either community corrections (probation) or the Department of Adult Corrections to undergo a STATIC-99 evaluation. The STATIC-99 form (pdf) is only 10 questions long, and these questions cannot be “gamed”. The questions reward offenders who are older, have been in long-standing sexual relationships, have no prior convictions, and where the offense has occurred between family members or friends. The form punishes people who have unstable backgrounds, are young, have committed an offense against strangers, and have prior criminal and sex-related convictions.

The higher the score, the more intense the possible supervision. In North Carolina, a person with a high score is likely to be placed on Satellite Based Monitoring (SBM).

North Carolina Sex Offenders Control Program

This program is an educational program designed for people who have been convicted of a sex-related offense. Most, but not all, participants in the program will are also required to register under the Sex Offender Registry program. This program, also called SOAR for people who participate in the program while in custody, requires, among other things, the offender to not only admit his or her conduct, but also to potentially describe in the conduct.

If, for instance, someone is placed on the program as a result of a probationary outcome, but fails to admit his or her conduct, he or she may be revoked on probation for failure to successfully complete the Sex Offenders Control Program.

Sex Offender Registry

The sex offender registry program is defined at Chapter 14, Article 27A of the North Carolina General Statutes.

With the exception of certain offenses, for instance felony secret peeing (see State v. Pell) where little competent evidence supports registration, most sex assault offenses, including sexual battery, are almost certain to result in at least sex offender registration.

The minimum registration period is 30 years, although an offender can petition to remove himself from the registry after 10 years. Whether a person will be removed depends upon his conduct over the 10 years, and upon the judge who reviews the petition.

Lifetime registration is required for recidivists or sexually violent predators, based on the STATIC-99 results.

Requirements of the Sex Offender Registry include, but are not limited to:

 

  • Registration – “a State resident… who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides”. Failure to register is a Class F felony. Assisting a sex offender in avoiding registration is a Class H felony.
  • Re-Registration – If someone moves into the state or a new county, or moves within the same county to a new address, must re-register within three (3) days.
  • De-Registration – A person who moves out of a county or the state must inform the previous county sheriff of having left the prior location.
  • Schooling or Employment – A person must also register with the county in which he or she works or attends school, if that county differs from the county where he or she lives.
  • Change of Employer or School – A person must also keep the sheriff updated as to place of schooling or place of employment, should those change.
  • Online Identifier Registration – A person must also register his or her online identifier (screen name or email address) with the sheriff, and must inform the sheriff of any new identifier within ten (10) days.
  • Social Networking – A person on the sex offender registry is banned from using social networking sites, including, but not limited to, Facebook, MySpace, Twitter, Pinterest and chat networks, including, but not limited to IRC, MSN, AOL, Apple’s Messenger or iChat service.
  • Public Database – North Carolina, like virtually all states, keeps a Sex Offender registry that is publicly accessible. (There are also a variety of Apps for mobile devices such as the iPhone and Android.)

Other restrictions include:

 

  • Residential Restrictions – A registered sex offender may not live within 1,000 feet of a school or child care center. This includes many churches which have daycare centers, although a recent ruling allows registered offenders to attend church.
  • Employment Restrictions – A registered sex offender may work or attend school within 1,000 feet of a school or child care facility.
    • Child Sex Offenders – A registered sex offender who was convicted of an offense involving a child (under the age of 16) is subject to an additional restriction – not to be on the premises of or within 300 feet “of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.”

     

  • Commercial Drivers License (CDL) Restriction – A registered sex offender may not possess a CDL with a “P” (Passenger) or “S” (School Bus) endorsement.

Satellite Based Monitoring

Satellite Based Monitoring may be required for offenders convicted of certain especially violent or egregious offenses and as the result of a Court Order, usually following a STATIC-99 determination. SBM requires that the person wear a monitor, and tampering with the monitor may result in a Class E felony. The length of monitoring can be established by the Court, or can be for a person’s natural life.

Collateral Consequences of a Sex Offense Conviction

A conviction for a sexual assault or sex offense can also have collateral consequences. Following a person’s conviction for a garden-variety of felony, a person generally can move to any state in the country – assuming he has completed his probation and prison sentence – without any issues.

But a sex offender who has completed his punishment, but is still on the sex offender registry must get the approval of not only the state he wishes to move to, but also must inform North Carolina of his departure. Since many states may be loathe to accept new sex offenders, moving to a new state, especially a state where the person has no previous ties, may be difficult.

Employment consequences are some of the most severe, not just because any profession that regularly deals with children is likely to be off-limits, but because of the stigma associated with a sex offender registry. That said, someone with trade skills is likely to do fine.

A person on the sex offender registry must also consider where will live in relationship to schools, parks, and places where children congregate. Wake County has a very large number of such facilities, and living in the more populous areas of the county may be impossible. The Wake County Sheriff’s department maintains maps that show places which are outside the 1,000 foot limit.

Immigration consequences are clear. A person convicted of a sex offense who is not a legal resident of the United States will be deported.

Future Consequences

The United States Constitution prohibits ex post facto (after the fact) punishments for criminal convictions. If you’re convicted of a bank robbery and serve your sentence, the government may not come back and impose additional punishments upon you after the fact.

Sex Offenses are a notable exception. The Supreme Court has ruled that the registry, as much as it may seem like a punishment, is not a punishment at all, but a public safety response by the government. Consequently, the registry and all its myriad conditions can change over time, and those changes apply to people who have previously been convicted.

Mandatory Reporting of North Carolina Sex Offenses

One of the questions I sometimes am asked is under what circumstances one must report sex abuse to authorities. This question has become much more common in light of the recent conviction of former Penn State football coach Jerry Sandusky on more than forty counts of sexual assault of minors. The scandal has made the issue of the safety of children more pressing for many Americans.

North Carolina imposes a general “duty to report abuse, neglect, dependency, or death due to maltreatment” of minors (N.C.G.S. Sec. 7B-301) and of disabled adults (N.C.G.S. Sec. 108A-102).

However, that duty is not accompanied by a penalty if a citizen (who has no particular duty associated with his or her position or profession) fails to report. In other words, failure to report will not, generally, result in punishment. (If you have questions about whether you have a duty to report, you should consult an attorney.) This duty to report carries with it a protection: a person who reports and who cooperates with investigating authorities (e.g., the Wake County District Attorney’s Office, the Raleigh Police Department, or Wake County Child Protective Services) and acts in good faith “is immune from any civil or criminal liability that might otherwise be incurred or imposed for that action.” In addition, good faith is presumed, which means that the person who was falsely accused of child rape or sexual assault has the burden of showing maliciousness which is ordinarily very difficult to do.

Important: the only people who are immune from this general reporting requirement are attorneys, as outlined in N.C.G.S. Sec. 7B-310 and only if that knowledge is gained by an attorney during his or her professional representation. In fact, the attorney is generally required to keep that information confidential by the State Bar’s ethics rules.

In addition to this general duty to report, North Carolina law requires certain classes of professionals to report knowledge of sexual assaults or rape of a child to law enforcement or Child Protective Services. In Raleigh, such reports are generally made to either the local law enforcement agency in the community where the incident may have occurred, or to Wake County Child Protective Services, which is a division of the county Health and Human Services Department. The failure to report for people in these special positions of responsibility can be criminal or civil liability.

For instance, school principals (N.C.G.S. 115C-288(g)) are required, when the principal has personal knowledge, a reasonable belief, or actual notice from school personnel that an act has occurred on school property involving assault resulting in serious personal injury, sexual assault, sexual offense, rape, kidnapping, indecent liberties with a minor, assault involving the use of a weapon, possession of a firearm in violation of the law, possession of a weapon in violation of the law, or possession of a controlled substance in violation of the law, to report the act to the appropriate local law enforcement agency.

In addition, physicians are required to report certain injuries, illnesses, and wounds (N.C.G.S. 90-21.20) but this does not include sexual assaults, unless the victim requests the matter be reported to police, unless the person is under the age of 18 and the physician or hospital believes the injury is the result of abuse.

In addition to these statutory requirements, professional licensure rules – for instance, >North Carolina’s Psychology Board (pdf) – explicitly remind practitioners of their general duty under N.C.G.S. 7B-300 et seq to report abuse, and can subject a licensed professional to conduct review if that person has failed to report.

It’s important to note that criminal and custody penalties may be imposed on family members – particularly parents or grandparents – who know of abuse and fail to report it. For instance, a parent may be charged of, at the very least, misdemeanor child abuse (a class A1 misdemeanor) for failure to take action or for repeatedly placing a child in a dangerous situation. A parent’s rights to custody may also be challenged if the county’s Child Protective Services believes that the parent has violated the duty to report or duty to protect the child. These are obviously very significant sanctions.

The area of mandatory reporting is complicated, so if you have questions about whether you have a legal duty to report – by which I mean, a duty that is enforceable by some penalty if you fail to report – it is important that you consult with a Raleigh criminal lawyer.

Even where the duty is unenforceable as a matter of criminal or licensure law, the duty may be enforceable by civil penalties, as Penn State University is now finding out as the victims of Sandusky’s conduct now seek to sue the institution for its failure to report or take corrective action during the decades over which this conduct occurred.

In some ways, this civil liability is the strongest incentive, particularly for a wealthy institution such as Penn State which will likely have to pay out millions of dollars in damages to the victims in these cases.

Sexual Exploitation of a Minor and the Law

Exploitation. An ugly word, particularly when the word “Sexual” precedes it. Sexual Exploitation of a Minor is defined in Article 26 of Chapter 14 of the North Carolina General Statutes, and includes three degrees – or three levels – of punishment.

Let’s be clear. The Sexual Exploitation of a Child is never acceptable. The problem, however, is that someone can be charged with this crime in North Carolina – or its equivalent in the federal system – for having what amounts to child pornography on a computer system that the person may have never knew was there.

Earlier this week I discussed this issue with a fellow criminal lawyer, and we both commented on how easy it is for WiFi or computer networks to be hacked. A person can go onto the Internet and find Youtube videos that explain exactly how to hack a WiFi network. With that knowledge, they can piggyback on a neighbor’s WiFI network to download pornography and even child pornography.

Because authorities will see that the child pornography is traveling over the innocent neighbor’s network, authorities will assume that the neighbor is the true culprit, when the neighbor probably has no idea his WiFi router is being used for these purposes.

It is important for you to properly secure your WiFi networks. A first step would be to use WPA2 encryption. Do not use WEP encryption, which is basically worthless. A second step is to use long and complicated passwords for your router and computer systems. A third step is to avoid allowing anyone you do not personally know use your computers.

If you are ever approached by authorities who ask for permission to examine your computers, politely decline. If they have a warrant, you will be required to turn over your computers, but you will have a significant advantage especially if the warrant is defective.

Finally, never talk to authorities about your computer usage. If you’re approached, you should always politely, but firmly, request the presence of a lawyer, or insist on not speaking unless you have a lawyer present. This is crucial to your defense, and can mean the difference between freedom and many years in prison.

Sex Offenses and Violent Sexual Predator Law

Sex offenses – rapes, sexual assaults, sexual battery, indecent liberties with a child, peeping – are some of the most difficult offenses for a criminal lawyer to handle. That’s because, in addition to the significant emotional issues at stake, our society has determined that punishing such defendants and protecting the rest of society from them are of paramount concern.

Certain crimes – the violent assault of another human being – have always been prohibited. But changing technology has made other crimes far more prevalent today than they were before. For instance, the internet and file sharing mean that the sharing of pornography, which was once done surreptitiously and in small quantities, is today easy to do in vast quantities and easily.

In addition, changes in the laws have affected the way that defendants face prosecution, and the convicted are treated. In the past 20 years, sex offender registry laws have swept the states. In addition, changes in the way we prosecute such people. For instance, even though character evidence is usually not admissible against a defendant at trial, changes to the Federal Rules of Evidence permit the introduction of character evidence in cases involving sex offenses.

One of the most significant changes in the past decade has been the introduction of Violent Sexual Predator laws. The trend began in Washington state, and now encompasses more than half of the states in the country, including the federal government. VSP laws permit the continued detention of people who have been determined to be violent sexual predators long after their prison sentence is over on the view that such people are likely to re-offend.

The Supreme Court, in U.S. v. Comstock, declared that Congress did have the power to create such laws that permit the indefinite detention of such people.

While there may be an important societal interest in stopping predation, the problem is always that in the end such laws are ever-expanded, so that not simply sexual offenders, but thieves, crooks, embezzlers, drug dealers and other people may be later deemed to be subject to a mental illness that requires their indefinite detention.

How do I hire a sex offense lawyer?

Sometimes I’m contacted by a person who believes he is about to be accused of a rape Raleigh or sex offense Raleigh. Other times, I’m called after the person has already been arrested on a first degree rape or second degree rape charge or sex offense charge in Raleigh. At that point, the person has been placed into custody, and is being held on hundreds of thousands of dollars in bond.

While it’s always important to talk to a lawyer ANYTIME you believe you may be accused of a crime, it is absolutely important for someone who is accused of rape, a sex offense, child rape Raleigh, or any other kind of indecent liberties or sexual battery crime to contact a Raleigh lawyer as soon as possible.

That’s because, unlike for most crimes, in a sex offense or rape accusation there is oftentimes very little or no physical evidence, and no witnesses, except for the alleged victim and the perpetrator.

Because there is so little physical evidence, and almost never a witness, police will attempt to get the defendant – the person calling me – to confess before that person ever has a chance to talk to a lawyer.

Even if the person is completely innocent and the victim is either confused or lying, police will try to lock the person into a story. It is never – let me repeat that NEVER – a good idea to talk to police, even if you are as innocent as the sky is blue.

That’s because once you are locked into a story, it can be very difficult to defend yourself against the accusations. The police and prosecutors will latch onto small variations in your story, or small innocent mistakes in your story to claim that you are lying or hiding the truth.

Therefore, if you believe you area about to be accused of a Raleigh rape or Raleigh sex offense, it is important for you – CRUCIAL in fact – for you to talk to a Raleigh criminal lawyer or Raleigh sex offense lawyer or Raleigh rape lawyer as soon as possible.

What is First Degree Rape in North Carolina?

First Degree Rape is punishable as a B1 felony. In 2009, North Carolina passed a mandatory minimum of 25 years for this crime.

First Degree Rape depends on the use of force or threat of force, or on the age difference between the victim and the defendant.

Note that just because there wasn’t full penetration, doesn’t mean that that rape can’t be  proved. A rape merely requires proof of penetration, “however slight.” Penetration doesn’t have to occur with the penis. A first degree sex offense is committed if someone uses fingers, other implements, and so on.

Here are the statutes for first degree rape and first degree sex offense.

§ 14-27.2. First-degree rape.
(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim; or
(2) With another person by force and against the will of the other person,
and:
a. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or
b. Inflicts serious personal injury upon the victim or another person;
or
c. The person commits the offense aided and abetted by one or more other persons.
(b) Any person who commits an offense defined in this section is guilty of a Class B1 felony.
(c) Upon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child born as a result of the commission of the rape, nor shall the person have any rights related to the child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes.

§ 14-27.4. First-degree sexual offense.
(a) A person is guilty of a sexual offense in the first degree if the person engages in a sexual act:
(1) With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim; or
(2) With another person by force and against the will of the other person, and:
a. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon; or
b. Inflicts serious personal injury upon the victim or another person;
or
c. The person commits the offense aided and abetted by one or
more other persons.
(b) Any person who commits an offense defined in this section is guilty of a Class B1 felony.

Child molestation charges, and an overdue dismissal…

Investigative reporter Radley Balko writes about Bernard Baran, a man convicted in the 1980s of child molestation charges. In 2006 he was released on bond after an appeals court ruled that his trial attorney had been incompetent and that the prosecution withheld exculpatory evidence.

The problem with child molestation charges is that they’re difficult to win at trial. Even when a defendant has competent or even excellent counsel, getting a not-guilty verdict at trial is difficult given that juries tend to believe children who make allegations.

In this case, the prosecutor, Daniel Ford, is alleged to have engaged in serious misconduct in winning Baran’s conviction. And yet Ford still sits as a state judge in Massachusetts.

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