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.

Revenge Porn: The Rob Kardashian Story

Unless you’ve been living in a cave for the past 10 years, you’ve heard of the infamous Kardashian family. From marriages to children, to leaked sex tapes, this family has been all over social media. Most recently, the youngest of the clan Rob Kardashian has been accused of violating California’s Revenge Porn Law.
 
The law, passed in 2013, makes distributing nonconsensual pornography such as a nude photo to cause fear in or harass another person a crime punishable as a misdemeanor with up to six months in jail. The first case prosecuted in California under this statute led to a one-year sentence for the person who posted nude photos of an ex-girlfriend on a company Facebook page.
 
At this time, 38 states and DC have some type of revenge porn law, including North Carolina. Passed in 2015, NCGS § 14-190.5A makes the transfer, publishing, distribution, or reproduction of a photograph, film, videotape, recording, digital, or other reproduction of intimate body parts such as male or female genitals or of sexual conduct with the intent to harass, humiliate, demean, coerce, or cause financial loss, a crime punished as a misdemeanor and in some instances as a class H felony.
 
When they law was enacted district attorneys found it difficult to prosecute cases when the victim was unaware that their picture had been taken and therefore not knowing who originate the distribution of the picture couldn’t file charges. To address this Republican Representative Chris Malone sponsored a bill that would make several changes to the law.
 
Recently, NC Senate Judiciary Committee approved these changes allowing the punishment of anyone who obtained nude images without the person’s permission. Meaning that a person can be punished for obtaining these types of photos, even without there being a relationship with the depicted person. The new changes also added to the definition of what is regarded as an image. In addition to what is mentioned above a computer or computer-generated image or picture falls within the scope of the law.
 
As of June 2017, the Bill has returned to House for a second vote.

Operation Broken Heart: Child Porn Crackdown

In the wake of Attorney General Session’s Atlanta speech decrying child pornography and reiterating the Trump administration’s emphasis on enforcing pornography distribution laws, the FBI announced Operation Broken Heart IV in late May and early June, a nationwide effort that led to a more than 1,000 arrests.

Louisiana saw more than 100 arrests. The Los Angeles Police Department arrested 186 people. Thirty-five people were arrested in Baltimore. Alabama saw 43 arrests in June. And so forth.

According to the Department of Justice:

Internet Crimes Against Children (ICAC) Task Forces arrested 1,012 suspected child predators from more than 40 states during a two-month nationwide operation following the investigation of more than 69,000 cases, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) announced today. The arrests marked the end of Operation Broken Heart, a coordinated investigative operation to intensify efforts to identify and arrest suspected child sexual predators during April and May 2017. The 61 ICAC Task Forces, funded through OJJDP grants, comprise more than 4,500 federal, state and local, and tribal law enforcement agencies that participated in the operation.

Many of the people have been charged on the state level, although federal penalties are often more severe, with child porn possession punishable by up to 20 years in prison per count.

For more information on how you can defend yourself against these criminal charges, contact us at (919) 352-9411 or read here for more information.

Dennis Hastert: A Sexually Violent Predator?

Former U.S. Rep. Dennis Hastert may have inadvertently “Adam Walshed” himself when he pled guilty earlier this year and was sentenced last week to federal prison for having “structured” payments and withdrawals from his bank accounts in order to pay hush money to men he had molested as boys.

While most of the commentary has focused on Hastert's plea for a probationary sentence, and the Government's request for a relatively short prison sentence, few commentators have focused on what could happen to Hastert in BOP custody.

The Adam Walsh Act, passed and signed into law in 2006, permits the Attorney General to move for a competency hearing under 18 USC Sec. 4248 which allows for indefinite post-sentence detention of someone designated a “sexually dangerous” person at FCI Butner in the Eastern District of North Carolina. While those detentions are reviewed periodically, the reviews are not subject to Beyond a Reasonable Doubt analysis.

Dozens of people who have served their sentences are currently housed at Butner.

Hastert Wasn't Convicted of a Sex Offense

Wait, you may be saying to yourself. Dennis Hastert was not convicted of a sex offense; he was convicted of the financial crime of “structuring.”

A fine, but irrelevant point, because the Adam Walsh Act (also called the SORNA Act) merely requires that the person being certified as a “sexually dangerous” person come into the legal custody of the Bureau of Prisons.

And given that the underlying conduct that gave rise to the structuring involved the repeated sexual molestation of minors, Hastert could certainly fall under the purview of Sec. 4248.

Before you shed too many tears for Denny Hastert, remember that Hastert was Speaker of the House when Congress passed this overbroad and dangerous legislation in the mid-2006 and himself praised the legislation.

Here is a copy of Hastert’s plea agreement with the Government which doesn’t seem to preclude the ability of the BoP or Attorney General to have him declared a sexually violent predator under 18 USC 4248.

Sexual Servitude and Human Trafficking Crimes in North Carolina

Although it’s rare and many people don’t think it happens in North Carolina, there are cases of sexual servitude in North Carolina. Many people think of these crimes in big cities, where a large number of women, children, and sometimes men are kept against their will for the purpose of working as sex slaves, but it happens everywhere and on many different scales. These charges don’t just apply to large numbers of people kept in servitude, but can happen one on one to individuals as well. Especially as the US Open Golf tournament gets underway in North Carolina, there is a concern about the potential for trafficking, sometimes large events and gatherings can bring a hub of trafficking activity.

The statute that outlines sexual servitude in North Carolina is N.C.G.S. § 14-43.13. This is where a person subjects someone to sexual servitude or maintains a person for the purpose of sexual servitude. The person must knowingly do this or must do so in reckless disregard of the consequences of the action. If the victim is an adult, it is a Class D felony. If the victim is a minor, it is a Class C felony. Mistaking the age of the victim is not a defense to the crime.

N.C.G.S. § 14-43.11 is the statute that addresses human trafficking. The definition of this offense is when a person recruits, entices, harbors, transports, provides, or obtains by any means another person with the intent that the other person be held in involuntary servitude or sexual servitude or causes a minor to be held in involuntary servitude or sexual servitude. This is a class F felony if the victim is an adult and a Class C if the victim is a minor. The Class F is a lower level crime that sexual servitude because human trafficking does not automatically imply or include sexual servitude.

Class C and D felonies, if resulting in conviction require a sentence of active prison time. A Class F has the possibility of a probationary sentence, depending on the facts of the case and the defendant’s previous criminal history. Furthermore, these crimes create eligibility for a person to be placed on the sex offender registry.

These are serious charges in North Carolina with serious consequences, and they require the experience and attention of an aggressive Raleigh sex crime lawyer. Contact a sexual servitude and human trafficking defense attorney at The Chetson Firm for a free consultation.

 

What is Sexual Exploitation of a Minor in North Carolina?

Raleigh Sexual Exploitation AttorneySexual exploitation of a minor in North Carolina is most commonly seen as the production, possession, or distribution of child pornography. The NC legislature has categorized this crime as first degree, second degree, and third degree.

In first degree sexual exploitation of a minor, a person:

  • Uses, employes, induces, coerces, encourages, or facilitates a person under the age of 16 to engage in or assists others to engage in sexual activity for either a live performance or for the purpose of producing material such as pictures or a video that depicts this activity.
  • Permits a minor under his control or custody to engage in sexual activity for a live performance of to produce pictures or video.
  • Transports or facilitates the transportation with finances of a minor through or across the state with the intent of having the minor engage in sexual activity for a live performance or to create pictures of video.
  • Records, photographs, develops, or duplicates material for sale of pecuniary gain that contains a visual representation of a minor engaged in sexual activity.

Essentially this means that anyone that participates in or facilitates the process of a minor performing in a live show such as at a strip club or working for example as an escort or private dancer, or someone that takes pictures or produces other materials such as video of a minor engaged in any sort of sexual activity, this is considered first degree sexual exploitation of a minor.

In second degree sexual exploitation of a minor, a person:

  • Records, photographs, films, develops, or duplicates material that contains a minor engaged in sexual activity.
  • Distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity.

The difference between first degree and second degree is primarily that in first degree, the person is taking an active role in arranging the performance of sexual acts for the purpose of live performance or to create material to be distributed while in second degree, the crime is more focused on the act of recording or creating the material and not as much in the arrangement of the actual sexual activity. In this case. the crime is about the distribution or sharing of the materials.

In third degree sexual exploitation of a minor, a person;

  • Possesses material that contains a visual depiction of a minor engaging in sexual activity.

This is the charge most commonly used when someone is in possession of child pornography but has it for personal use and is not distributing it.

It is quite common for a significant amount of information in these types of cases to come from the internet, bit torrent, chat rooms and the like. Usually, law enforcement builds a case by trolling sites and monitoring download activity, and the investigations are usually lengthy. Often, a law enforcement officer will contact a suspect to gather more information as a course of the investigation. If this is the case, you should immediately hire a sex crimes attorney for pre-arrest representation and not speak with law enforcement without that attorney involved.

If you have already been charged, a good criminal defense lawyer will evaluate the facts of the case to determine a defense strategy for how best to manage the case. Once concern in sex offense cases involving child pornography, especially in cases of creation and distribution, is that these charges can actually become federal charges, which greatly increases the consequences.

Statutory Rape and Indecent Liberties in North Carolina

Statutory rape laws are based on the age of consent, meaning the age at which legislators feel a person can reasonably consent to participate in a sexual act. The age of consent varies from state to state – in some states it’s 18, in others it’s 14. In North Carolina, the age of consent is 16. This means that any adult (a person over the age of 18) cannot have sexual relations with a person under the age of 16, even if it is consensual. This is because North Carolina feels that a 16 year old is incapable of making that type of informed decision. Those that break this law have broken the state’s statutory rape law. Statutory rape is differentiated from forcible rape in that it is not necessarily considered a violent act. If the sexual activity was by force and was non-consensual, then the person can be charged with first or second degree rape rather than statutory rape.

Penalties for Statutory Rape in North Carolina

Penalties for statutory rape vary based on multiple factors, such as the age of the victim, the age of the perpetrator, the conduct that occurred, and the perpetrator’s previous criminal history. The range of statutory rape charges are:

Indecent Liberties With a Minor – Any person being 16 years of age or more and at least five years older than the child in question takes or attempts to take immoral, improper or indecent liberties or commits a sexual act with a child under the age of 16.

Indecent Liberties Between Children – Any person under the age of 16 that willfully takes or attempts to take immoral, improper, or indecent liberties or commits a sexual act with a child at least three years younger.

First Degree Rape – Vaginal intercourse between a minor who is 12 or younger, and a defendant who is 12 or older and at least four years older than the victim.

First Degree Sexual Offense – Oral or anal intercourse, or penetration with on object or body part other than the penis, between a minor who is 12 or younger, and a defendant who is 12 or older and at least four years older than the victim.

Statutory Rape of a Person Who Is 13, 14, or 15 – Vaginal, oral, or anal intercourse between a minor who is 13, 14, or 15 and a defendant who is at least four years older than the victim.

The majority of these crimes are felonies and some of them require inclusion in the sex offender registry for at least 1o years. If you are facing a statutory rape or indecent liberties charge, this is a very serious matter that can result in significant jail time. It is critical that you contact a sex offense lawyer as quickly as possible to guide you through the process. Many of these cases begin with an investigation prior to charges being filed. It is in your best interest to engage a lawyer prior speaking with law enforcement so that you do not make statements that could negatively impact you.

 

 

 

 

 

 

 

 

 

 

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.

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