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Sex Crimes Defense

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Any person accused of a sex crime should act quickly and be aware of the seriousness of the allegation against them. At Fairbanks DeMarco, LLC, John DeMarco has litigated numerous sexual related crimes for over 18 years. Mr. DeMarco has worked at the Public Defender’s Office for over 4 years, worked with the formerKansas Attorney General for 5 years, and worked with a respected firm for another 5 years. One must have an experienced attorney on the matter who knows the facts, defenses, and rights a defendant has in these types of serious alleations. Most importantly an attorney must be fearless in their representation and be willing to do what they can for their client

Contacting a Lawyer at the Beginning of the Investigation

Sometimes an individual is under investigation for a very long time by law enforcement, but other times that person is arrested quickly. Having an attorney talk with the police early on can sometimes important because it can sometimes help redirect or control the direction of the investigation.

If the case is under investigation law enforcement usually turns over the information to the prosecutuor. The investigation typically includes statements from witnesses, search warrants and other evidence.

Many people believe themselves to be innocent and will give a statement or provide information to police in an attempt to clear the situation. However, an innocent mistake or misstatement about times, events, or other information can be devastating. Even simple confusion about what a particular question means can cause a person to appear deceptive, or worse, guilty. This appearance can affect decisions made by both the police and prosecutors.

In many cases it may be vital to hire a private investigator to work for you. Conducting and recording as many interviews as possible with witnesses, some unknown to even the police, before their memories fade can be a very useful tool. It is also common for people to change their stories, and recording statements prevents this.

It helps to know what, if any, other types of evidence might be pertinent. Text messages can be deleted, cell phone photos and videos can disappear, and other evidence can be lost over time. We may need to obtain bar or restaurant receipts to determine how much alcohol was, or was not, provided to someone. An investigator may need to take photographs or obtain surveillance videos from a bar, a restaurant, or apartment complex. There may be physical evidence that needs to be secured or evidence of an alibi that needs to be provided. Taking these steps is not done to destroy evidence or to mislead police. That would be unethical. Instead it is done to preserve information that may be very important for my cl

Sex Crimes and Penalties in Kansas

In the eyes of the law, some crimes are more serious than others, and penalties increase accordingly. There are 3 classes of misdemeanors: class “C” misdemeanors have a maximum penalty of 30 days in jail; class “B” misdemeanors carry a maximum penalty of 180 days in jail; class “A” misdemeanors carry a maximum penalty of 1 year in jail.

Sentences for felony convictions are governed by the Kansas Sentencing Guidelines. The two things that dictate what sentence a particular defendant faces are the severity level of the crime and the defendant’s criminal history. Severity levels range from 1 – 10, with 1 being the most serious. A select group of crimes are classified as “off grid” and these crimes carry a presumptive life sentence. Criminal history depends on the number and type of prior convictions. Based on criminal history and severity level, a judge is limited (with a few exceptions) to the prison sentences found in the applicable box on the Kansas Sentencing Guidelines Grid. Before a defendant is sentenced for a felony conviction, the law requires that the State conduct a “pre-sentence investigation” in order to uncover all prior convictions.

Rape

Rape is engaging in sexual intercourse with a person who does not consent. Saying “no” is not necessary to prove lack of consent. The crime occurs when a victim is overcome by force or fear, unconscious or physically powerless, unable to give consent because of a mental deficiency or disease, or because of the effects of alcohol or drugs. Rape also occurs when consent is obtained by fraud or deceit regarding a medical or therapeutic procedure. Rape of a person 14 years or older is a severity level 1, person felony, with the exception of when consent is obtained by fraud or deceit regarding a medical or therapeutic procedure, which is a severity level 2, person felony. The term “statutory rape” refers to a situation when two parties engage in sexual intercourse, but one of the parties is under the age of fourteen. “Statutory rape” is an off grid felony. A conviction of any of these offenses results in almost certain extensive incarceration.

Sodomy

Sodomy is defined as oral contact or penetration of the female genitalia, oral contact to the male genitalia, or anal penetration. Sodomy of a child who is 14 or more years of age but less than 16 years of age is a level 3, person felony. Sodomy also refers to oral or anal contact with an animal or sexual intercourse with an animal, and this is a class B, nonperson misdemeanor.

Aggravated Criminal Sodomy

Non-consensual oral or anal penetration is known as aggravated criminal sodomy. Consent may be overcome in the same manners as the crime of rape. Aggravated criminal sodomy against a person 14 years or older is a severity level 1, person felony. Aggravated criminal sodomy also refers to a situation when two parties engage in sodomy, and one of the parties is under the age of fourteen, and this is an off grid felony. Extensive incarceration is the presumptive sentence on these types of crimes.

Indecent Liberties with a Child

This crime is defined as lewd fondling or touching with a child at least 14, but less than 16 years of age. It is a severity level 5, person felony.

Aggravated Indecent Liberties with a Child

The crime of aggravated indecent liberties with a child involves more than one type of situation. It occurs when one engages in otherwise consensual sexual intercourse with someone less than 16 years but at least 14 years old. This crime is a severity level 3, person felony. Aggravated indecent liberties also occurs when a child less than 16 years but at least 14 years old is fondled or sexually touched without consent. This is a severity level 4, person felony. It also includes lewd fondling or touching of a child under 14, which is an off grid felony. These types of crimes usually carry with them extensive incarceration.

Indecent Solicitation of a Child

Indecent solicitation is to entice or solicit a child over 14 but less than 16 years of age to engage in an unlawful sex act. Indecent solicitation is a severity level 6, person felony.

Aggravated Indecent Solicitation of a Child

Aggravated indecent solicitation of a child is enticing or soliciting a child under the age of 14 to engage in an unlawful sex act. It is a severity level 5, person felony.

Lewd and Lascivious Behavior

Lewd and lascivious behavior is engaging publicly in an otherwise lawful sex act of intercourse or sodomy knowing that other people are viewing the participants. It can also mean exposing a sex organ in the presence of someone who is not your spouse and who has not consented with the purpose of trying to arouse or gratify either your sexual desires or those of the victim. The severity level of lewd and lascivious behavior changes depending on the age of the alleged victim. If someone is over the age of 16 and sees the suspect’s sex organ or an otherwise lawful sex act of intercourse or sodomy, it is a class B misdemeanor. If the victim is less than 16 years of age, the crime is a severity level 9, person felony.

Sexual Battery

Sexual battery is an unwanted touching of another in a sexual manner, but it does not require that force or fear be present. An example of sexual battery is grabbing someone on the breast or rear-end, done for a sexual purpose, and the contact is unwanted. It is not just slapping a teammate on his rear-end in a football game. The act of touching and the intent behind it must be considered contextually. The crime is a class A misdemeanor.

Aggravated Sexual Battery

Aggravated sexual battery is committing a nonconsensual touching of another person, excluding intercourse or sodomy, in a sexual manner. The lack of consent can occur in the same manners as the crimes of rape and aggravated criminal sodomy. It is a severity level 5, person felony.

Promoting Prostitution

Promoting prostitution is establishing, owning or managing a house of prostitution or permitting your residence or business to be used for soliciting or inducing someone to engage in prostitution. This crime is a class A misdemeanor if the alleged prostitute is over 16 years of age. It is a severity level 6 felony when the prostitute is less than 16 years of age. Promoting prostitution when the prostitute is under the age of 14 is an off the grid felony.

Unlawful Sexual Relations

Unlawful sexual relations occur when a sexual act is committed between two people where there is a distinct difference in the level of power or an opportunity for manipulation. Three examples are a teacher/student relationship, a probation officer / probationer relationship, or an inmate/corrections officer relationship. This crime is a severity level 4, person felony, or a severity level 5, person felony, depending on the type of relationship between the parties

Unlawful Voluntary Sexual Relations

Unlawful voluntary sexual relations is engaging in a sex act, either intercourse, sodomy, or lewd fondling and touching with somebody who is over 14 but less than 16 when the offender is less than 19 years of age, and the two parties have less than 4 years difference in age. This crime is often referred to as the “Romeo and Juliet” law. Basically, it involves someone less than 19 years of age engaging in sexual activity with somebody who is under the age of legal consent but within four years of the suspect’s age. For example, the crime can occur between a senior and freshman in high school or a freshman in college and sophomore in high school. In these two scenarios, the victim is under 16, so unable to legally consent, but it is recognized that the relationship of the parties is somewhat age appropriate, other than the victim being too young to give consent to engage in sexual activity. This crime is a severity level 7, 8, or 9 felony, depending on the nature of the sexual activity.

Aggravated Incest and Incest

Aggravated incest or incest is engaging in a sexual act with someone whom the law precludes you from having such contact because of either your legal relationship or familial relationship with them. When the victim is under 18 years of age, aggravated incest is a severity level 3, 5, or 7, person felony, depending on the type of sexual act that occurs, and the type of familial relationship. When the parties are simply related, but are both over 18, the crime is severity level 10, person felony.

Jessica’s Law Crimes

As discussed earlier, some sex crimes are considered “off grid felonies” and applicable sentences are not governed by the Kansas Sentencing Guidelines Grid. These “Jessica’s Law” offenses include sexually violent crimes against children less than 14 years of age committed by suspects 18 years or older. These acts include rape, aggravated criminal sodomy, aggravated indecent liberties, promoting prostitution and sexual exploitation. The penalty for an off grid felony is substantially more drastic because of the disparity in age between the perpetrator and victim. For instance, the rape of an adult is a severity level 1 felony, and the maximum sentence depends on the suspect’s prior criminal convictions. Rape of a child under the age of 14 by an adult over the age of 18 is an off grid felony, and carries a penalty of life in prison with no eligibility for parole for 25 years. Subsequent convictions for a “Jessica’s Law” offense would carry a life sentence, but the mandatory minimum sentence prior to parole eligibility would increase to 40 years or even life with no parole.

Technology-Based Sex Crimes

There are number of other sex crimes that have evolved as technology has advanced. These include sexual exploitation of a child (child pornography) and electronic solicitation of a child. Electronic sex crimes are a relatively new and ever-changing area of the law. Possession and manufacturing of child pornography are crimes that pre-date technological advancements like the Internet. As technology has advanced, the nature and types of evidence that exist have changed and, as such, the types of investigative tools and techniques utilized by law enforcement have changed as well. These changes have created new legal issues to address and contend with.

Sexual Exploitation of a Child

“Possession of child pornography” is a familiar phrase to the general public. The actual crime in Kansas is called “Sexual Exploitation of a Child.” Child pornography takes many different forms as technology has advanced. In the past, the most prevalent medium of child pornography in existence was paper-based pictures or movies. Obviously, that has changed, not only because of the advancement of cameras, but because of how people are able to share or exchange these materials.

It is now possible to transfer images between electronic devices or via the internet. Video clips or photographs can be scanned, copied and shared with little effort. You can take a screen shot on a computer. You can search the Internet and find pictures or movies. There are photos, texts and videos captured and stored on cell phones. Materials are widely shared in social media outlets. Because evidence has developed and adapted according to technological advancements, so have the methods employed by law enforcement in investigating these crimes.

Additionally, technology enables people to create, or even modify, files creating the appearance of a sexually explicit image of a minor. For example, a person could take a photograph of someone’s body and add a different person’s head to it, and to the naked eye it is impossible to detect any modification. These changes to an image may make something appear to be child pornography that really is not.

This crime is a severity level 5, person felony when you knowingly possess material containing sexually-explicit images or videos of someone under the age of 18. The image or video need not depict an actual sex act. A pose alone may be sufficient if it is clearly sexually graphic in nature. If one employs, coerces, or entices a child to engage in this type of conduct, or if one promotes, sells, or distributes the image or video, the crime is a severity level 3, person felony, and if the child is under 14, it is an off grid felony.

Electronic Solicitation of a Child

The other electronic sex crime which is aggressively investigated and prosecuted in Kansas is the crime of Electronic Solicitation of a Child. This crime has previously received much publicity and scrutiny because of the Dateline television series “To Catch a Predator.” This crime occurs when a suspect uses either a computer or telephone to solicit or entice a child under the legal age of consent to engage in an unlawful sex act. The list of applicable sex acts can include intercourse, sodomy, posing for the production of child pornography, and lewd fondling and touching.

In the Dateline series, law enforcement officers create fake online personas of children and troll Internet chat rooms waiting for a predator to initiate contact and attempt to arrange a meeting with the “child” in order to engage in sexual acts. The investigation culminates in a meeting with the predator who shows up at a pre-arranged location, only to learn that the “child” they were planning to meet was actually an undercover detective.

In real-life, non-sensationalized investigations, a police officer in a particular jurisdiction will log on to the Internet and create a fake profile for use in an Internet chat room such as Yahoo. This profile will contain enough information about the age, interests and location of the fictitious child that other Internet users will have no reason to suspect that the profile is fictitious. The age of the “child” is always younger than the lawful age of consent (which is 16 years of age in Kansas). Once the profile is created, the undercover officer will enter a chat room and wait to be contacted by another Internet user in the chat room. Rather than initiating contact with other users, the detective will typically wait to be contacted so as to avoid the appearance of entrapment. Usually, the detective will enter a room that is specifically designated for single adults in the detective’s jurisdiction. The theory is that the user who initiates contact with a “child” in an adult singles chat room is the type of predator that is trolling for unsupervised children online.

Once this user makes contact, the two will begin chatting. The detective will make sure to mention the fictitious child’s age and make other comments to ensure the suspect cannot later claim to have really believed that the child was actually above the legal age of consent. For example, the undercover detective will mention things about junior high school or about her parents being gone at work. Once the suspect begins discussing the topic of sexual activity, the detective will play along, but initiate no plans or suggestions of the two meeting. Inevitably, the suspect will suggest a meeting and ask to engage in sexual contact. Once a plan has been established, the police will wait at the pre-arranged location to arrest the suspect upon arrival. Sometimes, suspects will also engage in recorded phone conversations. They may not feel comfortable meeting the “child” without hearing a live voice first. They may simply call for directions to the meeting place. A law enforcement officer will then reiterate that they are a particular age (below the age of consent).

In most cases, the conversations don’t end with just a computer conversation. Police want the suspect to take affirmative steps toward engaging in sexual contact with the “child.” These steps can include discussing what is going to happen, what type of activity they would engage in, how they are going to meet, and where they are going to meet. It is always better evidence for law enforcement when a suspect shows up at the location of the “child “because the police are able to identify the suspect in person.

In most electronic solicitation case, no real victim exists. The vast majority of the cases in Kansas are undercover investigations. While it may seem silly that such extensive resources are used to investigate cases where no actual victim exists, the legislature and the public have made it clear that this law is intended to protect against predators trolling the internet for unsupervised minors. The way the law is written, no real victim or real opportunity to engage in sexual activity with a child is necessary. The law only requires that a suspect engage in online or electronic solicitation of somebody they believe to be a minor.

Legal Defenses

One legal issue that defense attorneys have raised in electronic solicitation cases is “entrapment.” Entrapment occurs when law enforcement encourages a person to commit a crime that he was not otherwise predisposed to commit. Police officers who hold themselves out to be minors and troll the

Sex Offender Evaluations

Sex offender evaluations are psychological assessments conducted by court-approved therapists. An evaluation consists of comprehensive tests and interviews designed to determine if someone suffers from a psychological disorder, if they pose a risk to re-offend, and what if any treatment is appropriate to address any existing issues. These are almost always ordered by the court upon conviction for a sex crime.

However, there are other ways to use these assessments as well. A sex offender evaluation is a tool that I sometimes use in my representation of somebody in a pre-charging situation. If a person is accused of a sex crime, but has not yet been formally charged, I may speak with a prosecutor who wants to see that a client has been evaluated by a licensed therapist to determine if my client poses a risk to commit a new offense. Sometimes, a sex offender evaluation can be an effective tool in preventing a client from being charged with a crime at all, or it may help to ensure that the client only gets charged with a less serious crime.

Sex Offender Registration And Post Release Supervision

Sex offender registration is a very real, very serious, and often times absolutely debilitating consequence of a conviction for a sex crime. Many of the crimes that we have discussed require registration as a sex offender upon conviction. In Kansas, that means your name becomes part of a database or list that is monitored and maintained by the Kansas Bureau of Investigations. That list is almost always publicly accessible, so your designation as a sexual offender will be known to the community. The length of your registration depends on the type of crime of conviction. Some crimes require that you register as a sex offender for 15 years. Some convictions require registration for 25 years. Convictions for some crimes require sex offender registration for the rest of your life.

As for juveniles convicted, or “adjudicated” of sex offenses, judges still have the authority to order private registration as opposed to public registration. Somebody under the age of 18 who commits a crime of sexual violence might be required to register with the KBI as an offender, but that information is not provided to the public if the judge orders private registration.

People can, and do, get online to search for registered sex offenders in their neighborhoods. Registration is something that can completely cripple and ruin someone’s life. Many jobs become unavailable because the conviction and registration will appear on a background check. You cannot live in certain areas that are within a particular distance from a school, church, or residence where juveniles reside. You cannot rent in many apartment buildings. You cannot go to your child’s school to have lunch because you are not allowed to be on the premises of the school. Registration is a modern day scarlet letter and the ramifications can be very serious.

Requirements for Registering as a Sex Offender

Sex offender registration requires you to maintain contact with your local law enforcement agency, usually the sheriff’s office, in the county in which you reside. Every 3 months, you are required to report in, pay a fee, and update your personal information – address, where you work, what you drive, etc. so that police can keep tabs on you. If you want to travel, you have to let get permission first, and you may have to register in other places that you visit.

Sex offender registration laws are subject to change. Several years ago, the length of time someone was required to register changed by statute. In the past, the period for registration as a sex offender was 10 years. Then the registration laws changed. The terms of registration, as stated earlier, have been extended to 15 years, 25 years, or even life depending on the crime. Some people were within a week from completing their registration periods when they received a letter that changed their 10 year registration period to lifetime registration. Whether that change in the law regarding registration as a sex offender can be retroactively applied (as it has been) is still being litigated in Kansas.

Postrelease Supervision

Sex offender registration requirements can certainly be burdensome, embarrassing, and damaging. If one is convicted of a felony sex offense, and is sentenced to a term of imprisonment, they also will likely be required to be placed on postrelease supervision. In other states and under earlier laws in Kansas postrelease was considered “parole.” Post release time frames can vary, and certain sex crimes in Kansas carry with them a lifetime postrelease period. It is important for your attorney to try to avoid post release supervision for their clients if at all possible, to reduce the level of post release supervision if possible, and at the very least advise their clients about the nature and timeframe of postrelease supervision.

The Enormous Benefits of Hiring a Lawyer With Experience

If you are accused of a sex offense, the decision that you make regarding who will represent you is one of the most important decisions you will make in your life. You should not be pressured or rushed into that decision. You should not settle on an attorney until you have a strong level of comfort and trust in that person.

The penalties that follow a sex crimes conviction can vary greatly depending on type of crime charged and the severity level of that crime. Convictions for some crimes can result in simply being placed on probation and no requirement that you spend any time in jail. You may have a jail or prison sentence that is suspended during a term of probation. Some sex crimes nearly always result in incarceration. In addition, the court may order a sex offender evaluation to determine the types of treatment or therapy a person should be required to complete while on probation, or whether to grant the person probation as opposed to prison. Other types of services, including mental health or drug and alcohol evaluations, may also be ordered.

Ultimately, you are putting your life in the hands of your attorney. You need to make sure that whoever you hire has a significant background working in these types of crimes. You want somebody with experience in actually presenting or evaluating the types of evidence and legal issues prevalent in these types of cases. Having police and prosecutors know that your attorney is willing to defend you all the way up to, and including, arguing in front of a jury can make the difference between a close case getting charged or dismissed.

If you hire somebody that has a reputation for always entering into plea agreements or always caving in at the last minute, a prosecutor is less concerned or worried about the case ever proceeding to trial. If you have an attorney who is a zealous advocate and has a reputation for being aggressive and successful at trial, that can sometimes be all the difference you need to get a case to go away or to get a better plea offer. You must make sure that whoever you hire knows how to evaluate these types of cases, has significant experience handling them, and is eager to represent your interests fearlessly.

If you or someone you know has been accused of a sexually oriented crime in the Kansas City area, I am here to help and answer questions. If you take away nothing else from this book, remember this: get informed, get prepared and get the best defense attorney you can.

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Fairbanks DeMarco will provide quick, effective, honest, and aggressive advice on all family and criminal matters.

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