Sex Crimes

July 22, 2016

California Bill Proposes Mandatory Sentence in Wake of Brock Turner Case

In lieu of the national outrage over the seemingly light sentence of Stanford University swimmer Brock Turner, the state of California has just proposed a bill which would mandate a minimum sentence of three years for crimes of sexual assault. The legislation, Assembly Bill 2888, was introduced by Democratic Assemblymen Evan Low and Bill Dodd and co-sponsored by Rosen and Democratic state Sen. Jerry Hill. Critics warn that while well intended, we forget about prosecutorial discretions and police discretions, which are the main barriers to rape convictions.

Brock Turner, 20, spiraled into fame when he was convicted of three felony assault charges: assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object. His sentence drew national outrage and increased dialogue on what it means to have White privilege, because he was only sentenced to six months. It is further projected he will only serve three months of that sentence, when he was facing 10 years imprisonment. The jury deliberated for less than two days over the eight-day trial.

Turner was arrested after two male students witnessed him on top of a drunk and unconscious woman behind a dumpster on campus. will be required to register as a sex offender for the rest of his life, but he still remains free on $150,000 bail.

Sexual Assault vs. Rape

Under California law, Turner was indeed convicted of sexual assault (aka sexual battery) rather than rape. Under the California Penal Code, the definition of rape includes “sexual intercourse,” whereas “forcible acts of sexual penetration” is a separate crime. See CA Penal Code § 243.4. In the Turner case, the foreign object under the statute was Turner’s fingers. In fact, California is one of many states that include body parts that are not sexual organs in its statutes on penetration with a foreign object. Thus, rape is a higher offense.

CA Penal Code § 243.4, also known as California’s sexual battery/assault law, specifically prohibits touching the intimate part of another person for purposes of sexual arousal, gratification, or abuse. It can be tried as a misdemeanor or felony. It is tried as a felony when the victim is unaware of the nature of the act (ie. unconscious), unlawfully restrained, or mentally incapacitated to consent. Continue reading

June 29, 2016

Tutor Facing Sex Crimes is Victim of Antiquated Law?

by David M. Boertje

A tutor at Mar Vista High School is now facing criminal charges for having a sexual relationship with a 16 year old student at the school. Alejandro Rodriguez, 20, is accused of having a relationship with a student that lasted about a week. The victim in this case, has only been identified as “John Doe.” Evidently, he had told his cousin about the relationship, who then told the victim’s father. His father immediately contacted the police.

Rodriguez has been charged with four felony counts of oral copulation and one count of sodomy of a person under 18 years of age. If convicted, he faces up to five years in prison. It is reported that the DA’s office is prosecuting the relationship as a non-forcible sex crime. According to Rodriguez’s defense attorney, claims that if his client had been a woman, and not involved in a same-sex relationship, there would be a less restrictive charge available. It is because his client can only be charged with sodomy, the ‘crime’ of anal sex, with both parties being men.

California Statutory Rape Laws

May 25, 2016

Sexual Assault Ruling in Oklahoma Spurs Calls to Change State Laws

by David M. Boertje

In a ruling that even other lawyers, prosecutors, the nation, and judges are calling completely “absurd,” a conservative Oklahoma court has ruled that rape cannot happen if the victim is unconscious. A court rejected the prosecution of a teenage boy in Tulsa because his 16-year-old accuser had been intoxicated to the point of unconsciousness. In its ruling, the Court of Criminal Appeals stated Forcible Sodomy cannot occur when a victim is so intoxicated as to be completely unconscious at the time of the sexual act. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language,” Judge Hudson said.

Specifically, Oklahoma’s rape law does not mention unconsciousness or intoxication as an element of the crime. Back in 2014, a group of high school students gathered in a Tulsa park to drink and smoke marijuana. Witnesses said the girl had been drifting in and out of unconsciousness and had been unable to walk. The defendant took the girl to his car, and he was then accused of forcing her to perform oral sex. The boy said the ensuing oral sex was consensual, but the victim told the police she did not remember anything else after being at the park. The defendant was initially charged with first-degree rape and forcible oral sodomy, but both charges were dismissed at trial.

Forced Oral Sex is Rape in California

March 18, 2016

1998 Molestation Conviction Expected to be Thrown Out Due to False Testimony

by David M. Boertje

Up in Lakeport, California, a 71 year old man named Luther Jones Jr. is expected to be released from state prison within the next few weeks because it has come to light that the key testimony used to convict him was fabricated. Jones was sent to prison 18 years ago for a 27-year sentence, for allegedly molesting a 10-year-old girl who belonged to his ex-girlfriend. He had a criminal record of felonies and theft cases, and the physical evidence had shown signs of sexual trauma on the child.

In this bizarre case, the child victim, now 30, has come forward to say that Jones never molested her. Evidently the child had been told to lie by her mother. She was indeed molested back in 1998, but by her mother’s then-boyfriend. District Attorney Don Anderson said he will file a writ of habeas corpus this week. He even canceled his vacation plans to begin the process of freeing Jones.

Currently, Jones is in very poor health but was previously denied for medical parole. He has filed several lawsuits complaining about the inadequate healthcare he has received from prison officials, which include diabetes, issues with his liver and kidneys, hepatitis C, and spinal deterioration. It is unknown whether legal action may be brought against the victim’s mother for her terrible behavior 18 years ago.

California Writ of Habeas Corpus

“Habeas corpus” literally means “you have the body,” and is a constitutional right. In the U.S. criminal justice system, a writ of habeas corpus is used to bring a prisoner or other detainee before a court to determine whether the imprisonment is unlawful. It is filed as a civil action (lawsuit) against the State agent (usually a warden) who is currently holding the defendant in custody when one has a showing that s/he has been wrongfully imprisoned. Today, the writ is mostly used for prisoners who want to challenge their detention if something went wrong in his/her trial (ie. prosecutor misconduct). It may also be used to examine a bail amount, the conditions of imprisonment, and jurisdiction of a specific court.

In California, the right to file a writ of habeas corpus petition is guaranteed by the California constitution, if you fulfill these legal requirements:

You are actually in custody (including out on parole/bail);
You have exhausted all your legal remedies, meaning you have tried everything to free yourself (ie. appeals);
Your issue is not already resolved on appeal.

March 11, 2016

Testing Porn Stars is Not Stopping HIV

by David M. Boertje

The Centers for Disease Control recently released a report about an adult film actor in California who infected two sexual partners with HIV in the weeks after he contracted the virus, but before it was detected by lab tests. The unnamed actor was apparently infected by a partner outside of work six days before his negative lab results, according to a report by the CDC published on February 11.

The topic of whether sex without a condom constitutes free speech is a long contested one in California. As a state home to a booming porn industry, it has witnessed several attempts to mandate condom use. This November, Californians will be able to vote on a ballot measure that would require condom use for the pornographic movies and allow any state resident to sue to enforce the law.

About 50,000 Americans are newly infected with HIV each year, and the numbers seem to be increasing. More importantly, it is widely known that once infected, the virus does not show up in test results right away.

January 27, 2016

Bill Cosby Charged With 2004 Drugging, Sexual Assault Of Woman

by David M. Boertje

In a controversy that took the nation by storm, Bill Cosby was arrested for the drugging and sexual assault of a woman in 2004. Since allegations first surfaced, dozens of women have come forward accusing Cosby of drugging and raping them. This is the first time Cosby has been arrested or charged with sexual misconduct despite the years of allegations mounting against him. Cosby has been charged with aggravated indecent assault, punishable by five to 10 years in prison and a $25,000 fine.

The decision to prosecute came just days before Pennsylvania’s 12-year statute of limitations for bringing charges was set to run out. Prosecutors claim that Cosby assaulted Andrea Constand, a Temple University employee with pills and wine, then penetrating her with his fingers without her consent. Prosecutors reopened the case this summer due to damaging testimony unsealed in Constand’s civil lawsuit against Cosby, as dozens of other women came forward with similar accusations. It is a huge turn of events, as the previous District Attorney in Pennsylvania refused to press charges when Constand first approached law enforcement about her assault in 2005. Cosby claims the encounter was consensual. He was released on $1 million bail.

Cosby also currently faces a slew of defamation and sexual-abuse lawsuits filed in Massachusetts, Los Angeles, and Pennsylvania. In most of those cases, however, it is too late to file criminal charges.

Possession of Rohypnol, the Date Rape Drug

While Mr. Cosby is accused of having used different drugs ranging from Quaaludes in the 1970s to Benadryl, the most common drug used nowadays is Rohypnol, also known as the “date rape” drug. Rohypnol is a trade name for flunitrazepam, a pharmaceutical drug prescribed as a treatment for severe insomnia. It is a potent muscle relaxant and sedative and also blocks a person’s ability to form memory. The USDA has not approved its medical use in the United States.

Under the Federal Controlled Substances Act, 21 U.S.C. § 84, possession of any amount of illegal drug is a crime that carries serious potential prison sentences. However, Prop 47, which was voted into law by ballot initiative back in April 2015, made possession of Rohypnol a misdemeanor instead of a felony. It used to be punishable by up to three years imprisonment. Now, because of Prop 47, a conviction of possession of the date rape drug is punishable by one year imprisonment and up to a $1,000 fine.

It should be noted that these are just the penalties for the possession of the drug. The sentences for any assault associated with or without the date rape drug still remain the same. Continue reading

December 16, 2015

Sinaloa Cartel Allegedly Linked to San Diego Human Smuggler

by David M. Boertje

Convicted human smuggler Martel Valencia-Cortez was believed to have assaulted a San Diego Border Patrol agent with a rock earlier this year. It is believed that Cortez had threw a rock at the agent at a human smuggling event, who thereafter fired his weapon at Cortez. He was allegedly caught smuggling 14 illegal aliens into California. Cortez was somehow able to escape back to Mexico while the 14 illegal aliens were taken into custody. Cortez is currently on the run, and is evidently well-known in the area. He has been allegedly smuggling people over the border since 1997 and was recently released from prison from a three year smuggling charge in September.

Cortez is considered armed and dangerous by officials. Additionally, he is now believed to be connected to “El Tigre,” a lieutenant in the Sinaloa Drug Cartel a by U.S. Border Patrol.

Human Trafficking in California

Federal law makes it a crime to smuggle or help smuggle (bring in) someone into the United States if they are not a citizen. See Sections 274(a) of the Immigration and Nationality Act. It is a felony punishable by imprisonment of 10 years and a fine. The penalty also gets multiplied by the number of people one is convicted of attempting to smuggle in.

In California, Penal Code § 236.1 addresses the crime of “human trafficking.” The Code defines human trafficking as:

Bringing people into the U.S. to exploit them for labor;
Depriving someone of their personal liberty as it pertains to sexual exploitation or child sexual exploitation;
Persuading or trying to persuade someone to engage in a commercial sex act (ie. prostitution).

Human trafficking is a Class C felony in California. However, back in 2012, California voters passed Proposition 35 (the “Californians Against Sexual Exploitation Act”), which provided for even harsher penalties. Now if you are convicted of human trafficking to obtain forced labor services, you will face five to 12 years imprisonment and a fine up to $500,000. If you are convicted of human trafficking for the purposes of sexual exploitation, child pornography, or extortion, the term of imprisonment increases to 8 to 20 years, a fine of $500,000 and a requirement of joining the sex offender registry. Lastly, if you are convicted of persuading a minor to engage in a commercial sex act, you will be facing 15 years to life imprisonment, a $500,000 fine, and a sex offender registration. Continue reading

December 4, 2015

How Young Girls are Lured into Prostitution in San Diego

by David M. Boertje

In a shocking study just released by researchers from the University of San Diego and Point Loma Nazerene University, results estimated there are 8,830 to 11,773 underage and adult sex-trafficking victims in San Diego per year. This number is much higher than originally thought, and victims of sex trafficking come from all races and socioeconomic backgrounds, although 98% are female. It is estimated that $810 million spent on prostitution annually is connected to sex-slavery. However, only 15 to 20% of human trafficking victims in the county come into contact with law enforcement.

Typically, under-aged girls are recruited under the guise of romance by an older male at a public place such as the mall or school. They then get manipulated to work the streets to support their older ‘boyfriends.’ In the internet age, social media such as Facebook is also being used to recruit girls. Children who don’t fit in with their peers, or those who suffer from mental illness are often targeted. Other times, an experienced prostitute posing to be an under-aged girl enrolls in schools to help with recruitment.

In 2012, the District Attorney’s Office prosecuted 48 human trafficking, pimping, and pandering cases of adults and minors. That number has fluctuated the past several years. The same office is also responsible for prosecuting human trafficking-related cases as well as racketeering and gang activity.

October 14, 2015

Bill to Increase Prison Sentences for Sex Offenders on Governor’s Desk

by David M. Boertje

A bill by state Sen. Patricia Bates (R-Laguna Beach) that would increase prison sentences for high-risk sex offenders who tamper with their electronic tracking devices is reported to be headed to Governor Jerry Brown’s desk for approval. The bill was inspired by the Orange County serial killings of four women who disappeared from high-prostitute areas of Santa Ana and Anaheim. The subsequent investigation showed that the two men involved, Steve Gordon and Franc Cano, twice cut off their monitoring devices and fled to Alabama and Las Vegas.

Bates’ bill would make it a felony for the most egregious sexual offenders to remove their GPS monitors, with prison terms for that violation up to three years. Eligible crimes include rape, spousal rape, and rape of a child. The bill was passed by the California Assembly and now awaits Jerry Brown’s signature to become California state law.

Definition of Rape

September 17, 2015

California Teen Faces Life in Prison for Allegedly Extorting Nude Photos from Underage Girls

by David M. Boertje

A 19 year old teen in the Los Angeles area recently pleaded “not guilty” to over 150 counts of porn extortion. The District Attorney’s Office said that Cesar Estrada has been charged with felony and misdemeanor counts of extortion, lewd acts upon a child, and possession of child pornography. This is because he allegedly sought out girls on social media claiming to be a modeling agent. After asking them to send him photos of themselves in their underwear, he allegedly threatened to share those photos with their families unless they sent him nude pictures. The victims were all under 18 years old and spanned eight states.

A month ago, investigators served a search warrant at the apartment on Rosemead Boulevard where Estrada-Davila lived with his mother and siblings. He was arrested Wednesday and brought to court Friday, and will be due back in court next month. He remains in jail with a $400,000 bail and faces up to life imprisonment if convicted of all counts.

The Crime of Extortion (aka “blackmail”)

Under CA Penal Code 518, the crime of extortion/blackmail occurs when:

One uses force or threats to compel another person to give them money or other property (ie. photographs);
One uses force or threats to compel another person to force a public officer to perform an official act;
A public official (ie. cop), uses his or her authority to force others to give him or her their money or property

Extortion in most cases is a felony in California, but as shown by this case, it is further complicated when mixed in with other charges involving minors, lewd acts with children, and pornography. Penalties for extortion alone are two to four years imprisonment with up to a $10,000 fine.

It should also be noted that in 2013, Governor Jerry Brown signed S.B. 255, which makes it a misdemeanor to post identifiable nude pictures of someone else online without permission with the intent to cause emotional distress or humiliation.

Legal Defenses to Extortion:

You were falsely accused
You did not actually force anyone to hand over property
There is insufficient evidence to support the conviction (an available defense to every crime)