sex crimes

December 12, 2017

California Courts May Consider Legalizing Prostitution

Prostitution has been illegal in California since 1872. However, despite the over-a-century-long history, some sex workers claim that engaging in sexual activity for money is part of their right to earn a living. A sex workers’ advocacy group, the Service Providers Legal Education and Research Project, is seeking to decriminalize prostitution and has filed a constitutional challenge to the anti-prostitution law in California, saying it violates constitutional protections on free speech, freedom of association, and due process. The plaintiffs also include three unidentified former prostitutes and a disabled man who says he wants to be a respectful client of erotic services.

Citing the landmark 2003 ruling by the U.S. Supreme Court in Lawrence v. Texas, which struck down the sodomy law in the state of Texas, the plaintiffs in this case argue that sexual conduct among consenting adults is a “fundamental right.”

The 9th Circuit Court of Appeals in San Francisco has ruled that the legal challenge may proceed.

A change in the status of sex workers could have a big impact on California beyond escorts and prostitutes. Deterring human trafficking is one reason that state authorities have cited for keeping the law as is. Currently, prostitution is illegal in all 50 states with the exception of a few Nevada counties.

Current California Law on Prostitution:

California Penal Code § 647(b) explicitly prohibits:

Engaging in the act of prostitution, and
Offering or agreeing to engage in the act of prostitution.

The crime of prostitution or solicitation of it is a misdemeanor punishable by up to six months imprisonment and a $1000 fine. However, California law does not automatically require registration as a sex offender if you have been convicted of prostitution.

California Penal Code § 653.22 further makes it a crime punishable by six months imprisonment to loiter to commit prostitution (i.e. standing in a street corner).

Legal Defenses

Entrapment occurs when police behave in a way that applies pressure or defrauds you to engage in behavior you otherwise would not have. Entrapment defenses are sometimes used, since a number of prostitution/solicitation arrests are made by undercover cops. Many defendants are unfairly lured by saavy cops.

Other Related Crimes

California Penal Code § 266 covers the crimes of “pimping” and pandering, while California Penal Code § 647(a) covers lewd conduct in public. Lewd conduct occurs when someone engages in a sexual act in public. Continue reading

September 8, 2017

Cal State San Marcos Student Sues Over Rape Investigation

by David M. Boertje

A graduate student at Cal State San Marcos accused of rape has filed a federal lawsuit, alleging the university violated his rights to due process through an unfair investigation. The student, who is not identified by name in the suit, was attending a study abroad program in Germany in 2016. Last October, he learned that a fellow student in the program had accused him of rape. However, no criminal charges were ever filed even though the university launched its own investigation.

His degree and transcripts were placed on hold once the investigation started. Allegedly, the school did not provide him with the report or his accuser’s statements or other documents. He was found guilty by the university of sexual misconduct in March. The lawsuit now argues that by withholding his academic credentials, without giving him the chance to defend himself, the university breached his constitutional rights to due process under the fifth and fourteenth amendments. In other words, he is alleging that his procedural due process has been violated because the school’s ‘procedure’ denied him access to anything regarding the accusations against him.

Officials for Cal State San Marcos pointed to the university’s policies under Title IX, which forbid discrimination in education. This means the school must create and sustain an educational environment free of sexual violence and misconduct.

This is not the first time that universities in California have come under controversy for their handling of sexual assault allegations. Back in 2015, a California court ruled that the University of California, San Diego (UCSD) acted improperly while adjudicating a sexual assault case, noting that the student was not allowed to findings of the university or cross-examine his accuser. Also in 2015, San Diego State University reversed the suspension of a male student after finding allegations of sexual misconduct against him were unsubstantiated, and he sued the school.

Due Process in Schools

Students facing possible suspension or expulsion from public colleges and universities are entitled to due process protections because their liberty and property are at stake, and because public schools take money from the state, making them state (government) actors, to an extent, in a disciplinary proceeding. This means at an absolute minimum, students in campus disciplinary cases are entitled to have notice of the charges against them, an explanation of the evidence against them, and an opportunity to defend themselves in the process, such as hearings. See Goss v. Lopez, U.S. Supreme Court (1975).

When a school denies you your right to due process, this can be used as a defense to a suspension or expulsion decision. Continue reading

August 25, 2017

Rape Trials: What Happens When There is No Victim Testimony?

by David M. Boertje

Earlier this month the criminal trial of Jacob Paul Skorniak, 51, started in San Diego Superior Court. Skorniak is accused of kidnapping and raping a 21-year-old German exchange student he met in Pacific Beach during New Year’s celebrations. He is also accused of using a knife to attack the victim. Skorniak has testified that it was consensual, but the young woman, who has since returned to Germany, has chosen not to return to San Diego to testify at the trial. She was reportedly initially cooperating with the prosecution. Even without victim testimony, the jury ultimately found Skorniak guilty of the charges of rape, kidnapping with intent to commit rape, and sexual penetration of an unconscious person.

In his case, Skorniak actually recorded the crime he committed and it was played for the jury. The victim also inadvertently dialed her cell phone during the assault and her parents answered in Germany. Her father testified that he screamed into the phone until the line went dead.

Everyone knows that being accused of rape is a serious matter. While there may be legal defenses in a situation, we will seek to explain the type of evidence that typically goes into a rape trial.

What if There is No Victim Testimony?

Usually, the most compelling evidence at a rape trial is the testimony of the victim. There is no law mandating that victims of sex crimes have to testify. Prosecutors may still decide to prosecute even without the victim’s testimony if there is other evidence that makes them think they have a case. They will also consider witness testimony as evidence to bring to trial.

What Kind of Evidence is used in Rape Cases?

Statistically speaking, the vast majority of rapes are committed by persons known to the victim. Therefore, the identity of the person is usually known. However, prosecutors also have to rely on other evidence to prove that the accused committed the crime beyond a reasonable doubt. This includes physical and forensic evidence, such as bruises and cuts on the victim, torn clothing, and DNA evidence or other witness evidence. Continue reading

August 10, 2017

Bill Cosby Trial: Mistrial Declared After Jury Deadlocks

by David M. Boertje

The saga of Bill Crosby’s criminal trial for allegedly drugging and sexually assaulting dozens of women is finally over, as earlier this month, a Pennsylvania jury was unable to come to a unanimous decision, resulting in a mistrial.

It is reported that on the sixth day of jury deliberations, two of the 12 jurors prevented a guilty verdict. The jury reportedly deliberated for 53 hours and asked 12 questions of the court during deliberations. An anonymous juror told ABC News that 10 out of the 12 jurors believed Cosby was guilty in two out of the three counts filed against him. The third count had the vote of 11 of the 12 jurors.

During the trial, prosecutors called 12 witnesses, including Andrea Constand, the woman who first came forward with allegations against Cosby. She endured over a week of testimony with no forensic evidence.

Constand first told police about the alleged assault in January 2005, a year after she says it took place. The district attorney at the time declined to press charges, citing insufficient evidence. She thereafter sued Cosby in a civil suit and settled for an undisclosed amount in 2006.

Judge O’Neill, the judge presiding over the trial, declared the mistrial with prosecutors announcing that they plan to retry the case.

What Exactly is a Mistrial?

In the criminal justice system, a mistrial (also called a “hung jury”) is one that is not successfully completed. In other words, the jury cannot come to a decision even when it is given the adequate time to deliberate.

Mistrials can occur for a number of reasons, including the death of the attorney, juror misconduct, or a prejudicial error unfair to the defendant. The most common reason for mistrial is a “hung jury,” when different members cannot come to a conclusion as to the guilt of the defendant. Either side may file a motion for mistrial, which is either granted or denied by the presiding judge. The government can still seek for a re-trial when there is a mistrial.

Juries Must be Unanimous for Criminal Trials

In federal court, whether the trial is criminal or civil, juries must reach a unanimous verdict. In state courts, almost every state requires a unanimous verdict in criminal trials.

In criminal trials, 12 jurors has traditionally been the norm, with a few outlier states that allow for six jurors (ie. Florida allows for six-person juries in criminal trials). Continue reading

October 12, 2016

Brock Turner Case Focuses Attention on Sex Offender Registries

by David M. Boertje

There are currently more than 800,000 people registered in the nationwide list of registered sex criminals, and that list is growing dramatically. Even some who had denounced convicted rapist Brock Turner’s actions had questioned whether he should have to spend the rest of his life as a registered sex offender.

In states like California, Florida, South Carolina, and Alabama it is impossible for people convicted of any sex crime to be removed from the online registries showing their pictures, addresses, convictions, and probation details. Critics have stated that an ex-offender will struggle with getting a job and place to live for the rest of his or her life. Advocates for sex crime victims insist that lifetime registries make the public safer by preventing offender recidivism and giving citizens and police access to information on the whereabouts of sex offenders and precluding them from places like schools.

Brock was released on September 2 after serving only half his jail sentence (three months) for good behavior. Brock moved back to his parent’s house in Bellbrook, Ohio. It is reported that protesters demonstrated in front of the home before and after his arrival and Turner’s parents reported to police eggs being thrown at the house.

September 30, 2016

California Wants to Make it Easier to Prosecute Old Rape Cases; Passes Minimum Sentencing Law on Rape

by David M. Boertje

In the ongoing saga of rape allegations against comedian Bill Cosby, California has become one of two states that has proposed a law that would extend the statute of limitations in the prosecution of rape cases. The proposed bill, which passed both houses of the Legislature, follows a new law in Nevada that increases the legal deadline for rape prosecution from four to 20 years. In California, the statute of limitations to prosecute a rape case is currently 10 years. Almost three dozen states, including the District of Columbia, have statute of limitations on filing sexual assault charges or lawsuits.

The state’s governor, Jerry Brown, who has had a history of vetoing bills extending legal deadlines for filing lawsuits over child sex abuse, must approve or sign into law the bill by the end of the month.

This bill however, is not the only one Governor Jerry Brown must decide to veto or approve. The California legislature, in response to the outrage over the six-month jail sentence for Stanford University swimmer Brock Turner also passed a bill that would mandate a minimum three-year sentence for those convicted of rape or sexual assault. The proposed bill would eliminate a judge’s discretion to sentence defendants convicted of such crimes to probation. Brock Turner was released from jail earlier this month for ‘good behavior,’ after serving three months (half) of his sentence. Had this proposed law been in place, he would still be in jail.

What are Statutes of Limitations?

Every state has something called a statute of limitations, which is generally defined as the time limit for a criminal or civil action. In other words, once a statute of limitations has passed, one may no longer be prosecuted or sued for his or her crimes. A statute of limitations typically begins to run from the date the injury or crime was discovered.

In California, the state’s code has specific time limits for specific crimes, such as fraud, injury to personal property, and malpractice. The current California statute of limitations on prosecuting felony rape and sexual assault cases is 10 years after the crime occurs, or for incidents involving minors, until they reach the age of 26. Continue reading

August 24, 2016

New Article Sheds Light on Sexual Harassment and Assault on Women in Trucking Industry

by David M. Boertje

Riverside, California, is home to the West Coast terminal of trucking company CRST, located just off Interstate 215, where a woman named Cathy Sellars has filed a lawsuit against CRST for sexual harassment. Over the last 20 years, hundreds of women have brought gender discrimination lawsuits against the trucking industry. It is reported by the EEOC, that an average of one of six of those claims involved race-based harassment.

The trucking incident is still currently 95% male. The few women in the industry allegedly suffered from everyday harassment, from catcalling to rape. Sellars reportedly suffered instances of sexual harassment, assault, and intimidation from her trainer during her first few weeks as a truck driver for CRST. She says she reported the incidences of harassment with human resources for CRST on the phone, and called her trainer’s dispatcher, but failed to get the help she needed. She also says she would be catcalled at the truck stop, with the on-duty terminal manager at Riverside ignoring the behavior of male drivers.

Catcalling and Sexual Harassment: Free Speech, or a Crime?

While it is obvious that sexual assault (grabbing, flashing) is a serious crime, most states vary on public comments and gestures. Some have considered catcalling protected under the first amendment if it does not arise to a true threat. Simply put, it is not a crime to be a rude person. In other states however, behavior like catcalling is illegal under the broad legal definition of “lewd conduct.” In California, catcalling and verbal sexual harassment can still be considered a crime by way of different laws. The state has more protective laws against gender-based harassment, and currently has six laws that protect against verbal harassment:

Disorderly conduct- this includes explicit sexual comments or solicitations or obscene gestures. See CA Code, Title 15, Chap. 2 § 647.
Any harassment at adult education schools– including loitering or catcalling on campus. See CA Code, Title 15, Chap. 2 § 647(b).
Harassment on public transportation– See CA Code, Title 15, Chap. 2 § 640.
Vagrancy near a school- including loitering near campus. See CA Code, Title 15, Chap. 2 § 653(b).
Public nuisance- this includes those who routinely harass passerbys at the same street corner. See CA Code, Title 10, §370-372.
Unlawful assembly- California law defines this as whenever two or more persons assemble together for an unlawful or lawful act, in a boisterous or tumultuous manner. See CA Code, Title 11, §407-409.

July 22, 2016

California Bill Proposes Mandatory Sentence in Wake of Brock Turner Case

by David M. Boertje

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