Defending Against the Charge of Sexual Battery

I’m pleased to offer this new free consumer guide called Defending Against the Charge of Sexual Battery. There are actually three different variations on Sexual Battery, based on the scope of the sexual contact and the relationship between the defendant and the alleged victim. Many people confuse these three offenses because they all stem from an allegation of unlawful sexual contact based on force or coercion and without consent; however, the sentencing on the three sexual battery offenses varies widely.

In this free consumer guide, you will learn what defenses are available (and which aren’t), the range of punishment for conviction (including whether it is eligible for judicial diversion, whether it places you on the Sex Offender Registry, whether your personal assets can be seized upon conviction, and much more.

Here is an excerpt:

The first thing you need to understand about the offense of sexual battery is that the offense is all about “unlawful sexual contact” that is less than sexual penetration (otherwise, the offense would be rape). So if you’re charged with sexual battery and then you blurt out to the police that you and the alleged victim ‘never even had sex,’ then you’re missing the point – no one is saying that you did.

 Unlawful sexual contact is further defined under Tenn. Code Ann. § 39-13-501 as “the intentional touching of the victim’s, the defendant’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of the victim’s, the defendant’s, or any other person’s intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.”

Notice in the definition above that sexual contact can occur because the defendant touched the alleged victim’s private parts, or because the defendant forced the alleged victim to touch the defendant’s private parts. Also, notice that no one ever has to be naked – the touching can occur through the clothing.

The second thing you need to know about this offense is that “force or coercion” must be used to accomplish the act. This could be as simple as groping a woman’s breast at a bar, so don’t think that all that much is actually required with this element – the point is that the alleged victim did not consent to the behavior.

We all know what force is, but coercion is more complicated and varied – in a case for rape and sexual battery, a defendant threatened to publicly expose the victim as a homosexual unless he cooperated, and the jury found that this sexual offense was accomplished through the use of coercion. State v. McKnight, 900 S.W.2d 36 (Tenn. 1994).

The third (and most interesting thing) you need about sexual battery is that it can also be accomplished by fraud. Tenn. Code Ann. § 39-13-505.

Sexually battery by fraud is controversial and not allowed in some states because it opens defendants up to scenarios that many would consider mere ‘pillow talk.’ However, in Tennessee, prosecution under these facts is permitted.

Imagine that you told a person that you were single, or did not have an STD, or were a casting agent in Hollywood (and I’m being a bit ridiculous here, but you get the point). If the alleged victim consented to you touching him or her at the time based on the fraud that you perpetrated, and that person would never have consented to the sexual contact if he or she knew the truth about what you lied about, then that person did not really have a knowing consent, because you misled them in order to get their consent under false pretenses.

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Defending Against the Charge of Statutory Rape

I’m pleased to offer this new free consumer guide called Defending Against the Charge of Statutory Rape. There is a lot of concern and misunderstanding about the specific ages that make this activity a crime, and whether certain exceptions such as parental consent or mistake of age apply (quick tip: they don’t).

While society certain has a responsibility to protect minors, many people have concerns about whether two teenagers in a committed intimate relationship should be a law enforcement issue that results in the older partner ending up as a registered sex offender. In addition, some wonder whether the laws have kept up with societal attitudes regarding a minor can consent.

In this free consumer guide, you will learn what defenses are available (and which aren’t), the range of punishment for conviction (including whether it is eligible for judicial diversion, whether it places you on the Sex Offender Registry, whether your personal assets can be seized upon conviction, and much more.

Here is an excerpt:

The first thing you need to understand about the offense of statutory rape is that a minor (under 18) cannot legally consent to have sex, so any evidence that you might like to show to suggest that the minor explicitly consented or implicitly consented by her actions (never said no, never said stop, actively participated, “wanted it”[1], etc.) is irrelevant, and therefore inadmissible.

Even if you had a text message from the minor saying “I want to have sex with you,” the jury would never hear it because she still cannot consent.

On a related note, the parents of a minor cannot “give consent” on her behalf. They may tell a person that it’s okay, but having them write a permission slip will not protect you from prosecution; the fact is that the act is illegal, and that isn’t waived by getting the parents’ permission.

The second thing you need to know about this offense: statutory rape is a “strict liability” crime, which means that your mental state does not matter. I know, it seems crazy, but you could not even present proof that the minor lied to you and that you relied on her false statement and acted upon an honest, reasonable, but mistaken belief that she was of legal age.

Perhaps you were planning to tell the jury that you demanded that the minor show you her driver’s license, and that she had a fake driver’s license showing that she was twenty-one. Now all that you’ve done is admit that you had suspicions about her age! So you see, it cannot help you, and but it can absolutely hurt you. Besides, it’s irrelevant and inadmissible.

If you look at the statute, you’ll see that there is no mental requirement, such as “intentionally,” “knowingly,” “recklessly,” or “negligently” – the prosecutor does not have to prove that you knew the minor’s age because it’s simply not part of the offense. (And on the flip side, you can’t testify that you didn’t know either.)

The third thing you need to understand about this offense is that statutory rape is completely different from forcible rape. For many years, I have griped to everyone who will listen that statutory rape should be re-named “Unlawful Sexual Intercourse with a Minor.” Okay, that doesn’t sound like something you would want to be charged with either, but the point is that people would understand that it’s different from the “rape” that most people think of, which is accomplished by “force or coercion.” Tenn. Code Ann. § 39-13-503.

Because the two offenses are different (Statutory rape being about sexual intercourse with a minor, and Rape being about sexual intercourse through force or coercion), the same act could actually qualify as both Statutory Rape and Rape at the same time if it might the elements of each offense.

[1] Forgive me for handling this content indelicately, but unfortunately these are the facts that we have to deal with. You might as well get used to the unsettling feeling of discussing your private conduct under the bright lights and judgmental attitudes of the courtroom; it’s just the nature of sex crime cases.

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Defending Against the Charge of Patronizing Prostitution

I’m pleased to offer this new free consumer guide called Defending Against the Charge of Patronizing Prostitution. Whether in person or through the Internet, folks are getting caught by undercover Vice Officers, and their private peccadilloes are being exposed. (Why we pay tax dollars to have law enforcement dress up like prostitutes and stand around waiting to nab lonely hearts, I’ll never understand.) Recently, even a retired Memphis Police Officer was pinched during one of these raids and charged with Patronizing Prostitution. I would link to the story but I don’t enjoy humiliating people.

In this free consumer guide, you will learn what defenses are available (and which aren’t), the range of punishment for conviction (including whether it is eligible for judicial diversion, whether it places you on the Sex Offender Registry, whether your personal assets can be seized upon conviction, and much more.

Here is an excerpt:

Question #1: How much trouble am I in?

As with many sex crime offenses, the greatest penalty of a conviction may not be not the actual potential jail time, but the social stigma it can cause. Imagine that a potential employer does a background check on you, and he or she learns that you were convicted for trying to sleep with a prostitute! So whether you actually have to serve jail time on it or not, your primary focus should be trying to avoid a conviction altogether.

Depending on the facts of the case, a conviction for this offense could result in jail, placement on the Sex Offense Registry (in some cases), a felony on your record, loss of your marriage, child visitation, employment, immigration status, loss of car or house (in some cases), and many more.

You are about to have to make a very difficult decision – do you have the heart for the battle to come? It will be very tempting to plead guilty rather than go to trial because it’s cheaper, quicker, and easier … but you will be wearing a scarlet letter forevermore.”

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J. Jeffrey Lee selected as a Super Lawyer

I’m pleased to have been selected to the 2015 Mid-South Rising Stars list of Super Lawyers, an honor reserved for lawyers who exhibit excellence in practice. It is always an honor to be selected by my peers.

If you are interested in learning more about the selection process or the organization, click here.

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J. Jeffrey Lee Serves as Featured Speaker

Forensic Interviews in Sex Offense Cases in Tennessee

On April 8, 2015, Memphis Sex Crime Attorney J. Jeffrey Lee will serve as a featured speaker to a national audience regarding “Litigation Tools to Combat the Use of Forensic Interviews in Sex Offense Cases.” He will discuss the recent Herron case, which was addressed the Tennessee Supreme Court.

To learn more the nonprofit organization sponsoring this event, please visit Reform Sex Offender Laws, Inc.

State of Tennessee v. Frederick Herron
W2012-01195-SC-R11-CD

The defendant was charged with and convicted of rape of a child, and he received a twenty five-year sentence. The defendant appealed, raising seven issues. The Court of Criminal Appeals held that the trial court erred by(1) allowing the prosecution to introduce the child’s prior consistent statement, a recorded forensic interview, during its case-in-chief before the child’s credibility had been challenged; and (2) ruling that if the defendant chose to testify the prosecution would be permitted to ask him whether he had been previously arrested or convicted of an unnamed felony. Nevertheless, in a divided decision, two judges of the Court of Criminal Appeals concluded that these errors were neither individually nor cumulatively prejudicial. The dissenting judge opined that the second error alone was prejudicial and entitled the defendant to a new trial. We affirm the Court of Criminal Appeals’ conclusions that the evidence is sufficient to support the conviction and that the election is sufficiently specific and definite. We hold that the cumulative effect of the two conceded trial errors is prejudicial and entitles the defendant to a new trial. Because of the remand for a new trial, we do not address the defendant’s other allegations of evidentiary errors. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part; the defendant’s conviction is vacated; and this matter is remanded to the trial court for a new trial, consistent with this decision.

Taken from http://www.tsc.state.tn.us/courts/supreme-court/opinions/2015/03/26/state-tennessee-v-frederick-herron
The entire case can be downloaded here.

J. Jeffrey Lee Joins Public Interest Group to Reform Sex Offender Laws

Learn More about RSOL

RSOL (Reform Sex Offender Laws)


I am pleased to join Reform Sex Offender Laws, Inc. (RSOL) to work toward their vision of “effective, fact-based sexual offense laws and policies which promote public safety, safeguard civil liberties, honor human dignity, and offer holistic prevention, healing, and restoration.” Learn more about the group and the their Vision, Mission and Goals here.


Mission:

RSOL will promote laws and programs:

  • limiting registry access strictly to law enforcement agencies;
  • terminating registry requirements upon completion of a court-imposed sentence;
  • reversing retroactively applied restrictions;
  • reforming civil commitment processes;
  • rehumanizing, rehabilitating, and reintegrating former offenders;
  • increasing public safety by reducing sexual offenses; and
  • reducing acts of discrimination, hatred, and violence directed at sexual offenders.

Goals:

RSOL will:

  • promote laws targeting harmful acts rather than entire classes of people;
  • promote limiting registry access to law enforcement agencies only;
  • support removal of residency and proximity restrictions against registrants after their court-imposed sentence is satisfied;
  • support litigation and legislation which remove or prevent retroactive increases in registration requirements and restrictions;
  • advocate to limit post-prison civil commitment strictly to extraordinary cases where the state proves that the person presents a danger to the community;
  • promote treatment of civilly committed persons with the goal of reintegration back into society;
  • advocate for review and removal of currently committed persons who do not meet the dangerousness criteria, without imposing an additional financial burden on those persons;
  • promote laws which replace lifetime supervision/parole with a system that includes ongoing assessments for termination of supervision;
  • encourage fair and balanced trials, proportional sentencing, reasonable statutes of limitation, and the elimination of mandatory minimum sentencing;
  • discourage discrimination, violence, and vigilantism toward those accused or convicted of a sexual offense;
  • seek out and support programs which effectively reintegrate and rehabilitate former offenders;
  • seek out and support programs which effectively prevent new sexual offenses through intervention and community education; and
  • promote healthy, trusting human interaction by replacing fear and panic with solid facts and reason.

Assertions:

  • Sex offender registries were originally presented as a means for tracking persons convicted of the most heinous offenses, but their reach has expanded exponentially to include even teen sexting and consensual relations between young people;
  • Public registries provide no measurable protection for children or the general public yet endanger the well being of children and family members of registrants;
  • Public registration, proximity restrictions, and residency restrictions that are extended beyond an individual’s sentence are punitive and thereby violate protected constitutional rights;
  • Evidence-based policies and programs can reliably reduce new sexual offenses and thus make our communities safer.
  • The misinformation and stigmatization used to justify harsh sexual offense laws undermine the welfare of society, creating unnecessary panic and distrust;
  • Choosing to set apart any group of people and deny them civil, constitutional, and human rights threatens the rights of every person in our nation.

Attempted First Degree Murder? Not Guilty.

STAND UP AND FIGHT, OR LAY DOWN AND DIE: Congratulations to Henry Reaves and client Rashaad on a jury verdict of NOT GUILTY on Criminal Attempt First Degree Murder, and a HUNG JURY on six counts of Aggravated Assault! Mr. Reaves presented a textbook argument of self-defense, and it connected. I was proud to second-chair the case!

Certified Criminal Trial Specialist

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Memphis Sex Crime Attorney J. Jeffrey Lee has been Certified as a Criminal Trial Specialist by the Tennessee Commission on Continuing Legal Education and Specialization, and Certified as a Criminal Trial Specialist by the National Board of Trial Advocacy.