TN Supreme Court Rules on Generic Evidence in Child Molestation Cases

Child Molestation Cases Require Less Evidence than Other Criminal Cases

The new defense strategy in Child Molestation casesTN Supreme Court: Less Evidence Required in Child Molestation Cases

The Tennessee Supreme Court today ruled that when an alleged child victim testifies about repeated incidents of sexual abuse but cannot provide details about the acts, the prosecution is not obligated to choose a specific instance of abuse (also known as an election of offenses).

The announcement comes as the Court upheld the conviction of Jimmy Dale Qualls, of Hornsby, for 37 counts of sexual battery by an authority figure. The state asked the high Court to review the case after Qualls appealed to the Court of Appeals; Qualls claimed prosecution’s method of election was not sufficiently specific to guarantee the defendant his state constitutional right to a unanimous verdict on each charged offense. The Court, analyzing decisions from courts in other states, encouraged prosecutors to always attempt to gather details about specific incidents of sexual abuse.

While on the face of it, an impartial person can understand the dilemma that multiples acts of abuse create for prosecutors, and certainly no one wants a repeat abuser to ‘benefit’ from (actual) repeated acts of abuse. The concern, however, is that when a future defendant tries to defend against such an accusation, and a child provides inconsistent details about times, places, dates, it doesn’t even help against this “it’s in there somewhere” prosecution. Welcome to the Grab-Bag Theory of Justice.

Let’s take it out of the context of child molestation cases so that one can be more clear-headed about the difficulty that it presents for the future defendant

  • Imagine that a man is accused of stealing money from a cash register where he works.
  • The store owner pounces on the employee, saying, “I saw you steal from the cash register just now and on other multiple occasions while you’ve worked here.”
  • The employee responds, “I’m innocent! Give me an example, and let’s look at the video footage!”
  • The store owner gives a specific date and time, the two review the footage, and it becomes clear that no theft occurred.
  • The store owner then says, “Hmm, I bet you have some of my money in your pocket right now.”
  • The employee immediately pulls out his pockets and wallet to show that he has no money on his person at all.
  • The store owner then shrugs and says, “Well, it happened on so many occasions that it doesn’t really matter about today – you did it at some point.”
  • The employee is fired and the store owner is pleased that he has ‘caught the thief.’

What could this employee have done to change the store owner’s opinion? The employee is basically playing Whack-A-Mole against these multiple accusations.

It’s interesting to note that the court doesn’t think this is an appropriate burden for defendants charged with any other crimes, as this is specifically reserved for defendants accused of child molestation charges. The rules apply to everyone … except when they don’t.

The court took an opportunity to highlight an ugly case and made bad law out of it, IMHO. They look to no less than California in their search for a justification for this new approach. Then the court takes further opportunity to create its own pattern jury instruction, and vacate the Criminal Court of Appeals reversal, so that it can apply immediately and retroactively to this case.

Read the opinion in State of Tennessee v. Jimmy Dale Qualls. And if you’re short on time, here’s a high-level summary: Although the Election Doctrine is a fundamental Constitutional right of the accused, it should be completely ignored for some accused, and we’re certain that they’ll do just fine without it.

Tennessee Teen Sexting is a Felony

Tennessee Teen Sexting is a Felony

Intelligent people are questioning the rigid statutes that result in youth becoming felons and violent sexual offenders for sending photos of themselves or passing along photos of classmates. Yes, it needs to stop, but at what cost?

When society pushes back on these statutes, many prosecutors respond, “Just ignore this extreme power grab, because I’ll exercise my authority responsibly, and I’ll prosecute the bad ones and dismiss the good ones.” But John Adams said it best: America is a nation of laws, not of men. We shouldn’t give away too much power, and then have to appeal to prosecutorial discretion (don’t get me started) to close the cases that shouldn’t have been opened. And even if in the end, some prosecutors exercised good judgment (or juries nullified at trial), the harm and stigma still remains for these youth. When prosecutors refuse to yield ground on these poorly worded statutes because it results in fairer, more accurate results rather than being the largest net possible, it would be appropriate to question their motives.

This is a sensitive topic and reasonable minds can disagree, but I’m pleased that the harsh, life-ruining consequences of good kids are being added to the  conversation to counter-balance all the sensational cyber bullying stories.

As you read the article below discussing several states with poorly drafted statutes, keep in mind that Tennessee Teen Sexting is a Felony too.

(From USA Today)

Teen sexting is definitely a problem, but a felony?

True or false: Your teen could be convicted of a felony and be labeled as a sex offender — for life — if he or she has sexted photos of classmates? The answer is “True” if your kid lives in one of the many states, like Colorado, that doesn’t have laws specifically addressing teens who sext.

Why bring up the Rocky Mountain state? Earlier this week, it was revealed that an unspecified number of Cañon City High School students had been suspended for using their smartphones to share explicit photos of their fellow students — apparently all consenting, but all under age 18.

Sure, it’s stupid. Shocking, even — especially for their parents. It calls for some intense discussions about judgement and decision-making, and it certainly demands some form of significant punishment. But ruin a kid’s life? Please.

In a worst-case scenario, a felony conviction could lead to more than a decade in prison, Patrick Roberts, an attorney who defends child pornography and sex crimes cases nationwide, told me. This seems beyond harsh, especially for such a common high school transgression. And common it is: A recent Drexel University survey reported that an eye-popping 54 percent of college students said they had sent sexually explicit photos or messages when they were under the age 18, almost always in the context of flirting or a relationship.

But here’s the unfair deal: It’s generally not a crime for adults to send nude or sexually explicit images of themselves or other consenting adults via smartphone or other devices. (Again, stupid, and potentially mortifying if they go viral, but still not a crime.) But a teen who takes a photo of himself or another minor has unwittingly become a creator of child pornography. If the photo is texted or emailed, that teen has just distributed child pornography. Even more unsettling, the individual who downloads the photo is now in possession of child porn.

What in the world are lawmakers thinking?

“In today’s world, it’s very common for teens to engage in sexually explicit video chats or to send each other nude images,” attorney Roberts said. “Unless a state has carved out an exception for an individual under a certain age, child porn laws apply to this conduct,” he added.

“On top of this, of course, are the devastating, life-altering consequences of having any conviction of this kind on one’s record,” explained Ahmed White, a professor at the University of Colorado Law School. Indeed, it’s ironic that the laws that were meant to protect our young people can be twisted in a way to destroy their lives.

In the Colorado case, the police began their investigation earlier this week after being alerted by school officials; Cañon City’s police chief Jim Cox told NBC News that the investigation was expected to take about a month. According to media reports, the students used one of the many photo vaults — also known as ghost apps —that can hide the images. On a smartphone, these apps, like Private Photo Vault and Calculator %, are disguised to appear to be a media player or a calculator. Parents checking out their kids’ phone see a calculator, but their teens know what code to enter to gain entry into a private photo stash.


— Scare the heck out of your teens: Talk frankly with your kids about sexting and its risks, including the potential for a felony charge and a stay on the sex offender registry. In the Drexel study, nearly two-thirds of the respondents said they were unaware of these risks.

— Start with non-smartphones: I’ve previously recommended that parents use basic phones (non-smart) as the starter phone for their tweens. These phones allow calls and basic texts, but they have no data plans (meaning no Internet connection, no apps). Once tweens have shown they can act responsibility, then upgrade them to a smartphone. Still, make sure you always have their password and login information so that you can see what’s on their phone.

— Make sure you’re familiar with the photo vault apps used to hide images. Look for clues like a second calculator on the phone, or any app with “vault” in its name. And yes, I know there are app developers out there right now scrambling to create the next generation of secret-hiding apps. Stay up to speed on digital trends.

— Bring the laws into the 21st century: Finally, it’s time to change outdated laws on child pornography, which don’t take into account new technologies like smart phones and new teen behaviors like sexting, explained law professor White.

“The key is education,” said attorney Roberts.  “The more kids know about this law in this area, the better.” I couldn’t agree more.

Check out the original USA Today story here: Teen sexting is definitely a problem, but a felony?

End Halloween hoax that wastes millions

Cambridge, Mass.—RSOL, Inc., a civil rights organization that advocates for evidence-based laws and the civil rights of law-abiding, registered citizens, calls for law enforcement entities to end the huge expenditure of tax dollars which are needlessly squandered each Halloween on a problem that experts in the field insist simply does not exist. (1)

This year, a letter will be printed and sent to all parents in Barstow County, Georgia regarding registrants’ obligations at Halloween. This is in addition to various restrictions and requirements that apply only to those on parole or probation. In flagrant disregard of the First Amendment prohibition against government compelling speech, a flyer with graphics will be hand-delivered to all registrants which they must post on their doors, and the sheriffs’ office will place signs on every registrant’s home or dwelling. This is just one county in Georgia; many others have their own similar, and often peculiar, requirements. (2)

Not to be outdone, the Tennessee Department of Correction has launched its annual Operation Blackout in the hopes of visiting some 3,500 registrants statewide to ensure that they are compliant with Halloween restrictions that, among other things, restricts them from displaying any “fall decorations” around their homes. (3) (emphasis added).

“This is nonsense,” said Sandy Rozek, Communications Director of RSOL. “Research clearly shows no increased risk to children at Halloween from strangers, whether they are on the registry or not. There is simply no correlation between Halloween and those on a sex offender registry.”

Research shows that 34 states either have statewide requirements for registrants at Halloween or allow each jurisdiction to determine their own. Sixteen states have no restrictions or special requirements for those on the registry statewide or jurisdictionally. Year after year, as far back as can be determined, no assault or abduction of a child during trick-or-treating has been perpetuated by a registrant in any of the states—not one of the 34 nor of the 16.

RSOL’s executive director, Brenda Jones said, “Think of the taxpayer money that’s being squandered here. Some localities have ‘round-ups’ where every registrant is required to attend a ‘special counseling session’ or just be contained in jail during trick-or-treat hours. Others have nearly all their law enforcement officers assigned to spend their evenings, and lots of gas, going from house to house, making sure registrants are in their homes, lights out, cowering from the annual Inquisition.”

In Houston, Texas, everyone under sex offender parole or probation is required to submit a “Halloween safety plan” a full month before the date, a plan that includes their requirements to stay at home, keep lights off, have no decorations, wear no costumes, nor answer the door during trick-or-treat hours.

Experts have long written about the futility of these restrictions. CA RSOL just won a challenge, forcing a county to stop their sign-posting requirements. “Operation Boo” has been in operation in California for several years. Their Halloween restrictions for registrants under supervision have been the standard—curfews, no lights, no decorations—but this year when the requirement was added for a sign to be posted on each door, the CA RSOL sued the California DOC, citing the potential danger to the registrant and anyone in the home with him. The signs marked him as a target, the suit said, and a Federal judge agreed and issued a temporary restraining order for the requirement for the signs. (4)

In North Carolina, one television station, WFMY in Greensboro, dared to show the truth, getting the actual facts and interviewing Brenda Jones about an increased risk of danger from those on the registry at Halloween. “It’s just a complete myth,” said Jones. (5)

It is a myth that cost millions to taxpayers. This is a Halloween trick that America cannot afford. RSOL calls upon all states and jurisdictions that squander our precious resources on a manufactured problem to read the research, read the experts, read the facts and statistics, and stop throwing away America’s money.

# # #


1.   Sexual Abuse: A Journal of Research and Treatment: Halloween & Sex Crime: Myth vs. Reality

        2.—trick- treating-bartow-sheriffs/74620218/




2015 Changes to TN Sex Offender Registry Law

Read carefully to see the 2015 Changes to TN Sex Offender Registry Law, because you know who will pay the price if you are uninformed and out of compliance!

Public Chapter 284 adds Sexual Contact with Inmates under T.C.A. 39-16-408 to the definition of Sexual Offenses; allows offenders registered for this conviction to apply for termination after three years.  Took effect on 07/01/2015.

Public Chapter 316 clarifies that in order to qualify as a Violent Juvenile Sexual Offender the offender must have been at least 14 but less than 18 years old when the offense was committed.  Took effect on 04/28/2015.

Public Chapter 469 allows offenders who are registered for Aggravated Prostitution to petition the sentencing court for termination of registration requirements based on the offender’s status as a victim of human trafficking, a sexual offense or domestic abuse.  If the court grants the petition the offender shall be removed from the sex offender registry.  Took effect on 07/01/2015.

Public Chapter 516 makes it unlawful for registered Sexual Offenders and Violent Sexual Offenders to be “alone with” a minor or minors in a “private area” as those terms are defined in the chapter; makes some exceptions for offenders who are parents of minors. Also clarifies that registering agencies can send registration information and updates to TBI by electronic means rather than by mail. Also adds “any social media accounts” to required registration information. Took effect on 07/01/2015.

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.

Click on the image to download

Sexual Battery cover.3D

Online shaming of people who haven’t even been charged with a crime

The Department of Children’s Services shares the names of people who it believes have committed child abuse or neglect – but not necessarily charged – on a Public child-abuser list in Tennessee. These individuals don’t even have a chance to respond to the charges if they are never brought, but their lives will be ruined.

Kudos to The Commercial Appeal for standing against this online shaming trend. The article can be found here.

Putting people who haven’t been charged with a crime on public child-abuser list doesn’t seem right

This may sound strange coming from an institution that consistently fights for the public’s right to know, transparency in government and access to public records.

However, we are uncomfortable with the decision by the Tennessee Department of Children’s Services to share the names of people who it believes have committed child abuse or neglect — but not necessarily prosecuted — with another online, publicly accessible registry of abusers of adults maintained by the state Department of Health.

Far be it from us to argue for closed public records, but there are some things that should not be public, and to release possible life-altering information on people who have not been charged with a crime seems like a step too far.

For years, DCS has kept its own internal, confidential registry of people it has “substantiated” for child abuse or neglect but has, as required by state law, worked with such institutions as schools, child care centers and foster care providers to verify whether potential new employees are on it.

State law prohibits people on the DCS registry from being hired as teachers and child care providers and from being foster parents.

Now, however, based on a new review of a 1987 law that predates the 1996 creation of DCS, Children’s Services will make available names from its registry for inclusion on the separate “abuse registry” maintained by the Health Department.

That registry is, by law, on the Health Department’s website. Anyone can enter a name to see if it is on the registry of people who abused adults, usually in settings such as nursing homes or home care.

DCS’ internal review of its operating policies discovered that the 1987 law apparently requires that it share names added to its registry with the Health Department database.

The confidential DCS registry has about 154,000 names, but they will not be forwarded to the Health Department retroactively.

Instead, DCS began notifying people on March 15 who were being added to its child-abuse registry from that date forward that their names also could appear on the public abuse registry and how to appeal their placement on it.

DCS began on July 1 sending to the Health Department the names of people who did not appeal. “We have to ensure that everyone gets due process,” said a DCS spokesman. But is this move really due process?

Longtime child advocate Linda O’Neal echoed our sentiments when she told The Commercial Appeal’s Nashville bureau chief, Richard Locker, “First and foremost, nobody wants any vulnerable adult or child to be abused, so the intent of the Department of Health registry is to prevent that. People clearly belong on that (Health Department) registry who have abused adults.”

O’Neal, executive director of the Tennessee Commission on Children and Youth, added, “That’s different from some circumstances involving children. Clearly, people who have committed child sex abuse ought to be on the registry. Where it becomes grayer is circumstances involving intra-family maltreatment, but not sexual abuse, especially, for example, where young parents who may be under incredible pressures for a whole range of reasons do something stupid and wrong but are never likely to do it again. …”

“It’s essentially putting a scarlet letter on people they have to live with the rest of their lives, which has tremendous impacts, particularly with employment,” said O’Neal.

We add that this is a situation in which people on the list, but who have not been charged with a crime, have not had a chance to clear their names.

It also has to be presumed that if there is enough evidence to justify placing someone on the list, there should have been enough evidence to charge that person with a crime. So why were charges not filed?

Children are society’s most valuable resource. Protecting them from abuse is paramount.

Still, placing someone who has not been charged with a crime on a public child-abuser list doesn’t seem quite right.

While we champion open records, we realize that there are things, such as this list, that could unfairly affect people deep into their future.

Copyright 2015 Journal Media Group. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

It’s Time to End Rape Culture Rhetoric, Says RAINN

Facebook screamers posters would have you believe that we now live in a ‘rape culture,’ where violence against women is accepted and considered normal. This concept plays well to a converted audience that selectively picks its targets (Yes for Ray Rice, No for Hope Solo, Brittney Griner or Glory Johnson).

Celebrities and media outlets are happy to perpetuate this myth, regardless of actual crime statistics to the contrary. (To understand why it seems like domestic violence or rape is more prevalent, click here to learn about the mythical increase in shark attacks due to media over-reporting between 2001 and 2011.)

Surely, the cure for this fake problem is more PSA commercials, where celebrities cross their arms and mean-mug to the camera, to make it clear that they’ve had it with abusers you, the puzzled person watching an NFL game in your living room. Somehow, as a member of society, you are complicit in this crime, if for no other reason, because you won’t acknowledge your male privilege and flog yourself accordingly.

And of course, we need to reach out to the ‘good men’ that stand up for women to become allies, as if the default man is not a good man (Logical fallacy: No True Scotsman). But what sort of things can these ‘good men’ do to help? They can ‘walk a mile in her shoes,’ which apparently looks like this:


We can all admit that some men have committed terrible acts of violence against women, and it’s fair enough to admit that men had it pretty good historically speaking, but society is now over-correcting by ‘man-shaming’ young boys into thinking that they are all potential rapists. In the meantime, I will continue to ask potential jurors how much of this hype they’re willing to swallow without critical evaluation.

Kudos to RAINN for trying to turn the national conversation away from ‘rape culture rhetoric’ and remain focused on the true cause of the problem. I have included the article below, and the original article can be found here.

“Rape is as American as apple pie,” says blogger Jessica Valenti. She and her sisters-in-arms describe our society as a “rape culture” where violence against women is so normal, it’s almost invisible. Films, magazines, fashion, books, music, humor, even Barbie — according to the activists — cooperate in conveying the message that women are there to be used, abused and exploited. Recently, rape-culture theory has migrated from the lonely corners of the feminist blogosphere into the mainstream. In January, the White House asserted that we need to combat campus rape by “[changing] a culture of passivity and tolerance in this country, which too often allows this type of violence to persist.”

Tolerance for rape? Rape is a horrific crime, and rapists are despised. We have strict laws that Americans want to see enforced. Though rape is certainly a serious problem, there’s no evidence that it’s considered a cultural norm. Twenty-first century America does not have a rape culture; what we have is an out-of-control lobby leading the public and our educational and political leaders down the wrong path. Rape-culture theory is doing little to help victims, but its power to poison the minds of young women and lead to hostile environments for innocent males is immense.

On college campuses, obsession with eliminating “rape culture” has led to censorship and hysteria. At Boston University, student activists launched a petition demanding the cancellation of a Robin Thicke concert because the lyrics of his hit song “Blurred Lines” allegedly celebrate “systemic patriarchy and sexual oppression.” (The lyrics may not exactly be pleasant to many women, but song lyrics don’t turn men into rapists. Yet, ludicrously, the song has already been banned at more than 20 British universities.) Activists at Wellesley recently demanded that administrators remove a statue of a sleepwalking man: The image of a nearly naked male could “trigger” memories of sexual assault for victims. Meanwhile, a growing number of young men find themselves charged with rape, named publicly and brought before campus judicial panels informed by rape-culture theory. In such courts, due process is practically nonexistent: guilty because accused.

Rape-culture theorists dismiss critics who bring up examples of hysteria and false accusations as “rape denialists” and “rape apologists.” To even suggest that false accusations occur, according to activists, is to engage in “victim blaming.” But now, rape culturalists are confronting a formidable critic that even they will find hard to dismiss.

RAINN (Rape, Abuse & Incest National Network) is America’s largest and most influential anti-sexual-violence organization. It’s the leading voice for sexual-assault victim advocacy. Indeed, rape-culture activists routinely cite the authority of RAINN to make their case. But in RAINN’s recent recommendations to the White House Task Force to Protect Students from Sexual Assault, it repudiates the rhetoric of the anti–“rape culture” movement:

In the last few years, there has been an unfortunate trend towards blaming “rape culture” for the extensive problem of sexual violence on campus. While it is helpful to point out the systemic barriers to addressing the problem, it is important not to lose sight of a simple fact: Rape is caused not by cultural factors but by the conscious decisions, of a small percentage of the community, to commit a violent crime.

RAINN urges the White House to “remain focused on the true cause of the problem” and suggests a three-pronged approach for combating rape: empowering community members through bystander intervention education, using “risk-reduction messaging” to encourage students to increase their personal safety and promoting clearer education on “where the ‘consent line’ is.” It also asserts that we should treat rape like the serious crime it is by giving power to trained law enforcement rather than internal campus judicial boards.

RAINN is especially critical of the idea that we need to focus on teaching men not to rape — the hallmark of rape-culture activism. Since rape exists because our culture condones and normalizes it, activists say, we can end the epidemic of sexual violence only by teaching boys not to rape.

No one would deny that we should teach boys to respect women. But by and large, this is already happening. By the time men reach college, RAINN explains, “most students have been exposed to 18 years of prevention messages, in one form or another.” The vast majority of men absorb these messages and view rape as the horrific crime that it is. So efforts to address rape need to focus on the very small portion of the population that “has proven itself immune to years of prevention messages.” They should not vilify the average guy.

By blaming so-called rape culture, we implicate all men in a social atrocity, trivialize the experiences of survivors, and deflect blame from the rapists truly responsible for sexual violence. RAINN explains that the trend of focusing on rape culture “has the paradoxical effect of making it harder to stop sexual violence, since it removes the focus from the individual at fault, and seemingly mitigates personal responsibility for his or her own actions.”

Moral panic over “rape culture” helps no one — least of all, survivors of sexual assault. College leaders, women’s groups and the White House have a choice. They can side with the thought police of the feminist blogosphere who are declaring war on Robin Thicke, the Sports Illustrated Swimsuit Edition, male statues and Barbie. Or they can listen to the sane counsel of RAINN.

Caroline Kitchens is a research assistant at the American Enterprise Institute

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.

Click on the image to download



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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