Sexual Assault

A sexual assault charge is a felony that carries incarceration. Depending on the case circumstances, you risk facing a life sentence. Having a sex crime attorney who knows the facts of the crime, penalties, and how the charge can be improperly filed is essential to offering legal defenses and avoiding life-altering consequences. Arnold Law has many years of experience in fighting for the constitutional rights and freedom of many clients in their decades of practice.

Understanding Sexual Assault

Often sexual assault victims undergo a great deal of emotional trauma, fear, and shame. They also have challenges in forming and maintaining relationships. Because of the sensitive nature, prosecutors charge the crime aggressively. Moreover, these cases rely on the victims' testimonies, making the crime one of the hardest to defend. Therefore, it is wise to seek legal representation immediately when you are arrested.

To find you guilty of sexual assault, the prosecutor should prove the following elements of the crime beyond any reasonable doubt:

• You penetrated the victim anally, vaginally, orally with an object or sexual organ or engaged in a union between your sex organ and the victim's vagina, anus, or mouth.
• You did not have consent to the sexual conduct.

If the alleged victim is below twelve years, there is a presumption of lack of consent.

The legal term "consent" means voluntary, intelligent, and knowing approval and doesn't include coerced submission. It should not be construed or deemed to imply the failure if the victim offers physical resistance to the perpetrator.

More often than not, the charge arises when one person attempts to force another to engage in unwanted sex against their will.

However, sexual assault doesn't include any behavior done for a bona fide medical purpose.

Penalties, Sentencing, and Punishment

Due to public pressure linked to conviction and the consequences that victims of sexual abuse face, penalties and consequences of the crime have been enhanced over time. It is a felony regardless of whether it was attempted and not committed.

If convicted, you risk spending many years in prison or life sentence. A second-degree felony conviction is punishable by:

• A maximum sentence of fifteen years
• Ten thousand dollars in fines

If convicted of a life or capital felony, you will face:

• Life sentence, and
• Fifteen thousand dollars in fines

The actual sentence imposed depends on the defendant's age, victim's age, and case circumstances.

The Defendant is Eighteen or Older while the Victim is Under Twelve

An adult who commits sexual assault or attempts to commit sexual assault against a minor under 12 years of age is convicted of a capital felony. The defendant should serve a minimum of twenty years in prison before they qualify for parole. Sometimes, the judge might impose a death penalty.

If you threaten to use or use a deadly weapon or use physical force that can result in severe injuries, you are guilty of a life felony. It is punishable by fines and life sentence that does not exceed forty years.

The Defendant is Eighteen or Older while the Alleged Victim is Twelve or Older

It's a first-degree felony to commit sexual assault on a child older than twelve when the following circumstances exist:

• When the alleged victim is physically not in a position to resist
• When the victim is mentally incapacitated
• When you use threats of violence or force
• When you use drugs to incapacitate the minor

The charges attract a fine, a thirty-year sentence, or both.

If you didn't use physical violence or force to cause severe personal injury, you might be convicted of a second-degree felony. It is punishable by a maximum five-year sentence and fines. A severe personal injury is a significant bodily pain or harm, permanent disfigurement, or permanent disability.

The Defendant is Below Eighteen while the Alleged Victim is Under Twelve

A minor who attempts to engage in sexual assault or commits sexual assault against a child below twelve years of age is found guilty of a life felony. A conviction carries fines, life imprisonment, or both.

Pay the Victim Restitution

The victim can file a civil lawsuit. In this case, the victim seeks damages for sexual assault. The damages fall into two (2) categories, namely:

• Non-economic damages
• Economic damages

Economic damages can easily be attached to dollar value because they directly affect the victim's finances. They include medical bills for the injuries the victim has suffered, lost earning capacity, lost wages, and costs for therapy or counseling required following the sexual assault.

Non-economic damages, on the other hand, are damages caused to the victim that doesn't have a tangible dollar value that could be calculated with ease. They compensate for the loss of life enjoyment, humiliation, loss of consortium, pain and suffering, and reputational damage. As far as calculating the value of these damages, the process varies from one type to another. It is the plaintiff's responsibility to prove how significant the damages are and how a specific compensation amount is reached.

Additionally, you could also pay punitive damages. Punitive damages are tailored to punish the defendant. They also serve as a deterrent that prevents similar conduct from happening again. Usually, these damages are based on the seriousness of the behavior of the defendant and vary with the jury.

Legal Defenses

Although sexual assault is a serious crime, it also lends itself to numerous valid legal defenses. Discussed below are strategies any experienced criminal defense attorney can use:

Innocence

In any sexual assault charge, a claim of innocence is one of the straightforward defenses. A defendant can present an alibi and claim that they did not commit the sexual assault because they were in another location when the offense happened. To effectively use this defense, they should present evidence that proves they weren't with the alleged victim when the sexual assault occurred.

For instance, if you are charged with sexual assault arising from events that took place on July 1, you can present proof to the judge that you were in California on that day. Generally, your evidence could include credit card bills, plane tickets, witness corroborations, and hotel receipts.

Moreover, the defendant could claim that the alleged victim misidentified them as the perpetrator. They are also required to present evidence to support the claim. DNA evidence might accurately show whether they were absent at the crime scene or not.

Because the prosecutor has the burden to prove that you are guilty beyond any reasonable doubt, should you raise a reasonable doubt about whether you committed the offense, the jury must return an acquittal.

Mental Incapacity or Insanity

Your sex defense attorney can also argue that you had a mental defect or condition when the crime took place. Upon proving your mental defect or disease, the judge will treat you more leniently because your health prevented you from understanding your conduct's criminal nature.

Consent

From time to time, defendants will admit to the conduct but claim that the alleged victim consented it. Remember, one of the crime's facts is that sexual behavior took place against the alleged victim's will. Consequently, if you could show that the alleged victim consented to the conduct, it is a defense of your sexual assault allegations.

However, proving consent is controversial and complicated. Often defendants cannot give a direct proof of approval, so they will use the alleged victim's previous sexual history to demonstrate the victim approved the sexual contact. Please note, this might backfire with the judge and paint you negatively.

Moreover, it is almost impossible to prove consent when the alleged victim is:

• Below eighteen years of age
• Incapacitated
• Mental challenged
• Unable to know the sexual conduct’s nature

There was No Penetration

If the prosecution team fails to establish that there was penetrative sex, then your charge should be reduced to a reducer offense or dismissed.

You Were Falsely Accused

Prosecutors and judges are aware that innocent persons can be falsely accused of sexual assault.

Often these accusations stem from child custody or divorce cases. Florida law allows domestic violence victims to obtain an order of protection. The order is tailored to protect alleged domestic violence victims from further injuries. Nevertheless, the order can be misused because of the benefits it offers, like ordering a partner to leave their marital home, establishing a certain amount of alimony or child support, and ordering property rights to the victim.

Sometimes, one partner might allege that the accused assaulted them hoping to receive a more significant share of their marital estate. They might use the sexual assault charges as leverage to resolve a civil case like child custody or divorce.

A parent can also coerce their child to claim that the other parent sexually assaulted them to get sole custody.

Additionally, false accusations can be due to a misunderstanding, anger, or vengeance.

Common proof that could prove that you were falsely accused include:

• Emails, audio records or text messages from the accuser that show a motivation to lie,
• A witness who heard the accuser narrate how they fabricated the alleged crime, or
• Expert testimony from a medical practitioner that shows the alleged victim's injuries are self-inflicted.

Should your attorney raise reasonable doubt by proving that a person could have falsely accused you, your charge should be dismissed.

Procedural Mistakes

Sometimes, the police might overstep the legal capabilities and could break your constitutional rights. Should this take place, proof that might be used against you could be suppressed. For instance, a police officer might have searched your home or workplace without a warrant or failed to read the rights when supposed to do so.

Sex Offender Registration

If convicted, you should register as a sex offender. The government controls the database, and information about your place of employment and residence is updated. That means employers and your neighbors can request information about the sex offenders living in their neighborhood., result in social stigma and harassment.

Moreover, due to the sex offender registration status, you could be banned from living in subsidized housing, and employment opportunities might be limited. You could even lose your current employment or be unable to secure a job. You might also be unable to obtain student loans to enroll in school and improve your earning capacity.

Additionally, you might not be able to obtain a professional license that involves working around children. You can also be deprived of your visitation or custody rights to your children.

Registration Requirements

You should initiate the sex offender registration within forty-eight hours following your release from custody. You should register in person at your local sheriff's office after you have established a resident. The residence can be either in transition, temporary, or permanent.

Common pieces of information that are necessary during registration include:

• Name
• Social security number
• Date of birth
• Place of employment
• Occupation
• Temporary or permanent address
• Your characteristics like ethnicity or hair color
• Phone number
• Email address
• Internet provider with the possibility of IP address
• Your car's identification number, model, and make

If any of the above details change, you are supposed to register the information again within forty-eight hours.

Failure to Register

Failing to register as a sex offender is a crime. It is a third-degree felony that carries a five-year additional and consecutive sentence. If you are a repeat offender:

• Your sentence will be enhanced by a minimum of ten years
• Pay a maximum of five thousand dollars in fines

Can You File a Petition to Remove Your Name from the Registry

The initial step towards the removal involves determining if the offense can be removed. Under Florida Criminal Code Section 943.04354, sexual assault qualifies for removal.

The next question is whether you are eligible for removal. The requirements include:

• Age of the involved parties: The age difference between you and the victim should be four years. Also, the alleged victim should be aged between fourteen and seventeen when you committed the offense.
• When was the crime committed: The sexual assault should be committed after or on July 1, 2007.

If you are eligible, you should bring a petition for removal with a court of law. Additionally, you should prove that you are no longer a threat to the general public, like providing certificates showing that you received treatment or attended counseling sessions.

Then the court will review your petition and decide whether it should grant your request or not. The court will consider your previous criminal record and the seriousness of the sex crime in question.

If your removal petition is denied, you have to wait for some time to bring another petition for removal.

If your name is removed from the database, the sexual assault will still appear on your criminal record.

Statute of Limitations

Statute of limitations outlines the amount of time that a prosecutor has to file a criminal charge or an alleged victim has to file a civil lawsuit. If the lawsuit isn't brought within that time limit, the state or person will lose the entitlement to bring criminal charges.

The timeframes for sexual assault cases depend on whether it's a criminal or civil case.

Civil Case

Filing a civil lawsuit dealing with sexual assault should be commenced anytime within the below time limits:

• Seven years once the alleged victim is eighteen
• Four years after the alleged victim leaves the perpetrator's dependency or four years from the time of the discovery of the causal relationship between the abuse and the injury and the injury (whichever date is later between the two)
• There is no timeframe involving a child below sixteen years

The second timeframe illustrates that Florida has delayed discovery rule. The deadline was designed for cases where the victims are not aware of the assault or because they have repressed their memory. It allows the victims to file a lawsuit not founded on the date the sexual assault took place but on their knowledge of the abuse.

Criminal Case

Hinging on the case circumstances, the following timeframes apply:

• There is no statute of limitations if the sexual assault caused death, or you will face life imprisonment.
• Sexual assault against a child under sixteen years does not have a statute of limitations when the alleged victim reports the incidence within seventy-two hours.
• When the sexual assault has a deadline, there is an exemption made for DNA review for offenses happening after 2006. Should DNA evidence prove that the accused violated the law, the state will charge without a statute of limitation provided the DNA testing proof was gathered in the initial investigation.

Plea Bargain

The main threat to sexual assault defendants is sex offender registration and incarceration. It comes after the accused's realization that the criminal charge could permanently alter their life.

One of the easiest ways out is plea bargain negotiations. The prosecutor offers the plea bargain and permits a defendant to plead guilty to a lesser severe charge. Under Rule 3.171 of the Florida Rules of Criminal Procedure, the prosecution team and your sex crime defense lawyer should talk about the pleas and outline the terms and conditions they ought to use in the plea bargain negotiations. When you agree to a plea bargain you:

• Renounce the entitlement to the trial
• Give up the entitlement to appeal
• Face penalties for the charges you plead to
• Plead no contest or guilty to lesser charges

When offered a plea bargain, chances are you don't know if it is a good idea. In this case, you need to put the following factors into account:

• The seriousness of the previous charge
• The possible penalties attracted by the previous charge
• The possibility of prevailing at trial
• The seriousness of the lesser charge
• The penalties of the less severe charge

Although the prosecutor might be friendly and offer you a plea deal that looks appealing, the truth is that the prosecution team is not out there to assist you but to get a conviction. Your sex defense attorney should give you the details you require about the deal that is on the table and advise you accordingly. Deciding on whether you will take the plea is a decision that can impact your entire life. Therefore, you should make a wise decision.

Frequently Asked Questions

Discussed below are some of the questions defendants ask our experienced legal team at Arnold Law:

1. Can You Expunge Sexual Assault Charges?

Expungement is the court-order physical destruction of previous criminal incident information or documents. Like other sex crimes, sexual assault cases cannot be sealed unless the case is dropped or dismissed.

2. Is Voluntary Intoxication a Valid Legal Defense?

No. Courts and judges have taken the attitude that people should be responsible for their conduct, irrespective of whether they are operating with every faculty or not. However, the court will occasionally permit defendants to present proof of intoxication to disapprove of the mental state needed for the crime.

3. Should You Cooperate with the Law Enforcement if You are Under Investigations?

If the law enforcement officers have a warrant for your arrest or search your property or person, you should not resist. Nevertheless, to be sure your constitutional rights are protected, your criminal defense lawyer should review the warrant. Also, the attorney should always be present during police questioning. Without your lawyer present, you might do or say something that could be used against you.

4. How Does the Legal Process Work for a Sexual Assault Charge?

Like most criminal charges, sexual assault defendants go through several legal steps. Your lawyer should be able to guide you through the process. They include:

• Ground for arrest: The police should only arrest you if they have probable cause that you violated the law or have a warrant for the arrest.
• Miranda warning: If arrested and the police ask you questions about the accusations, the police should read you your Miranda rights. The rights include your right to remain silent and the entitlement to have an attorney. It is wise to take advantage of the rights.
• The prosecution team gathers evidence: The prosecution team will get a search warrant for your DNA evidence, electronic gadgets, home, and workplace.
• The prosecutor files charges against you: The prosecutor will examine the police report and decide whether to file the charges.
• Arraignment: The judge will then formally read you the charges against you and the potential penalties. The judge will also set release conditions.
• Plea bargain
• Trial: If you refuse to accept the plea bargain, the case proceeds to trial. After both your attorney and the prosecutor present their evidence, the judge decides whether you are guilty or not and issues their verdict. If you are innocent, you get released.

Find an Experienced Sex Crime Attorney Near Me

More often than not, defending sexual assault is complicated. The inclination of the law towards protecting the victims' rights results in the omission of relevant and essential proof from the case. Also, it is common for you to be presumed guilty due to the charges' nature. Consequently, it is wise to consult with a seasoned criminal defense attorney like Arnold Law. We will treat you with care, confidentiality, and respect. We can also work to ensure you can get the best possible outcome. Call us today at 904-264-3627 to review your case.