Articles Posted in Sex Crimes

To complete an investigation and, ultimately, file charges for child pornography, law enforcement will almost always attempt to seize and search the electronic devices they believe could contain illegal material. The way police gain access to these devices can be an important issue in child pornography cases (called Child Sexually Abusive Material in Michigan). There are three categories in which police can seize electronic devices to search for evidence of a crime: with consent, with a warrant, without a warrant or consent.

Consent

The easiest way for police to get access to phones and computers in a child pornography investigation is to get consent from the person they’re investigating. If police come to your home and ask to see your electronic devices without a warrant, you should respectfully decline and call the Michigan sex crimes lawyers at the Barone Defense Firm immediately.

Charges for criminal sexual conduct cases, more commonly called sex crimes or sexual assault, are often based only on the memories of the complaining witness. This is especially true for sexual assault that allegedly took place when the adult victim was a child.  In these sex crimes cases there is no physical evidence, and the guilt of the accused rests entirely on the veracity of the witness’s statements and testimony. The problem is that the allegations of criminal sexual conduct can be based on totally false memories.

A new article written by an international team of researchers suggests that false memories can be reversed.  According to the article, false memories cause many problems, not the least of which is false criminal allegations.  The existence of false memories has been shown by many prior studies, and the contribution of this new study is that with the right kind of interviewing false memories can be supplanted by true memories.

To understand how this would all play out in a Michigan sex crimes case, the investigation of a sex crime usually begins with a report made to a police department.  The initial report will inevitably be based on a recollection of past events, in this case some kind of sexual trauma or abuse. The case might then be assigned to a detective, who is likely to seek a second interview of the complaining witness, a/k/a victim. Depending on the age of the complaining witness, a forensic interview may follow.

The Michigan Court of Appeals has indicated that two sentences of 30 to 50 years in prison for two CSC-I convictions may run consecutive to one another. This effectively means that this defendant received a minimum sentence of 60 years. The name of the case is People v. Randolf.

The Michigan sexual assault crime called criminal sexual conduct first degree, is set forth in Michigan Compiled Laws Sec. 750.520b. As therein provided, criminal sexual conduct in the first degree involves a victim aged 13 years or younger, or between 13 and 16 when certain exacerbating circumstances exist, such as a perpetrator in a position of authority.

The punishment for a Michigan criminal sexual conduct first degree conviction ranges depending again on the circumstances and facts of the involved crime. For example, in the case where the perpetrator is 17 years old or older, and the victim is less than 13 years old, there is a minimum mandatory sentence of 25 years. Furthermore, the law provides that the sentencing judge may order consecutive sentences for two criminal offenses “arising from the same transaction.”

A recent Michigan Court of Appeals panel reversed a conviction for Criminal Sexual Conduct First Degree, commonly called rape, due to improper witness vouching. The case involved three expert witnesses, all of whom testified for the government.  In different and sometimes subtle ways, each expert made improper statements about the complaining witnesses (CW) credibility that amounted to their “vouching” for the CW’s credibility.

According to the standard jury instructions utilized in Michigan sex crimes cases it is up to the jury to judge and weigh a witness’s credibility.  In reaching this determination, the jury will be instructed to consider a variety of factors including how well the witness was able to see and hear things and was there anything that might have distracted them; how good is their memory; how do they look and act while testifying and do they seem to be telling the truth or are they trying to evade answering and arguing with the lawyers, do they have any personal interest in how the case is decided, and how reasonable is their testimony when compared with all of the other evidence in the case. See M Crim JI 2.6.

Notice that “what do other people think about the witness’s credibility” is not among the factors for the jury to consider.  Vouching is improper therefore because it “invades the province” of the jury by substituting someone else’s opinion for the jury’s collective determination.

A psychosexual evaluation (PSE) is a psychological assessment administered by a licensed psychologist that collects information about one’s biographical and sexual history.  In addition to the clinical interview, the therapist will also administer several related psychometric tests, and based on both, will provide an opinion relative to the propensity one might have to commit a future criminal sexual act. Beyond the evaluation and determination of criminal recidivism, the PSE should also provide, if necessary, a treatment plan to give the person the tools to control sexual urges and avoid potentially criminal situations in the future.

What subjects are covered in the PSE?

The PSE is lengthy and can take several hours to two days to complete. Questions are centered around the client’s social and sexual history ranging from simple biographical information to very specific and detailed sexual encounters. Questions of a sexual nature will include topics like sexual fantasies, sexual relationships, and masturbation.

In most situations the answer is no, but the most complete answer is “it depends.”   First, it is important to know that restitution is different from fines and costs.  Fines are defined by statute and meant to be punitive. For example, if you were convicted of prescription fraud under 18 USC § 841, you could be fined up to $10,000,000. Costs are generally discretionary and are meant to reimburse the government for the expenses involved in prosecuting you.  Both fines and costs are paid to the government.

Restitution on the other hand is meant to restore the victims of the crime to the place where they stood before the crime was committed. The legal phrase for this is to make the victim “whole.” Generally, the purpose of restitution is to compensate a person who, because of the criminal activity, suffers physical injury or property loss.  These losses may be proximally caused and are payable to the victim if you have been convicted of a qualifying offense.

Like fines, restitution in federal criminal cases is most often set forth in statutes. Examples of federal crimes where restitution would be ordered include crimes of violence crimes of fraud, and federal crimes involving child exploitation and child pornography. See 18 U.S. Code § 3663A. In these instances, the court is required to order restitution.

President Biden recently signed an executive order seeking to have the rules applicable to sexual misconduct cases reviewed.  Previously, President Trump had increased the due process of rights of the accused, bringing them more in line with the constitutional rights afforded those accused of sexual assault crimes in state and federal courts.

What Happens if a Student is a Victim of Sexual Assault?

If a college student believes that they have been sexually assaulted and want to bring the perpetrator to justice, they have many choices.  They can go to the police just as with any other crime.  Alternatively, they can report it their school. Or they can do both. Or they can have both done for them. Much of this will depend on the particular school involved.

In the most basic terms, statutory rape means consensual sex with a minor child. Michigan does not actually call this “statutory rape” to describe this crime. Instead, Michigan’s rape laws use the phrase criminal sexual conduct as the term for statutory rape.

Michigan’s rape laws are divided into four degrees of criminal sexual conduct. All four degrees can be triggered by the age of at least one of the actors, fitting the generic definition of statutory rape. Regardless of the degree of criminal sexual conduct, the basic idea of statutory rape is preserved under these laws, which is that an individual under the age of consent does not have the capacity to consent and, therefore, cannot give consent.

Thus, even if a person under Michigan’s age of consent is 100% willing and voluntarily agrees to engage in the sex act, they still cannot legally consent.  In this instance, yes does not mean yes.

A man charged with second degree Criminal Sexual Conduct (CSC) in Ann Arbor successfully avoided jail time and conviction on the charge as filed. The accused was originally arraigned on the CSC 2nd degree charge on July 29, 2020. The charge was a result of an investigation into a complaint from a 10-year-old girl who was under the care of the accused. The allegation was that the victim was touched in a sexual way by the accused while being cared for by the accused in the home of the accused.

What are the penalties for 2nd degree Criminal Sexual Conduct in Michigan?

The potential consequences for second degree Criminal Sexual Conduct in Michigan are severe. CSC 2 is a felony that cannot be expunged. If convicted, you could be sent to state prison for up to 15 years. A conviction also requires that the defendant registers as a sex offender under Michigan’s Sex Offender Registry Act (SORA). If the victim was less than 13 years old and the defendant was at least 17 years old, as in the case above, then the convicted defendant will be required to wear an electronic monitoring device for a lifetime. The convicted defendant must also pay for the cost of that monitoring device.

While no statistics are readily available to answer this question, anecdotal evidence suggests that human trafficking is more common in Oakland County Michigan than most people realize or want to admit. This contention is informed by a recent press announcement by Oakland County Prosecuting Attorney Karen McDonald.

Ms. McDonald addressed the media when announcing a significant human trafficking bust in Madison Heights, a suburb of Detroit Michigan. During this press conference, Ms. McDonald indicated that her new administration had formed Oakland County’s first ever human trafficking unit. Furthermore, that under her administration, rather than assemble a special drug unit, her administration will focus on the identification, investigation, interdiction, and prosecution of those involved in human trafficking.

This public announcement comes days after Michigan’s Attorney General announced Michigan’s Human Trafficking Commission’s 2020 Annual Report.  This 20-page report, available online, explains the framework under which Michigan’s Human Trafficking Commission operates, and a summary of the Commission’s work in 2020.

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