Articles Posted in Sex Crimes

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

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

According to news outlet ABC 10, a Carlsbad pastor named Matthew Tague, 43, has been arrested on 16 counts of child molestation. Deputies with the San Diego Sheriff’s child abuse unit has charged him with lewd and lascivious acts with a minor under the age of 14. The charges against Tague, a pastor at North Coast Calvary Chapel in Carlsbad, are not related to his duties as a pastor. Tague is currently being held in Vista Detention Facility on $1.9 million bail. He was due in court on June 2.

Once he appeared in court, he pleaded “not guilty” to charges of repeatedly molesting a female member of his congregation for two years. He also pleaded “not guilty” to charges of 14 forcible sex acts against a child. Additionally, Deputy District Attorney Patricia Lavermicocca said Tague is accused of violating a family member when s/he was 12 and 13 years old. It is reported that Tague’s wife caught him abusing the victim, and turned him in.

Child Molestation Under California Law

Not only are sex crimes taken seriously in California, but sex crimes against children are viewed upon by society as even worse. Just being accused of a sexual offense against a child can ruin your life and reputation.

There are several sections in the California Penal Code that address sex crimes against children.

Lewd or Lascivious Acts with a Minor (Penal Code § 288)

A lewd or lascivious act against a minor is defined as touching any part of the body (bare or covered) of a minor or forcing him or her to touch themselves for the purposes of sexually arousing or gratifying yourself or the victim. Subsection (a) of the statute states that if the victim was under 14, it is a felony punishable by up to eight years imprisonment and a $10,000 fine.

Subsection (b) of the statute addresses lewd acts against a minor under the age of 18, by fear of duress or violence. A conviction under this subsection is also a felony punishable by 10 yrs imprisonment and a $10,000 fine.

Subsection (c) specifies that if the victim was under 14 or 15 years old, and you are at least 10 years older than the victim, you will also face a felony punishable by up to three years in state prison.

Soliciting a Minor for Lewd Purposes (Penal Code § 288.4)

Solicitation of any child under the age of 18 can either be a misdemeanor or felony, punishable by up one to three years imprisonment and a $1,000 to $10,000 fine. Continue reading

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

In Alameda county, California lawmakers are considering a contentious bill that would end lifetime registration for certain sex offenders. The lawmaker who introduced the bill, Nancy O’Malley, and the District Attorney of Alameda County’s intent is to save the state money, since it is extremely expensive to monitor sex offenders.

Senate Bill 421 would reorganize the sex offender registry into a tiered system and group existing registered offenders into three categories based on the severity of their crimes. A certain number of offenders would be dropped from the list as soon as 2018. “There are people who are still registering who are now 80 years old and they register every year because when they were 18 years old they exposed themselves, there’s injustice in some of that,” says Ms. O’Malley.

The bill passed the state Senate’s Committee on Public Safety on last month. Proponents of the new bill say that lightening the work load of law enforcement will give them more time to focus on high-risk offenders that actually need monitoring.

Currently, a state tax force has 2,500 sex offenders to keep track of. There is currently an estimated 104,000 registered sex offenders statewide.

Potential Changes in California’s Sex Offender Registry

Most U.S. states already have a tiered system for sex offenders. But under current California law, all sex offenders have to register with law enforcement for the rest of their lives, no matter if they committed a nonviolent misdemeanor crime like indecent exposure (ie. urinating in public) or a violent felony rape.

If passed into law, S.B. 421 would create a tiered system for sex offenders:

  • Tier 1: Misdemeanor or non-violent sex offenders would have to register for 10 years.  This encompasses situations like when a young college student has too much to drink and exposes him or herself publicly.
  • Tier 2: Convicts who committed serious or certain violent offenses would have to remain on the list for 20 years.
  • Tier 3: Violent high-risk sex predators will remain on the list for the rest of their lives.  This includes sex offenders who violated Megan’s Law.

A sex offender’s removal from the registry would not be automatic. Offenders who qualify for removal would still have to petition the court and have their application reviewed by their local district attorney, who has to consider factors like the risk of re-offending. Continue reading

Saturday, March 7th marked the seventh anniversary of the Balboa Park “Chelsea’s Run” to commemorate the 17-year-old Poway High School student who was sexually assaulted and killed in 2010 by convicted sex offender John Gardner. Chelsea King was abducted while running in a Rancho Bernardo park by Gardner, the same man who admitted to killing Amber Dubois of Escondido. Garner pled guilty and was sentenced to life without parole.

Six months later, “Chelsea’s Law” was passed after being signed by Gov. Arnold Schwarzenegger. The law sharply increased penalties for those convicted of sexual assaults on minors (including the sentencing of life without parole). It also included reforms to increase outreach to paroled sex offenders most likely to re-offend, and made GPS monitoring mandatory for child sex offenders. It also barred sex offender parolees from being near where children congregate.

A report released five years after the enactment of Chelsea’s Law concluded that at least 332 defendants were charged statewide under various aspects of the Law. In San Diego County, 22 people were charged under the law between September 2014 and August 2015, including two who received terms of 25 years to life.

Aggravated Sexual Assault of a Child

Aggravated sexual assault of a child is an extremely serious crime. It is a felony punishable by 15 years imprisonment to life, along with a fine of up to $50,000. The sentence will increase if there is multiple victims. See CA Penal Code § 269. Additionally, those convicted will be required to register as a sex offender.

One will be charged under § 269 if s/he allegedly sexually assaults a minor under the age of 14, or if the victim is a minor (under 18 years old) and seven years younger than the defendant.

Aggravated Kidnapping

The crime of aggravated kidnapping occurs when someone:

  • Uses force, fear, or fraud against a minor under age 14; or
  • Demands a ransom;
  • Causes the victim bodily harm or death;
  • Violates California’s carjacking law under Penal Code § 215.

See CA Penal Codes § 207, 208, 209. A conviction of aggravated kidnapping carries a prison sentence of five years to life, depending on the circumstances. Continue reading

It is reported that legislation will be introduced that will update California’s laws criminalizing HIV.  It would make it so that a person could not be prosecuted for intentionally transmitting the virus if his or her sex partner tested negative for HIV. This comes at a time in which health officials throughout Southern California are reporting alarming increases in STDS, particularly syphilis, gonorrhea, and chlamydia, which are also part of a national epidemic.

According to the Centers for Disease Control and Prevention, STD rates reached a record high.  While officials do not know the definitive cause for such high rates, they include medical and social factors ranging from a lack of adequate screening to decreased fear of curable STDs.  Specifically, Orange County reported cases of gonorrhea were up 75% from 2011 to 2015.  Syphilis cases jumped 80%, and chlamydia increased 14%. The California Department of Public Health say the highest STD rates are found among young people, African-Americans, and gay and bisexual men, according to the state.

California Has Strict HIV Disclosure Laws

Under current California Law, it is a felony if you fail to disclose to your sexual partner that you are HIV positive with the specific intent to transfer the virus to him or her.

Pursuant to California Health and Safety Code § 120291(a),“Any person who exposes another to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony punishable by imprisonment in the state prison for three, five, or eight years.”

Another law on the books targets sex workers who are HIV-positive. If a prostitute is convicted of solicitation, he or she faces up to 16 months in prison.

Legal Defenses

Proving intent to infect someone with HIV is extremely difficult. You cannot be prosecuted if you did not know you were HIV positive, or even if you have never even been tested. Criminal statutes punishing HIV transmission have been held not to violate the Constitution’s equal protection clause because these laws punish voluntary conduct rather than the status of being HIV positive.

Lastly, just because you are not criminally liable does not mean you cannot be held civilly liable for damages in civil court.    Continue reading

It recently made national headlines that a creepy clown craze has swept the globe. Across the nation, police have received reports of people in creepy clown costumes trying to lure children or scare people. While the state of California seems to have escaped it the past several months, creepy clowns have official hit Southern California. Through a series of Facebook and social media posts, it was announced that clowns would be visiting Los Angeles County schools, including Pasadena and Whittier.

In Fontana, California, a 14-year-old high school student was arrested on suspicion of making criminal threats against students on social media. The teen had taken “a scary clown picture” under the name of “FontanaKillerClown” and posted it on Instagram. He was arrested at school and booked into a juvenile detention center. In Glendora, California, police also arrested a 19-year-old man on suspicion of making threats against his old high school through social media accounts dedicated to clowns. The Temecula Valley Unified School District also suffered threats through social media that the schools in the region were going to be shot up by clowns. Lastly, the LAPD has reported that there have been pranksters that have threatened the general public with violence by dressing up as clowns and following/chasing them with kitchen knives.   

While some think dressing up as a scary clown and scaring people is a funny prank, law enforcement certainly does not think so. The wave of clown terror is affecting actual clowns who depend on their profession to pay the bills, and also has the potential to affect the way the nation celebrates Halloween. It is not recommended that you dress up as a clown or any other objectively scary character to threaten or scare people.

Laws that Pertain to Halloween Pranks

  • Criminal threats: You may not realize it, but even dressing up and chasing someone with a knife can constitute a criminal threat. All that is required is that the victim feared for his or her life or safety. See CA Penal Code § 422.
  • Vandalism: Vandalism does not have to involve breaking something or graffiti. Toilet papering and egging your neighbor’s house can still result in criminal charges. See CA Penal Code § 594.
  • Trespassing: If you enter someone else’s property with intent to damage that property (ie. throw eggs), you may also face criminal trespass charges. See CA Penal Code § 602.
  • Restrictions on Sex Offenders: Some states have restricted registered sex offenders from passing out candy, etc. on Halloween. California allows police to do checks to make sure some registered offenders are inside their homes with the lights out.

Continue reading

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.

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