Articles Tagged with San Diego Sexual Assault Attorney

Like the Bill Cosby case that took the media by storm last year, Hollywood mogul Harvey Weinstein has also been accused by multiple women of rape and sexual misconduct. However, in the case of Weinstein, more than 75 women have publicly accused him of inappropriate behavior, including sexual harassment and rape. Many of Weinstein’s accusers are famous actresses such as Rose McGowan and Asia Argento, who have all said publicly that Weinstein forced them into unwanted sex. Weinstein has since then denied all allegations against him.

Currently, Police departments in London, New York, Los Angeles, and Beverly Hills, California, have said that they are investigating potential criminal charges in at least 10 different cases, some involving women who have not spoken publicly. So far, only the NYPD has stated that it has enough evidence to arrest Weinstein and press charges. This is because the agency has a police report filed by actress Paz de la Huerta in October to report that Weinstein raped her twice in 2010. Additionally, at the time of the alleged assaults, de la Huerta had told her her therapist, SueAnne Piliero, who recently supplied a letter to the actress about her recollections from those sessions. Lastly, de la Huerta had told a journalist named Alexis Faith, who recorded the conversation but never published the story. She too provided the tape. Because de la Huerta alleges a forceful rape which happened after June 2006, within New York’s statute of limitations for rape in the first degree, her case is among the most compelling for prosecutors.

What is next? Currently, a senior sex crimes prosecutor has been assigned to the case in New York. Investigators are likely to present de la Huerta’s allegations to grand jury before making an arrest.  The grand jury would then decide whether to indict Weinstein based on the standard of “reasonable cause” that he committed a crime. If an indictment is issued, prosecutors would then ask a judge to issue an arrest warrant.

Due to the allegations against him, Weinstein has been fired from the film production company he co-founded. He has hired to top defense lawyers to represent him in New York and Los Angeles.

California Statute of Limitations

Like New York, which eliminated its statute of limitations on rape charges back in 2006, California also amended its criminal code last year to eliminate the statute of limitations of rape and sexual assault charges. See S.B. 813.  Prior to that, the state had a 10-year window. 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

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

In a ruling that even other lawyers, prosecutors, the nation, and judges are calling completely “absurd,” a conservative Oklahoma court has ruled that rape cannot happen if the victim is unconscious. A court rejected the prosecution of a teenage boy in Tulsa because his 16-year-old accuser had been intoxicated to the point of unconsciousness. In its ruling, the Court of Criminal Appeals stated Forcible Sodomy cannot occur when a victim is so intoxicated as to be completely unconscious at the time of the sexual act. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language,” Judge Hudson said.

Specifically, Oklahoma’s rape law does not mention unconsciousness or intoxication as an element of the crime. Back in 2014, a group of high school students gathered in a Tulsa park to drink and smoke marijuana. Witnesses said the girl had been drifting in and out of unconsciousness and had been unable to walk. The defendant took the girl to his car, and he was then accused of forcing her to perform oral sex. The boy said the ensuing oral sex was consensual, but the victim told the police she did not remember anything else after being at the park. The defendant was initially charged with first-degree rape and forcible oral sodomy, but both charges were dismissed at trial.

Forced Oral Sex is Rape in California

Although the topic of campus rape has made national headlines, the state of California is no doubt the most aggressive when it comes to addressing sexual assault on campuses.  Last month, California Attorney General Kamala Harris and University of California President Janet Napolitano released a Model Memorandum of Understanding on Campus Sexual Assault (“Model MOU”) which serves as a guide for college campuses and law enforcement agencies to facilitate better coordination in dealing with campus sexual assault cases.  The Model MOU is intended to help campuses comply with A.B. 1433, which was signed into law last October 2014.  A.B. 1433 requires colleges to report certain violent crimes (e.g. sexual assault and hate crimes), occurring on or near campus, to local law enforcement, with the permission of the victim.  Prior to A.B. 1433, Governor Jerry Brown also signed into law S.B. 967 (“Yes Means Yes law”) in September 2014.  That law requires California universities that receive public funding to require students to get “affirmative, conscious, and voluntary agreement to engage in sexual activity.

Going further, as of present, the state of California also has a “college campus sexual assault assembly package” coming down the pipeline. The package consists of 3 bills aimed at California state schools which receive public funding:

  • A.B. 967– This bill was introduced by Senate pro tempore Kevin de León (D-Los Angeles) in April and would set a minimum of two years academic suspension for students found responsible for rape and forcible sex acts. The bill passed the assembly 62-4 and is currently headed to the state Senate. It should be noted that while this bill imposes punishments that should be doled out by school disciplinary boards, school boards operate independently of the criminal justice system.  You could in theory, be punished under both and receive suspension/expulsion and jail time under California Penal Code 261.  Opponents of this bill are concerned that different boards operate differently as well, with school punishments ranging from community service to expulsion.