ChildLine Administrative Hearings in PA | FAQs

What is the PA ChildLine and Abuse Registry

Mandated by 23 Pa.C.S. § 6331 of the Child Protective Services Law (CPSL), ChildLine is a statewide database in Pennsylvania that contains information related to suspected, indicated and founded reports of child abuse, including sexual abuse. The database includes and is limited to the types of data listed in 23 Pa.C.S. § 6336, which among other items, includes 1) the names, social security numbers, age, race, ethnicity and sex of the subjects of the reports, and 2) the date or dates and the nature and extent of the alleged instances that created the need for protective services.

Why are Individuals Placed on the ChildLine and Abuse Registry?

Individuals' names and other personal information appear on this registry as a result of a mandated reporter (23 Pa.C.S. § 6311) or any other individual having made a report of alleged child abuse. Names and information remain on the registry in several situations, including during pending investigations; when reports have been deemed "indicated" or "founded;" and when unfounded reports of child abuse are awaiting expunction.

Who Has Access to this Information?

Although reports are not generally available to the public, Child Protective Services Law gives numerous persons access to indicated reports, including physicians and hospital administrators who treat children, a guardian ad litem, agency and court personnel, federal auditors, law enforcement officials and designated county officials (See 23 Pa.C.S. § 6340).

What Occurs Once an Individual is Reported to ChildLine?

Upon receiving a report of suspected child abuse by a perpetrator from an individual, the "county agency" will immediately begin an investigation in order to assess the validity of the allegation. Among other actions, the Agency will interview the child (within 24 hours or sooner if in an emergency); determine if he or she would be at risk if not removed from the current residence; provide a medical screening if warranted; and interview witnesses. In accordance with 23 Pa.C.S. § 6368(j)(1), investigations to determine whether to accept the family for service and whether a report is founded, indicated or unfounded must be completed within 60 days.

What if I am Asked to be Interviewed as a Part of the Investigation?

The county agency is required by law to attempt to interview all "subjects" of the report, including the alleged perpetrator. (If you are asked to be interviewed, invoke your right to counsel.) Before conducting an interview of any subject with the exception of the alleged victim, the Agency must give oral notification of  (i) the existence of the report; (ii) the subject’s rights under 42 Pa.C.S. § 6337 (relating to right to counsel) and 6338 (relating to other basic rights); (iii) the subject’s rights pursuant to this chapter in regard to amendment or expungement, and (iv) the subject’s right to have an attorney present during the interview. Written notice of this information is required to be given within 72 hours after oral notification.

What is an "Indicated Report," and What Proof is Necessary for This Finding?

At the conclusion of an investigation, a report of child abuse is characterized as an "indicated report" if the investigation by the county agency or the Pennsylvania Department of Human Services (formerly Department of Public Welfare (DPW)) determines that "substantial evidence" of the alleged abuse exists based on available medical evidence, the child protective service investigation, or an admission of the facts of abuse by the perpetrator. “Substantial evidence” is evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion (23 Pa.C.S. § 6303) (this will be discussed in detail later).

What if the Report Against Me Was Deemed "Indicated?" Can I Appeal?

Although currently being subject to legal scrutiny, Pennsylvania law does not require a pre-deprivation hearing before the indicated report goes into the registry, i.e., an alleged perpetrator's name and other personal information is added to the ChildLine and Abuse Registry even before an opportunity to be heard at an evidentiary hearing is given. 

"Within 90 days of being notified of the status of the report, one must request an administrative review by, or appeal and request a hearing before, the secretary to amend or expunge an indicated report on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this chapter." (23 Pa.C.S. § 6341(a)(2))

If an administrative review is requested, the Department of Human Services must within 60 days send notice of the secretary’s decision. If the secretary refuses a request to amend or expunge an indicated report, or does not act within the prescribed time, the alleged perpetrator has the right to appeal and request a hearing before the secretary – this request must be made within 90 days of notice of the initial decision. Upon receiving a request for a hearing, the Department must within 10 days schedule the hearing. Unless a continuance is agreed upon by all parties, the hearing must be held before the Bureau of Hearings and Appeals within 90 days of the date the scheduling order is entered.

Administrative Hearings in ChildLine Cases

Prior to the hearing, the Department or county agency must provide a person (and hopefully his or attorney) making an appeal with evidence gathered during the child abuse investigation (subject to certain confidentiality laws). The hearing is similar to a criminal trial, but different in several aspects. The evidence, including live testimony from all parties, is heard by an Administrative Law Judge (AJL), who governs all aspects of the case under Administrative Agency Law. The Department or county agency bears the burden of proving by substantial evidence that the report should remain categorized as an indicated report. However, given that the definition of substantial evidence is "evidence which outweighs inconsistent evidence…," the appellant implicitly has the burden of assuring that all inconsistent evidence is presented before the ALJ.

Substantial Evidence Burden in ChildLine Cases

As opposed to a criminal trial where the burden of evidence is "beyond a reasonable doubt," the burden of evidence in a ChildLine administrative hearing is the much-less-burdensome standard of "substantial evidence," which is defined as "evidence that outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion" (23 Pa.C.S. § 6303). Generally speaking, the standard of proof is lower because a finding of "indicated" does not automatically yield criminal liability, and because the law was designed to err on the side of caution in regard to potential victims of child abuse. As mentioned previously, the Department or county agency bears the burden of providing evidence that outweighs inconsistent evidence, but the appellant implicitly bears the burden of producing or eliciting through testimony the inconsistent evidence.

Inconsistent Evidence in ChildLine Cases

The key focus for an appellant's counsel is producing "inconsistent evidence," but this term is not explicitly defined under 23 Pa.C.S. § 6303. Although it is commonly understood to mean evidence that does not stay the same throughout, it's actual meaning is much more expansive. After all, if the only evidence that was to be considered was that which has been inconsistent, other evidence such as consistent lies and impossibilities would be ignored. Instead, after examining numerous appellate court cases, this author opines that this term might be better defined as all evidence that conflicts with the County's evidence, whether produced from the County's evidence or produced independently by the appellant (see generally A.P. v. Dep't of Pub. Welfare, 98 A.3d 736, 2014).

The overarching goal of the Administrative Law Judge (AJL) is to judge the credibility of allegations. In cases where these is no physical evidence, the law requires him or her to consider all of the child's testimony, not just the selective parts that described the alleged abuse (G.H. v. Dep't of Pub. Welfare (In re S.H.), 96 A.3d 448, 2014, Appeal Denied). In doing so, he or she might consider the following factors in the analysis: demeanor, taint (adult influence), motivation, lapses in memory, falsehoods, implausibilities, inconsistencies, contradictions, impossibilities, vagueness of testimony, opposing testimony and reputation evidence. At the conclusion of the case, the ALJ is tasked with utilizing a "weighing dynamic" in order to determine whether the Agency has demonstrated by substantial evidence that the report should be maintained (see G.V. v. Dep't of Pub. Welfare, 625 Pa. 280, 2014). The ALJ's decision must be rendered, filed and served upon the parties within 45 days of the date upon which the proceeding or hearing is concluded, with certain exceptions.

What are My Options if the ALJ Maintains the Report?

Under 23 Pa.C.S. § 6341(g), parties have "15 calendar days from the mailing date of the final order of the Bureau of Hearings and Appeals to request the secretary to reconsider the decision, and have 30 calendar days from the mailing date of the final order of the Bureau of Hearings and Appeals to perfect an appeal to Commonwealth Court." It is imperative to understand that the 15-day time limit for filing for reconsideration is included in the 30 days provided to perfect an appeal to the Commonwealth Court.

Conclusion

It's unfortunate that Pennsylvania law allows potentially innocent people to be placed on a list of suspected child abusers even before given the opportunity to testify at an evidentiary hearing. Although the ChildLine Registry is not open to the public as is the Megan’s Law registry, it is made available to professional agencies and is also used when issuing certain clearances for employment.

Although the outcome of such a hearing does not automatically trigger criminal penalties or even charges, all evidence that is produced can in fact be used in a subsequent criminal case should one be started. Therefore, one cannot afford to navigate this process without the direction of an attorney who is highly experienced with these types of cases. Premier Defense Group approaches these hearings, despite being civil in nature, with the same level of commitment as it does a criminal case.

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. 

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SVP Designation Under PA SORNA Deemed Unconstitutional

On October 31, 2017, the PA Superior Court (in Commonwealth v. Butler, 2017 PA Super 344) ruled that the methodology or “framework” used to designate individuals as Sexually Violent Predators (SVPs) under the State’s SORNA laws is unconstitutional.

Pennsylvania law (42 Pa.C.S.§ 9799.24) requires PA courts to order anyone convicted of a sexually violent offense (SVO) to be assessed by the Sexual Offenders Assessment Board (SOAB) in order to determine whether the individual  should be classified as a sexually violent predator. Prior to sentencing, the court “shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator.” If an individual is deemed an SVO, he or she is required to register as a sex offender for life.

In Commonwealth v Butler, Appellant was required to register as a sex offender for a 15-year period based upon his conviction; however, as a result of being deemed an SVO he was subsequently required to register for life. In this case, the PA Superior Court analyzed this “framework” with consideration of Commonwealth v. Muniz, 164 A.3d 1189, in which case the PA Supreme Court ruled that SORNA’s requirements are “punitive,” i.e., they are to be considered punishment.

In its option, the Superior Court in Butler followed the findings of Alleyne v. United States, 133 S.Ct. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), and ruled:

“Thus, as our Supreme Court has stated, if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond a reasonable doubt.”

“In other words, since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne, a factual finding, such as whether a defendant has a “mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.”

In essence, because designating someone as a SVP under PA’s laws automatically increases his or her minimum registration period to lifetime (assuming the person is not already Tier III), this action creates added punishment. Therefore, this determination must be made by the trial fact-finder (judge or jury), AND must be proved “beyond a reasonable doubt”, not via “clear and convincing evidence,” which is the burden of proof in civil cases.

In light of its findings, the PA Superior Court forbade trial courts from designating anyone as an SVP, and from holding SVP hearings “until our General Assembly enacts a constitutional designation mechanism.”

This ruling is applicable to individuals who were designated as Sexually Violent Predators under SORNA laws (enacted December 20, 2012), AND whose registration period was increased to lifetime as a result of the designation.

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. WE DO NOT HANDLE REGISTRATION MATTERS.

 

 

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PA Supreme Court Declares Retroactive Application of SORNA / Megan’s Law Unconstitutional – 2017

****UPDATE – Petition for Writ of Certiorari Denied – U.S. Supreme Court Appeal – January 22, 2018 – This means that the below ruling was not disturbed****

Since Pennsylvania’s implementation of SORNA on December 20, 2012, numerous legal challenges regarding its seemingly unconstitutional application have found dead ends. That is until today, July 19 2017, when PA’s highest court released its opinion of the case Commonwealth v Muniz (No. 47 MAP 2016). Today, the Pennsylvania Supreme Court has declared the retroactive application of the state’s SORNA laws to be unconstitutional under the ex post facto clauses of the United States and Pennsylvania Constitutions.

BACKGROUND

Until today, Pennsylvania courts have found that the registration, verification, and counseling requirements of Megan’s Law/SORNA “were not sufficiently onerous to be considered punishment.” And because the provisions were not deemed punishment, their retroactive application did not violate the ex post facto clause of Pennsylvania’s Constitution. Since such rulings, such as in Commonwealth v. Williams, 832 A.2d 962 (Pa. Sept. 25, 2003) and Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. Ct. July 9, 2014), politicians and lawmakers have continued to add to the restrictions and requirements of those who were required to register as sex offenders. And as the court in Muniz found, these additional burdons have finally tipped the scale from remedial to punitive effects.

CASE SUMMARY

As a result of a conviction for Indecent Assault in Cumberland County, PA, Defendant was scheduled to be sentenced on May 8, 2007 at which time he would have been required to register as a sex offender for 10 years. Because Defendant absconded, he was not sentenced until after PA implemented its SORNA laws, and therefore was sentenced with lifetime registration requirements under SORNA. Upon appeal, the PA Superior Court affirmed the trial court’s decision on August 7, 2015. Defendant appealed the decision to the PA Supreme Court, which brings us to today’s ruling.

In its analysis, the PA Supreme Court court in Muniz was tasked with determining whether PA’s existing SORNA requirements, when applied retroactively, violate the PA Constitution and/or the United States Constitution. Having found that the legislative intent of SORNA was not to punish, the Court was next required to determine whether SORNA is “sufficiently punitive in effect to overcome the General Assembly’s stated non-punitive purpose” using the Mendoza-Martinez factors.

FINDINGS OF MENDOZA-MARTINEZ FACTOR ANALYSES

i. Whether the Statute Involves an Affirmative Disability or Restraint

“….we find the in-person reporting requirements, for both verification and changes to an offender’s registration, to be a direct restraint upon appellant and hold this factor weighs in favor of finding SORNA’s effect to be punitive.”

ii. Whether the Sanction Has Been Historically Regarded as Punishment

“We conclude the weighing process with regard to this Mendoza-Martinez factor presents a much closer case than the Smith Court’s analysis of Alaska’s registration statute in 2003. We consider SORNA’s publication provisions-when viewed in the context of our current internet-based world-to be comparable to shaming punishments. We also find SORNA and the Alaska statute are materially different in their mandatory conditions such that SORNA is more akin to probation. We therefore hold this factor weighs in favor of finding SORNA’s effect to be punitive.”

iii. Whether the Statute Comes into Play Only on a Finding of Scienter

“….we agree with the Smith Court in finding this factor is of little significance in our inquiry.”

iv. Whether the Operation of the Statute Promotes the Traditional Aims of Punishment

“Under the circumstances, we conclude SORNA is much more retributive than Megan’s Law II and the Alaska statute at issue in Smith, and this increase in retributive effect, along with the fact SORNA’s provisions act as deterrents for a number of predicate offenses, all weigh in favor of finding SORNA punitive.”

v. Whether the Behavior to which the Statute applies is Already a Crime

“As with the third Mendoza-Martinez factor discussed above, this factor carries little weight in the balance.”

vi. Whether there is an Alternative Purpose to which the Statute may be Rationally Connected

“We therefore conclude there is a purpose other than punishment to which the statute may be rationally connected and this factor weighs in favor of finding SORNA to be nonpunitive.”

vii. Whether the Statute is Excessive in Relation to the Alternative Purpose Assigned

“Accordingly, we conclude SORNA’s requirements are excessive and over-inclusive in relation to the statute’s alternative assigned purpose of protecting the public from sexual offenders.”

viii. Balancing of Factors

“Our review of SORNA under the Mendoza-Martinez factors reveals significant differences between Pennsylvania’s most recent attempt at a sex offender registration statute and the statutes upheld in Williams II and Smith. As stated, we have determined four of the five factors to which we have given weight-all except for whether there is an alternative purpose to which the statute may be rationally connected-weigh in favor of finding SORNA to be punitive in effect despite its expressed civil remedial purpose. We conclude SORNA involves affirmative disabilities or restraints, its sanctions have been historically regarded as punishment, its operation promotes the traditional aims of punishment, [*72]  including deterrence and retribution, and its registration requirements are excessive in relation to its stated nonpunitive purpose. Accordingly, we hold the retroactive application of SORNA to appellant violates the ex post facto clause of the United States Constitution.”

State Ex Post Facto Claim

“For those reasons, we find Pennsylvania’s ex post facto clause provides even greater protections than its federal counterpart, and as we have concluded SORNA’s registration provisions violate the federal clause, we hold they are also unconstitutional under the state clause.”

What This Means for Current Individuals on The Registry

1) If you were initially not required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was required to register retroactively as a result of this conviction due to Pennsylvania’s implementation of SORNA on December 20, 2012, you are entitled to relief.

2) If you were required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was retroactively required to register for a longer period of time as a result of this conviction due to Pennsylvania’s implementation of SORNA on December 20, 2012, you are entitled to relief.

3) If you were required to register as a sex offender as a result of a conviction prior to December 20, 2012, and subsequently was retroactively required to fulfill more obligations as a result of this conviction due to Pennsylvania’s implementation of SORNA on December 20, 2012, you are entitled to relief.

To put it simply, if your conviction was prior to December 20, 2012, SORNA’s provisions shall not apply to you.

RECOGNITION

The Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers

The Association for the Treatment of Sexual Abusers

Assessment and Treatment Alternatives

The Joseph J. Peters Institute

The Collateral Consequences Resource Center

The Social Science Scholars

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. WE DO NOT HANDLE REGISTRATION MATTERS.

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PA Supreme Court: “Two or More Convictions” Must Stem From Multiple Acts & Convictions to Trigger Lifetime Registration Requirement

Section 9799.14 of Pennsylvania’s sex offender registration laws classifies the State’s sexual offenses into three tiers: Tier 1 requiring a 15-year registration period, Tier 2 requiring a 25-year registration period, and Tier III requiring lifetime registration. Included under the Tier 3 designation is 9799.14(d)(16), which states:

“Two or more convictions of offenses listed as Tier I or Tier II sexual offenses.”

On appeal, the PA Supreme Court in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012) was tasked with deciding whether this statute meant that a person should be required to register for life if he or she was convicted of multiple Tier 1 or Tier II offenses arising from a single act and prosecution. Prior to this undertaking, the Superior Court ruled that the above language is unambiguous, and therefore a person in such a circumstance should indeed be required to register for life. Unfortunately, the PA Supreme Court in Gehris was evenly divided, and therefore the ruling of the Superior Court was affirmed.

Fortunately the PA Supreme Court in Commonwealth v. Lutz-Morrison revisited the issue, and yesterday (8-15-2016) came to a logical decision:

“It is enough to note we hold that Section 9799.14, considered in the context of the statutory language as a whole, is susceptible to two reasonable constructions, and the statute, which sets forth a graduated (three-tier) scheme of registration, encompasses a recidivist philosophy. As such, the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise subject to a fifteen- or twenty-five-year period of registration.”

It’s important to note that the same general ruling was made with respect to the “two or more convictions” language included in Megan’s Law II (pre-SORNA). See A.S. v. Pa. State Police, 24 MAP 2014, J-36-2016 (Pa. filed Aug. 15, 2016):

“In accordance with the Gehris Opinion in Support of Reversal (OISR), as supplemented by our analysis below, we hold the provision, considered in the context of the statutory language as a whole, is amenable to two reasonable constructions; and we further hold the statute, which sets forth a graduated scheme of registration, encompasses a recidivist philosophy.2 We therefore conclude the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration.”

“Fourth and finally, and returning to the subject of predicate ambiguity, we note there is some validity in the point made in the dissent below that it would be absurd and unreasonable if a single act, giving rise to a single prosecution yielding two convictions for overlapping predicate offenses, subjected an offender to lifetime registration. In conclusion, we hold the statute requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise triggering a ten-year period of registration. Accordingly, the award of mandamus relief is hereby affirmed.”

CONCLUSION

Please note that our firm does not handle registration issues. If you believe that this case could afford you legal relief, please contact a local attorney. For those in the Pittsburgh area, you might contact the Law Offices of David J. Shrager.

DISCLAIMER

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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PA’s Tender Years Hearsay Act versus the 6th Amendment

A Trial Without Testimony

Constitutional_RightsIn a previous blog titled “Right To Confrontation is Sexual Abuse Cases“, we discussed how the Crawford case strengthened one’s right to confront his or her accuser during the criminal court process. Prior to this ruling, prosecutors relied upon the Roberts case to have out-of-court hearsay statements admitted at trial in lieu of live testimony, so therefore a defendant could be convicted without ever having an opportunity to have his or her lawyer cross examine the accuser.

Of course, in order for this to happen, the out-of-court statements first had to be admitted via a hearsay exception rule, such as Pennsylvania’s Tender Years Hearsay Act (42 Pa.C.S. § 5985.1).  This particular hearsay exception allows out-of-court statements made by individuals 12 years of age or less to be entered into evidence under certain conditions. In order for the State to have such statements admitted into evidence in lieu of live testimony, the trial court had to find that a) the statements were relevant and reliable, and b) that the child was “unavailable” as a witness.  If such determinations were made, the out-of-court statements were admitted into evidence and the defendant would go to trial without the opportunity to have his or lawyer cross examine the child witness.

Crawford Changes Things

Unfortunately at that time, a 6th amendment confrontation challenge would have failed because the Roberts case gave no protection against the above described method – as long as a court determined that the out-of-court statements had adequate “indicia of reliability”, and that the declarant was “unavailable”, a confrontation challenge would fail under Roberts. However in 2004, approximately 24 years after the Roberts case was decided, the Crawford decision overruled the Roberts decision and changed the landscape – the U.S. Supreme Court ruled that, regardless of a finding of adequate “indicia of reliability”, any out-of-court statement that is testimonial in nature is not admissible unless the defendant has had a full and fair opportunity to cross examine the declarant regarding these statements AND the declarant is unavailable as a witness. Therefore, even if the child witness (declarant) was deemed unavailable as a witness and his or her statements were deemed reliable, the statements could not be used at trial as a substitute for live testimony unless the defendant (defendant’s attorney) had a previous opportunity to cross examine the child witness.

Prosecutors Dismantle Crawford’s Protection

Since then, however, prosecutors have been finding ways to work around this prosecutorial “road block.”  They focused in on the fact that the Crawford decision only grants confrontation rights in cases where the out-of-court statements are “testimonial” in nature. Therefore, if a court rules that the desired out-of-court statements are non-testimonial, the Crawford decision does not preclude these statements from being used at trial in lieu of live testimony. Unfortunately, the Crawford case gave little guidance as to how a statement should be analyzed to determine whether it is testimonial or non-testimonial.

Testimonial versus Non-Testimonial

Over the years, various courts have struggled to firmly define these words. In 2015 the U.S. Supreme Court (Ohio v. Clark, 135 S. Ct. 2173 (U.S. 2015)) summarized its prior analyses of testimonial versus non-testimonial, which were made in Davis v. Washington, 547 U.S. 813 (U.S. 2006) and Michigan v. Bryant, 562 U.S. 344 (U.S. 2011):

“We held that the statements in Hammon were testimonial, while the statements in Davis were not. Announcing what has come to be known as the “primary purpose” test, we explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”  Because the cases involved statements to law enforcement officers, we reserved the question whether similar statements to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause.

In Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), we further expounded on the primary purpose test. The inquiry, we emphasized, must consider “all of the relevant circumstances.”  And we reiterated our view in Davis that, when “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.”  At the same time, we noted that “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” “[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry.” Instead, “whether an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.”

One additional factor is “the informality of the situation and the interrogation.”  A “formal station-house interrogation,” like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused.  And in determining whether a statement is testimonial, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”  In the end, the question is whether, in light of all the circumstances, viewed objectively, the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”

Of particular importance from the Bryant case is the following statement, which suggests that statements, while initially “non-testimoninal” in nature, can evolve into “testimomnial” statements as the scope of the questioning changes:

“a conversation which begins as an interrogation to determine the need for emergency assistance” may “evolve into testimonial statements.”

We also suggest reading the Pennsylvania Supreme Court’s decisions in In re N.C., 105 A.3d 1199 (Pa. 2014) and Commonwealth v. Allshouse, 614 Pa. 229 (Pa. 2012). For defense attorneys, it is critical to gain a thorough understanding of the above analyses. Undoubtedly, prosecutors will attempt to bypass defendants’ 6th amendment rights and convict using only non-testimonial out-of-court statements. They can legally accomplish this without violating the Crawford ruling; however, they still need to meet the requirements of the hearsay exception used to admit the statements into evidence. In Pennsylvania, the most commonly used exception is the Tender Year’s Hearsay Act (42 Pa.C.S. § 5985.1).

Pennsylvania’s Tender Years Hearsay Act (TYHA)

Pennsylvania’s Tender Year’s Hearsay Act (42 Pa.C.S. § 5985.1) is as follows:

(a)  General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:

(1)  the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

(2)  the child either:

(i)  testifies at the proceeding; or

(ii)  is unavailable as a witness.

(a.1)  Emotional distress. — In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate. In making this determination, the court may do all of the following:

(1)  Observe and question the child, either inside or outside the courtroom.

(2)  Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.

(a.2)  Counsel and confrontation. — If the court hears testimony in connection with making a finding under subsection (a)(2)(ii), all of the following apply:

(1)  Except as provided in paragraph (2), the defendant, the attorney for the defendant and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney for the plaintiff has the right to be present.

(2)  If the court observes or questions the child, the court shall not permit the defendant to be present.

(b)  Notice required. — A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

Pennsylvania’s Tender Years Hearsay Act Combined with Dismantled Crawford

As previously mentioned, it the State wishes to admit out-of-court, non-testimonial statements made by a child in lieu of live testimony, it can do so without violating the defendant’s 6th amendment right to confrontation. However, the State must first meet the requirements of the hearsay exception, which for purposes of this discussion will be Pennsylvania’s Tender Year’s Hearsay Act. To meet the requirements, prosecutors must establish that a) the statements are relevant and reliable, and b) that the child witness is “unavailable” as a witness.

In order to find that the statements are relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability, the PA Superior Court in Commonwealth v. Walter, 625 Pa. 522 (Pa. 2014) stated:

“In determining whether out-of-court statements of a child contain “particularized guarantees of trustworthiness surrounding the circumstances under which the statements were uttered to the person who is testifying,” Delbridge, 855 A.2d at 45 [Attorney Tom Pavlinic’s case], and, therefore, are admissible under the TYHA, the focus is on the truthfulness of the statements, which is assessed by considering the spontaneity of the statements; the consistency in repetition; the mental state of the child; the use of terms unexpected in children of that age; and the lack of a motive to fabricate.”

It is important that attorneys understand that there is a clear legal distinction between competency and reliability, and therefore do not blend PA Rule 601 with 42 Pa.C.S. § 5985.1(a)(1) – the Court in Walter made clear that a child witness does not have to be declared competent to testify in order for his or her statement to meet the requirements 42 Pa.C.S. § 5985.1(a)(1):

“..we hold that a child need not be deemed competent to testify as a witness in order for the trial court to admit the child’s out-of-court statements into evidence pursuant to the TYHA. “

Disclaimer

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in 6th Amendment Issues, Hearsay Exceptions |
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“On or About” in Texas Sex Crime Indictments

Being accused of a sex crime against a child is perhaps the most difficult accusation to defend yourself against in a court of law. We know that children and teens make false accusations – there are often stories in the news wherein the accusers later recant their stories, or DNA evidence exonerates the accused. Nevertheless, jurys often have a difficult time trying to understand why children or teens would fabricate such stories, and this mandates defendants to prove their innocence.

Proving Something Didn’t Happen Numerous Years Ago

Defending yourself against allegations of sexual conduct that took place numerous years ago adds another layer of difficulty. You are tasked with proving that something DIDN’T happen, and quite often face numerous obstacles such as 1) deceased witnesses, 2) the inability to collect physical evidence, 3) the inability to interview the accuser at the time the allegations were made, and 4) faded memories. In such cases, the only evidence that you might be able to offer to the jury is your own statement denying that the conduct occurred. Having said that, you might be wondering about using where you were when the crime was alleged to have occurred as evidence. Well, because of the “on or about” language used in Texas indictments, using that evidence can be an impossibility.

Proving Where You Weren’t “On or About”

When multiple instances of sexual conduct are alleged to have occurred numerous years ago, Texas does not expect the accusers to recollect the exact dates, or even months and years when the conduct allegedly occurred. Logically, it may be true that accusers sometimes cannot recall specific dates or specific instances, but how is one to defend himself if the State cannot even tie the alleged conduct to a date or specific instance (.e.g., a party)?

A typical Texas indictment may read something like this: “The defendant did engage in sexual intercourse with the victim on or about December 17, 2000.” To a lay person, “on or about” would perhaps mean a couple of days, or even within a week.  Even if this were the legal definition, you would be tasked with proving your whereabouts during each of the days which were 15 years ago. This however, would be a luxury compared to what you really are tasked with under current Texas law.

The legal definition of “on or about” is construed to mean the following [Mireles v. State, 901 S.W.2d 458 (Tex. Crim. App. 1995); (see also Martin v. State, 335 S.W.3d 867 (Tex. App. 2011))]

“the State may prove that an offense was committed before, on, or after the date alleged in the information, so long as the date is anterior to the presentment of the information and not barred by limitation”

Tex. Code Crim. Proc. Art. 21.02(6) provides:

“The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.”

This creates a nightmare for defense counsel as well as for the accused. Here is an example of how this works:

  1. the accuser alleges that she was sexually assaulted at least 20 times from 1997 to 2000
  2. the State charges the defendant with 20 counts of sexual assault of a child using arbitrary time frames with the “on or about” language
  3. during her testimony, the accuser gives no specific dates or instances that the defendant can challenge
  4. the jury is sent out to begin deliberations, and while it believes beyond a reasonable doubt that the defendant did have sexual intercourse with the accuser, it is unable to tie the alleged conduct to any specific timeframe in the indictment
  5. the jury reads the legal definition of “on or about”, and learns that it means any time before the indictment was filed as long as the statute of limitation had not expired
  6. believing that it occurred at least once, the jury has no reason to believe that it did not happen 20 times, so they enter GUILTY verdicts for all counts
  7. although sentences arising from a single criminal episode are required to be concurrent, there is an exception for sexual offenses against a child, so the judge sentences the defendant consecutively for each count

Ever-Changing Statute of Limitation

At this point you might be wondering as to why the statute of limitation had not expired in this theoretical situation. The answer is because the clock for the statute of limitation resets each time the statute of limitation is amended under law, as long as the statute of limitation prior to that amendment has not expired (see Phillips v. State, 362 S.W.3d 606 (Tex. Crim. App. 2011).

“Texas courts have upheld the constitutionality of extending an unexpired criminal statute of limitations. Thus, a statute oflimitations may be extended by the legislature, but a prosecution within the new time period will be permitted only if the limitations period had not already run before the law was changed.”

For example, let’s say a crime was alleged to have occurred in April 1990 when the accuser was 8, and at that time the statute of limitation (SOL) for that crime was 10 years. Then in 1998 an amendment was made that change the SOL to 10 years after the 18th birthday of the victim. In 1998, prior to the amendment, the SOL was two years away, but because that SOL had not expired PRIOR to the amendment, the new SOL would now be 2010 (victim would be 18 in year 2000, and ten years after that birthday would be 2010.)  Furthermore, because there apparently is no need for the accuser to tie alleged conduct to a specific date or instance, the SOL could be intentionally avoided by the State simply by framing the indictment within the SOL.

Fuel for False Convictions

The aforementioned is just a taste of what someone faces when accused of committing a sex crime numerous years ago. Many of these laws have been fueled by public outcry to protect children, but in fact people are ignoring that these laws undoubtedly are fueling false convictions. Currently, Texas has no statute of limitation for sex crimes against a child. Imagine being falsely accused of such a crime and trying to defend yourself 20 years later. What evidence would you have? If you find yourself in this position, you should hire a lawyer with decades of experience in sex crimes defense. If you would like to speak with attorney Tom Pavlinic about your case, call him today for a free consultation.

Disclaimer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Posted in Criminal Procedure, Trials |
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Extending Registration Period in PA Violates Contract Law

In December of 2013, we discussed the PA Superior Court's decision in Hainesworth, wherein the court found that the defendant was not required to register as a sex offender retroactively under SORNA because non-registration was a term of his plea contract. On September 9, 2014, the Superior Court expanded this legal rationale to include the extension of one's registration period. In Commonwealth v. Nase, 2014 (Pa. Super. Ct. 2014), the defendant accepted a plea bargain that required him to register under Megan's Law for a period of 10 years. Subsequent to the passage of the new version of Megan's Law on December 20, 2012, however, he was told that his registration period had been extended to 25 years. After being denied relief by the lower court, he appealed to the Superior Court of Pennsylvania. The Superior Court applied the same legal analysis used in Hainesworth, and was tasked with determining whether the "ten-year registration period was a material part of the plea agreement." It found that the record in the case did establish that a ten-year period of registration was part of Appellant's plea agreement, and that he "is entitled to the benefit of his bargain, and is not subject to additional registration beyond that envisioned by his plea agreement." It is not clear what the standard of proof is when determining whether registration, or a registration period was a condition of a plea agreement, but based upon the Hainesworth and Nase cases, one has a much better chance of winning this legal challenge if there is some mentioning of either condition in the plea transcript. This is not to say that a legal challenge could not be made based upon implicit evidence, however.

UPDATE DECEMBER 2016: See the most recent favorable verdicts regarding this issue:

1) http://cases.justia.com/pennsylvania/superior-court/2016-862-eda-2016.pdf?ts=1482358757

2) http://www.pacourts.us/assets/opinions/Supreme/out/J-29C-2016mo%20-%2010282682612021420.pdf?cb=1

Disclaimer

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately.  If you or someone you know is currently being charged with a sex crime and needs legal assistance, please visit our website and contact us. The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Posted in SORNA |
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Maryland Registration: Federal Law Does Not Trump State Law

The Court of Appeals of Maryland has ruled that individuals who are not required to register with the State as a result of last years Doe decision, are not required to register with the State under federal laws.

Summary and Update of Doe

Constitutional_RightsIn March of 2013, the Court of Appeals of Maryland ruled that retroactive registration requirements imposed upon individuals as a result of the 2009 and 2010 amendments to the registration laws violate ex post facto laws contained in Article 17 of the Maryland Declaration of Rights (Doe v. Dep’t of Pub. Safety & Corr. Servs., 430 Md. 535 (Md. 2013)).

Although many people believe that this ruling should apply to any offender who was affected by these amendments, Maryland appears to be viewing this decision very narrowly – the State contends that the ruling only applies to individuals whose offenses were committed before October 1995, which is when the registry was established.  Defense Attorney Nancy S. Forster, who spearheaded the Doe case, has challenged this narrow view successfully at the circuit court level. The State has appealed the lower-court victories, so eventually clarification will come from the Court of Specials Appeals. Specifically, she contends that any individual who was required to register retroactively, or whose registration term was extended as a result of the amendments, should be afforded relief by the holding in Doe.

2014 Ruling Regarding Federal Requirements

Prior to the Doe ruling, the State contended in its brief that the federal Sex Offender Registration and Notification Act, SORNA, imposed upon Petitioner an “independent obligation to register as a Tier III sex offender.” However, the Court declined to address this issue because Defendant was only challenging the registration requirements under Maryland law. In its most recent decision, however, the Court of Appeals of Maryland did address this issue (Dep’t of Pub. Safety & Corr. Servs. v. Doe, 2014 Md. LEXIS 417). The Court concluded that SORNA does in fact create a “direct obligation on sex offenders to register in their home state, independent of that state’s implementation of SORNA”; however, “the state need not accept the registration if doing so would be contrary to state law.”

“Based on our holding in Doe I, Marylanders, like Hoosiers, enjoy “greater protection under the prohibition on ex post facto laws” of the Maryland Declaration of Rights. Andrews, 978 N.E.2d at 502. Where Appellees would only be required to register in Maryland, and where we have held that the retroactive application of the Maryland registry is unconstitutional, they, and individuals similarly situated in Maryland, cannot be required to register in Maryland.”

The Court also addressed whether circuit courts can order the removal of information from federal databases. In finding that they cannot, the Court noted that federal registration databases are “not in fact a separate registration system, but rather is a compilation of all state registries, allowing a member of the public to search all state records in one place.” Therefore, “although the State cannot directly remove information from ‘federal databases’, the State is responsible for notifying all relevant federal agencies when registration information is removed from Maryland’s registry.”

 Conclusion

****Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you believe you may be entitled to relief as a result of this decision, contact the Law Office of Nancy S. Forster in Towson, Maryland.

 Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Posted in SORNA |
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Cross Examination of Social Worker in Sexual Abuse Case

In sex crime trials, the prosecution sometimes will utilize the testimony of an “expert” witness. The extent to which the prosecution can use such witnesses varies by state. In the below case, Texas v. C.K. (2014), the prosecution called a social worker to discuss the generalities of sexual abuse and sexually abused children. Attorney Pavlinic objected to the witness because 1) the Defense was not notified in advance that the witness would testify; 2) the testimony was elicited after both parties rested instead of during the case-in-chief – this denied the Defense the ability to call its own expert to challenge the testimony; and 3) the witnesses testimony consisted of generalities, and was not directly related to the facts of the case

Despite the objections, the testimony was allowed by the court. Faced with this unexpected challenge, Attorney Pavlinic aggressively and methodically cross examined the State’s “expert” witness. In the end, the jury returned with a not-guilty verdict on all counts. We hope you enjoy reading this real-life trial testimony, and also hope that this instills in you the understanding that sex crime trials are often complex and unpredictable, and therefore it is imperative to hire a defense attorney with an abundance of experience in this specific area of the law.

Cross Examination Testimony

Q. Mr. Powers, you’re not a psychologist, are you?

A. I’m a clinical social worker.

Q. So the answer is, no, you’re not a psychologist?

A. No, I’m not a psychologist.

Q. Now, in coming here to testify today did you meet with Mr. Lewis and Ms. Miller to prepare your testimony?

A. Yes.

Q. And when did you first meet with them?

A. Probably yesterday. Yeah, yesterday.

Q. So you got involved in this case yesterday?

A. No, I wouldn’t say that. I mean, we’ve discussed the case prior to this, possibly, just peripherally. But we really prepared for trial yesterday and talked.

Q. I would like to know since I wasn’t there. First you said yesterday, then you said, maybe not yesterday. So when did you get involved in this case?

A. As far as getting involved in the case I met with them yesterday. We may have had discussions about the case that I just don’t recall specifics about other than, this case is coming up, we would like you to testify in this

Q. So you normally get involved in cases of this magnitude and this importance affecting all these people the day before you’re going to testify?

A. We’ve been working together for some time. And so, we’re able to meet together and discuss a case, and I think being at a place where we’re able to work together, yes, we do that.

Q. So you work all the time with the State; is that correct?

A. I wouldn’t say all the time, but quite frequently, yes.

Q. Well, how much is frequently? Once a month?

A. Maybe — at least once a month, yes.

Q. How many cases have you collaborated with the State on?

A. I’ve testified in, I’d say over — in my 15 years of being at the advocacy center over a hundred cases.

Q. So you pretty much have this script out; is that correct? You meet with them and you say, okay, this is the testimony I’m going to give in general about abused children and the characteristics of sex offenders; is that right?

A. Well, every case is a little bit different, so I wouldn’t say I have a script, no.

Q. Well, you — what’s different about this case than all the other cases that you’ve done?

A. Well, again, every case is a little bit different and the dynamics are different. Sometimes —

Q. Well, I’m asking you.

A. I’m trying to answer your question.

Q. All right. What is —

A. Sometimes the person who is accused of the crime is a family member. Sometimes they’re not a family member. Sometimes they may be somebody in that child’s life. Sometimes it may be a mother, it may be a father. The dynamics are different in every case.

Q. So you said sometimes the person is in the child’s life or is not in the child’s life, right?

A. That’s correct.

Q. What other possibility is there?

A. Well, again, it may be a female, may be a male, may be —

Q. Well, gender — (Indiscernible crosstalk)

A. — a sibling.

Q. Please listen. Please listen.

A. I’m trying to answer your question and you’re interrupting me, so…

Q. I’m asking you a question. I’m trying to ask the question. So you said he’s either in the life or is not in the life. What is the other possibility?

A. That’s the question I was trying to answer.

Q. Okay. So what is the answer?

A. There’s a number of factors. It could be a female, it could be a male, it could be a — it could be a sibling, it could be — it could be multiple offenders. There’s a lot of factors that go into it. It’s not strictly just one offender and one dynamic.

Q. I’m sorry, I’m having a misunderstanding. I can’t understand your response. If somebody is in your life or not in your life, it could be a female, it could be a sibling, it could be your father, it could be your mother, your relative, right?

A. That’s correct.

Q. So they’re either in your life or it’s a female, brother, father, somebody else, and they’re not in your life. What is the other alternative?

A. A stranger. I mean, you know, when —

Q. So that would be in the other, not in your life if it’s a stranger, right?

A. People who sexually abuse children, especially most —

Q. Okay. But the question —

A. I’m really trying to answer your question but you keep interrupting me.

Q. The question was, if you say it’s a stranger, yes or no, a stranger would be classified as a person not in their life?

A. Some strangers abuse children, yes.

Q. So I — that’s not a response to my question.

A. I’m not understanding your question.

Q. Strangers can abuse children. My question was, if it’s a stranger he falls in the classification that he’s not in the person’s life, yes or no?

A. Yes.

Q. Now, so you work with the State all the time. And is this the customary way that you testify, you come at the end of the case and you talk about abused children and about sex offenders and about all of these characteristics? Is this the normal way that you testify?

A. I wouldn’t say it’s a normal way. Sometimes I have a lot of involvement in the case itself. Sometimes I may have treated the child that is here. Sometimes I may have supervised the case. I have different involvement in different cases, so…

Q. Okay. Let’s talk about this case, okay. So you said sometimes. In this instance we know you didn’t treat anybody; is that correct?

A. That’s correct.

Q. All right. So when you come to testify is it — when you come to testify is it your custom that you come at the end of the case and give the testimony that you normally give?

A. Sometimes I testify in the case-in-chief and sometimes I come and testify in rebuttal.

Q. And what makes the difference? What makes determine whether you — what do you mean when you testify in the case-in-chief?

A. That means during the phase where evidence is being gathered and sometimes I have knowledge of a specific case where I need to provide that knowledge to the jury as part of my testimony.

Q. So when you testify in the presence — in the State’s case-in-chief we get to hear your testimony before we put on any evidence; is that correct?

A. Yes.

Q. So in this instance what made you choose to come in and testify at the conclusion of the case as opposed to during the case-in-chief?

MR. LEWIS: Your Honor, I’ll object. The witness —

THE COURT: Excuse me. I’ll allow you to redirect at a later point.

MR. LEWIS: Okay.

MR. PAVLINIC: I’m sorry, I didn’t hear you.

THE COURT: I said I would allow him to redirect at a later point.

MR. PAVLINIC: Redirect at a later time.

Q. (BY MR. PAVLINIC) So what made you make that determination?

A. Well, as the other witnesses, I received a subpoena and I come when I’m told to. I didn’t get to choose when I come.

Q. I see.

A. I don’t think any witness gets to choose when they come. I come when I’m instructed.

Q. And you’re an expert. Did you make any suggestions to Mr. Lewis about when you thought it might be appropriate to testify?

A. I come when they ask me to come.

Q. Okay. You come when they ask you. Why — you tell me to come and I’m there, right?

A. Yes.

Q. And you testified you taught ethics?

A. I do.

Q. Do you see any ethical concerns about coming in at the conclusion of the case and giving these opinions and talking about these things when the Defense has no opportunity to respond?

A. Well, I don’t agree with your statement that you don’t have an opportunity to respond because you’re asking me questions right now. So the answer would be no, I do not — (Indiscernible crosstalk)

Q. — evidence beyond my ability to ask you questions?

A. I’m sorry. You talked over me, I didn’t hear your question.

Q. How would we respond by putting on any other evidence other than asking you questions?

A. That’s up to you to do. I don’t — I don’t know what — you know, you get a chance to talk to me too. And that’s  (Indiscernible crosstalk)

Q. — I get a chance to talk to you, correct?

A. Yes.

Q. Yes?

A. I believe so, yes.

Q. So did you — you testified that you had an understanding of the facts of the case?

A. Yes.

Q. Okay. You didn’t look at Mariah’s videotaped interview?

A. No. Tonya

Q. Now, that’s an interview that’s conducted in your own agency, the agency that you’re the head of; is that correct?

A. I’m not the head of the agency.

Q. It’s an agency in which you work?

A. The forensic interview is conducted at the Children’s Advocacy Center, that’s correct.

Q. And you’re part of the Children’s Advocacy Center, are you not?

A. That’s correct.

Q. And does Lisa Martinez work for you?

A. She does not work for me.

Q. Do you have a supervisor in that agency or are you the head of the agency?

A. I’m not — as I said, I’m not the head of the agency. I’m in charge of our clinical services.

Q. And you have the ability at any time to look at that interview and see what she said; is that correct?

A. I’m not in charge of forensic interviews. That’s separate from me. And, no, I don’t have the ability just to —

Q. All right.

A. — you know, give me any interview to see.

Q. As coming to court as an expert you want to have the most facts available to you as possible, don’t you?

A. I come to answer the questions that the attorneys ask me.

Q. You want to be as prepared as you possibly can; is that correct? You have an ethical duty to the jurors and to the Court to be as prepared and to be as professional as possible, don’t you?

A. I do.

Q. Now, you have the access to that videotaped interview, don’t you?

A. I have access to the forensic interview.

Q. If you wanted to see the videotaped interview you could have seen it, couldn’t you?

A. If I wanted to see it, I could see it.

Q. Would that have been the best source of the factual knowledge about what Mariah was saying?

A. It would be one part of it, sure.

Q. Did you hear her testimony in court?

A. I was not here for her testimony.

Q. What other basis of knowledge would you have about the facts of this case if you didn’t hear her testimony in court and you didn’t look at the interview that was conducted by your very own agency? Where do you get the factual knowledge of this case?

A. From the questions that are asked today and talking with the attorneys.

Q. So during the course of this direct examination you became familiar with the case and that’s what you’re basing your testimony on, what Mr. Lewis was telling you happened in this case?

A. Well, I believe I’m answering questions regarding the dynamics of abuse. I haven’t really answered —

Q. I haven’t asked you about — we’re going to talk about that in a second. I was asking you, sir, specifically about your knowledge of the factual allegations in this case.

A. I don’t believe —

Q. It comes from what he was telling you in the courtroom today?

A. I don’t believe I’ve asked — been asked or answered any questions regarding the facts of this case.

Q. On his direct examination you said you did not look at Mariah’s tape and — but you had an understanding of the factual allegations. That was your — those were your words that Ms. Tonya can replay for you if you wanted to. Did you say you had an understanding of the factual allegations of the case, yes or no?

A. I have a understanding of the allegations of the case.

Q. All right. So where did you get your factual understanding of the facts of this case, from whom?

A. From the district attorneys.

Q. And when?

A. At length, yesterday and today.

Q. And what were you told about the case?

MR. LEWIS: Your Honor, I’m going to object to hearsay.

THE COURT: I’ll overrule that objection.

MR. PAVLINIC: Did you overrule?

THE COURT: Yes.

Q. (BY MR. PAVLINIC) What were you told?

A. I was told that this was a case related to a sexual assault of a child, a adult in that child’s life, as well as some dynamics involving that the child had made an outcry and wasn’t necessarily believed during that outcry.

Q. And what about the specifics, did you get any details about the nature and extend of the touching?

A. No.

Q. Do you understand that the years in which the touching was supposed to have occurred?

A. I have a vague knowledge that it —

Q. What is your vague knowledge?

A. That it appeared it happened over a length of time.

Q. What years?

A. I don’t know the specific years.

Q. How many years?

A. I don’t know.

Q. You don’t know whether it was one year, two years, ten years, fifteen years?

A. I said I did not know.

Q. Okay. You don’t know. Would that have made a difference about the testimony that you gave here about all these characteristics of abused children? Wouldn’t you want to know the facts about the child that you were talking about?

A. No. My testimony today is about the dynamics of abuse, and the dynamics are the dynamics. They don’t change related to the facts of the case.

Q. I see. So you talk about the dynamics of abuse. It doesn’t make any difference what Mariah said. It doesn’t make any difference your understanding of the facts. You’re going to come in here and tell the jury — you’re going to talk about the dynamics of abuse; is that what you’re saying?

A. I’m here to answer the questions asked of me, yes.

Q. Is that what you’re saying? I know you’re here to answer the questions because that’s what your requirement is as a witness. But I’m asking you, is that what you’re saying about the quality of your testimony, that you’re just here to talk about the dynamics of sexual abuse unrelated to the factual allegations that pertain to Mariah; yes or no?

A. I’m — Q. Yes or no?

A. Please ask that again. I’m not sure I understand. It was a long question. I’m sorry.

Q. You’re talking about the general dynamics of sexual abuse?

A. Yes.

Q. Without particular reference to the dynamics involving Mariah —–; yes or no?

A. Yes.

Q. And the reason you can’t talk about the dynamics with Mariah —– because you don’t know anything about the case other than what Mr. Lewis told you in the courtroom today or yesterday before you were going to come in and testify, right?

A. That’s correct.

Q. Did you ever reach out and talk to Carlos?

A. No.

Q. Did you ever say to him, Carlos, I want to give you a polygraph examination?

A. No.

Q. Did — do you know that polygraph examinations aren’t admissible in any court of law in any state in any federal jurisdiction in the entire United States?

A. Absolutely, yes.

Q. So your profession relies on inadmissible evidence, polygraph examinations that are considered in many jurisdictions to be nothing more than a hoax and voodoo?

A. A polygraph is a standard — it’s a standard practice for working with sex offenders —

Q. It’s not admissible–

A. — all over the United States.

Q. Okay. It’s not admissible in any court because it’s not scientifically reliable.

A. Okay.

Q. You don’t see any sex offenders in this courtroom, do you?

A. I couldn’t answer that question.

Q. You haven’t evaluated anybody, have you?

A. Nobody in this courtroom, no.

Q. You’re not the treating social worker for anybody in this case, are you?

A. I’m not.

Q. You haven’t even interacted with Mariah on a personal basis, have you?

A. No.

Q. Would you recognize her if she walked into this courtroom today?

A. Yes.

Q. From where would you recognize her?

A. From meeting her in the witness room prior to coming in here.

Q. And how long did you talk to her?

A. I was in there, maybe, for 15 minutes.

Q. Do you know anything about family dynamics, about the education of her parents and what they do?

A. No.

Q. Do you know anything about the social interaction between Mariah and her father and her mother and the visitation arrangements?

A. No.

Q. Do you know anything about the nature and extent of the relationship and the quality of the relationship that Mariah had with Carlos?

A. No.

Q. You didn’t find out anything about that information before you came into court today, did you?

A. I wasn’t asked to do that.

Q. In essence, you are here — do you know what the term “bolster” means?

A. I know what the term means.

Q. What does that mean?

A. “Bolster” is to impact in a positive way, to increase knowledge or increase the intensity of something.

Q. And that’s what you’re here to do, isn’t it? You’re here to bolster the State’s case because you are their guy to go to in these types of cases; isn’t that the truth, Mr. Powers?

A. I would not agree with that.

Q. How many times have you testified for the Defense?

A. In state court I’ve been subpoenaed by the Defense one time.

Q. One time. How many times have you testified for the State?

A. I said over a hundred.

Q. Over a hundred?

A. Yes.

Q. And what were the circumstances under which you  testified for the Defense?

A. It was a sexual assault case and the Defense attorney subpoenaed me to be there, so I was there.

Q. Did you — were you there as a hostile witness?

A. I’m never a hostile witness.

Q. I’m not meaning in terms of being aggressive, like I may be being aggressive with you, but hostile in the legal sense where you’re called by the opposing party because they’re calling you to give testimony that may be adverse to the other side.

A. Well, it’s important as a licensed professional I’m not on either side. I’m here to provide knowledge to the Court and the jury in a ethical way to ensure that they get the knowledge they need. If the Defense asks me the questions, I’m going to answer them the same way.

Q. Okay. Let’s talk about that ethical way to get the best knowledge to give to the jury. So what — what have you done to try to get some information from the Defense? Did you contact Ms. Barbieri?

A. She did not contact me.

Q. Did you contact her? You’re the expert. You’re the one that can reach out for information; isn’t that right? You were the expert and you can reach out for information; isn’t that right, if you wanted?

A. If I wanted to.

Q. Did you reach out to her; yes or no?

A. She did not reach out to me.

Q. Did you try — so we’ll assume that she didn’t reach out to you. The question was, again, so we have a clear answer on the record, did you reach out to her?

A. No.

Q. Okay. Now you want to say again she didn’t reach out to you?

A. She didn’t —

Q. How about —

A. — if she would have called me I would have talked with her.

Q. Did you ask for any information that pertained to Carlos about his job employment?

A. No.

Q. About the nature and extent of his relationship with his family?

A. No.

Q. About his siblings?

A. No.

Q. About his own son, Niko? Did you ever meet — do you even know who Niko is?

A. When he was talked about here in the case.

Q. Who is he?

A. I understand that’s his son.

Q. Did you ever meet him?

A. I have not met him.

Q. He’s sitting here in the courtroom, I think.  He’s outside. You never met him. Met anybody, any significant others or anything?

A. No.

Q. No information from the Defense, right?

A. No.

Q. Okay. Tell us what you know about false accusations of abuse.

A. I know a great deal about —

Q. Okay. Let’s — I’d like to hear it. What’s the most important thing you can tell about false accusations of abuse?

A. That they happen sometimes.

Q. Okay. Under what circumstances do they happen?

A. They can happen in a number of circumstances. One of the most common ways that we see them is in custody battles.

Q. How about in high conflict divorce cases?

A. They sometimes happen, yes.

Q. And you know that the effects of false accusations of abuse can be very damaging on people, can’t they?

A. Devastating, yes.

Q. They impact people, their ability to function in life, don’t they?

A. Absolutely.

Q. Impacts their finances, doesn’t it?

A. Absolutely.

Q. It impacts their jobs, doesn’t it?

A. Yes.

Q. It impacts how they interact with their family and their peers, doesn’t it?

A. Yes.

Q. Now, do think that there should be a search and inquiry to make a determination as to whether or not there was a factual — excuse me — a false accusation of abuse?

A. I believe there is, yes.

Q. The jury is to determine whether the allegations are true or false; isn’t that correct?

A. That’s correct.

Q. You’re not saying that [defendant] is a sexual offender, are you?

A. Absolutely not.

Q. You’re not saying that Mariah is a victim of sexual abuse, are you?

A. I have not said that.

Q. That’s not proper testimony for you to give, is it?

A. That’s true.

Q. Tell us about Dr. Caudill. How much professional interaction did you have with Dr. Caudill?

A. I just reviewed her records.

Q. For the first time — first time on these cases, the first professional interaction you had with her?

A. Was I reviewed her records, yes.

Q. Okay. Reading the records in this case was the first time you had any interaction with Dr. Caudill; is that correct?

A. I’ve heard her name. I’ve been practicing a long time. But we don’t have any real professional contact, no.

Q. You’ve never been to her office?

A. No.

Q. You’ve never conducted any seminars with her?

A. I couldn’t tell you whether she’s been in one of my seminars or not.

Q. The question was, did you conduct any seminars with her?

A. And my answer is, I don’t know if she was present during one of my seminars or not. There’s sometimes 2 or 300 people in the room, so…

Q. Did you and she ever engage in any joint seminars together?

A. No.

Q. Do you know what her practices and policies are with regard to how she interacts with her clients?

A. I don’t know her practices and policies.

Q. You obviously — you weren’t there in the interview with Carlos when he was there talking to Dr. Caudill, were you?

A. No.

Q. And you never got his version as to what happened, other than what you heard here in court today; is that correct?

A. That’s correct.

Q. And Dr. Caudill’s referral to Chris White is contingent upon Dr. Caudill’s understanding of what she was told by Carlos; isn’t that correct?

A. I would think so, yes.

Q. And if she didn’t understand correctly, she may  have referred him to an inappropriate therapist; isn’t that possible?

A. That’s possible.

Q. And shouldn’t a therapist take the time to allow their own patient the opportunity to explain and clarify? Should a professional allow a person that comes to them for help the opportunity to explain and clarify?

A. I would hope so.

Q. Is there a reason you would think that they should not have an opportunity to fully explain and clarify if they come to a professional for help?

A. I can’t think of a reason.

Q. Did you hear Dr. Caudill’s testimony about what happened?

A. I was —

Q. Were you here for her testimony?

A. I was not here for her testimony.

Q. Would it surprise you to learn that she said that in one instance that Carlos declined to give any explanation and then later on in her testimony said, well, he tried to clarify and I stopped him? Do you think that was good practice? Mr. Powers, is that good practice not to allow your patient to clarify?

A. I think it’s important to allow a patient to clarify.

Q. So you’re a clinician on occasion, right?

A. I am a clinician.

Q. If you have a client in your office, a patient in your office and you want that person to feel comfortable with you, they come to you in a trust position, didn’t they?

A. Yes. Trust is an important part.

Q. You want them to be free to tell you what’s on their mind?

A. Yes.

Q. Isn’t it?

A. Yes.

Q. And if she misunderstood what he said — the referral to Chris White is only as good as her understanding about the nature of the problem; isn’t that right?

A. That would be correct.

Q. And if she doesn’t understand the problem, she’s not making the correct referral, is she?

A. Correct.

Q. Did you ever get Chris White’s notes?

A. I have not seen Chris White’s notes.

Q. Did you learn that Carlos told Chris White he was there because he had a problem with pornography and his marriage was going bad?

A. I learned that here in the courtroom.

Q. Pardon?

A. I learned that here in the courtroom.

Q. So did you accept that as valid?

A. I accepted the —

Q. So if he’s there for —

A. — to the extent of the knowledge that I’ve learned about that, yes.

Q. If he’s there for problems that have to do with pornography and his marriage going bad, he has no business being in Chris White’s office then, does he?

A. Well, Chris White also is a licensed clinical social worker, he could treat those issues also.

Q. So he could treat him on other issues?

A. He could.

Q. So when you talked about Chris White you emphasized in your testimony only that he was a treatment provider for sexual predators?

A. No, I said he was a licensed clinical social worker and a licensed sex offender treatment provider.

Q. But you didn’t talk about his other aspects of the practice. You only talked about he was treating sexual offenders?

A. That’s a primary focus of his practice.

Q. So that’s the primary focus of his practice. That’s what stood out to you; is that correct?

A. That’s the question that was asked of me.

Q. All right. But you didn’t reach out to Chris White and say, hey, Mr. White, I know that you interviewed — you had a patient, Mr. —-, did you talk to him at all, get any of his records?

A. That would be inappropriate.

Q. Well, you could have gotten a HIPAA form release from Carlos, couldn’t you?

A. Mr. White couldn’t speak to me —

Q. Could you have gotten a HIPAA form release from Carlos if you asked for it?

A. If I asked for it?

Q. If he was willing to give it to you?

A. I suppose I could.

Q. Well, is there any reason that would have not enabled you to get it if you asked for it and said, here it is? Mr. Powers?

A. Yes.

Q. The answer is — I suppose is — the answer is not, I suppose I would. The answer is, yes, I could have —

A. I have no reason to —

Q. — gotten permission?

A. I have no reason to interact with Chris White, so I have no reason to get the HIPAA form.

Q. I see. So — but you had a reason to talk about Chris White, right?

A. Well, I answered the questions.

Q. So let’s — now, you talked about cutting, the children react — they’re going to cut themselves. Did you see any cuts? Did you look at her arms? Did you see any cuts on Mariah?

A. No.

Q. None. You didn’t see any, did you?

A. No.

Q. Did you get any of the medical records where she said she went to to treatment for being sexually abused?

A. No.

Q. You could have gotten a medical authorization from her family or from Mariah to get those records, couldn’t you?

A. If I was working with her, I would, yes.

Q. Well, you could have been able to testify more ethically and more completely if you had medical records; isn’t that right, Mr. Powers?

A. No, I don’t agree with you.

Q. Why?

A. I’m not testifying about Mariah, and so, I have no reason to get her medical records.

Q. Okay. So if none of this testimony that you gave was about Mariah, what’s the relevance of the testimony that doesn’t have to do with Mariah and the case?

A. I’m here to talk about the dynamics of abuse and sexual abuse and sex offenders.

Q. You’re here to talk the dynamics of sexual abuse in an effort to bolster the State’s case, to make Mariah seem more credible through your expertise; isn’t that right? Isn’t that right? You have to admit that, that’s what you’re here for.

A. I’m not here to bolster.

Q. So let’s just wind up by talking about people that — what about the children that make false accusations of abuse, teenagers? What happens to them if they make a false accusation of abuse?

A. Well, a number of things can happen. You know, they could be charged with a crime. They — you know, a number of consequences may happen within their family. But in the most extreme cases they could be charged with a crime.

Q. So what — you haven’t taken any independent investigation to determine whether the allegations in this case are true or false, have you?

A. No, that would be inappropriate.

Q. That’s not even your role, is it?

A. It’s not my role.

Q. So you didn’t do anything independent with regard to Mariah and her family, with regard to Carlos and his family; that’s the truth, isn’t it?

A. It’s not my role in this case.

Q. But you know — you know that your testimony can be used to influence a jury, can’t you?

A. My testimony is to educate the jury.

Q. And you know that you have an ethical responsibility to give the most objective testimony possible, don’t you, as an expert?

A. Absolutely.

Q. And, yet, you didn’t do anything to ensure the objectivity of your testimony, did you?

A. I believe I did.

Q. What did you do?

A. I provided the information that I was asked here in the courtroom.

Q. Yeah, from the State. What objective undertaking did you, as a professional, an ethical professional, say, I have an obligation, I’m an expert, I’m going to come into court and testify? What did you do?

A. I discussed it with the District Attorney’s Office and I came here to testify and answer the questions.

Q. And you know the consequences that people that get falsely convicted of abuse, don’t you?

A. There is some —

Q. They go to jail, don’t they?

A. They very well could, yes.

Q. They go on the sexual registry, don’t they?

A. Yes.

Q. And they go on the sexual registry, in some cases, for the rest of their lives, don’t they?

A. That’s correct.

Q. And they’re subject to mandatory prison, aren’t they? And that’s a pretty —

MR. LEWIS: Your Honor, I’m going to object to relevance and argumentative.

MR. PAVLINIC: Your Honor, everything —

THE COURT: Excuse me. I haven’t had a chance to rule yet.

MR. PAVLINIC: Pardon me?

THE COURT: I didn’t have a chance to rule yet.

MR. PAVLINIC: I’m sorry.

THE COURT: I’ll overrule the objection.

Q. (BY MR. PAVLINIC) They go for the rest of their lives?

A. You mentioned mandatory prison and not all sex offenders —

Q. Some sex offenses are mandatory sentences, aren’t they?

A. Some are.

Q. And so, therefore, when we’re doing these things everybody has an obligation here, you as the expert, the State as the prosecutor, the judge, the Defense to present this jury with the most objective and fair evidence so that they can make a determination about the credibility of these accusations, and not you, right?

A. Yes.

MR. PAVLINIC: If I may just have a minute, Your Honor?

THE COURT: Yes.

Q. (BY MR. PAVLINIC) Just one final area, adult pornography is legal?

A. Yes.

Q. Isn’t it?

A. Yes.

Q. And not everybody that uses adult pornography is a child molester, are they?

A. Absolutely.

Q. And not everybody who masturbates is a child molester, are they?

A. That’s correct.

Q. And there are many people that find their sexual stimulation in pornography and not in personal relationships, don’t they?

A. True.

Q. And there are many people that masturbate rather than have normal sexual relationships, don’t they?

A. True.

Q. And there’s no correlation, whosoever, in any of the literature between adult pornography and masturbation and any type of pedophilia, is there?

A. Not with pedophilia, no.

Q. And you heard Carlos testify that the only thing that he did, because his marriage was going bad, was to use adult pornography?

A. Yes.

Q. You didn’t hear him talk anything about child pornography, did you?

A. No, I did not.

Q. Would it surprise you to learn that Mariah said that the touching happened and it lasted a second?

A. It would not surprise me, no.

Q. That wouldn’t surprise you?

A. No.

Q. You would think there would be sexual gratification for an adult male if he touches a child for one second when she’s seven years old?

A. An adult can get sexually gratified from touching a child for one second, yes.

Q. From the facts of this case, the jury — they’re going to determine whether the facts of this case support that legal conclusion. Would it surprise you — you said it wouldn’t surprise you that it stopped for years at a time?

A. That would not surprise me.

Q. But you — of course you don’t know how many — you don’t know how many years it stopped for, do you?

A. Not in this specific case.

 

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Q. And you didn’t look at the tape, so you know that — you don’t know on the tape Mariah didn’t give any specifics about any year or any event at any time?

MR. LEWIS: Your Honor, I’m going to object to that as facts not in evidence, hasn’t been presented.

THE COURT: Sustain the objection.

MR. PAVLINIC: Your Honor.

THE COURT: I’ve sustained the objection as to the contents of the tape.

MR. PAVLINIC: I don’t think I have anymore questions of this witness.

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PA Superior Court Upholds Enforcement of Plea Agreement Precluding Sex Offender Registration

Prior to reading this article, we recommend that you first read our previous article in which we discussed the laws surrounding plea agreements, and the issue of plea agreements involving sex offender registration.

On December 12, 2012, a Pennsylvania Common Pleas Court issued an order precluding Defendant from having to register as a sex offender under the new laws because his plea agreement was negotiated by both parties to avoid this consequence. The Commonwealth appealed the ruling, and the PA Superior court released its opinion on December 12, 2013.

BACKGROUND – TRIAL COURT

In the instant case (Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. Ct. 2013)), Defendant was charged with three counts of statutory sexual assault (18 Pa.C.S. § 3122.1), two counts of aggravated indecent assault (18 Pa.C.S. § 3125(a)(8)), three counts of indecent assault (18 Pa.C.S. § 3126(a)(8)), and two counts of criminal use of a communication facility (18 Pa.C.S. § 7512). A plea was negotiated, however, where Defendant plead guilty to three counts of statutory sexual assault, three counts of indecent assault, and one count of criminal use of a communication facility, none of which charges required registration under laws at that time (2009). The two counts of aggravated indecent assault, which would have required registration were withdrawn.

After learning that he would be required to register pursuant to SORNA laws that were to be enacted in PA on December 20, 2012, Defendant filed a motion seeking termination of his supervision on December 13, 2012. The trial court denied the petition, but entered an order stating that Defendant was not subject to the registration requirements of SORNA:

Application of [SORNA] to [Defendant] violates due process of law, fundamental fairness, and provisions of the negotiated plea agreement entered into between Defendant and the government. It would also destroy the process of negotiated plea agreements essential to the efficient disposition of criminal cases in Westmoreland County.

SUPERIOR COURT OPINION

The Commonwealth appealed the decision, and the Superior Court issued its opinion. Defendant argued that that non-registration was a term of his plea agreement, and he is due the benefit of his bargain. As expected, the Commonwealth attempted to use the “collateral consequence” argument; however, the high court noted that this was not the proper standard of review, and instead, that Defendant properly framed the issue as an analysis of contract law.

The first part of their analysis was to determine “what the parties to this plea agreement reasonably understood to be the terms of the agreement.” The court noted two important and obvious pieces of evidence that addressed this question: 1) the specific discussions of not having to register in the sentencing transcript, and 2) the fact that every count of the one crime that required registration was withdrawn by the Commonwealth. With this evidence, the Court concluded that the plea was fashioned to preclude Megan’s Law registration.

The next question was whether “it was error for the trial court to order specific enforcement of the terms of that bargain.”  The court again noted that the Commonwealth’s contention that SORNA registration is a non-punitive collateral consequence was not relevant to the instant standard of review, and that “the dispositive question is whether registration was a term of the bargain struck by the parties to this appeal.”  The court stated:

The terms of plea agreements are not limited to the withdrawal of charges, or the length of a sentence. Parties may agree to — and seek enforcement of — terms that fall outside these areas. See Kroh, 654 A.2d at 1169 (ordering specific enforcement of a plea bargain that barred the Commonwealth from calling the defendant as a witness in a separate proceeding). Moreover, even though a plea agreement arises “in a criminal context, it remains contractual in nature and is to be analyzed under contract law standards.” Id. at 1172.

In negotiating a plea that will not require him to register as a sex offender, the defendant trades a non-trivial panoply of rights in exchange for his not being subject to a non-trivial restriction. Fundamental fairness dictates that this bargain be enforced.

[Defendant’s] reliance on the decision of the United States Supreme Court in Santobello v. New York, 404 U.S. 257 (1971), lends support to this conclusion. The Santobello Court ruled that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

The Commonwealth attempted to analogize the instant case to prior decisions, but the high court found these analogies to be misplaced. In one case relied on by the Commonwealth Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004)), the defendant entered a plea of guilty that subjected him to a 10-year registration requirement, but later was required to register for life when a new version of Megan’s Law was enacted. The defendant argued that his plea was involuntary and unlawful because he was not made aware of the registration requirement by the trial court, or, in the alternative, that he should be subject to the 10-year requirement in effect at the time of his plea. The high Court found the this case was easily distinguishable from the instant case because registration WAS a requirement of his plea, AND the record did not support the defendant’s contention that he had bargained for non-registration as a term of his plea.

The Superior Court also stated that “the cases relied upon by the Commonwealth address the voluntariness of those defendants’ pleas. (See Benner, supra; Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008)). The defendants in Leidig and Benner did not seek specific enforcement of their pleas under contract law principles. In the instant case, [Defendant] does not challenge the validity of his plea, or seek to withdraw it; rather, he asks this Court to enforce the terms of his plea. Thus, the cases cited by the Commonwealth do not control the issue currently before this Court.”

SUPERIOR COURT RULING

Accordingly, we conclude that the parties to this appeal entered into a plea bargain that contained a negotiated term that Hainesworth did not have to register as a sex offender. As such, it was not error for the trial court to order specific enforcement of that bargain, and we affirm the trial court’s order.

Conclusion

What does this mean? This means that if you have “proof” that your plea agreement was fashioned to avoid sex offender registration, and you were subsequently required to register pursuant to SORNA, you should contact a defense attorney to file a motion to enforce your agreement based upon the outcome of this case. The level of “proof” required is not explicity clear, but examples of proof include: 1) transcripts, 2) correspondence documents, 3) admissions by prosecutors, and 4) legal documents showing which charges were dismissed.

Disclaimer

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If this ruling is applicable to your situation, you should contact and hire a criminal defense attorney in your area immediately.

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Maryland: Retroactive Sex Offender Registration Law Unconstitutional (2013)

A terrific, and far-reaching ruling was made today (March 04, 2013) by the Maryland Court of Appeals in the case of John Doe v. Department of Public Safety & Corrections: requiring an individual to register as a sex offender retroactively “as a result of the 2009 and 2010 amendments violates the prohibition against ex post facto laws contained in Article 17 of the Maryland Declaration of Rights.”

Pre- Court of Appeals Synopsis

On June 19, 2006 the petitioner plead guilty to and was convicted of child sexual abuse under Maryland law (Section 35A(a)(4)(i)). Sex offender registration was not mentioned during the plea agreement; however, the judge imposed this as a condition of his probation. Petitioner challenged this as an illegal sentence based upon various legal grounds. The Circuit Court agreed, and ordered that the he shall not be required to register.

In 2009, Maryland passed new sex offender laws based upon SORNA, that required Petitioner to register as a sex offender. He appealed, but was denied relief by the Circuit Court for Washington County and then by the Court of Special Appeals. Petitioner appealed to Maryland’s highest court, the Maryland Court of Appeals.

Oral Argument – Maryland Court of Appeals (09/07/2012)

Court of Appeals Analysis and Opinion (03/04/2013)

Upon being denied relief by the lower courts, Petitioner appealed to the Maryland Court of Appeals, who considered the following question:

Given the highly punitive and restrictive nature of Maryland’s newly enacted sex offender registration laws, does their retroactive application violate the federal constitutional ban on ex post facto laws and both clauses of Article 17 of the Maryland Declaration of Rights prohibiting ex post facto laws and ex post facto restrictions?”

In its analysis, the court departed from the United States Supreme Court’s interpretation of ex post facto prohibition under Smith v. Doe (2003). In the latter case, the U.S. Supreme Court utilized a two-pronged test to determine if a provision constituted retroactive punishment forbidden by the Ex Post Facto Clause: 1) whether the legislature’s intent in enacting the provision at issue was punitive, and if not 2) whether there is “the clearest proof” that the provision is “so punitive either in purpose or effect as to negate the intention to deem it civil.”

The Maryland Court of Appeal departed from this analysis, and reaffirmed their holding in Frost, that the “two critical elements” that “must be present” for a criminal or penal law to be an unconstitutional ex post facto law is that the law is retroactively applied to an offender, and that it disadvantages the offender.

As to the disadvantage standard, the Court stated” Article 17 prohibits the retroactive application of laws that have the effect on an offender that is the equivalent of imposing a new criminal sanction or punishment.” The Court opined that requiring Appellant to register as a sex offender retroactively is the equivalent of imposing a new criminal sanction. In reaching this decision, the Court reasoned:

1) Requiring Petitioner to register has essentially the same effect on his life as placing him on probation:

When the State imposed registration upon him in 2009, however, it had an effect that was the equivalent of placing Petitioner on probation for life as a result of his sex offense . Thus, although the statute may be labeled “civil” or “regulatory,” it effectively imposes upon Petitioner an additional criminal sanction for a crime committed in the 1980s.”

2) Petitioner must disclose a significant amount of personal information:

“The result is that the dissemination of information about registrants, like Petitioner, is the equivalent of shaming them, and is, therefore, punitive for ex post facto purposes.”

“…may implicate social ostracism, loss of employment opportunities, and possibly verbal and physical harassment”

3) If Petitioner fails to comply with these conditions, he faces terms of imprisonment:

This is the same circumstance a person faces when on probation or parole; as the result of a criminal conviction, he or she must report to the State and must abide by conditions and restrictions not imposed upon the ordinary citizen, or face incarceration.”

Conclusion

In conclusion, the Court stated:

“Therefore, we conclude that the imposition of the registration requirement upon Petitioner, as the result of amendments passed 25 years after Petitioner’s crime, to a statute passed over a decade after Petitioner’s commission of a crime is in violation of the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights.”

This case is a tremendous victory for all of those who were unfairly required to register retroactively when Maryland changed its laws in accordance with SORNA in 2009 and 2010. Undoubtedly the decision in this case will positively affect numerous other individuals in Maryland, and allow them to move on with their lives. It’s relieving to hear an opinion that is not dis-attached from reality, and we commend the Maryland Court of Appeals for their judicial prudence, as well as Attorney Nancy S. Forster and Attorney Pat Cresta-Savage for their relentless pursuit of justice.

It’s important to note, however, that the Court did not address whether Appellant would be required to register pursuant to SORNA under federal law. The State argued that the federal Sex
Offender Registration and Notification Act (SORNA) imposes an “independent obligation to register as a Tier III sex offender”. This situation is generally similar to laws regarding marijuana use in Colorado: the State laws deem it legal, but federal laws deem it illegal. A fair assumption based upon other states that have declared SORNA to be unconstitutional, however, would be that this will not be an issue.

****Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. However, we have been made aware that the following two Maryland law offices are handling such cases: the Law Office of Nancy S. Forster in Towson, Maryland, and/or the Law Offices of Pat Cresta-Savage in Bowie, Maryland.

 

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

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Padilla – What It Means for Ex Post Facto Violations

Sex offender registration (SOR) in Pennsylvania has long been considered to be a collateral consequence as opposed to a direct consequence. A few examples of "collateral consequences" include the loss of the right to vote, the loss of the right to carry a firearm, and the suspension of one's drivers license. The ramifications of this opinion are numerous and serious for those that have been convicted of sex crimes.

For example, courts have ruled that because SOR is a collateral consequence, defendants have no right to withdrawal their plea simply because they were not informed that they would be required to register. Claims of ineffective assistance of counsel raised based upon a collateral consequence are invalid; defense attorneys are not required to warn their clients of potential collateral consequences.

(Direct versus Collateral) versus (Punitive versus Civil)

The court in Commonwealth v. Duffey (1994) (cited in Commonwealth v. Abraham (2012)) stated, "The distinction between a direct and collateral consequence of a guilty plea has been effectively defined by this Court as the distinction between a criminal penalty and a civil requirement over which a sentencing judge has no control." In other words, if the consequence is not considered to be punitive (a criminal penalty), then it is a "collateral consequence". Commonwealth v. Masker (2011) was the latest case to uphold the opinion that sex offender registration is not punitive. Interestingly, in regard to what constitutes a collateral consequence, this case relied upon the findings of Commonwealth v. Leidig (2008), which relied upon Commonwealth v. Leidig (2004), which relied upon Commonwealth v. Frometa (1989).

The court in Frometa (1989) ruled that because deportation was a collateral consequence, counsel was not required to advise the defendant of this possible consequence: "Deportation is but one of a host of collateral consequences of pleading guilty". However, this ruling was just recently abrogated by the United States Supreme Court in Padilla v. Kentucky (2010). This court stated that because deportation is a “particularly severe penalty," is “intimately related to the criminal process,” and the statutory provisions providing for the imposition of the consequence are “succinct, clear, and explicit”, the direct versus collateral analysis used in Frometa (1989) is "ill-suited". The court explained:

"We have long recognized that deportation is a particularly severe “penalty,” but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context."

This was a highly significant ruling for those who are charged with sex crimes. In essence, the court set aside the direct versus collateral analysis, and instead relied upon whether the consequence was intimately related to the criminal process, certain, automatic, and severe. The next chapter of the journey began with Commonwealth v Abraham (2012). In this case, the defendant argued that his plea was not entered voluntarily and knowingly pursuant to Padilla, because his counsel failed to warn him that he would lose his state pension.

Ultimately, the court ruled that:

"..we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis."

Based upon this statement, it appears as though the court conceded that when a consequence is "enmeshed in the criminal process", a Padilla analysis would be appropriate as opposed to a direct versus collateral analysis. This obviously would give great hope to those convicted of sex crimes. After all, what is more intimately related to the criminal process, certain, automatic, and severe than sex offender registration?

"Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation. Frometa's general holding remains:
a defendant's lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea."

This seems to be a fair and encouraging ruling. The court is stating that in cases where the consequence is not deportation, a direct versus collateral analysis MAY still be appropriate pursuant to Frometa. In other words, the court is saying that the direct versus collateral analysis is not dead because of Padilla, and is still viable in certain instances. Depending upon how one interprets the case, it does not appear that the court is saying that the Padilla analysis can only be applied to deportation. Although in a very recent Superior Court case, a more literal interperation was used Commonwealth v. Perri (2013) (non-precedential).

It will be interesting to see how Padilla is ultimately applied to sex offender registration requirements by the Pennsylvania Supreme Court. Could this be applied to ex post facto considerations? After all, ex post facto issues are based upon a direct versus collateral analysis. Perhaps its time for the PA Supreme Court to apply Padilla here. It should be noted that Commonwealth v. Masker (2011) touched upon the Padilla / SOR issue, but very "weakly".  One might say that this court's (Superior, not Supreme) reference to Padilla was misplaced (read the dissenting opinion). It should also be noted that this case was in regards to SVP status, not registration in general (which is automatic).

Please note that our firm does not handle registration issues, but strives to provide the public with a clear understanding of the laws. If you will be negatively affected by certain laws, we suggest that you contact the Pennsylvania chapter of RSOL (reform sex offender laws), and/or contact the Pennsylvania ACLU to learn about any current appeals that may be planned. If you or someone you know has been charged with a sex crime and has not yet been convicted, please contact our experienced team of sex crime defense attorneys.

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

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Amnesty to Those Who Have Made False Accusations of Sexual Abuse

Yes, you’ve read the title of this article correctly, and soon you’ll understand.

Contrary to what most prosecutors believe, people (including children) make false accusations of sexual abuse. Sometimes these accusations are deliberate; sometimes they arise due to the accuser’s inability to accurately perceive and convey the actions of the alleged offender; and sometimes they arise due to biased interviews, suggestive questioning, and/or taint. Regardless of the reason, the point is that people are falsely convicted of sex crimes, and their lives are forever shattered. Occasionally, alleged victims will come forward and recant their false accusations due to guilt, sympathy, or because they now realize that they were simply mistaken. This is exactly what recently happened in Virginia.

In 2008, a teen (then 17 years old) accused a Virginia man of sexually assaulting her while she was 10, and he was 14. The man was convicted, and sentenced to 7½ years in prison. Just this month, the accuser told investigators that her parents caught her looking at pornographic websites in 2007, so she fabricated the story to explain her behavior. The accuser stated that she blamed the man because his family had moved away and she didn’t think police would be able to find him. Although there is an additional shocking twist to this story, it is not germane to this discussion.

Prosecutors are unsure as to why this teen now decided to come forward with the truth. Regardless, she has done the honorable thing, and we commend her for this act of bravery. As a result of her coming forward, however, she was charged with perjury. Personally, we do not feel as though a perjury charge is adequate for destroying a man’s life, but we must think outside of the box here.

It is imperative that those who have falsely accused a person of a sex crime be given every incentive to come forward and tell the truth. Punishing people for coming forward with the truth will likely prevent others from coming forward, which we do not want. On the other hand, we must give incentive to people to NOT make such accusations by punishing them to the fullest extent of the law. As you can see, this is a dilemma.

Therefore, it would be logical to grant amnesty and confidentiality, for a fixed period of time, to anyone who comes forward with the truth. The goal here would be to free as many people as possible that are currently in prison due to false accusations. After this time period is over, anyone who is convicted of deliberately making false accusations of sexual abuse would be subject to more-severe penalties. This would send a clear message to people that such accusations will not be tolerated, and hopefully would prevent individuals from being wrongly imprisoned from that point forward. There would, of course, need to be latitude given to certain cases depending upon the circumstances under which the accusations were made.

Please let us know what your thoughts are on this issue. Also, please share stories and/or links regarding incidences where an alleged victim has recanted his or her story, and came forward with the truth.

 

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Who is the Sexual Predator – The Accused or the Lying Teen?

We’ve encountered many instances where a man has been lured into the web of a deceptive, promiscuous teenager.  Quite often these men are of good nature, and have developed successful lives after overcoming the obstacles that life offers. With one swift drop of the gavel, however, everything these men have worked for is gone forever.

The question to be asked is who is the predator: the man that has sexual relations with a teen who lies about her age, or the teen who ruin a mans life by lying about her age?  In many states, mistake as to age is not a defense in the criminal justice system.  Therefore, even if an underage teen posts a false age on Facebook, tells a man that she is of a legal age, and has consensual sex with the man, he is held criminally liable.

If the goal of laws are to prevent these types of relationships, why not punish the teen for lying about her age?  What is currently being done to the teens in these situations?  Nothing.  What is being done to prevent these teens from ruining the life of another man?  Nothing.  No one will truly understand how unfair and unreasonable the laws are when it comes to sex crimes until they or a loved on are accused of such a crime.  Hopefully this will never happen, but meanwhile citizens should be open-minded and not be afraid of being labeled as a sex offender supporter simply for standing up to laws that are unfair.

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Pennsylvania Age of Consent (As of 9/2017)

romeo_julietPennsylvania’s laws regarding the legal age of consent can be confusing. This is because the age of consent varies based upon the ages of the individuals involved, as well as the conduct involved.

For example, the “standard” age of consent in Pennsylvania is 16, which means that 16 is the lowest age at which a person can legally consent to sexual conduct with anyone older than him or her. However, 16 is not the lowest age at which a person can legally consent – a 15-year-old can legally consent to sexual relations with an 17-year-old under Statutory Sexual Assault laws. And, even though a 15-year-old can legally consent to intercourse with an 17-year-old under said laws, he or she cannot consent to being photographed in a sexually explicit manner.

It’s surprising how much incorrect information exists in the internet regarding PA’s age of consent. In order to overcome this confusion and be as clear as possible, we will discuss the age of consent as it pertains to specific statutes. Please read carefully.

Age of Consent for Sexual Conduct

Firstly, no one is permitted to engage in any sexual conduct with any person who is 12 years of age or younger. This constitutes rape, a felony of the first degree.

Below you will find Pennsylvania’s statutes (laws) that dictate when various forms of sexual conduct are legal. Sexual conduct is legal if the persons involved are of an age where they can legally consent to such conduct, and do in fact consent to such conduct.

Below these laws, we have summarized the age of consents that are applicable to persons aged 13 to 19. Please note that these conditions may not be applicable to you depending upon your role with the other person, e.g., if you are a teacher, a coach, or a volunteer or employee of a nonprofit association.

1) § 3122.1. Statutory sexual assault (traditional sexual intercourse)

Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years and that person is either: (1)  four years older but less than eight years older than the complainant; or (2)  eight years older but less than 11 years older than the complainant.

2) § 3123(a)(7)  Involuntary deviate sexual intercourse (deviate sexual intercourse, i.e., oral, anal and object penetration)

A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other.

3) § 3125(a)(8) Aggravated indecent assault (digital (finger) penetration)

Except as provided in sections 3121 (relating to rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and 3124.1 (relating to sexual assault), a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person’s body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.

4) 3126(a)(8) – Indecent Assault (sexual contact)

A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.

CONDITIONS APPLICABLE TO THE ABOVE 4 STATUTES

**Note – Birth dates of both persons should be used to determine the age difference)

A) If you are 19 years old or older, any person less than 4 years younger than you can legally consent to sexual relations with you. There is no maximum age.

B) If you are 18 years old, any person less than 4 years younger than you can legally consent to sexual relations with you. There is no maximum age.

C) If you are 17 years old, any person less than 4 years younger than you can legally consent to sexual relations with you. There is no maximum age.

D) If you are 16 years old, the earliest age that a person can legally consent to engaging in sexual conduct with you is 13. There is no maximum age.

E) If you are 15 years old, the earliest age that a person can legally consent to engaging in sexual conduct with you is 13. You cannot legally engage in sexual conduct with any person who is 4 or more years older than you.

F) If you are 14 years old, the earliest age that a person can legally consent to engaging in sexual conduct with you is 13. You cannot legally engage in sexual conduct with any person who is 4 or more years older than you.

G) If you are 13 years old, the earliest age that a person can legally consent to engaging in sexual conduct with you is 13. You cannot legally engage in sexual conduct with any person who is 4 or more years older than you.

***Please note that even a communication that establishes an attempt to engage in sexual conduct with a person who cannot legally consent to such conduct with you is a violation of the law under 18 Pa. Code § 6318 (Unlawful contact with minor).

Corruption of Minors (Applicable if You Are 18 Years of Age or Older)

18 Pa. Code § 6301 – CORRUPTION OF MINORS

Perhaps no other offense in Pennsylvania has created more confusion than Corruption of Minors. On October 10, 2010, PA legislature modified the then existing statute by creating two subparagraphs: (1)(i) which relates to conduct that is not forbidden by Chapter 31 (relating to sexual offenses), and 1(ii) which does relate to said conduct.

 § 6301(1)(i) “Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.”

§ 6301(1)(ii) “Whoever, being of the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense under Chapter 31 commits a felony of the third degree.”

In order to violate § 6301(1)(ii), one would have to first violate one of the sex offense statutes under Chapter 31 which include the 4 previously mentioned offenses. So if you follow the age of consent conditions mention above, this would prevent violating those offenses. Interestingly 18 Pa. Code § 6318 (Unlawful contact with minor) falls within Chapter 63, and 18 Pa. Code § 5903 (Obscene and other sexual materials and performances) falls under Chapter 59, so neither of these offenses could trigger a violation of this subparagraph of Corruption of Minors.

A  violation of § 6301(1)(i) can occur even when sexual conduct is not involved. For example, enticing a minor (less than 18 years of age) to drink alcohol or take drugs would violate this statute. The author is unclear as to whether prosecutors can or actually do charge individuals with this offense for engaging in sexual conduct with a minor that is not forbidden by Chapter 31, and plans to do further research on this topic. The plain reading of the statute implies that they could, but it would certainly be nonsensical to permit consensual sex under one statute and forbid it under another. A conviction for this offense does NOT include sex offender registration.

Concluding Thoughts

It’s important to remember that the above discussion involves instances wherein the sexual activity is statutorily legal due to the involved persons’ ages, and due to the actual consent by both persons.  Regardless of age,  non-consensual sexual conduct is strictly forbidden under Pennsylvania law.

It is also important to remember that Pennsylvania law, while permitting certain sexual conduct with persons of a certain age, may also forbid other types of conduct with persons of that age. This other conduct can include taking nude or sexual explicit photos, “sexting“, prostitution, and dissemination of intimate images. In a future blog, we will discuss the distinctions and legal ramifications of sexting and illegal pornography.

Disclaimer:

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney

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Involuntary Deviate Sexual Intercourse (IDSI) in Pennsylvania

A while back one of our Pennsylvania clients was falsely accused of having committed analingus on a minor.  He was originally charged with aggravated indecent assault, but later was additionally charged with Involuntary Deviate Sexual Intercourse (IDSI.  The fact that the magistrate dropped the latter charge but it was reinstated in the information will be discussed in another blog.

Upon close examination of Pennsylvania statute, we determined that the charge of IDSI was not the appropriate charge for the alleged event.  Deviate sexual intercourse is defined as "intercourse per os or per anus".  In PA v Kelley 2002, the court stated that the plain meaning of “intercourse” as used in 3101 is “physical sexual contact between individuals that involves the genitalia of at least one person”.  Obviously the anus is not genitalia, or a sexual organ as so defined.

We never had an opportunity to make the argument in front of the judge because a plea agreement was reached.  However, our client painstakingly composed an analysis of the charge of IDSI, where he makes the above technical argument.  Additionally, he argues why the charge of aggravated indecent assault also does not apply to analingus.  We have included his analysis below.  We are not certain as to its merit, but it is quite compelling.  If you have been charged with this offense please contact one of our sex crime attorneys.

ORAL CONTACT WITH THE ANUS DOES NOT CONSTITUTE THE CRIME OF INVOLUNTARY DEVIATE SEXUAL INTERCOURSE.

§ 3123.  “Involuntary deviate sexual intercourse”. (a)  Offense defined.–A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant.

Deviate sexual intercourse is “sexual intercourse per os or per anus between human beings and any form of sexual intercourse with an animal.  The term also includes penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical, hygienic or law enforcement procedures” (Kelley 2002 Pa Supreme Court).

§ 3101 "Sexual intercourse."  In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required

The Pa Supreme Court in Kelley 2002 stated that digital penetration of the vagina does not constitute 1) sexual intercourse in its ordinary meaning (penis/vagina), 2) sexual intercourse with an animal, nor 3) penetration with a foreign object.  The court reasoned that the only way that digital penetration could only be classified as sexual intercourse or deviate sexual intercourse is if it were “intercourse per os or per anus”.

The above court stated that because the General Assembly did not define “intercourse per os or per anus”, that these words must be construed according to their ordinary usage, and that the plain meaning of “intercourse” as used in 3101 is “physical sexual contact between individuals that involves the genitalia of at least one person”. Therefore, alleged contact with the anus by one’s mouth or finger does not constitute “intercourse per or per anus”, i.e., oral or anal intercourse1, because there would be no genitalia involved – neither the anus, tongue or finger are genitalia (Dewalt 2000 Pa Super. 149).  It should be noted that the case of Kelley 2002 is cited in the Pennsylvania Sexual Violence Benchbook (2007) when the authors refer to the crime of IDSI and the definition of “intercourse”; the author’s write “Per Os or Per Anus: these terms describe oral and anal sex, i.e., intercourse ‘through or by means of the mouth or posterior opening of the alimentary canal’.”

Furthermore, the above finding has been applied by several PA Superior Courts which have ruled digital penetration of the anus constitutes the crime of aggravated indecent assault, not involuntary deviate sexual intercourse, i.e., it is an act of assault, not an act of “intercourse” (e.g., S.R. 2007 Pa Super. 79; Castelhun 2005 Pa Super. 415; Delbridge 2001 Pa Super 75; L.N 2001 Pa Super. 352).  When making this ruling, the court in Castelhun 2005 specifically cites the case of Kelley 2002.  Therefore, these courts have determined that “intercourse per anus” must involve the genitalia of at least one person.  By analogy, “intercourse per os” must involve the genitalia of at least one person.  In support of this, if “intercourse per os” did not require genital contact, then licking one’s arm pit or feet (for example) would constitute “intercourse per os”.

1 “Therefore, in order to sustain a conviction for involuntary deviate sexual intercourse, the Commonwealth must establish the perpetrator engaged in acts of oral or anal intercourse, which involved penetration however slight”. Wilson 2003 Pa Super. 205 citing Poindexter 1994 Pa Super; L.N. 2001 Pa Super. 252 citing Poindexter 1994 Pa Super.

Although the following definitions do not apply to Pennsylvania, they do show at least that other states have similarly interpreted the meaning of deviate sexual intercourse:

Alabama – Deviate sexual intercourse – Any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.

Texas – Deviate sexual intercourse means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.

New York – “Deviate sexual intercourse means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva”.

ORAL AND/OR DIGITAL CONTACT WITH THE “ANUS” DOES NOT ESTABLISH PENETRATION IN REGARDS TO AGGRAVATED INDECENT ASSAULT.

Brief
It is clear from the case of Kelley 2002 that oral and/or digital contact with the “anus” constitutes an act of assault, not oral or anal intercourse whereby genitalia must be involved. The fact that some courts have stated that some form of oral contact is sufficient to establish the penetration requirement for IDSI cannot by analogy be used to say that any oral contact with the “anus” constitutes penetration for the purposes of aggravated indecent assault.  This finding must be viewed in proper context.  *It is not the penetration requirement that differs between the crimes of aggravated indecent assault and IDSI: it is what the statutes prohibit from being penetrated.  For the purposes of aggravated indecent assault, the penetration requirement involving oral contact is no different than the penetration requirement involving digital contact; the anus itself must be penetrated.  However, the statute regarding IDSI does not specify what is prohibited from being penetrated, but instead simply requires proof that a person engaged in acts of oral or anal intercourse, “which involved penetration however slight”.1  To apply this by example: touching one’s penis with a finger does not establish penetration necessary to sustain the crime of aggravated indecent assault; however, touching one’s penis with the tongue or lips does establish penetration necessary to sustain the crime of IDSI because courts have determined that the statute prohibits the mouth from being penetrated.  Moreover, an exhaustive list of case law at the end of this document firmly illustrates that there must be explicit proof of penetration to sustain the crime of aggravated indecent assault; if there is not, the lesser crime of indecent assault is appropriate, provided there is proof of sexual gratification.

Analysis
The finding that some form of oral contact with genitalia is all that is necessary to establish penetration was held solely for the charge of IDSI, which prohibits oral intercourse which involved “penetration however slight”.  The court in Wilson 2003 Pa Super. 205 wrote “….in order to sustain a conviction for involuntary deviate sexual intercourse, the Commonwealth must establish the perpetrator engaged in acts of oral or anal intercourse, which involved penetration however slight. ……finding actual penetration of the vagina is not necessary; some form of oral contact with the genitalia is all that is required”. Of most importance to this analysis is the origin of this language, and the reasoning behind the language.

All courts including the one above that have stated, in varying words, that some form of oral contact is all that is necessary to establish the penetration requirement for IDSI ultimately refer  to the cases of Trimble 1992 Pa Super 419a and/or McIlvaine 1989 Pa Super. 385b. In Trimble 1992, the court stated “It has been held that oral contact with the female genitalia is sufficient to support the penetration requirement for IDSI”, while referring to Zeigler Pa Super 1988. The court in Zeigler referred to Ortiz 1983 Pa Super., wherein the court held that “It is quite clear, however, that the definition of ‘sexual intercourse’ found at Section 3101 does not specify ‘penetration of the vagina,’ but instead specifies ‘some penetration however slight.’”  This court also relied on the findings of Bowes 1950 Pa Super which held that "entrance in the labia is sufficient".  In conclusion, the court in Ortiz held that penetration of the vagina, in essence the farther reaches of the female genitalia, is not necessary to find penetration under Section 3101. In essence, these courts held that oral intercourse with the female genitalia would lead to at least the plane of the labia being penetrated.

In McIlvaine 1989, the court stated “Appellant first argues that judgment should have been arrested on the IDSI count because penetration was not proven. We disagree. 18 Pa.C.S. §§ 3123 and 3101 require ‛some penetration however slight.’ The testimony of the victim that appellant …….pushed her head down until she kissed his penis is sufficiently descriptive to warrant the inference by the jury that appellant penetrated, ‘however slight,’ the mouth of the victim”.  The court in Wilson 2003, while referring to McIlvaine 1989, held that the penetration element of IDSI was established because the defendant inserted his testicles into the victim’s mouth.  The court in L.N. 2001 took the analysis a step further by finding that the because the court in McIlvaine found that the appellant penetrated, however slight, the MOUTH of the victim when he made her kiss his penis, that the act of licking the penis with the tongue, where the tongue is an internal part of the mouth, should be held no differently.

In summary, the courts have found that the word “penetration” as used in the definition of sexual intercourse and/or deviate sexual intercourse does not specify what must be penetrated, i.e., whether the vagina, the vulva, the labia, the anal area, or the mouth, but instead simply requires proof of acts of oral or anal intercourse which involved “penetration however slight” (Wilson 2003; McIlvaine 1989; Zeigler 1988; Ortiz 1983).  Furthermore, because the crime of IDSI prohibits intercourse “per os” ("by the means or agency of: by way of: THROUGH." (Kelley 2002) the mouth), penetration of the mouth by the genitals constitutes the crime of IDSI and fulfills the penetration requirement for this crime.

First, unlike the female genitalia (pertaining to the vagina as discussed in Trimble 1992), the anus does not have protruding components that constitute the anus nor an open cavity formed……….

a (cited in:Wall 2008 PA Super 151; Trippett 2007 Pa Super 260; Wilson 2003 Pa Super. 205; In the Interests of A.D.2001 Pa Super 99; L.N. 2001 Pa Super. 352)
b (cited in:Castelhun 2005 Pa Super 415; Wilson 2003
Pa Super. 205; L.N. 2001 Pa Super. 352
3Aggravated Indecent Assault – “Except as provided in sections 3121 (relating to rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and 3124.1 (relating to sexual assault), a person
who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault, a felony of the second degree, if…”

by protruding components that constitute the anus that could be penetrated simply by placing one’s tongue, lip, or finger on it. In order to sustain the crime of aggravated
indecent assault, the anus itself must be penetrated3.  The anus is defined as “The opening at the end of the alimentary canal through which solid waste is eliminated from the
body” (American Heritage Dictionary of the English Language, 3rd Edition).  The opening is closed by external sphincter muscles. External sphincter is a layer of voluntary (striated) muscle encircling the outside wall of the anal canal and anal opening – its function
is to close the anus.  Therefore mere contact with this area could not result in penetration, however slight of the anus.  Mere contact constitutes the crime of Indecent Assault.  In Pa v Riggle 2008, the “jury found the Appellant guilty of Count 1, Involuntary Deviate Sexual intercourse for placing his mouth on M.B.’s penis; Count 5, Aggravated Indecent Assault, for placing his finger into the anus of M.B.; Count 6, Indecent Assault, for touching M.B’s anus with his finger, Count 7, Indecent assault, for touching M.B’s anus with his penis, Count 15, Indecent Assault, for touching M.B’s. anus with a dildo.

Secondly, penetration of the mouth (lips or tongue) by the genitalia fulfills the penetration requirement of IDSI because either the genitalia or mouth can be penetrated in accordance with the statute (intercourse per os or per anus, with some penetration however slight) (Wilson 2003; L.N. 2001; Poindexter 1994; McIlvaine 1989).   However, the charge of aggravated indecent assault requires that the anus or genitals be penetrated, not the mouth3.  Therefore, although by analogy the placing of ones tongue on the anus of another would (as applied by McIlvaine 1989 and L.N. 2001) lead to the mouth being penetrated by the anus, it does not lead to the anus being penetrated which is required to sustain a conviction for aggravated indecent assault. Therefore, unless there is proof of penetration of the anus, the act of placing one’s lips, tongue, or finger on the anal area constitutes indecent assault, provided that the act was committed for sexual gratification.

Precedent cases in which defendants have been convicted of aggravated indecent assault have involved detailed testimony that penetration, not mere contact, had in fact occurred.

Burns 2009 Pa Super. 260 – The victim woke upon feeling a “poke” in her vagina. (Id. at 53-54.) When asked to be more specific, she described the sensation as “slight penetration.”

Page 2009 Pa Super 20. . . [and] he would put his fingers inside of [her].”

Williams 2008 Pa Super 257 – (defendant touched the inside of her vagina)

 In the Interest of S.R. 2007 Pa Super. 79 – “Later, B.K. testified that L.K. told her more of the details, describing how S.R. used hair gel and put his fingers in her butt.

Kerrigan 2007 Pa Super 63 – A.R. also told Detective Rentko that Kerrigan had “put his private inside where she pees and poops.” N.T. (Trial), 12/08/04, at 261. A.R. further told Detective Rentko that Kerrigan “mov[ed] up and down” when he was inside of her.

Castelhun 2005 Pa Super. 415– ‘J.T. testified at trial, that Castelhun both digitally penetrated her vagina and inserted his penis into her vagina”.

Hunzer 2005 Pa Super. 13 – She further testified that the victim told her appellant had “stuck his finger in my hole and then he licked me down there.”

Filer 2004 Pa Super.70 – “put his one hand down my pants and started fingering me”.  Question – He inserted his fingers into your vagina?”  Answer – Yes.

W.L. 2004 Pa Super 402 – She told Ms. Walker that she had been disciplined by being struck with a belt buckle and that Father had touched her underneath her clothing, “that it hurt, [and] that it happened many times.” Id. at 20. When asked why it hurt, C.B. responded that Father placed his hands “inside of her.”

Delbridge 2001 Pa Super 75 and Delbridge 2002 Pa Supreme – “stuck a finger in LD’s butt”.

In the Interests of A.D. 2001 Pa Super 99. – Further, the statements of the victim indicating that Appellant had done “the same thing as my brother,” who she stated put his “wiener” “in my pee-pee,” was sufficient to establish penetration. Penetration need not reach the vagina or farther reaches of female genitalia. Commonwealth v. Trimble, 615 A.2d 48 (Pa. Super. 1992) (where testimony of five-year old victim that defendant placed his “wiener” in her “tooter” was sufficient to establish
penetration and support a rape conviction).

Kelley 2002 Pa Supreme Court – “Kelley inserted his fingers into her vagina and moved them up and down”.

L.N. 2001 Pa Super. 352 – The Appellant then rolled the victim on his side and put his finger deep inside the child’s anus, causing the victim pain.

Bishop 1999 Pa Super. 292 – “Further, M.B. testified that Appellant put his finger inside her “coo-coo” and “digged down” in it and it hurt.

Fischer 1998 Pa Super. 721 – “According to the victim, appellant forced his hands inside a hole in her jeans and penetrated her with his fingers”.

Knaub 1996 Pa Supreme Court – J.K. testified that Appellant had put his fingers into her vagina while she was in bed. J.K. testified that it hurt her when her father did this, and that it happened every time she visited with Appellant at either his grandmother’s or his sister’s home.

 Precedent cases wherein defendants have been convicted of Indecent Assault – mere contact does not establish penetration.

§3126 Indecent Assault – A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if: (1) the person does so without the complainant’s consent.

§3101 defines indecent contact as “any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.”

Young 2010 Pa Super. 2 – appellant admitted, at the very least, that he permitted the fondling (of genitals) to continue for 30 seconds, and that he was aware that the fondling was for the purpose of arousing the sexual desire of the child complainant. Simply stated, this is a confession to indecent assault, which prohibits indecent contact for the purpose of arousing the sexual desire of either the defendant or the complainant.

Pa v Haught 2008 – “Therefore, the issue at trial would appear to be whether the touching went beyond indecent assault into a penetration of the victim’s vagina required for aggravated indecent assault.”

Pa v Riggle 2008 – The jury found the Appellant guilty of Count 1, Involuntary Deviate Sexual intercourse for placing his mouth on M.B.’s penis; Count 5, Aggravated Indecent Assault, for placing his finger into the anus of M.B.; Count 6, Indecent Assault, for touching M.B’s anus with his finger; Count 7, Indecent assault, for touching M.B’s anus with his penis; Count 8, Indecent Assault, for touching M.B’s. penis with his mouth; Count 10, Corruption of a Minor, for showing M.B. pornographic videos; and Count 15, Indecent Assault, for touching M.B’s. anus with a dildo.

Walker 2008 PA Super. 182 – Upon the conclusion of I.B.’s direct testimony, the trial judge called both counsel to sidebar and stated that I.B. did not testify that penetration occurred during the incident.

In the Interest of M.G. 2007 Pa Super. 27 – R.J. told C.S. that Appellant had touched
R.J.’s pee-pee while they were in the basement.  Appellant reached under D.M.’s towel and touched her “private area.”  Appellant was convicted of indecent assault, not aggravated indecent assault.

Charlton 2006 Pa Super. 149 – In this case, the victim, appellant’s daughter, testified that appellant rubbed his penis against her, touched her vagina, and had sexual intercourse with her on multiple occasions when she was approximately 4½ years old. Appellant was convicted of indecent assault, not aggravated indecent assault.

Lemon 2002 Pa Super. 234 – Appellant photographed her in sexually explicit
positions and touched her breast and vaginal area. Appellant was convicted of
indecent assault, not aggravated indecent assault.

Fisher 2001 Pa Super. 327 – Specifically, at the time of sentencing, the trial court stated that “the facts which are the predicate for the indecent assault charge are the facts which indicate that [Appellant] admitted he rubbed his penis on the buttocks area of [Victim]in this case . . . .”

Ricco 1994 Pa Super. 437 – "Indecent assault" of ten-year-old victim occurred when 41-year-old defendant placed victim's hand on his genitals.

Conclusion

If you've been charged with IDSI, it is imperative to speak with an attorney who is intimately familiar with defending against this particular offense.  A conviction for this offense in PA can carry a mandatory minimum sentence. Visit our main website to learn more about our sex crimes defense law firm.

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Excited Utterances in Child Sex Abuse Cases

Although each state’s sex crime statutes differ, an excited utterance can be defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.  An example of an excited utterance is if a child yells out, “mommy, he just touched me in a bad place” directly or shortly after being touched.

Court’s have ruled that such statements are highly credible because they are spontaneous and unreflected, without influence from thought, design and reason.  They reason that an excited utterance is the event speaking and not the speaker.  For these reasons, these types of statements are admissible, and are not barred by ordinary hearsay rules.

The problem is that courts often apply the definition very broadly.  For example, the court in Commonwealth v. Gore, 262 Pa. Super. stated, “The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance”.  Using such interpretations, a child’s out-of-court statements may be admitted even if the statement was made days, or weeks after the alleged event.  Courts often allow out-of-court statements made by children to be admitted in lieu of live testimony to spare children from the stress of testifying.

We have encountered this issue numerous times, and have many highly compelling arguments on hand to counter this maneuver.  This is an example of why it is imperative to hire an attorney who has extensive experience in child sexual abuse defense.  We highly recommend your reading our blog on Confrontation Rights.

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