Sex crimes are serious, and demand a serious defense. A conviction often carries the risk of years of incarceration. Fortunately, there are numerous ways to protect your liberties and defend your rights. The Philadelphia criminal defense attorneys at Montoya Coleman Refuse to Lose.

Rape

The law governing Rape is 18 PA C.S.A. § 3121. To attain a conviction the government must prove that the defendant penetrated, even slightly, the genitals, anus, or mouth of the complainant. In addition, the government must also prove that the penetration was done:

  1. By force,
  2. By threat of force that would prevent resistance by a reasonable person,
  3. When the complainant was unconscious or unaware,
  4. When the defendant substantially impaired the complainant’s will by secretly giving the complainant drugs with the intent of preventing resistance, or
  5. When the complainant suffers a mental disability which renders them incapable of consent.

Rape is a felony of the first degree and a conviction carries a penalty of up to 20 years incarceration. However, where the complainant is less than 13 years old, the conviction carries a penalty of up to 40 years incarceration. And if the complainant is less than 13 years old, and suffered serious bodily injury due to the Rape, the conviction carries a penalty of up to lifetime incarceration. In addition, a conviction requires lifetime Sex Offender Registration.

Statutory Sexual Assault

The law governing Statutory Sexual Assault is 18 PA C.S.A. § 3122.1. To attain a conviction the government must prove that the defendant penetrated, even slightly, the genitals, anus, or mouth of someone less than 16 years old, while the defendant was four years older than the complainant.

Statutory Sexual Assault is a felony of the second degree and a conviction carries a penalty of up to 10 years incarceration. However, where the defendant is 11 years older than the complainant, the it is a felony of the first degree and a conviction carries a penalty of up to 20 years incarceration

Involuntary Deviate Sexual Intercourse (IDSI)

The law governing Involuntary Deviate Sexual Intercourse (IDSI) is 18 PA C.S.A. § 3123. To attain a conviction the government must prove that the defendant penetrated, even slightly, the anus or mouth of the complainant. In addition, the the government must prove that the penetration was done:

  1. By force,
  2. By threat of force that would prevent resistance by a reasonable person,
  3. When the complainant was unconscious,
  4. When the defendant substantially impaired the complainant’s will by secretly giving the complainant drugs with the intent of preventing resistance,
  5. When the complainant suffers a mental disability which renders them incapable of consent, or
  6. The complainant is less than 16 years old and the defendant is four or more years older.

IDSI is a felony of the first degree and a conviction carries a penalty of up to 20 years incarceration. However, where the complainant is less than 13 years old, the conviction carries a penalty of up to 40 years incarceration. And if the complainant is less than 13 years old, and suffered serious bodily injury, the conviction carries a penalty of up to lifetime incarceration. In addition, a conviction requires lifetime Sex Offender Registration.

Sexual Assault

The law governing Sexual Assault is 18 PA C.S.A. § 3124.1. To attain a conviction the government must prove that the defendant had sexual intercourse with a complainant without the complainant’s consent. Sexual Assault is a felony of the second degree and a conviction carries a penalty of up to 20 years incarceration.

Aggravated Indecent Assault

The law governing Aggravated Indecent Assault is 18 PA C.S.A. § 3125. To attain a conviction the government must prove that the defendant penetrated, however slightly, the complainant’s genitals or anus. In addition the government must prove that the penetration was done:

  1. Without the complainant’s consent,
  2. By force,
  3. By threat of force that would prevent resistance by a reasonable person,
  4. When the complainant was unconscious,
  5. When the defendant substantially impaired the complainant’s will by secretly giving the complainant drugs with the intent of preventing resistance,
  6. When the complainant suffers a mental disability which renders them incapable of consent,
  7. When the complainant is less than 13 years old, or
  8. When the complainant is less than 16 years old and the defendant is four years older.

Aggravated Indecent Assault is a felony of the second degree and a conviction carries a penalty of up to 10 years incarceration. However, where the complainant is less than 13 years old, the conviction is a felony of the first degree and carries a penalty of up to 20 years incarceration.

Indecent Assault

The law governing Indecent Assault is 18 PA C.S.A. § 3126. To attain a conviction the government must prove that the defendant had indecent contact with the complainant, or caused the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire. In addition the government must prove that the indecent contact was done:

  1. Without the complainant’s consent,
  2. By force,
  3. By threat of force that would prevent resistance by a reasonable person,
  4. When the complainant was unconscious,
  5. When the defendant substantially impaired the complainant’s will by secretly giving the complainant drugs with the intent of preventing resistance,
  6. When the complainant suffers a mental disability which renders them incapable of consent,
  7. When the complainant is less than 13 years old, or
  8. When the complainant is less than 16 years old and the defendant is four years older.

Indecent Assault is a misdemeanor, or a felony of the third degree if: the complainant is less than 13 years old, there is a course of conduct, it is a subsequent offense, or the indecent contact was due to the defendant and complainant’s sexual parts touching. A conviction of a felony of the third degree carries a penalty of up to 7 years incarceration.

Indecent Exposure

The law governing indecent exposure is 18 PA C.S.A. § 3127. To attain a conviction the government must prove that the defendant exposed his genitals in a public place, or a place where other people are present and this conduct is likely to offend, affront or alarm.

Indecent Exposure is a misdemeanor of the second degree and a conviction carries a penalty of up to 2 years incarceration. However, if the defendant knows or should have known that the complainant is less than 16 years old, the conviction is a misdemeanor of the first degree and carries a penalty of up to 5 years incarceration.

Defending Sex Crimes - Motions

A Motion to Dismiss requests that the court dismiss criminal charges because they are insufficient at the preliminary hearing. At a preliminary hearing the government must prove that it was more likely than not that the defendant committed the crimes charged. By law, the court must view all of the evidence in a light most favorable to the government, give the government all reasonable inferences, and may not make credibility determinations. This means that even if it is apparent that a witness is lying, the court cannot dismiss charges based on that. Due to this very low standard, most criminal charges are held for court after a preliminary hearing.

If the court refuses to dismiss criminal charges at a preliminary hearing, the defendant may file a Motion to Quash requesting that a higher court dismiss the charges because they were insufficient. The higher court will review the evidence presented at the preliminary hearing to determine whether it was more likely than not that the defendant committed the crimes charged. The government may also supplement the record by presenting new evidence at the Motion to Quash hearing.

A Speedy Trial Motion requests that the court dismiss the entire case due to the government’s failure to bring the defendant to trial within a specified period of time. Generally this is 365 days from the date the criminal complaint is filed, but in Philadelphia Municipal Court it is 180 days. Excluded from this calculation of time are delays attributable to the defense and delays where the government was “duly diligent.” The crucial issue for the court to determine usually centers around whether the government was duly diligent. Often the government will not be ready for trial because a witness has failed to appear or mandatory discovery (evidence) has not been passed to the defense. The court has to analyze whether the government was duly diligent in securing the witness’s appearance for court or providing discovery.

A Motion to Suppress requests that the court suppress, or not allow, certain evidence to be introduced at trial. This evidence may be defendant’s statement or physical evidence. This evidence should be suppressed if the government obtained it by violating the defendant’s constitutional rights in some manner. The Constitution requires that all people, and their property, be free from unreasonable searches and seizures, and that warrants be supported by probable cause. Some typical constitutional violations occur when the police: arrest someone because they look suspicious, stop a car that has not violated a traffic law, search a house without a warrant, or take a defendant’s statement without reading Miranda warnings (you have the right to remain silent, you have the right to an attorney…).

If the court determines that the evidence was obtained in violation of the defendant’s constitutional rights, then the evidence cannot be introduced at trial. This may result in the government withdrawing certain, or all, criminal charges. With sex crimes usually the only evidence that may be subject to a Motion to Suppress is a defendant’s statement. The government will sometimes attempt to use a defendant’s statement against them. If a defendant was in custody and the police officer asked questions that were reasonably likely to illicit an incriminating response, then the statement should be suppressed if the police officer did not read the defendant his Miranda warnings (you have the right to remain silent, you have the right to an attorney, etc.).

A Taint Motion requests that the court determine that a child witness is incompetent to testify because their testimony has been “tainted.” Taint is defined as “the implantation of false memories or distortion of actual memories through improper and suggestive interview techniques of. . . interested adults, that are so unduly suggestive and coercive as to infect the memory of the child, rendering that child incompetent to testify.” The underlying theory of taint is that “a child’s memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficulty distinguishing fact from fantasy.” If the court determines that the child witness has been tainted then they will be unable to testify at trial and, many times, the case will be dismissed. Taint Motions are not very common and require an attorney with the experience and expertise to fight them.

A Rape Shield Motion requests that the court allow the defense to question the alleged victim about their prior sexual conduct. Generally, the Rape Shield Statute prohibits a defendant from introducing evidence of the complainant’s past sexual conduct. The purpose behind the Rape Shield Statute is to prohibit attacking a victim based on their sexual conduct. However, the Rape Shield Statute may not be used to exclude evidence showing the witness’ bias or to attack their credibility. The defense must file a Rape Shield Motion and the court must determine whether the defense is entitled to introduce evidence of the prior sexual conduct. Rape Shield Motions may be critical in defending a sex case as motive to lie is almost always an important issue. For instance, the complaint may have been having a sexual relationship with the defendant, but when her boyfriend found out about it she claimed the defendant raped her. It would be absolutely vital for the defense to present this evidence and, failure to do so, could mean a very different result. The lawyers at Montoya Coleman have the experience and expertise in fighting Rape Shield Motions and winning.

Defending Sex Crimes - Trial

Most sex cases defenses revolve around fabrication. And studies have shown that allegations of sexual abuse are one of the most fabricated. There are many reasons that a person may have motive to make up these allegations. It is important to have an experience criminal defense attorney determine their motive to lie and sell this to the judge or the jury. In addition, nearly every minor detail is of great importance as every inconsistency must be highlighted in order to impeach the witnesses’ credibility. The lawyers at Montoya Coleman are not afraid to call alleged “victims” liars and expose their lies to a judge or a jury.

Consent is similar to fabrication, in that the defense is that the witness is lying because the sexual intercourse was consensual. Once again, it is vital to determine a motive for why the witness would lie and present this to the judge or the jury.

Not as common of a defense, but still sometimes viable, is misidentification. In this situation the sexual assault occurred but the witness is mistaken about it being done by the defendant. Possibly the defendant looks like the real assaulter or was in the wrong place at the wrong time. It is important to have an experienced criminal defense attorney to analyze identifying characteristics to determine whether there was a mistaken identification.

Some of the sex crimes hinge upon knowledge of the complainant’s age. Where that is the case, the defense can present a mistake of age defense. It is important to note that the burden is on the defense to prove that it was reasonable for the defendant to have mistaken the age of the complainant.