Challenges in Defending Someone Charged with Child Molestation “PC 288.5”
Are You Facing Charges for Continuous Molestation of a Child?
Our team of defense attorneys has spent the past 30 years representing clients accused of child molestation in Southern California. We understand what you and your family are going through as you are trying to figure out what steps to take.
Regardless of whether you are innocent or guilty of the charges, the prosecutorial process presents several challenges (which are discussed below) that only an experienced and devoted defense attorney can help you overcome. You do not have to go through this stressful and difficult journey alone. You can rely on our experience and knowledge of the law to successfully represent you and fight for your freedom. Wallin & Klarich’s team of child molestation attorneys is ready to help you immediately the moment you call our office. (877) 466-5245.
The following sections provide you with an overview of the punishment and prison sentence you face if you are convicted for continuous sexual molestation of a child, as well as the challenges that our team can help you overcome when handling your case.
What is the Punishment for Continuous Sexual Abuse of a Child (PC 288.5)?
Continuous sexual abuse of a child is a felony. If you’re convicted of violating Penal Code section 288.5, a judge legally can, (and in a very rare or exceptional case will) grant probation, and could require you to serve up to one year in county jail as a condition of probation.
In most cases, the judge will sentence the person convicted of this crime to serve time in state prison. Upon conviction, the judge can, in his or her discretion, choose to sentence the person to a low term of 6 years, a middle term of 12 years, or a high term of 16 years.
In addition, whether probation is granted or not, the judge will order that, once the person is released from jail or prison, the person must register as a sexual offender for life pursuant to Penal Code section 290.
Why are Child Molestation Charges so Difficult to Win?
1. Many Potential Jurors are Naturally Sympathetic to the Child Accuser
It cannot be overlooked that, naturally and quite appropriately, people care about the well being of young children and do not like the idea that someone might hurt or abuse a child. Being in court is not a good place to be for an accused and is certainly no place for a young child to be. For these reasons, many potential jurors are naturally sympathetic to the child accuser and unsympathetic to the accused.
2. Children May Lie About Being Sexually Abused
Also, there are many people who labor under the misconception that children are “innocent” and, while they might lie about “minor” things like eating cookies after they were told not to, they certainly would never lie about being sexually abused. For these people, if a child said it happened, it must have happened. All steps must be taken to ensure that a person with such thinking does not end up on a jury in one of these cases.
3. There is No Physical Evidence in Cases Pertaining to Continuous Sexual Abuse of a Child
In addition to these issues, in many child molestation cases, there is no physical evidence. There is typically no videotape of the alleged crime happening, like in a robbery case occurring at a convenience store outfitted with security cameras. These cases typically do not involve DNA evidence that you might see on programs such as CSI: Crime Scene Investigation. The allegations often involve acts such as rubbing the child’s stomach area, buttocks area, or genital area, and the accusations generally involve the child being alone with the accused person, thus meaning that there are usually no eyewitnesses to the alleged crime. It often comes down to a “he said she said” kind of case, where, if the jury believes the accuser, they vote to convict the accused.
4. The Bail in Child Molestation Cases is Astronomical
This dovetails into another issue, and that is that the law is stacked against the accused from arrest through trial. The bail in many of these cases is astronomical. For instance, for continuous sexual abuse of a child, the “bail schedule” is as high as $250,000, meaning that, if the accused does not have a quarter of a million dollars in cash lying around, or $25,000 for a bail bondsman’s fee (most bail bondsmen charge a non-refundable fee equal to 10% of the total bail they post for the defendant), the accused will be held in jail until the case is over, which makes it harder for the accused to really assist in his or her defense.
The logic behind bail is that the defendant can put up a sum of money as security for his or her appearance in court. Upon paying the money (or having the bondsman post a bond for that amount of money, which the defendant is obligated to make good on if s/he fails to appear in court) the defendant is released from jail pending the outcome of the case. If the defendant appears in court when s/he is supposed to, at the end of the case, the money is returned to the defendant (or the bail bondsman’s contract is “exonerated” as the case may be). If the defendant fails to appear, the money the defendant paid is forfeited to the court (or the bondsman is required to pay, to the court, the full value of the bond unless the bondsman can locate the defendant and bring him or her back to the court).
How does this play into child molestation cases? If the defendant is well off financially, the prosecutor will often seek to have the defendant’s bail increased from the bail schedule amount, arguing that a higher bail is required to assure the wealthy defendant’s presence in court. In our experience, judges will often agree with such prosecution requests, and, truth be told, there is some logic to the notion that losing $250,000 is meaningless for a multi-millionaire who wants to flee the jurisdiction of the court, and, accordingly, making him or her post more money in bail will increase the likelihood that such a person won’t flee before trial.
There is, of course, another side to that coin. What about a defendant of more modest means? While $250,000 might be a drop in the bucket for a multi-millionaire, $5,000 might be a king’s ransom for a person of modest means. In our experience, judges are not similarly moved by criminal defense lawyers’ arguments that a defendant of lesser means should have bail reduced to a sum that both reflects that defendant’s financial circumstances and provides proper assurances that the less well-heeled defendant will appear in court. This means that, for all but the wealthiest of defendants, an allegation of child molestation will likely result in a long period of pre-trial incarceration, which, as noted, makes the charges all that much harder to defend against because the accused has a limited ability to assist in the defense, such as, by way of example, accompanying the criminal defense attorney to the alleged scene of the offense and pointing out things that might make the offense implausible.
5. Complainants Have the Right to Refuse to Cooperate with Defense Lawyers and Investigators
There are other issues. In 2008, California voters enacted Marsy’s Law, which amended the California Constitution to make it more difficult for defense lawyers and instigators to defend people accused of child molestation offenses. People who file police reports are provided with a “Marsy’s Card” listing all of the rights of victims of crime. These cards are available in 20 different languages and inform complainants that they have the right to refuse to cooperate with defense lawyers and investigators, and that they have the right to prevent criminal defense lawyers from having access to “confidential information” that, among other things, could be used to “locate” them. Kind of hard to interview a potentially helpful witness that you can’t locate, isn’t it?
6. The Accuser is Permitted to be Accompanied to the Witness Stand by a “Support Person”
Once the case does go to trial, the accuser is permitted, under Penal Code section 868.5, to be accompanied to the witness stand by a “support person.” This further adds to the perception that the accuser is innocent and requires the presence of another person to offer them support and “protect” them – an advantage that other witnesses in the case (including the accused) do not have.
7. Conviction of a Sexual Assault Crime may be Based on Testimony of the Complaining Witness Alone
Furthermore, it used to be that, during the jury instruction phase of the case, the court was required by law to tell the jury that the allegation of sexual molestation “made against the defendant in this case is one which is easily made and, once made, difficult to defend against, even if the person accused is innocent. Therefore, the law requires that you examine the testimony of the [accuser] with caution.”
Unfortunately, courts have done away with this instruction, finding that it “perform[ed] no just function.” Trial courts now read the jurors CALCRIM No. 1190 which tells the jury that: “Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone.” This change evidences, in our estimation at least, courts’ opinion that “no just function” is served by telling the jury that these charges are hard to disprove and they should view the accuser’s testimony with caution, but that a “just function” is served by informing the jury that it’s a-okay to convict a defendant upon the uncorroborated testimony of the accuser.
8. Prosecutors Have Greater Leverage in Extracting Pleas of Guilty from the Accused of Child Molestation
Furthermore, because the deck is stacked, prosecutors have greater leverage in extracting pleas of guilty from people accused of child molestation offenses. These plea bargains might involve a lesser charge, or less prison time, or maybe even probation. This might be a “good deal” for a guilty person, but what about the person that is truly innocent? That person is placed in the position of either, on the one hand, pleading guilty to a detestable crime, or, on the other, going to trial and, if the jury does not believe his or her testimony, facing more than a decade in prison.
How can Anyone Possibly Defend Against False Charges?
In our experience, it is possible to successfully defend against child molestation charges and we have been doing it successfully for over thirty years.
First and foremost, what is required is to have a lawyer that is experienced in representing defendants charged with these kinds of offenses and who isn’t afraid to force the District Attorney to prove the charges in a jury trial.
While the law makes things difficult for defendants charged with these crimes, as we’ve said, it’s not impossible – if your lawyer knows what he or she is doing. For instance, while contacting witnesses might be more difficult, it’s not impossible if the situation is handled correctly.
Furthermore, while some jurors might have their minds made up, that is why we have jury selection, (also called voir dire). This is probably one of the most critical parts of any criminal trial. During jury selection, your criminal defense lawyer has the ability to question potential jurors in your case and ask them questions about potential biases they might have. An experienced trial lawyer will be able to spot potential “problem” jurors and have them excused, either for legal cause, or through the use of peremptory challenges. In this area, there really is no substitute for experience. The lawyer needs to know what questions to ask, what answers to look for, and also how to size up potential jurors. Jury selection moves quickly and these assessments must be made in a very short time.
Once the jury has been seated, an experienced child molestation defense attorney will know, through experience, how best to present his or her client’s case to the jury so as to maximize the potential for a positive result in your case.
What if the Charges are True, and the Accused did Molest the Child Multiple Times? How can Wallin & Klarich Help?
A criminal defense lawyer’s job isn’t just defending people charged with a crime, but also to defend people who are convicted of crimes so as to ensure that they are treated fairly by the courts. The laws regarding how to properly sentence a defendant, and what factors should be considered by the court, are probably some of the most complex areas of California criminal law.
Even if an accused person has confessed to the police, that person still has a right to a lawyer, and there is plenty that the lawyer can do to help such a person. In addition to attacking the confession (for example, by arguing that it was obtained in violation of the Miranda rule), a good criminal defense attorney will have your loved one evaluated by a clinical psychologist or psychiatrist (sometimes called an “alienist” in legal circles), who will be able to determine whether your loved one is a serious threat to re-offend. An experienced criminal defense attorney will also know how to properly investigate the case and gather positive evidence about your loved one, and present this evidence to the prosecutor and the court. Such positive evidence can come from employers, church or community service organizations the accused is associated with, family members and friends, and others who may be able to provide information about your loved one’s background. In some cases, we are able to secure positive information from the victim or the victim’s family.
Such information, in addition to the psychiatric report, presented properly, can mean the difference between a year to three years of incarceration (if say the charges can be reduced), and more than a decade of incarceration.
Partner Stephen D. Klarich Discusses the Importance of Defending those Accused of Sex Crimes
Speak to an Experienced Child Molestation Lawyer at Wallin & Klarich
Wallin & Klarich’s team of criminal defense attorneys have decades of combined criminal defense experience. We have helped countless people charged with child molestation offenses, and we’re confident we can help you as well. We have offices throughout Southern California for your convenience located in Orange County, Los Angeles, West Covina, Ventura, San Diego, Riverside, San Bernardino, and Victorville. Contact us today for a free, no obligation consultation.
(877) 4-NO-JAIL or (877) 466-5245.