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Chicago Private Investigators and Detective Agency - Calrson Investigations, Inc.

Illinois Private Investigations based in Chicago

Publications by Susan Carlson, CLI, CRT

“THE ROMEO AND JULIETTE FACTOR”

Defense Investigation of Statutory Rape Charges

by Susan Carlson, CLI, CRT

INTRODUCTION

Sexual activity of any kind with a teenager under the age of consent is considered rape, even when both partners are "willing" participants. But what if BOTH parties are teenagers? What if they are boyfriend/girlfriend?

Teenagers have been having sex forever. Had Romeo and Juliette lived today, they would be in big trouble with the law and not just their respective families.

How old were Romeo and Juliet anyway? If my Shakespeare serves me, they were barely in to their teens. Romeo was the older of the two and if he were tried in a court of law today, he would be looking at a variety of punishments, including a permanent listing on the National Sex Offender Registry. Of course, things did not work out so well for either of them in the end.

Statutory rape is one of the most confusing and misunderstood areas of sex crime law and the statutes are almost as varied as the states themselves. What is legally permissible in some States means serious jail time in others. Enforcement is a mixed bag and varries from State to State because just as State laws differ on the age of consent, their sentences also vary according to the age difference between the two parties.

It is important to note that as the disparity in age between the defendant and the accuser increases, so does the potential for punishment. In fact, in most States, if the age difference is not more than 3 years, the defendant will be charged with a misdemeanor. If the age difference is over three years, the court has discretion to charge the crime as a felony.

The Romeo and Juliet factor does not make teenage sexual activity legal, but it often does lower the charge from a felony to a misdemeanor. On the other hand, the same factor often can involve incarceration as well as a permanent taint of being listed as a sex offender.

Most states no longer legally refer to the crime as "Statutory Rape" although the term is still widely used among the public and even those in the legal community as a general tent cast over a number of crimes charged within its auspices. Terms such as sexual assault, sexual abuse, or unlawful sexual intercourse are often the legal terms used to describe the actual crime of sex with a minor by a person not more than five years older than the victim.

Regardless of the terms used, the essential of the crime is based on the premise that until a person reaches a certain age, he or she is not able to legally consent to having sexual intercourse.

Physical force is not a necessary element needed to meet the criteria to be charged with a statutory rape offense. However, our teenagers are often not educated to these legal standards and they assume that if their girlfriend/boyfriend agrees to the sex, then no crime is committed.
This is a big problem for criminal attorneys who get hired on to defend these kids, as often, their clients have already admitted to the crime, not aware of the legal consequence.

The "I did not rape her, she's my girlfriend" defense does not work in a court of law.

STRATEGY FACTORS

There are many factors that play a role in the defense strategy of statutory rape charges, but it is an uphill battle to find real teeth which can realistically be used in a court of law.

An independent investigation by a skilled professional investigator may reveal information, witness testimony, procedural errors by the police and/or the prosecutor or evidence which may work in favor of the defendant. We need to look for it.

In many states, the prosecution needs to prove that the defendant knew the girl was underage when the event occurred. Realistically, it is the defense that needs to prove otherwise. If the defense is raising the issue that the defendant thought the girl was "legal", they are going to need to show compelling evidence to that end.

Most people are aware that some girls lie about their age in order to date older guys. But the level of proof needed for the defense to raise this issue in a court of law is greater than exists in the court of public opinion.

Any male with minimum reasoning skills is able to pick up on the fact that he is dating a teenager if the obvious items such as school books and backpacks are toted about. The fact that the girl does not yet drive a car or has a "learners permit" is certainly an obvious clue. A guy should be able to pick up on the fact that he is dating someone who is underage if his "date" has a curfew and has to be home by 10 PM on a school night. These are all things that the prosecutor is going to use to convict a defendant.

As soon as possible, the investigator should access the accuser's social networking page (Facebook, Myspace) to see how she lists her age. If she has over stated her age, print it, take a photo of it, and have the attorney subpoena the content from the site itself. ("pagefreezer" also works nicely for the purpose of preservation of the evidence, but it is fee based... see www.pagefreezer.com)

I worked a case here in Illinois in which a 16 year old girl stated on her Myspace page that she was 18. Moreover, there was video of her dressed in dominatrix garb, dancing provocatively to some hip hop. The defense attorney brought a lap top to the judges chambers for a review "en camera" and the case against our client was dropped.

I shot a video of the page as preservation, but in this case it was not necessary as to everyone's amazement, the girl had not removed the evidence off her MySpace page and the replay, live in Judges Chambers, was enough to convince everyone involved not to go forward with the matter.

It is rare occasion, that the prosecution is willing to drop a case simply because the myspace or Facebook age is inflated. Some states do not even allow for an affirmative defense as a reasonable belief by the defendant that the alleged victim was of legal age.

If State law is favorable, an investigator should also look for actual witnesses who have heard the accuser overstate her age. Often, there is a pattern of repeated lying about age and numbers of people are willing to sign affidavits and agree to testify in court. If the defendant claims to have met the girl at a party, then attendees are a good place to start looking for favorable witnesses.

SIDEBAR: Whenever interviewing minor children, common sense will dictate how and when they should be approached and under what conditions an interview should take place. Two investigators is the preferred method when interviewing a minor.

If an affirmative defense is not appropriate, look for procedural errors committed during the original investigation. If an initial interview was conducted by a child advocacy center study the transcript, watch the video or listen to the tape recording, whatever exists.

Often times, an unskilled or inexperienced interviewer may have asked leading questions or otherwise tainted the interview itself. Look at the credentials of the person conducting the interview and see if those can be attacked.

It can often be that advocacy centers are pro prosecution and looking for bias can sometimes prove beneficial.

In Cook County, most cases of sexual abuse are referred to Child Advocacy Centers for investigation. Until recently, they did not tape their interviews and only the police were allowed to take notes. There is a new trend, and now the interviews must be video taped and those tapes are part of the discovery process.

I was part of the defense team of a 19 year old youth charged with sexual abuse. He had a relationship with a 16 year old girl and when her parents found out they called the police. They in turn required that the parents take the girl to the Child Advocacy Center in Schaumburg to "investigate" the matter.

The defendant was charged based on statements made from the alleged victim during that taped interview.

The attorney provided me with the CD of the interview and asked that I take a look at it to see if I could come up with anything. At no time did the interviewer ever acknowledge that a video recorder (with sound) was on and at no time did the young girl ever give her consent to have the interview recorded. The camera was permanently affixed to the ceiling in the corner of the room and had gone unnoticed.

I attempted to interview the girl at her home, with her parents present. Initially, they agreed to speak with me but almost immediately when they realized the significance of my role, they asked me to leave. On my way out as I passed them my business card, I asked the simple question, "Were you aware that you were being taped?". Neither the girl nor her parents knew of the recording. The girl later e-mailed me and further stated in writing that she was never told that a recording was being made of her interview.

This was a procedural error that allowed the attorney to get the entire interview thrown out and eventually charges were dropped as, without the girl's statement, there was no evidence. By then, neither party was talking and the girl's family became reluctant to proceed as all they wanted in the first place was for the girl to stop dating the guy, which had already occurred.

This may have been a lucky break in this case, but the point is, look at the initial investigation as procedural error may exist.

Do not overlook an interview with the accuser. Often, an alleged victim will recant her accusation when approached by a skilled professional investigator. A properly taped recantation is a valuable tool to present to the defense attorney for a motion to dismiss, but often the prosecution will proceed regardless of the recantation.

I have worked cases where the accuser recants and is forced to come to court anyway and threatened with perjury charges. In one specific case, the young girl came to court with her own attorney who stood by her side as she exercised her 5th amendment right and refused to testify. Our client was acquitted but this is an extreme case of a young girl standing her ground not to convict her "boyfriend" of raping her.

LIMITED OPTIONS

We do what an attorney asks us to do. If we get called into the case early, we have more options. If there is little defense, the attorney may choose to delay the case for as long as he/she can. Often, the case gets weaker over time. As the alleged victim gets older, her appearance and age may seem less vulnerable to a jury and even to a judge.

The victim may recant and often the family may lose its desire for a trial based on personal reasons such as embarrassment, stress or the realization that a crime may not have been committed.

Oftentimes, these cases are plead out because mounting an actual defense is not possible. If a forward thinking defense attorney calls us to the table, it can be a rewarding challenge to find something that can keep Romeo out of jail and off the National Sex Registry.

-- This article was featured in PI Magazine, December 2010 edition --

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