Striking a Balance in Rape Prosecutions

Rape and childhood sexual abuse are sensitive subjects no matter the setting. In the criminal justice context where victims and society sometimes seem inherently at odds these conversations can become even more difficult. Set against a backdrop of rape culture and feminism which so often feature in this discourse, it can be challenging to present current issues in a balanced yet sensitive manner. No one worth listening to seriously condones sexual assault of any kind; but to victims, who often face unfair and damaging attacks on their credibility, character, and experiences, any discussion of judicial restraint can seem like a direct insult to their undeniably traumatic circumstances. Yet without a balanced system of justice no one, not even rape victims, is better off in the long term. In order to promote the integrity of the system that protects each of us from the misdeeds of our fellow citizens we must at times engage in sensitive discussions regardless of the risks. Senate Bills 926 and 924, which seek to greatly increase the statute of limitations for both rape prosecutions and civil lawsuits alleging damages from rape, represent just such an occasion. In an effort to present this discussion in as neutral a light as possible, we’ll cover both sides of the debate in separate sections and leave it up to you as readers to form your own opinions of the better outcome. Comments will be disabled on this article to prevent abuse.

Statutes of Limitation

Under the law, many, possibly most, criminal charges must be filed within certain closely defined windows of opportunity. An attempt to file charges too late will usually result in dismissal of the case and legal exoneration for the defendant. There are a number of very good reasons to enforce these kinds of limitations on prosecution. Of primary concern is the quality and availability of evidence, both for and against the defendant. Over time, people pass away, witness memory fades, DNA samples degrade, locations are altered, law enforcement officers are promoted or even retire, and both perpetrators and their victims mature and – to the extent possible – move on with their lives. In civil cases, insurance policies expire or are renegotiated based on past performance, businesses books are settled, staff turns over, new investments made and old risks calculated. These lists could go on ad infinitum, but what should be clear is that trying cases becomes increasingly difficult as the facts supporting the case age.

On a more sinister note, allegiances and personal perspectives can also change over time; often dramatically. Lovers fall out, children grow up, employees are fired, and business deals turn sour. While reliable statistics are hard to compile, it is likely that the majority of sexual assault allegations have merit. Whether, in a particular case, the correct perpetrator has been identified, the extent of the offense properly defined, or the factual circumstances accurately recorded; however, is an open question. Unfortunately, these details can, and sometimes are, affected by the personal relationships at stake in a case; individual perspectives can change over time.

To help guard against degradation of the evidence or the possibility of unfairly changed perspectives, statutes of limitation cap the time in which charges must be brought. These limitations serve to provide some measure of finality to society and to protect against abuse of the legal system.

Time to Recover

On the other side of the equation, victims of sexual assault, particularly children, undeniably need time to heal. Medical research suggests that in many cases individuals have difficulty remember the specifics of a traumatic incident, or even that an incident occurred at all. Psychologists tell us that this memory block is a defense mechanism employed by our brains to help victims move on and heal after an attack. To further complicate matters, many victims are stuck in a nightmare of continuing abuse and totally lack any power to seek justice against their abusers. Young children may suffer at the hands of an abuser for years before ever realizing that they can tell someone about the attacks. Such victims may need many years to recover enough to report the abuse to the legal system and sometimes much longer still to fully appreciate the extent of the physical and emotional damage done to them by the attack(s).

A legal system insensitive to this reality will be unfairly stacked against the very people the system is designed to protect. For this reason, unduly short statutes of limitation cut off the possibility of persecution before victims have had a time to get their bearings after an attack or attacks and give perpetrators of sexualized violence a “get out of jail free” pass by virtue of the very abuse they have committed. Striking the right balance isn’t easy.

Senate Bills 926 and 924

Enter the California Senate. Two bills currently under consideration that would dramatically alter the current system of limitations on prosecution and civil lawsuits against perpetrators of sexual violence. Current law gives victims of childhood sexual abuse until their 28th birthday to report the abuse to authorities and until their 26th birthday or three years after the damage from the abuse is recognized medically to file a civil lawsuit. Introduced by Senator Jim Beall, SB 926 and 924 would raise these caps to 40 years old and five years from the discovery of damage from the abuse respectively. This isn’t the first time the Senator has tried for this change. In the last legislative session a similar package of bills passed both houses of the legislature with wide margins enjoying support from both political parties; it was ultimately vetoed by Governor Brown who took the time to write an uncharacteristically long signing statement describing his reasons for the veto.

“there comes a time when an individual or organization should be secure in the reasonable expectation that past acts are indeed in the past and not subject to further lawsuits,” given that evidence can be lost, memories can fade and witnesses can become unavailable over time. “This extraordinary extension of the statute of limitations, which legislators chose not to apply to public institutions, is simply too open-ended and unfair.”

There are some distinct differences between the vetoed bill and the current effort including the extent to which the changes would apply to the past and exactly which entities could face the revised guidelines (the new bills are not retroactive and apply equally to both public and private entities) and so it remains unclear exactly how the bills will fare in this session or whether, if passed, they too will face a veto action.

Deferring A Drug Conviction

Drug crimes provide an interesting study in social justice. While few people will seriously argue that drug addiction is good for society, that the commercial side of the drug business is acceptable as it currently operates, or that the violence often surrounding the importation of illegal drugs is sustainable, there is strong debate about how best to address these issues; particularly from a criminal justice perspective. For many years there has been a movement towards approaching the drug problem from a health and welfare perspective rather than a purely retributive criminal angle. Recently, this movement has gained substantive momentum. Today, twenty states plus the District of Columbia have laws legalizing at least some forms of marijuana use and two states, Washington and Colorado, have legalized the drug for recreational use. Many more states have developed programs to help drug offenders and abusers rather than simply punishing them for their addictions; California is among this latter group.

Penal Code 1000

Faced with a severely overcrowded prison system and budget difficulties, California has developed a program under which drug offenders can obtain help and treatment rather than a criminal record and a jail sentence. Authorized by Penal Code 1000, California courts have the authority to delay a criminal drug conviction pending successful completion of an approved drug treatment program; successful graduates of such a program can then have their charges dismissed. This is known as a Deferred Entry of Judgment and typically requires a defendant to plead guilty to the charges prior to entering the program. Failure to complete the program will result in those charges being finalized in a conviction.

Who is Eligible?

To participate in a DEJ program, defendants must satisfy two broad requirements. First, the crime with which the defendant has been charged must match one of the several crimes specifically listed in Penal Code 1000. Generally this means that the drug crime in question must be related to personal use or possession, as opposed to possession for sale, and there must be no allegations of violence associated with the drug charge. Second, a defendant must be personally eligible, meaning that they must not have certain other drug related convictions on record, must not have participated in a DEJ program within the last five years, must be in compliance with any parole or probation requirements, and must not have certain other felony convictions on record.

Treatment

During the program the court will determine which course of treatment is best for the defendant. This process will take into consideration factors such as the defendant’s age, education, employment situation, community and family situation, and drug history. Failing to fully participate in the program can result in the court entering judgment against the defendant which will result in a sentencing hearing to determine the appropriate punishment for the crimes charged.
Success

After a defendant successfully completes a DEJ program, the court will set aside the charges. This means that successful program graduates can truthfully state that they have never been convicted of the crime in question and that the associated arrest record cannot be used against the individual with regard to employment or professional licensure or certification.

Other Alternatives

Penal Code 1000 is only one of several different alternatives for drug offenders. While it is arguably the best and broadest, not everyone is eligible for a DEJ program and, as such, some defendant’s must rely on other options. These options include the Proposition 36 drug treatment program or entry into California’s Drug Court; both of which differ in several ways from the DEJ program discussed above. Specifically, Proposition 36 programs do not conclude with an automatic dismissal of charges while in drug court there is no requirement that a defendant plead guilty before participating.
Call us for help

Because there are multiple options that apply to different types of crimes and circumstances, it’s best to seek professional legal help before attempting to negotiate any type of drug crimes alternative treatment option. If you are facing a drug related crime, don’t wait to contact us as any delay may jeopardize your legal rights.

When Primary Insurance Isn’t Enough...

Back in law school, one of my professors told a story about a young family-law attorney who agreed to take a catastrophic car accident case involving a big rig. The attorney wasn’t particularly familiar with personal injury law, but the client was a friend of the family and the lawyer wanted to help. It quickly became apparent to the lawyer that the victim’s injuries were severe and that the insurance policy carried by the big rig wasn’t going to come close to covering the hospital bills. Hoping to get what help the policy could provide, the attorney was prepared to settle the case for the value of the truck policy when a friend mentioned that big rig outfits usually carried two different policies, one for the cab and one for the trailer. The lawyer had been about to settle the case for the value of the much smaller cab policy.

Policy Stacking

While mistakes like these are tragically common among lawyers who practice outside of their areas of expertise, that isn’t the moral of this story. Rather, I’d like to draw your attention to the concept of policy stacking. Policy stacking is the practice of collecting from more than one insurance policy for the same underlying claim. The policies in question might be carried by the same company or by different companies, and there might be two or two-hundred (or more as the case may be). Before we get into the details of how this might work in different situations, let’s be clear about one thing; nowhere is the law generally willing to give a person a windfall. In other words, while there are many situations in which an injured party may be able to collect from multiple insurance policies, almost always the total collection is limited by the total amount of damages. A defendant, with rare exception, cannot get paid twice for the same injury.
Umbrella Insurance

Policy stacking can mean a couple of different things. On the one hand, multiple primary policies might be implicated by a single incident. On the other, there might be a conflict between a primary policy, like an auto policy, and an umbrella policy such as typical homeowner’s insurance. In either case the question becomes, which policy or policies are responsible for the loss. To illustrate, let’s look at a standard auto accident situation. In our example situation, Driver B hits Driver A and is liable for Driver A’s injuries. Driver B has a state minimum car insurance policy which will pay a maximum of $15,000. Unfortunately, Driver A’s injuries come out at $100,000 leaving $85,000 in uncovered damages. In this case, the primary policy, the auto insurance, has been exhausted and any secondary coverage must be addressed. Fortunately for Driver A, Driver B carries a homeowner’s umbrella policy with a one million dollar coverage limit. This policy will cover any incident for which Driver B becomes liable, but only after primary insurance has been exhausted. Has this coverage been triggered?

Med-Pay Provisions

Med pay clauses are provisions in an insurance policy that cover medical expenses, up to some given limit; usually regardless of fault. Let’s assume that Driver A had a $5000 med-pay provision in their policy. Even though Driver B was at fault in the accident, Driver A can still collect this $5000 from their own policy. After this $5000 is paid out, can Driver A now seek coverage from Driver B’s umbrella policy?

Uninsured and Underinsured Coverage

Maybe, but there still might be more to the puzzle. I’ve written about uninsured and underinsured coverage in the past, but it’s implicated again here. Let’s assume that Driver A elected optional uninsured coverage in the amount of $30,000 when they purchased their own policy. This coverage will step in and compensate them for losses not wholly covered by another driver who was at fault in an accident. However, it only partially stacks; Driver B’s $15,000 in coverage will be deducted against it; meaning that Driver A’s uninsured coverage will only pay an additional $15,000 in our example.

So Where Do We Stand?

Based on the example we’ve been working through, Driver B’s primary auto policy will pay $15,000, Driver A’s primary auto policy will pay $20,000 ($5,000 med-pay and $15,000 UIM) leaving $65,000 in uncollected damages to Driver A. Assuming no other policies are implicated, this is where Driver B’s umbrella policy will finally step in and take over coverage; filling the gap left by the other layers of insurance.


As this example should make clear, insurance stacking can potentially become very complex. In large commercial policies, the situation gets even worse. Policy stacking issues went all the way to the California Supreme Court back in 2012 and look set to return there based on a 2013 State Appellate court ruling. While commercial coverage is beyond the scope of this article, it’s important to recognize that the question of which, of many, possible insurance policies might be liable for a given injury isn’t necessarily an easy one to answer; and, as with many other aspects of personal injury law, experience matters when it comes to finding coverage for severely injured accident victims.

Maximums and Minimums: who chooses the right criminal sentence?

Allen Alleyne and an accomplice robbed the manager of a convenience store as the manager was leaving to make a bank deposit. Both Alleyne and his accomplice carried guns. After tricking the manager into stopping his car, Alleyne’s accomplice approached the manager, pressed a gun to his head, and demanded the cash the manager was carrying. The manager complied and both suspects fled the scene. Alleyne was later arrested and charged with two crimes, one for the robbery itself and another for using a firearm during a robbery. At trial the jury was asked to decide two critical questions, did Alleyne carry or use a weapon during the robbery and did he discharge that weapon. The jury found beyond a reasonable doubt that he had carried or used a weapon during the robbery, but made no determination as to the second question.

Under applicable federal law, the sentence for robbery changes when a firearm enters the picture. For a carrying a gun, a defendant faces 5 years, for brandishing a gun, 7 years, and longer still for actually discharging a gun. During Alleyne’s sentencing hearing the judge decided, on a preponderance of the evidence (meaning more than 50% likely), that Alleyne had actually brandished his weapon and accordingly imposed the 7 year enhanced sentence. Alleyne appealed, arguing that the sentence violated his Sixth Amendment rights because this fact had never been properly submitted to the jury. The case eventually wound its way to the U.S. Supreme Court – but let’s backup for a second.

What are sentence enhancements?

While every state has its own set of criminal laws, as does the Federal Government, most systems incorporate one or both of two types of statutorily mandated sentencing guidelines; mandatory minimums, or statutory maximums. The distinction between the two can sometimes get confusing so we’ll consider each separately.

Mandatory Minimums

Mandatory minimums refer to the smallest (least harsh) penalty a judge is allowed to apply to a given class of criminal defendant. When presented with a case in which the facts match the conditions established by the applicable law, a judge does not have the discretion to hand down a sentence lower than the minimum prescribed by the legislature; use of a deadly weapon, rape or child abuse, targeting an elected official, racially or religiously motivate crimes, and many other things can often lead to mandatory minimum sentences. Where one applies, a lesser sentence cannot be imposed, no matter how appropriate it might seem in an individual case.

Statutory Maximums

Statutory maximums are just the opposite (almost). Here, the legislature has defined the maximum penalty that a given class of defendants can face. A judge presiding over an applicable case does not have the discretion to impose a harsher sentence than the cap established by the legislature; no matter the nature of the particular defendant in question. Many crimes have caps on the punishment that can be applied. However, there are often ranges provided depending on the facts. For example, using a fire arm during a robbery can increase a defendant’s exposure by several years over a similar defendant who committed an identical robbery without a firearm. Judges do not have to impose maximum sentences, but cannot exceed them. The range of possible sentences falling between any applicable mandatory minimum and statutory maximum equals the defendant’s potential exposure.

Who decides?

Often it is the judge who decides a specific penalty. Get picked up for insider trading under sympathetic circumstances and you might find a judge willing to “go easy” on you. Hassle the judge all the way through a trial, and you’re more likely to find yourself facing a harsher sentence. However, things become somewhat less clear, and, until Alleyne, less constitutionally certain, when a mandatory minimum or statutory maximum sentence range is triggered. Usually these conditions result from the specific facts of the case; did the defendant carry a gun, how old was the child, how much money was involved, and the like. Is a judge allowed to determine the existence or extent of such facts during the sentencing phase of a trial, or must the jury find the existence of these facts beyond a reasonable doubt?

Enter the Supreme Court

In 2000, the Supreme Court weighed in; declaring that any fact which raised a statutory maximum must be decided by a jury beyond reasonable doubt but that judges were free to determine facts triggering a mandatory minimum based only on a preponderance of the evidence. For a decade this inconsistency in the law stood strong against numerous attacks by scholars and repeated attempts by the defendant’s bar to have the ruling overturned. Then came Alleyne; based on facts very similar to those in the Court’s earlier decision, and brought on a challenge to the exact same Federal law, both the district court and the Fourth Circuit refused to amend Alleyne’s sentence; standing, so they thought, on strong Supreme Court guidance.

Overruled!

To many people’s great surprise, the Court changed its mind. The majority in Alleyne held that statutory maximums and mandatory minimums weren’t different after all; facts triggering both types of sentencing guidelines must be decided by a jury beyond a reasonable doubt. It took a few years, but the right decision was ultimately made. Thanks to Alleyne, the full protection of the Sixth Amendment’s trial by jury requirement is now available to criminal defendants facing a legislatively proscribed sentencing enhancement under either State or Federal law.