Our firm handles issues regarding false allegations of sexual assault (what most people call rape) and issues regarding sexual exploitation of a minor. In the past, I was on a prosecutorial team handling those types of matters, prosecuting them on the civilian side at both the Maricopa County attorney’s office and in the United States Supreme Court. That experience made me extremely familiar with sex crimes cases, as well as which defenses are viable and which are not.
Our firm also handles quite a few cases involving child molestation or false allegations of child molestation. Particularly with young children, things can be taken out of context. It’s not unheard of for an interview intended to help a mother or father get, for example, increased child support in their divorce to produce some type of false allegation.
Does Arizona Have a Standard Definition for What Is Considered a Sex Crime?
Arizona has several definitions for sex crimes. Sexual assault is the forced penetration of the vulva or anus (it can also include oral penetration), and it can occur when a person is incapacitated through self-induced alcohol or drug use. Sexual exploitation of a minor involves a minor under 14 years of age being sexually exploited in some way, including through use of a computer, any type of video, or photograph. Molestation of a child refers to not only penetration, but also merely touching of any minor under 14 years of age. The way the law works, even just for touching a particular area on a minor, a person can and will be charged with a serious felony offense with the standard prison range of up to 24 years, even on a first offense.
Are All Sex Crimes Charged as Felony Offenses in Arizona?
Most sex crimes are charged as felony offenses in Arizona, though there are some misdemeanor offenses. An example of a misdemeanor would be an 18- or 19-year-old having a sexual relationship with a 17-year-old. There are various factors involved, but for the most part, if they knew each other since high school, the older person would only be charged with a misdemeanor under what we call the Romeo and Juliet laws. Most other cases will be charged as felonies.
What Would Cause a Sex Crime to Be Charged as a Federal Offense Versus State Level?
A federal offense is typically determined by the location of where it occurs, so most of the federal crimes that I handle take place on Indian reservations in Arizona or on a federal property, like a military base, for instance. Sex crimes in those locations can be charged as federal crimes.
The other main way that a sex crime can be elevated to a federal offense is through interstate commerce. Let’s say a person is transported, for instance, in a child abduction, from New Mexico to Arizona. The crossing of state lines in that type of case makes it a federal crime.
What About Internet-Related Sex Crimes? Are Those Automatically Federal Offenses?
Internet sex crimes can go either state or federal, depending on who is conducting the investigation. I’ve worked on the internet crime task force before, and typically, you see dual jurisdictions investigating these matters. The FBI has a special team out there that searches the internet and looks for these types of issues. There is a database put out by the National Center for Missing and Exploited Children, which is a nonprofit group out of Washington, DC. The FBI uses algorithms on their database to find child sex crime offenders. If they come across somebody who’s trading in that material, they’ll start an investigation that will go federal.
If the state police (operating in, let’s say, Tempe or Gilbert) are investigating, however, they’ll keep that case. Like the FBI, they also have teams doing similar work to find people doing that sort of thing.
Again, cases involving Indian reservations or interstate transportation will definitely go federal. Otherwise, it depends on whether it’s the FBI or state police doing the investigation.
Are Most Sex Crimes Going to Be Bondable Offenses?
It depends on if it’s state or federal. On the federal side, it will be a bondable offense. The federal courts look at whether the alleged offender is a flight risk or a danger to the community, and they set a high bar. Most of the bonds are so high that it’s almost as if a person is non-bondable.
On the state side, there is a different standard. However, over the years, the state has taken more of a federal view on a person’s bond status. They conduct what’s called a Simpson Hearing, which only exists in Arizona. A defendant can ask for a Simpson Hearing and ask for a bond in a non-bondable offense. The emphasis is on the government to prove that there is a flight risk that the person will not appear for trial and poses a danger to the community (versus the other way around). Interestingly, I prosecuted Simpson in Arizona, so I’m very familiar with that type of hearing. And then I’ve also used it as a criminal defense attorney to get people being prosecuted out on bond.
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