Our lawfirm has represented many high-profile clients in over thirty years of criminal defense practice. Founder George Parnham has become an expert on the defense of individuals with mental illness and a passionate advocate for legal reform of their treatment in the criminal justice system. He is called upon regularly by both local and national news media to render opinions on insanity plea cases and general defense issues in high profile cases, such as Lee Boyd Malvo (one of the accused D.C. snipers), Robert Durst, Kobe Bryant, and Scott Peterson.
Texas Parole Board Hearings
The granting of parole is a privilege that rests solely on the Texas Board of Pardons and Parole. Among the many things the parole board takes into consideration before ruling on a parole application is the severity of the offense committed that incarcerated the inmate, the amount of time already served by the inmate, and the progress the inmate has made while incarcerated (educational programs, counseling and participation in services offered by TDCJ).
The parole hearing may be your one chance to seek release from prison. It is critical that you are fully prepared for this important meeting, and that you are represented by an attorney who understands the nuances of this process.
The attorneys at Parnham and Associates are available to provide representation before the Texas Board of Pardon and Paroles. When you work with our firm to prepare for your parole hearing, we will evaluate your case and make an informed decision to determine if you have a chance of obtaining a successful parole vote.
Texas Parole Violations
Parole is usually conditioned on the successful completion of certain
programs. In addition, a parolee is required to avoid drugs and stay
away from individuals of ill repute. Any criminal charges will likely
result in a revocation, especially any felony or violent crime.If you
have been served with a parole revocation warrant in Texas, it may mean
automatic arrest and incarceration. It is important to carefully
consider your legal options if you are faced with this situation. Our
attorneys can help you explore your legal options, whether you have been
charged with a new crime or if you are accused of a technical
violation. You may be facing imprisonment again if you are convicted of
another crime or technical violation. Every parolee has the right to a
hearing, and some alleged parole violators have the right to both a
preliminary hearing and a revocation hearing; based on the findings the
board may revoke parole, require additional supervision, reverse a
previous revocation, or take any number of other actions. In each of
these hearings, the parolee has the right to counsel.
Before a parole violation is addressed, it has to be determined
whether it was a substantive or a technical violation. Technical
violations include such things as missing appointments or classes which
is different from a substantive violation such as committing a criminal
offense. Once you have a parole violation on your record, it could be
almost impossible to be paroled again. Before waiving your rights, it is
advisable that you contact an experienced parole violation lawyer to
argue your case.
Texas State Pardons & Clemency
Judicial Clemency is the power of a judge to set aside a conviction
under the Texas Code of Criminal Procedure. Judicial Clemency is
available to some people who have been placed on probation, and is
separate from the clemency power of the governor. Certain offenses are
ineligible for Judicial Clemency, including DWI offenses, sex offender
registration offenses and 42A.054 offenses. If you successfully have
your conviction set aside through Judicial Clemency, your conviction
will be set aside and the case dismissed. The law says that you are then
released from all penalties and disabilities resulting from the offense
or crime, with certain exceptions. Judicial Clemency is a form of post-conviction relief that
does not remove anything from your criminal record, but instead changes
the disposition of the case to dismissed and grants you some specific
civil rights. It is important to note that you are not eligible for
judicial clemency if you served a jail or prison sentence.
The pardon process takes a long time and clemency applications are
very difficult to complete: over 75% of the applications submitted are
not considered simply because the application fail to meet the Boards
requirements. We can work to help restore your rights, remove a
conviction, obtain a pardon or clemency, restore civil rights, obtain
voting rights, and expunge records.
The Board of Pardons and Paroles Division of the Texas
Department of Criminal Justice is vast and complex. It has extensive and
complicated rules that govern the parole review process, to say nothing
of how to present an effective case for parole. The most important
asset to have when navigating this system is a skilled, experienced
professional advocate well-versed in presenting a strong case for
parole.
The attorneys at Parnham & Associates are highly experienced in
these cases and practice in both state and federal courts. If you have been accused of a crime, please contact us today for a free
consultation with an aggressive and resourceful criminal defense
attorney. We will work tirelessly to ensure the best possible outcome
for your case.
Call (713) 224 - 3967 for a free consultation.
For more information visit parnhamandassociates.com
In this video Houston, Texas criminal defense attorney George Parnham discusses the stress involved in a defense career and the means of dealing with it.
In 1843 Daniel M'naghten was acquitted in the murder of the English prime minister's secretary by reason of insanity, prompting then-Queen Victoria to call for a reappraisal of the law. The result was a standard adopted in both English and American courts, which can be summarized in a single question: Did the defendant know his conduct was wrong at the time he committed the crime? Unless a person was mentally disabled to the extent that they were unable to comprehend that they were committing a crime, they could still be found criminally responsible regardless of the presence of a severe mental illness.
The rule, established by the English House of Lords, states:
"Every
man is to be presumed to be sane, and ... that to establish a defense
on the ground of insanity, it must be clearly proved that, at the time
of the committing of the act, the party accused was laboring under such a
defect of reason, from disease of mind, and not to know the nature and
quality of the act he was doing; or if he did know it, that he did not
know he was doing what was wrong."
The M'Naghten Rule focuses on whether a criminal defendant (a) knew the nature of the crime or (b) understood right from wrong at the time it was committed. One of the two distinct criteria must be met in order for insanity to be an effective defense. Some courts differ as to whether the "wrong" in question refers to moral or legal wrong (or both). Additionally, some states have eliminated the first part of the test in which a defendant is ruled legally insane for not fully understanding what he or she has done.
More realistic standards were adopted by many states,
including Texas, in the 1970's; the courts decided that even if the defendant knew their conduct was wrong, they
would not be found guilty if they had been ''incapable of conforming their
conduct'' to the requirements of the law. This more modern standard recognized that,
as a result of a mental illness, an individual might know he or she is
doing wrong but still lack the ability to keep from doing it.
In 1981 John Hinckley shot and
wounded President Ronald Reagan and three other men: Hinckley's
acquittal by reason of insanity shocked the nation. Texas quickly dropped the element of ''conforming conduct'' and reverted to
a strict ''knowledge-based'' standard almost as broad as the old M'Naghten
rule.
The current Texas insanity defense and the requirements to raise the defense is codified in Texas Penal Code Section 8.01:
Insanity
(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.
(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
The result is that a defendant rarely prevails on an insanity defense in Texas; few defendants, even those who are seriously mentally ill, delusional, and perhaps unable to control their behavior, are incapable of knowing at some basic level that their conduct is unlawful. If defendants know that their conduct is prohibited by law, or wrong in a legal sense, then they are sane for purposes of the Texas insanity defense. Consequently, many defendants who need long term psychiatric treatment and secure hospitalization are convicted and go to prison.
The Model Penal Code Test
In 1972
the American Law Institute (ALI) developed a new rule for insanity
as part of the Model Penal Code. This rule, found in § 4.01 of the
Code, says that a defendant is not responsible for criminal conduct
where (s)he, as a result of mental disease or defect, did not possess a
"substantial capacity either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law." Therefore, using the MPC test, a legally insane individual must have
been diagnosed with a mental defect (typically by a court-appointed
mental health professional) and either did not know right from wrong or
lacked the ability to control an impulse that led to the incident.
The Model Penal Code test is much broader than the M'Naghten Rule and
the Irresistible Impulse Test. Legal insanity requires the inability to
understand right from wrong under the M'Naghten rule, while the
Irresistible Impulse Test requires the inability to control an impulse.
The MPC rule asks whether defendants are able to fully understand the
criminality of their conduct or able to conform their conduct to the law, combining these two elements.
Twenty-one states currently use a modified version of the Model Penal Code rule.
Although the Texas Legislature hastily abandoned the ALI insanity test and returned to a limited variation of M'Naghten in 1983, there has never been a corresponding narrowing of the test for juveniles. Indeed, the insanity defense for juveniles in Texas is not designated as an "insanity defense" in the Family Code; instead, section 55.51, which delineates the provisions for the defense, is entitled "Lack of Responsibility for Conduct as a Result of Mental Illness or Mental Retardation" and provides the following standard:
"A child alleged by petition to have engaged in delinquent conduct or conduct indicating a need for supervision is not responsible for the conduct if at the time of the conduct, as a result of mental illness or mental retardation, the child lacks substantial capacity either to appreciate the wrongfulness of the child's conduct or to conform the child's conduct to the requirements of law."
This contrast between the Family Code and the Penal Code results in an anomalous situation in Texas: a juvenile defendant will have the benefit of an appropriate, modern insanity test, while an adult defendant only has available the old nineteenth-century M'Naghten right-wrong test, with all of its shortcomings.
In recent years, several organizations have called for Texas to restore a two-prong insanity standard that would include a volitional component; The National Alliance on Mental Illness "...supports the retention of the 'insanity defense' and favors the two- prong test that includes the volitional as well as the cognitive standard" and the Mental Health Association in Texas has urged that Texas change its insanity law.
The determination of sanity should not rely only on a century-old premise of whether the defendant knew right from wrong in the legal sense. This narrow definition ignores the medically recognized symptoms of mental illness, which often include powerful visual and auditory delusions. Any workable insanity defense should also incorporate the question of whether the defendant's mental illness impaired or altered the defendant's ability to understand or comply with legal definitions of right and wrong.
George Parnham is an expert on the defense of individuals with mental illness and a passionate advocate for legal reform of their treatment in the criminal justice system. If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case. For more information visit Parnham & Associates.
In any Driving While Intoxicated (DWI) case, the prosecution must prove two primary facts:
1)
the person being charged (the "defendant") drove a vehicle, and
2) at the
same time, the defendant was "under the influence"—meaning that the
person's ability to drive safely was affected to an appreciable degree
by drinking alcohol, taking a drug, or a combination of alcohol and
drugs. A DWI defense can be anything that proves one of
these two elements wrong and prevents the prosecution from proving
its case. A valid defense might also prevent the prosecution from introducing
evidence at trial.
A significant part of the evidence against you in a DUI or DWI
case will usually consist of the arresting officer's observations and
impressions as to whether or not you were drunk. For example, the
officer may testify about the way you were driving (uneven speeds,
weaving, crossing the center line, running a red light, or hesitation
going through a green light), how you looked and acted once your vehicle
was stopped (bloodshot eyes, slurred speech, stumbling), or how you
performed on field sobriety tests. If you can challenge the officer's
observations or present evidence that might refute those observations,
you may be able to knock a big hole in the prosecution's case.
In some cases, a defendant may be able to introduce witnesses who can refute the officer's "opinions" by testifying that you didn't drink anything before you got in the car, that you appeared to be sober, or that there were other circumstances involved; i.e., you ran a red light because you were distracted by conversation, not because you were drunk. You may also be able to counter the officer's decision that you had been drinking
by offering valid explanations for how you looked or acted when you were pulled over.
For example, you may be able to prove that you did not perform well on field sobriety tests because of physical impairments or because the instructions were confusing.You might claim that your eyes were bloodshot because of lack of sleep or allergies, or your speech was slurred because of lack of sleep or medications you take.
Most DUI and DWI cases start with a driver getting pulled over, so
there usually isn't much argument over whether the defendant was
actually driving. But if a police officer didn't actually observe you
driving; i.e., the officer approached your idle car while you were behind
the wheel in a parking lot, the issue might be debatable.
If the officer did not have legal justification to stop your
vehicle and arrest you in the first place, or if the officer failed
to follow proper legal procedures during the arrest, any evidence
gleaned from the traffic stop or the arrest might be deemed
"inadmissible" and kept out of a court case.
This could leave the prosecution with no real case (for example, because
breathalyzer results and the arresting officer's testimony couldn't be
used as evidence), and the charges against you could be
dropped.
"Probable Cause" means that the facts support an objective belief that the person to be arrested has committed
a crime, or that a place or item to be searched bears evidence of a crime. The
obvious question in probable cause is "How likely must it be that the
defendant committed a crime, or that the place or item contains criminal
evidence?"
If an officer did not have probable cause
to stop your vehicle, detain you, or arrest you for drunk driving, then
you may be able to keep any evidence obtained during the arrest from
being admitted at trial. For example, if you believe you were stopped
simply because of your race or ethnicity rather than because you were driving
erratically or appeared to be intoxicated, you may be able to
challenge the arrest.
In Texas, an adult who drives with a blood alcohol content (BAC)
level of .08% or above is guilty of Driving While Intoxicated. For drivers under the
age of 21, almost all states set the limit at .01% or .02%.
The police administer chemical tests to measure the BAC in your
breath, blood, urine, or saliva, and the results of these tests are usually the main evidence entered in the prosecution's case against you. If you can
successfully challenge the accuracy of these tests, the test results may
be deemed inadmissible at trial. Vials used in collecting medical blood samples may lack anticoagulant
and preservatives, the antiseptic used to cleanse the area may contain
alcohol, and any disease process affecting the liver, such as hepatitis, will impair blood test results.
Also, when alcohol is consumed it can
take from thirty minutes to one and a half hours to be absorbed by the
body. This is influenced by the last time a person consumed food. This
is a viable defense when your BAC would have been below the legal limit
when you were driving, but by the time the breath or blood test was
performed the level had increased beyond the legal limit.
A conviction of DWI or DUI can have serious effects on your
employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer.
Contact Parnham & Associates today at
713.224.3967. Depending on the circumstances, we may be able to save your license.
The National Highway Traffic Safety Administration has estimated that alcohol-related collisions represented 40% of
total traffic deaths in the US. Most states have enacted severe laws in
order to deal with the problem of impaired driving, and while the intent
of these laws -removing dangerous drivers from public roads- is indeed
noble, they may also allow and even encourage law enforcement officers to
engage in practices that are constitutionally questionable. For example,
police may conduct "sweeping stops" in which they pull over every
vehicle passing through a certain point, regardless of a lack of
probable cause. Or they can instigate programs such as the "no refusal
weekend" in which judges may rubber-stamp warrants for blood tests on
suspected offenders.
Nearly two million drunk-driving cases are filed by law enforcement officers around the country ever year. DWI/DUI cases represent the single largest category of criminal
infractions of all reported cases, with about 200,000 more cases
processed each year than all theft and larceny offenses combined.
Various departments of law enforcement often instruct their officers to watch for cars leaving popular
nightspots, and they will almost always find the "probable cause" they need in order to
stop a driver and start the DWI/DUI process rolling. Furthermore, law
enforcement agencies have what are commonly called DWI/DUI Task Forces.
These officers have extensive training and experience related to finding
people who may be intoxicated, as well as training on how to testify
against defendants charged with DUI/DWI. Prosecutors are also very
experienced in trying DWI/DUI cases because so many citizens are charged
with this crime.
In Texas and many other states the legal limit for intoxication is .08%
Blood Alcohol Concentration (BAC). However, if an officer suspects your
driving is impaired you can still be stopped and arrested for DWI
regardless of your BAC. In most cases suspicion of DWI also gives the
police a probable cause to search your vehicle.
If you are charged with Driving While Intoxicated or Driving Under the Influence in Texas, it is important to know that you have only 15 days from the date of arrest to
request a hearing on your driver’s license. If you fail to request a
hearing, your license may be suspended and you face the probability of
paying huge fines for several years. It is important that you hire legal
representation for this hearing to challenge the license suspension.
In any Texas DWI Conviction the Texas Department Of Public Safety is authorized to place a surcharge on your driver’s license. This charge will range from
$1,000.00 to $2,000.00 a year for three years. Depending on whether you
provided a breath sample, and the results, you could be facing a
$6,000.00 fee to keep your license. In addition to the criminal consequences of a DWI/DUI conviction you
face other civil penalties including license suspension, making it difficult for you to travel to work and
efficiently meet your daily obligations even
before your day in court.
In Texas, "intoxicated" is defined as having (1) lost the normal use of
your mental faculties, (2) lost the normal use of your physical
faculties, or (3) having a blood alcohol concentration of 0.08 or
greater. A jury must believe the State has proven one of these elements
beyond a reasonable doubt; however, driving with a blood alcohol concentration over the limit of 0.08 is illegal regardless of the
circumstances. BAC is determined by conducting a scientific analysis of
the driver’s blood, breath, or urine.
If you have been charged with driving under the influence of drugs or alcohol, or driving while intoxicated, an experienced attorney has several areas to explore in preparing a defense.
Improper Stop and/or Detention:
An arrest for DUI
usually occurs in one of two circumstances; either the officer
witnesses the operation of a vehicle in a manner which may indicate that the driver is impaired, or
the officer stops the defendant for a regular traffic offense and then suspects that the driver is impaired during
the course of the stop.
If the officer suspects you are impaired, they will request that you
take a series of field sobriety tests which you can, and should, refuse.
Failure of a field sobriety test immediately provides probable cause to arrest you for
DWI.
However, given the
subjective nature of this proof standard, any physical signs of impairment may be sufficient
probable cause for the officer to make an arrest. After an arrest occurs, it is
best to refuse all further testing or interrogation to keep from
incriminating yourself to the officer who already thinks he or she
already has probable cause.
Both reasonable suspicion and probable cause are terms defined by
constitutional law. Reasonable suspicion is the standard that must exist
before a law enforcement officer can pull you over for DWI or a traffic
violation. A lesser standard of proof than probable cause, reasonable suspicion
must be based on more than a hunch: there must be specific facts from which a rational inference is made. Basically, unless
another reasonable person or officer could believe that a person is, has been, or is about to engage in
criminal activity based on the circumstances present,
the standard of reasonable suspicion does not exist. Probable cause is a higher standard of proof: the presence of a reasonable amount of suspicion
that is supported by circumstances strong enough to justify a prudent
and cautious person's belief that certain facts are probably true.
An officer can stop you for DWI based on
reasonable suspicion alone, but probable cause must exist for a DWI
arrest to occur in Texas. If you believe that the police officer that
stopped you for DWI did so without either, you may be the subject of an
unlawful stop and you may have a valid defense which an experienced DWI
attorney can use to fight your charges.
Without either reasonable suspicion or probable cause present in a
DWI, you have been subjected to an unlawful stop and any
related evidence may be dismissed. It is important remember that the
judge determines whether reasonable suspicion and probable cause exist
when a motion to suppress is submitted, not the law enforcement officer
that made the stop. The judge is not allowed to view the police report
and must make the determination based on testimony and any physical
evidence, such as video.
Additionally, if the law enforcement officer violated
your rights or failed to follow arrest procedures; i.e., they failed to read you your Miranda rights, denied your right to an
attorney, or failed to advise you of the consequences for a DWI chemical test refusal, you may also have grounds for an improper stop.
Use of the "Field Sobriety Test" and Breathalyzer:
The first "evidence" gathered by police officers after a stop for suspected DWI typically consists
of field or roadside sobriety tests. These agility tests are supposed
to indicate that the person suspected of drunk driving was actually
impaired or in some way “a less safe driver.”
Recent scholarly studies have shown that field sobriety tests are not
given uniformly, that there is no scientific basis for assuming they are
valid, and that most officers either use the wrong tests or improperly
instruct the suspect on how to perform the tests. A defense attorney can
obtain a pretrial ruling that the tests and their alleged indication of
impairment must be excluded from evidence due to lack of scientific
foundation and faulty instructions.
Any other “observation” evidence from a police officer will generally
be inconclusive and subject to interpretation. For
example, bloodshot eyes can be caused by conditions other than
drunkenness, including contact lenses, allergies, or lack of sleep. A
defense attorney can analyze the evidence that will likely be
presented and take the time to investigate the medical background of
clients and the environmental contaminants they have been exposed to.
Most alleged evidence of intoxication can be neutralized or eliminated
from the state’s presentation with findings from this investigation.
In the overwhelming majority of drunk-driving cases in which police
obtain a chemical test, an infrared breath analysis machine is used rather than
a blood test. These machines are so
unsophisticated that virtually no scientist would ever trust the results
as a basis for scholarly research or scientific investigation.
If the officer was not
certified to administer a Breathalyzer test or failed to
follow the necessary procedures prior to the breath test, or if the device
was not properly maintained, the test results will be inadmissible in court.
Contaminated Blood Tests:
BAC tests, like any other type of forensic evidence, are not immune to challenge on a variety of grounds.
Vials used in collecting medical blood samples may lack anticoagulant and preservatives.The antiseptic used to cleanse the area may contain alcohol in amounts sufficient to produce measurable amounts of alcohol on a gas chromatograph. Also, while many jurisdictions have regulations and procedures governing blood testing, and despite the fact that most specifically prohibit using any alcohol solution as a skin cleanser, some of the swabs that are used in blood collection kits contain a substance known as benzalkonium chloride as an active ingredient. This compound contains approximately 2 percent (2%) or more ethanol concentration.
Swabbing the skin with ethanol before taking a blood sample for measuring blood ethanol concentration may increase the apparent blood ethanol level by up to 0.018 percent (g/dL), even if the skin is allowed to dry before the sample is taken.
The blood taken from a driving while intoxicated (DWI) suspect involved in an accident or car crash may also be contaminated if there was an intravenous fluid being administered at the time the blood was drawn.
Some police departments and state forensic laboratories analyze whole blood. Many hospitals and clinical laboratories routinely analyze only serum. Evidence of a client’s blood alcohol level indicating a result of 0.10 percent (g/dL) BAC may, in fact, reflect a true BAC of 0.08 to 0.09 g/dL if serum was used.
The human body eliminates the amount of alcohol by oxidation of the “poison” (alcohol) in the liver. Like any other foreign compound, alcohol is broken down by enzymes in the liver and gradually reduced until 100 percent is eliminated. Therefore, any disease process affecting the liver, such as hepatitis, will impair results. Also, any condition that causes “extracellular” water retention (heart disease or many forms of high blood pressure or diabetes, for example) will alter results.
Rising blood alcohol concentration:
When alcohol is consumed, it can
take from thirty minutes to one and a half hours to be absorbed by the
body. This is influenced by the last time a person consumed food. This
is a viable defense when your BAC would have been below the legal limit
when you were driving, but by the time the breath or blood test was
performed the level had increased beyond the legal limit.
A conviction of DWI or DUI can have serious effects on your
employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer.
Contact Parnham & Associates today at
713.224.3967. Depending on the circumstances, we may be able to save your license.
Texas Penal Code Sec. 22.011 defines sexual assault in a manner which covers a wide range of incidents, most of which involve
an allegation that the accused caused penetration by a sexual organ
without the victim's effective consent. Sexual assault can include
vaginal, anal or oral sex, and the accused can be a male or female. Further, the statute sets the minimum legal age of consent at 17. Charges of sexual assault of a child are considered aggravated if the child is
under 14 years of age, if a deadly weapon is used, if a "date rape drug" known as rohypnol or ketamine was used with the intent of making the offense easier to commit, or if serious bodily
injury is threatened.
A separate crime, Indecency with a Child, is defined by Texas Penal Code Sec. 21.11
as either engaging in sexual contact (defined as touching of the genitals with intent
to arouse or gratify someone sexually) with a child, exposure of one's
anus or genitals to a child under 17, or causing the child to expose his
or her anus or genitals to the actor with the intent to arouse or
gratify someone sexually.
Indecency with a Child by Contact in most circumstances is a Second Degree Felony (2 to 20 years), and
Indecency with a Child by Exposure is a Third Degree Felony (2 to 10 years).
Criminal Statutory Rape, as defined in Texas Penal Code Section 22.011(a)(2) is
another unique form of rape charge in that its victims consent to the sexual
acts, although they are not of age to do so with someone over the age of
19. Like many states attempting to
mitigate the rigidity of statutory rape laws, the state of Texas has a
“three year rule,” which states that consensual sexual acts between two people who are over the age of 14 and are
within three years of age of another, do not comprise criminal statutory rape.
Defendants accused of statutory rape often claim that they had no reason
to know that their partner was underage, or that the victim lied about their age and a
reasonable person would have believed them; but other than the 3-year age gap exception, there are no other exceptions
to statutory rape in Texas.
In addition to these criminal penalties, Texas law requires those who have been convicted of certain sex offenses
and other crimes to register as a sex offender upon release from state
supervision. Most of the information that convicted sex offenders are required to
provide is made available to the public in the Sex Offender Database.
This database is accessible on-line from the Texas Department of Public
Safety's Web site. Only certain information, like the offender's social
security and driver's license numbers and any information that could
identify the victim, are kept confidential.
Additionally, local
law enforcement may contact schools, print notices in the local
newspaper or send out postcard notifications to alert members of the
community of the presence of certain high-risk offenders in their
neighborhoods.
The false accusation of rape is the intentional reporting of a rape where no rape has occurred. It is difficult to assess the prevalence of false accusations because they are often conflated with non-prosecuted cases under the designation "unfounded." However, in the United States, the FBI Uniform Crime Report in 1996 and the United States Department of Justice in 1997 stated 8% of rape accusations in the United States were regarded as unfounded or false.
David Lisak's study, published in 2010 in Violence Against Women, classified as false 8 out of the 136 (5.9%) reported rapes at an American university over a ten-year period. Applying IACP guidelines, a case was classified as a false report if there was evidence that a thorough investigation was pursued and that the investigation had yielded evidence that the reported sexual assault had in fact not occurred.
It is extremely difficult to assess the prevalence of false accusations, and there are many reasons other than falsity that can result in a rape case being closed as unfounded or unproven. However, while researchers and prosecutors do not agree on the exact percentage of false allegations they generally agree on a range of 2% to 10%. Although these percentages may not seem high, a false accusation of sexual
assault immediately changes the life of the accused, jeopardizing careers, marriages, and
reputations. More than any other type of crime, an accusation of sexual
wrongdoing destroys a person’s life.
In some instances, a person makes false allegations because of
jealously, or in an attempt to seek revenge on someone who did not reciprocate
their feelings. Accusations of sexual misconduct also frequently come
up in divorce or child custody cases, student-teacher relationships, employer-employee relationships and in any other context where the accuser may have a motive to lie.
Even if the defendant is innocent, it often requires an
entire trial in order for this determination to be made, during
which the defendant may well be ostracized or publicly ridiculed by the media.
Public hysteria regarding child molestation has changed
the rules of the criminal justice system; physical and sexual
abuse cases involving minors must be defended in an entirely different manner than the
normal criminal case. In many cases, the child
accuser does not have to appear in court and face the accused; instead,
the state can offer the child's testimony through a video tape made by
agents of the prosecution. "Hearsay" evidence may be admitted in a case, and there is often no physical evidence presented. The state does not have to prove guilt, but simply make the accusation;
Once the accusation is made, the defendant must prove innocence beyond a
reasonable doubt. Failing that, the jury will very often not take a chance the
defendant may be a child molester, and will convict.
No other area in Criminal Law creates public outrage the way sex crimes
do. The mere allegation of a sexual offense is sufficient to destroy
reputations, careers, families and lives.
At the same time, there are very few areas of Criminal Law where we have
seen such a high percentage of convictions overturned because the
person was actually innocent and subsequently cleared by DNA or witness
recantation. A false allegation case can only be defended successfully by an attorney
with significant trial experience and specifically with child sexual
assault cases.
If you have been charged with sexual assault contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form.
Depending on the circumstances, we have many options in mounting a strong defense for you.
Under Texas state law sexual assault, commonly known as rape, is defined in Texas Penal Code §22.011.
Sexual assault covers a wide range of incidents, most of which involve
an allegation that the accused caused penetration by a sexual organ
without the victim's effective consent. Sexual assault can include
vaginal, anal or oral sex, and the accused can be a male or female.
In cases of sexual assault involving two or more adults in which deadly weapons are not used, the crime is typically considered a Second Degree felony and carries a potential sentence of
2-20 years imprisonment, plus a $10,000 fine and lifetime registration
as a sex offender. It is also a “3g” offense, which means a person
convicted of the offense and sentenced to prison must serve at least 50%
of the sentence before being eligible for parole. It also means that a
judge may not place a person so convicted on ordinary community
supervision (however, the judge may place the person on deferred
adjudication).
When the alleged assault includes certain factors, the charge may be elevated to the more severe offense of aggravated sexual assault. Aggravated Sexual Assault is described independently in the Texas Penal Code, and it shares elements of both the Aggravated Assault offense and the Sexual Assault offense.
The crime of Sexual Assault can be elevated to Aggravated Sexual Assault in any of these cases:
The victim is under the age of 17, an elderly individual or a disabled individual;
The defendant causes or acts with another person who causes serious bodily injury or attempts to cause the death of the
victim or another person in the course of the same criminal episode;
The defendant threatens the victim or any person with death, serious bodily injury, or kidnapping;
The defendant uses or exhibits a deadly weapon;
The defendant administers or provides flunitrazepam, otherwise known as rohypnol,
gamma hydroxybutyrate, or ketamine to the victim of the offense with the
intent of facilitating the commission of the offense.
Conviction of aggravated sexual assault can lead to a prison sentence
of 5 to 99 years, or even life in prison. Additionally, if the victim
was younger than six or was younger than 14 and was subjected to actual
violence, the perpetrator could face a minimum of 25 years in prison.
Again, registry as a sex offender is mandatory.
The most apparent issue in sexual assault cases involving adults is that of consent. There are several situations in which Texas law says consent is lacking for the purposes of the Sexual Assault law;
The victim was compelled to submit or participate by the use or threat of physical force or violence against the them or another person;
At the time of the sexual assault the defendant knew that the victim was incapable either of appraising the nature of the act, or of resisting it as a result of mental disease or defect;
The defendant knew that the other person was unaware that the sexual assault was occurring, or intentionally impaired the other person’s power to appraise or control the their conduct by administering any substance without the other person’s knowledge;
The defendant is a public servant, mental health services provider, clergyman or a health care services provider who coerces or exploits the victim’s emotional dependency on them in order to make them submit or participate;
The defendant is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other.
Even if there is no physical evidence to support an accusation
of sexual assault a charge can still be filed. In
many cases the evidence boils down to “he said, she said”, and unfortunately false
allegations do occasionally arise; for instance as a result of divorce, child custody battles, conflicts between a child and a step-parent; or in relationships involving an unstable person. Sexual assault charges are sometimes made after consensual sex,
for one reason or another. Tragically, children are also sometimes coerced
or manipulated into making false charges of sexual assault.
No other area in Criminal Law creates public outrage the way sex crimes
do. The mere allegation of a sexual offense is sufficient to destroy
reputations, careers, families and lives.
At the same time, there are very few areas of Criminal Law where we have
seen such a high percentage of convictions overturned because the
person was actually innocent and subsequently cleared by DNA or witness
recantation.
If you have been charged with sexual assault, possession of
child pornography or prostitution related crimes you need an experienced
criminal defense lawyer. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form.
Depending on the circumstances, we have many options in mounting a strong defense for you.
