Jamahl Kersey June 9, 2016 No Comments

California Law: What Is Needed to Be Charged with 2nd Degree Rape?

Every state has its own laws surrounding sexual assault and rape. California is no exception, having its own requirements for 2nd degree rape charges. Whether you believe you may be facing such charges or you simply want to be informed of the laws in your state, understanding the difference between different types of sexual assault can be helpful.

What Is Rape in California?

Generally, rape is a form of sexual assault that typically includes forced penetration. This is no different in California, except that there are different degrees of the crime.

In California, rape is considered sexual penetration by means of force, violence, duress, injury, menace, or fear. In addition to sexual penetration, this also applies to oral copulation and sodomy. This crime is considered a felony in the first degree, but the second degree varies between misdemeanor and felony.

What is 2nd Degree Rape in California?

Second degree rape and first degree rape differ in the type of violence or duress that occurs before or during the act. In fact, there are also different types of crimes that may qualify as 2nd degree rape. Each circumstance may be examined differently from another.

In California, you may be charged with 2nd degree rape if you engage in intercourse with an individual under the age of 18 and you are less than three years older than this person. In this case, the crime is often considered a misdemeanor. This type of case, often called “statutory rape,” commonly affects young couples when one party is over 18 and the other is still a minor.

If you are more than three years older than the individual under 18, you may be charged with a misdemeanor or felony depending on the court’s decision.

If you are age 21 or older and engage in sexual intercourse with a minor under the age of 16, the crime may be considered a misdemeanor or felony.

Evidence of 2nd Degree Rape

One of the first things that prosecutors will look for in any rape case is evidence of freely given consent. If there is doubt that the consent was given freely, evidence of such will be shown in court.

First, the court will look at the age of the victim. Legally, minors are not generally considered able to provide consent for sexual interaction. The court also considers the mental and physical capacities of the victim. If the victim is considered disabled, he or she may not be able to provide consent according to the law either.

The court will also look at the relationship between the victim and the defendant. For instance, a person in a position of power could be considered intimidating to an employee.

It is not necessary for the threat of violence or force to be explicit in 2nd degree rape. For instance, a teenager may experience duress from the suggestion of intercourse by an adult in a superior position. The court will examine the way in which the circumstances came about.

Additionally, a prior existing relationship does not deter the court from pressing charges of 2nd degree rape.

Second Degree Rape Charges Are Serious

Punishments for 2nd degree rape include up to one year in jail and up to four years in prison. This is for the first offense, but additional offenses can lead up to eight years in prison. On probation, the offender may be required to pay for counseling for the victim as well.

The best way to deal with charges is to hire a defense lawyer. Plus, the laws do occasionally change. Do you need a lawyer in a sexual assault case? Contact us to learn more about your options.

Jamahl Kersey June 1, 2016 No Comments

Physical Discipline Vs. Domestic Violence

Domestic violence is defined as physical violence that occurs between individuals in a family unit or those in a dating or other romantic relationship. The activities that fall under the category of “domestic violence” are wide and varied, but the focus is on activities that cause harm to the individual against whom violence is committed. What many parents find themselves wondering, however, is, “When parents physically discipline their children, does this amount to domestic violence?

The Short Answer

Parents who physically discipline their children are not automatically committing an act of domestic violence. There are several forms of physical discipline that are legally acceptable when dealing with a child, and parents shouldn’t worry that they’ll be charged with domestic violence when physical discipline is necessary to control a wayward child. Many parents believe that failure to appropriately discipline their children is worse than disciplining too harshly, and some children simply don’t respond to time-outs or groundings. Discipline is different from violence and does not fall into the same category.

The Blurred Line

The fact that typical discipline isn’t domestic violence doesn’t excuse parents from using excessive force when disciplining their child. There are, of course, several very obvious signs that discipline has crossed the line. These include:

  • Visible or excessive bruises on a child caused by discipline, especially those that clearly have the imprint of a hand or object
  • Broken bones
  • Any damage to the head, especially damage resulting in concussion
  • Trauma inflicted by a sharp object
  • Malnourished children who have been starved as a form of discipline
  • Burns
  • Patchy balding from pulled hair
  • Teeth missing in an abnormal pattern
  • Isolation or an unwillingness to interact with others due to fear of the parent

Domestic violence might also be identified in a child who routinely flinches away from an angry adult or who expects severe physical punishment for small infractions. It’s also important to note that parents should moderate punishment based on infractions: extreme physical punishment for small mistakes or any type of violence that is not part of a punishment can also be viewed as domestic violence.

Unfortunately, there isn’t a clear line between domestic violence and abuse and mere physical discipline. What type of discipline is considered acceptable? Most people would agree that a spank on the bottom or a smack on the hand is appropriate discipline, but what about smacking the mouth of a smart-mouthed child? Determining the difference between discipline and domestic violence is much more difficult in this case.

Defining the Line

Each state has a different definition of the line between domestic violence and discipline. Some don’t make the guidelines particularly clear due to a desire to leave most basic discipline decisions to the parents. Others have stricter guidelines. Typically, however, the distinction between domestic violence and discipline comes down to a handful of questions.

  • What was the intent of the action? An abuser will tend to act in anger, while a parent disciplining a child will punish in order to create better behavior in the future.
  • Is the child endangered by the action? That is, does it cause unnecessary or excessive physical harm? If not, the action was discipline, not violence.
  • Does the force used take into account the child’s age and size? An action that would be considered violent against a small child is more likely to be discipline against an older child.

Many times, the question of domestic violence versus physical discipline comes down to the personal determination of the individual who reports the violence, the investigating parties, and, ultimately, a juror. While reasonable physical discipline is never the same thing as domestic violence, discipline that crosses a line may be seen that way. If you’re struggling with a domestic violence charge as a result of disciplining a child or looking to understand the legal ramifications of violence committed against your child, contact us today. Experienced legal representation is critical to ensuring that you are protected to the fullest extent of the law.

Jamahl Kersey May 13, 2016 No Comments

Common Tactics Police Use to Get Confessions From Suspects

You’ve probably seen old movies of people being tortured so that they’ll confess to crimes they may have committed. In the past, suspects of crimes had to undergo third-degree abuse by being deprived of water, food and sleep in an effort to get them to confess. But today, instead of using these harsh techniques, more sophisticated methods are used.

Getting people to confess to the police about crimes they’ve committed is not easy. To obtain confessions, police officers use a combination of different techniques. Here are some of the main tactics police officers use to get confessions from suspects. 

The Reid Method of Interrogation

A popular method known as the Reid technique is often used in making people confess to crimes. This tactic, which is the most widely used interrogation method, entails questioning suspects for evaluating their credibility. Instead of using a question-and-answer format, the interrogator speaks compassionately in an effort to make a suspect more at ease so that it’s more likely he or she will tell the truth.

To do this, the interrogator tries to present reasons for why a crime may have been committed. In other words, interrogators try to put themselves in the shoes of suspects. The Reid technique is designed to build rapport with suspects. The interrogator is specially trained to observe a suspect’s body language in detecting signs of anxiety and lying. Nine steps are involved in this technique, although many of these steps overlap.

The Reid technique is often effective in getting information on a crime for suspects who probably would have been unwilling to be truthful. On the other hand, some critics of this tactic contend that it can lead to innocent people giving false confessions.

The PEACE Method

An increasing number of police officers, in countries such as Denmark, the United Kingdom and New Zealand, use a relatively new tactic called “The PEACE method.” This procedure involves gathering a lot off information, rather than simply getting confessions from suspects. The letters in “PEACE” stand for preparation and planning; engage and explain; account; closure and evaluate. It’s similar to a journalistic method, yet it’s extremely straightforward.

The method works on the assumption that the more untruths that suspects tell, the harder it is for them to remember what they’ve said. It’s based on the idea that just a single conflicting detail will eventually destroy a liar’s entire web of fabrications.

Misconception

Can police officers ever lie? That’s what many people still believe, but this is an old urban myth. In fact, lying is another technique that’s used in getting confessions from suspects. Actually, there isn’t any law that says that police officers are restricted to always telling nothing but the truth.

Considerations and Warnings

  • There are some groups of people who are more at risk for making false confessions. These include mentally challenged individuals, juveniles and children.
  • Law enforcement officers are not allowed to make threats to suspects, such as threatening to forbid them to see their family if they don’t confess. Furthermore, police cannot say that if a suspect confesses, he or she will be charged with a less severe crime.
  • Whenever officers interact with people, informal questioning can take place. For example, let’s say you’re stopped by a police officer, and you’re unsure of the reason why. Always assume that you may be suspected of committing an offense.
  • When officers question suspects at police stations, they typically use the Reid technique.
  • If you’ve been charged with or accused of a crime, you should never offer a statement to the police if there’s no attorney present with you. You don’t want to say anything that might incriminate you later.
  • Simply state that you don’t want to give a statement, and that you’re using your right to remain silence. Additionally, request a criminal defense lawyer.

A qualified and highly experienced criminal defense lawyer can help you in determining if you need to say anything at all. If speaking with law enforcement is necessary, your lawyer can advice you on what to say, as well as investigate your case. Don’t hesitate to contact us and learn more about our wide range of legal services.

Jamahl Kersey May 10, 2016 No Comments

How Domestic Violence and Abuse Differ

Domestic violence and abuse are terms that are often used interchangeably. However, these crimes differ on factors such as longevity, cause, and context. Additionally, these offenses differ in the manner of which the public views them. The victims of both these offenses suffer greatly in short and long-term consequences; however, below are overviews of these acts of violence and how they differ from one another.

Domestic Violence Overview 

Domestic violence is a violent confrontation between family or household members. Additionally, domestic violence is a very broad offense as this crime affects both people and property.

Types:

Physical

Harm such as biting, hitting, battery with a weapon, and incredibly gruesome offenses such as breaking another’s bones are considered physical forms of domestic violence.

Sexual

Rape, molestation, and unwanted sexual contact are forms of sexual domestic violence. It is important to note that neither gender is excluded when it comes to sexual domestic violence.

Threatening

Instilling the fear of being harmed in a victim is a form of domestic violence. Whether the threat turns physical or not, it is still a crime.

Property Damage

Damaging a family or household member’s property is a form of domestic violence. This fact is perhaps the biggest way in which domestic violence and abuse differentiate.

How this Differs from Abuse:

Domestic violence is different from abuse as a result of being a far broader offense. A victim of domestic violence does not need to be physically or emotionally harmed, but can have their personal belongings damaged or destroyed. Domestic violence can be a long or short-term offense and is most common amongst couples. Domestic violence is a crime most often committed against women.

Abuse Overview 

Abuse is often a long-term offense and is defined as the maltreatment of a person or animal. Males and females of all ages fall victim to abuse every year.

Types:

Physical and Sexual

Like domestic violence, physical abuse is anything that causes physical harm to a victim. Sexual abuse is, of course, the result of any type of unwanted sexual contact.

Financial

Controlling someone’s finances without consent is known as financial abuse. This is a common type of abuse amongst the elderly.

Emotional

Perhaps the most ignored type of abuse is emotional. Making another person feel hopeless, insulting another person, or controlling another person are all types of emotional abuse.

How this Differs from Domestic Violence:

Domestic violence is sometimes a long-term offense, but it can also be a one-time crime. The heat of the moment can result in domestic violence and the offense may never happen again. Of course, that is not always the case and domestic violence is an incredibly serious offense. Abuse, however, is a crime that offenders work up to accomplishing.

Additionally, crimes against children are more commonly referred to as abuse. Very rarely can causing harm to a child constitute heat of the moment occurrences. Spousal or elderly abuse are almost always long-term offenses because the abuser needed to instill a feeling of worthlessness into their victims before having their crime escalate to a more violent offense. Abuse almost always has devastating consequences and requires far more steps than an arrest to stop.

It is conclusive that there are a lot of similarities between domestic violence and abuse. The most distinguishable fact of these two crimes is typically the longevity of the offenses. Both domestic violence and abuse are violent, tragic crimes in which the offender deserves to be punished. Of course, both of these crimes are incredibly serious regardless of their circumstances and require assistance to prevent the offenses from happening again.

For more information on domestic violence, abuse, and further punishable offenses, please contact us today.

Jamahl Kersey May 5, 2016 No Comments

What’s Involved in a Protection Order and How It Can Be Changed or Dropped

People who feel unsafe and threatened from others often get protection orders. In simple terms, a protection order, also called an OP or order of protection, is a legal paper that a judge issues, involving rules, preventing contact between a restrained person and a protected person.

The restrained party is the defendant, while the protected party is the individual who is seeking protection. In many cases, protection orders are waived or modified. Here’s how a protection order can be changed or dropped, along with some other important considerations and warnings.

Types of Protection Orders

The two main kinds of protection orders include no-contact orders and peaceful contact orders.

  • In a no-contact order, a defendant is unable to have any contact at all with the protected person.
  • There’s also a peaceful contact order. This is when a judge makes needed adjustments that address specific conditions. In other words, there may be some form of limited contact.

Getting a Protective Order Modified or Dropped

Victims who are named in protection orders can ask a court to modify or drop a protection order. This entails the removal of some conditions or all of them. Because it’s a complex procedure, it’s best to use a qualified criminal defense lawyer.

Plaintiffs who have asked for the protective order can’t change the terms in a protection order just by giving defendants permission to have contact privileges, again. They must ask for changes by addressing a judge or an Assistant DA (District Attorney.)

They’ll need to explain why they want to make changes to a protection order. Furthermore, they need to state that they have willingly made their decision on their own free will and weren’t coerced into doing so.

After plaintiffs are asked if they’ve discussed their decision with a victim specialist, they need to sign a petition. The court clerk sets up a court hearing, at least 10 days later, in which both parties must attend.

It’s at this hearing that a judge determines whether or not to grant the requested changes. A judge may fully change the protection order, make partial changes or deny modifications.

Is a Protective Order the Same Thing as a Restraining Order?

Many people think a protection order is the same thing as a restraining order, but they’re somewhat different. Both of them are used for restraint purposes.

The main difference is that protection orders entail much more extreme court rulings that are used in preventing family violence and are designed to protect the life, emotional welfare and limb of victims of domestic violence.

How to Protect Yourself and Prevent Problems

If you’re a defendant, you’ll need to protect yourself because violating a protection order can result in new charges being filed against you, besides getting arrested. For example:

  • In addition to avoiding the plaintiff’s place of residence, be sure to stay away from areas where he or she frequently goes, such as a workplace or school.
  • If you’re in a public place, such as a store or restaurant and see the protected party, leave immediately.
  • Avoid any disagreements with friends or family members of the protected person, and never send emails, letters or faxes to this plaintiff.
  • If you receive an email from the plaintiff, hand it over directly to your attorney.
  • If the protected person tries to call you, hang up promptly and inform your lawyer of the call. Don’t even try to patch up differences.

Considerations and Warnings

  • Both the defendant and the plaintiff need to understand that filing a petition doesn’t change an order’s terms.
  • A protective order isn’t a requirement for calling 911. On the other hand, police officers tend to respond faster when callers say that they have a protective order.
  • Protective orders can be increased, as well as decreased.

Being served with a protection order can be overwhelming, but you don’t have to face this problem alone. If you’ve been issued a protection order, call us. Our qualified, experienced criminal defense team serves the greater San Diego area. Please contact us, and let us explain how we can help you.