Criminal Sexual Conduct

February 3, 2011

New Trial For Pinckney Man After Livingston Court Overturns Criminal Sexual Conduct Case

In November, the Court of Appeals for Livingston County overturned a jury verdict finding Gary Clinton Owens guilty of second-degree criminal sexual conduct. The Court of Appeals found the combination of prosecutorial misconduct as well as inadequate defense representation required that the conviction be overturned. A new trial date has now be set.

This case illustrates the need for an experienced sex crimes defense lawyer when facing any type of criminal sexual conduct charge. Where you or someone you know has been convicted of a sex crime, or accepted a plea that seemed unfair, you may be able to appeal the results.

Here, the Michigan Court of Appeals found enough errors committed on both sides to find that Owens was denied justice. The prosecutor improperly questioned Owens about past drug use and made inappropriate comments about his trustworthiness. Prosecutorial misconduct affected Owens’ “substantial rights” by denying him and fair and impartial trial. The errors “seriously affected the fairness, integrity, and public reputation of the judicial proceeding.”

January 14, 2011

CMU Student Faces Jail Sentence For Failure To Notify Mount Pleasant Officials Of Sex Offender Status

by Scott Grabel

A recent case involving a Central Michigan University student highlights the long-term and often unjust consequences of statutory rape and sexual misconduct laws on teens. News out of Saginaw and Mount Pleasant reports that a 19-year-old man from Isabella County’s Union Township faces a potential 4-year prison sentence after failing to notify law-enforcement that his name was on the Michigan sex offender list.

David Cheatham was forced to place his name of the sex offender registry when he was just 14 as the result of a conviction for second-degree criminal sexual conduct (sexual touching an intimate body part) with a person under the age of 13. The consequences of this one act, engaged in by a 14 year-old, continue to affect Cheatham’s daily life. Now, as a college student trying to improve his life and continue his education, he faces jail instead.

December 9, 2010

Gore Summit Man Not Guilty Of Criminal Sexual Conduct

by Scott Grabel

A Jackson County jury has determined that a Gore Summit man is not guilty of first and second-degree criminal sexual conduct. According to the Jackson Citizen Patriot, a man was accused of assaulting his now 13-year-old granddaughter who is developmentally delayed, mentally and emotionally.

Criminal sexual conduct in the first degree is often referred to as rape, and involves some form of penetration of the alleged victim. Criminal sexual conduct second degree involves touching of a sexual nature of an intimate body part without penetration.

However, little evidence exists that such actions occurred in this case. The girl reported the incidents several weeks after they had supposedly occurred, and no medical documents supported the allegations of assault. Further, the man’s ex-wife and two other family members testified that they had not seen the man acting inappropriately with children. Although the man had admitted to touching the girl inappropriately while being questioned by sheriffs, this “confession” occurred after hours of badgering.

Despite a lack of evidence, law enforcement pursued a trial against the man. In Michigan the law requires simply an allegation be made – convictions may occur without any physical evidence supporting the assault.

November 18, 2010

Michigan Sex Crimes And Teens

by Scott Grabel

In the wake of the recent tragedy resulting from a teenage sexual encounter in Huron Township, legal experts are saying that Michigan’s criminal sexual conduct laws should be reconsidered. Using felony offenses to punish an older teenage boy against a younger teenage girl (and vice versa) makes bad public policy.

The Huron Township case involves sex between a 14-year-old girl and an 18-year-old boy. Initially, the girl indicated it was consensual, then recanted and said she had been raped. By law, however, 14 year-old is not able to “consent” despite his or her willing participation in a sexual encounter. After receiving intense ridicule at school, the girl committed suicide.

This case has brought the issue of teen sex and Michigan criminal sexual conduct laws to the forefront. The reality is that teens live in a highly sexually society, with significant numbers of teens engaged in sexual relations and sexting. Treating these behaviors as felonies, with the result mandatory registration on the Michigan sex crimes registry, is unjust and disproportionate to the act involved.

A recent article in the Detroit Free Press labeled Michigan’s’ all-or-nothing legal scheme is “lunacy” – with the boundaries between “perpetrator” and “victim” based on calendar age arbitrary, noting “Some 14-year-old girls are sexually savvy, others are shockingly naïve. Some 18-year-old boys are predatory; and some lack the maturity, or at least the superficial sophistication, of the younger women competing for their attention.”

October 14, 2010

Wayne County Jury Acquits Pastor Of Statutory Rape

by Scott Grabel

According to the Detroit News, a Wayne County jury has found a Detroit minister not guilty of all charges stemming from an arrest for alleged statutory rape.

A 16-year-old boy alleged that the minister had sex with him no less than three times when he was only 15. Michigan’s age of consent is 16. The law does not require any criminal intent to prove statutory rape, simply that a person under 16 years of age engaged in sexual relations with an adult.

Because an individual may be convicted of a criminal sexual conduct offense without any physical evidence of an assault or other supporting evidence, it is crucial to hire an aggressive defense attorney if you have been charged with statutory rape or any other criminal sexual conduct charge.

Often, finding the true motivation for making the accusation of sexual misconduct is one of the most important components of a successful defense. Here, evidence presented at trial revealed that the alleged victim and another man made up the stories of sexual relations as revenge against the pastor, a man known for taking troubled teens into his home.

September 29, 2010

Man Exonerated Of Rape After Serving 10 Years In Prison

by Scott Grabel

Earlier this week a 39-year-old Dallas,Texas man – Stephen Brodie – was exonerated
of the rape of a 5-year-old girl after a judge determined he was innocent. He was released the next day, and his dad was there to greet him as he exited the jail.

On Monday, a judge ruled Brodie had been wrongly prosecuted despite a lack of physical evidence. In many states, including Michigan, individuals may be convicted of criminal sexual conduct without any physical evidence of an assault or any other supporting evidence. Here, not only was there no evidence, but prosecutors had contradictory hair and finger print evidence that conclusively excluded Brodie as the perpetrator, yet they failed to turn this evidence over to his defense attorney. Police officers also knew that a fingerprint found at the victim’s home did not match Brodie’s.

The Dallas County District Attorney’s office issued an apology this week.

Deaf since childhood, Brodie’s imprisonment was largely a result of a confession he gave after being questioned for hours without an interpreter. Studies by the Innocence Project show that in many cases, innocent people confess during police interrogation as a result of duress, coercion, diminished capacity, and ignorance of the law. Brodie later told The Associated Press he had felt scared and pressured. The judge admitted the confession, and believing it the best option, Brodie pleaded guilty to assault and accepted a five-year sentence. He then served two additional sentences for failure to register as a sex offender. Now that he has been exonerated, Brodie no longer needs to place his name of the sex crimes registry.

Tragically, Brodie spent 10 years of his life behind bars as the result of a crime he didn’t commit. Experts estimate that nearly 5,000 wrongfully convicted men and woman are locked up today in Michigan’s prisons.

September 16, 2010

Past Mistakes Shouldn’t Keep Those With Felony Convictions From Volunteering

by Scott Grabel

A group of Grand Rapids parents are circulating petitions to allow them to participate in their children’s education through volunteering. At issue – past criminal convictions and the fact that some of the parent’s names are on the Sex Offender Registry. The Grand Rapids school district, as well as all school districts in Kent and Ottawa counties – screens all school volunteers and will not allow anyone with a felony conviction to participate.

As stated by one parent, “Something you did back in the day when you were young and dumb, should not be allowed to haunt you forever and make you a less effective parent.”

In fact, many of those with names on the sex crimes registry are there as a result of “Romeo/Juliet” type relationships.

Understanding that the involvement of parents is vital to their children’s success at school, parents are requesting that the school decide whether to allow the parent volunteers on a case-by-case basis. Due to current laws, a parent whose name is on the registry will likely not be able to volunteer, but the petition circulated by the parents underscores the lasting impact youthful indiscretions may have on your future.

Hopefully, the school district will allow parents who are trying to do the right thing to be involved and make a difference in their child’s education.

August 12, 2010

Michigan DNA Analysis Backlog Leaves The Accused Waiting For Justice

by Scott Grabel

Last month the Detroit Free Press ran a series exposing a serious problem affecting all of those interested in criminal justice – the overwhelming backlog of cases requiring biological testing – including DNA testing – which is often the key to freedom for those wrongfully accused and convicted.

Today the South Bend Tribune echoed that sentiment, calling for the elimination of Michigan’s serious backlog of thousands of forensic cases.

As a Michigan sex crimes defense attorney, I agree. According to the Detroit FreePress,10,500 untested rape kits existed at the beginning of 2010. The number has since grown. In spite of this backlog, Michigan has passed legislation to collect DNA from all those arrested for felonies, but not yet tried or convicted. Rather than expanding the number of people subjected to DNA analysis, emphasis should be placed on processing rape kits and other samples. Often, DNA analysis is the key to freedom for those wrongfully convicted.

DNA evidence freed Kenneth Wyniemko who was imprisoned for nine years for a rape he didn’t commit.

DNA evidence freed Rickie Seggie, an innocent Sterling Heights man headed for trial on charges of criminal sexual assault.

July 22, 2010

Federal Appeals Court To Review Ingham County Rape Conviction

by Scott Grabel

According to the Detroit Free Press, the entire 6th Circuit Court of Appeals will review a 2001 rape conviction.

At issue – rape shield laws. Specifically, under what circumstances can the sex life of alleged rape victim be used by the defense at trial.

Generally, Michigan law excludes evidence of the victim’s sexual conduct or reputation at trial. However, exceptions may exist in limited circumstances – such as where the sexual conduct is between the accused and the victim, and where the past conduct is relevant to the case at hand.

Here, in a rape trial alleging non-consensual group sex, evidence of a previous act of group sex including the accused and the alleged victim was withheld. The accused – Lewis Gagne – was ultimately convicted and sentenced to up to 45 years in prison.

On appeal, a 3-person panel determined that Gagne’s rights were violated at trial. The full 6th U.S. Circuit Court of Appeals has now agreed to revisit the case, finding that based on the facts of this case, the trial court violated the defendant’s due process rights in applying Michigan’s rape shield law.

July 16, 2010

Wayne County Man Pleads Guilty to Third Degree Sexual Misconduct In Facebook Sex Case

by Scott Grabel

According to the Detroit News, a 19-year-old was charged with third-degree criminal sexual conduct for allegedly having sex with a 13-year-old girl he met on Facebook. Third degree sexual conduct is sometimes referred to as “statutory rape.”

Here, the 19-year-old boy had been hiding in the girl’s bedroom for up to two days before the girl’s mother discovered him. The girl told the police they had “sexual contact.”

Under Michigan law, the age of consent is 16. The law doesn’t require the existence of intent to sexually assault another, simply that a person be under 16 years and engaged in sexual relations. Thus, although a younger party may say yes, the older partner may be subjected to the harsh injustice of prolonged prison time and placement of his or her name on the sex crimes registry.

In the instant case, if convicted, the 19-year-old faces up to 15 years in prison and must register as a sex offender.