The 20 Best Sex Crime Defenses in Arizona
1-4: False Allegation of Sexual Conduct or Non-Consent
False Allegations Made by (or Regarding) Minors in Custody Battles.
Unfortunately, False Sex Crimes Allegations made during Custody battles are one of the most common tactics used in the Arizona Family Court system. It is usually the case that these claims are made for the first time as a divorce proceeding is starting, or as a disagreement regarding Custody and Visitation has occurred. One of the first things we look for is if these Allegations have been made before, or did they just arise now? We are often able to use the Mandatory Reporter Law per ARS 13-3620 as a “sword” to show that the ex-spouse was required to make these Allegations to Police the moment they become aware of them. If they really believed the Allegations were true, yet they didn’t make a report to Police at that time, then they could be subject to their own criminal prosecution.
We also look at the age of the minor (i.e., was the alleged victim a baby or toddler), and is the parent the one making these Allegations on behalf of the child. On the other hand, if the alleged victim is a child who is 4 years or older, then they might be the subject of Parental Alienation and Suggestibility/Manipulation by one of the parents.
Lastly, we look to see whether there is a new boyfriend or girlfriend in the picture who is now the catalyst for these Allegations being made in order to “get rid of the ex” or is it possible that they are the ones actually abusing the child. It is important to note that these Allegations are often used as weapons for separating a parent from their child, and they’re also used as leverage for obtaining parental decision-making power, sole custody, higher awards of spousal maintenance, etc.
False Allegations of 13 to 17 Year-Olds.
False Allegations made by teenagers are incredibly common. In fact, one of the State’s primary Expert Witnesses will testify on the stand that she has encountered a study which shows that as much as 45% of Allegations made by girls 14 to 17 years old against a step-parent or mother’s new boyfriend are, indeed, false. Many times these False Allegations are made in order to improve a living situation.
This can occur when a stepfather or mother’s new boyfriend is removed from the home, and then the teenager can subsequently move into a circumstance with their biological father that may be more lenient. Their motivation is that they can stay up, go out more, and hang out with friends. False Teenage Allegations also occur when they want the step-father or boyfriend removed from the house so that they can receive more attention, and have a more lenient situation at home with their mother. Many times, whichever parent ends up taking care of the child “feels so guilty” that they furnish more privileges and gifts based on the child’s “victim posturing.”
False Allegations of “Me Too” by Minors and/or Adults.
“Me Too” Allegations are becoming quite common in Arizona. Many times there are situations where a young lady, (usually a college girl), will drink and then have consensual sex. They then become irate after they have been “slut shamed,” and then they Falsely Allege they were drunk and unable to consent. This situation also occurs if Alleged Victim has cheated on their boyfriend, and then the boyfriend has found out and confronts the girl, and she then claims “no consent due to being drunk.”
We have handled dozens of cases at the Title IX/Disciplinary Hearing stage throughout all of the major universities, colleges, and even high schools in Arizona. These cases are much more defensible because of social media, and the fact that almost everybody is taking videos and pictures at all times during parties and club events. While defending these cases we have interviewed numerous witnesses, and gathered all videos, in order to show that an accuser was not falling down drunk, and was actually quite affectionate and forthcoming with the accused. This can be demonstrated by behaviors such as holding hands, kissing, and making sexually provocative statements on video.
Lastly, in situations involving a claim of “blackout drunk,” we use one of the top experts in America, who happens to reside in Tucson, Arizona. We have used his testimony and expertise to show that when the Hippocampus area of the brain becomes affected by alcohol, a person can still be moving, talking, acting, and consenting. However, they may not remember certain things at certain periods of time that fade in-and-out of memory during the course of a night. For example, many people have woken up in the morning at a friend’s house, yet the last thing they remember was being at a bar the night before. This does not mean they passed out and were carried to their friend’s house. Instead, they simply don’t remember laughing and enjoying themselves for the rest of the night.
Suggestibility of Children/Improper Interview Techniques.
Studies have shown that the human brain is not fully developed until 26 years of age. In regard to children, their brains are so underdeveloped that they can be easily manipulated. The younger a child is, the more prone to Suggestibility they are.
For example, most young children believe that Santa Claus exists and that they have seen him in person. This is almost always due to Suggestibility in one form or another. In addition, many children have lucid dreams in which they later interpret as real. This is known as “False Memory Syndrome,” and one of the most famous cases in the 1970’s regarding this phenomenon was the McMartin Preschool Trial in California. During that case, many children testified at Trial that they were abused, subjected to Satanic rituals, and were taken to the zoo, and witnessed the beheadings of rhinoceros’s and giraffes. It was at that moment in Trial that many parents realized that their children were simply recalling memories that actually never happened. Eventually, the McMartins were found Not Guilty, and new protocols were put in place to help ensure that children were not improperly manipulated.
That is why it is so important to make sure that the Forensic Child Interviewer is properly trained. For example, if you directly ask a child if somebody touched their “privates,” they usually will say “yes.” This is why it’s important for the interviewer to simply ask a child to tell them what occurred, and not lead them. Many times they will give the child a doll, or have them draw on a body diagram on paper, and then ask them to point out where they were touched. If they volunteer the information that they were, indeed, touched, they should be able to put an “X” on the diagram as to where they were touched. Unfortunately, many well-meaning relatives or Police Officers immediately jump into questioning a child, and then either “feed them information,” or solidify any “dream” the Child may have had as being “real.” That’s why it’s so important to have a Board-Certified Criminal Law Specialist review all of the evidence in a case regarding Sex Crimes allegations.
5–12: False Allegations of Sex Crimes Involving Computers
Unknowing Downloads/Sharing of Child Pornography
Many cases of Child Pornography/Sexual Exploitation of a Minor are created through file sharing websites. Many people will go to one of these sites, see music and videos that they would like to have, and then click the “Browse All” button. Unbeknownst to them, they may be downloading files that contain Child Pornography.
For example, our Forensic Expert Witness has a demonstration in Trial where she searches for “cute kitten” videos, which rapidly takes her to Porn Hub. Once she clicks on Porn Hub for a half a second and clicks out, she then shows the jury that approximately 20,000 images were downloaded in less than 1 second.
Although none of those images might be Child Pornography, it shows how quickly a digital download can occur in the modern world. This proves it is possible to download a massive amount of images without realizing you may have inadvertently obtained Child Pornography! Lastly, issues with “Unallocated Space” and “Incomplete Files” are also a strong Defense. Oftentimes a person will attempt to open a file, only to get the spinning wheel logo, also known as “buffering,” that lasts endlessly. They will then click out of that file, and it will become an “Incomplete Download.”
However, the Prosecutor will claim that the person not only knowingly downloaded Child Pornography, but also knowingly/intentionally viewed it. This can be successfully defended with a high-quality Forensic Expert Witness combined with a Certified Criminal Law Specialist as your Sex Crimes Defense Team.
Hijacked Wi-Fi by Real Perpetrator
Many times a person’s Wi-Fi can be hijacked by a neighbor in the vicinity of the Defendant’s house, condo or apartment. This can be accomplished when a person “piggy-backs” onto the Defendant’s Wi-Fi in order to access the internet for free. If they then began downloading Child Pornography or if that person reaches out to Solicit a Minor for Sexual Activity, then this can be Falsely attributed to the Defendant.
The Police are required to do a proper analysis of the surrounding areas “IP addresses” before they seek a Search Warrant. The Police almost always fail to look to see if the defendant’s Wi-Fi had been hijacked. It is important to have a top-notch Computer Forensic Expert Witness brought in in order to analyze whether any computer activity was actually conducted by the Defendant, or by a surrounding neighbor who took over their Wi-Fi. The Expert will also be able to show whether the “Mac ID” number on the computer that was seized actually matches the device on which the inappropriate materials were originally downloaded.
Other Person in Household Used the Defendant’s Computer
Oftentimes Defenses revolve around those who had access to the original computer (such as roommates and/or visitors), because that person could have been the one who was utilizing the device rather than the Defendant. This becomes possible when there are multiple roommates who all know a Defendant’s computer password, or the computer itself is not password-protected. This is very common in fraternity houses, or apartments/houses that have multiple roommates.
We have seen Pranks conducted by roommates that involved changing the Defendant’s screensaver/wallpaper to reflect some horrible image of Child Pornography that they downloaded. In addition, we have seen where fraternity members will get on-line, pose as the Defendant, and then send out multiple inappropriate photos (i.e., “dick pics”) to multiple people in order to embarrass the Defendant. They will also sometimes Prank the Defendant by Soliciting Underage Girls from the Defendant’s computer. This behavior raise issues that can cause a Defendant to be Falsely Charged with Sexual Exploitation of a Minor; Luring a Minor for Sexual Exploitation; Possession/Distribution of Child Pornography; etc.
Many times, evidence of Computer Crimes can become Tainted through Police mishandling. For example, the Police are required to “Clone” a hard drive once they take it into evidence. In other words, they make a “duplicate copy” of your hard drive.
The Police then analyze only the Cloned Hard Drive instead of the original drive, in order to make sure they don’t accidentally alter the evidence.
Oftentimes, we have been able to show this Cloning process was done incorrectly.
We have seen cases where disgruntled ex-wives, girlfriends or co-workers will falsify or plant evidence. This is usually due to a Custody Battle, bad break-up, or somebody trying to get their co-worker fired. It takes high skilled Forensic “Detective Work” to fortify this defense.
For example, we had a case in which a Defendant’s ex-girlfriend was so upset at the time of their breakup, that prior to moving out she created a fake email address purporting to be the Defendant’s. She then G-Mailed all of his contacts images of Child Pornography. She left a disc with Child Pornography on top of a stool in the center of an empty garage, and then called the Police. The Police executed a Search and found these images, the disc and the emails, and then they arrested and charged the Defendant.
We were able to show the Detectives that falsified G-Mail account actually matched the girlfriend’s IP address and Mac ID of her computer. She naturally denied all knowledge, and was not charged. However, all Charges were Dismissed against our Client, who was facing a de facto Mandatory Minimum of Life in Prison if he were to be convicted on all counts.
Undercover Sting Operations On-Line regarding Luring a Minor for Sexual Exploitation
Detectives will conduct Undercover Sting Operations throughout the year in order to catch people who are trying to “Lure a Minor for Sexual Exploitation.” Unfortunately, the tactics they use are very questionable. For instance, the Detectives will pose as a young female on Meet Up websites that are for people who are “18 of older.” They will then begin a dialogue with an unsuspecting Defendant, and drop subtle hints that they are supposedly between 17 and 14 years old. They use hints such as “I’m in school,” “I took the bus,” “I can’t buy cigarettes because I’m not allowed,” and other things that are supposed to signal that they are underage.
The Undercover Detective will then set up a meeting place with the unsuspecting Defendant, and also ask him to bring condoms. Sometimes, they’ll even ask them to bring some money so they can “buy themselves lunch,” or “take an Uber home.” When the Defendant shows up to the meeting place, the Detectives will swoop in and arrest that person and take their cell phone. If the Detective did not ask for money or gifts, then the Defendant could potentially be sentenced to 5 to 15 years in Prison under ARS 13-705(G). If a Detective did ask for money, and the Defendant has money in their possession, then they potentially could be charged with Aggravated Luring a Minor for Sexual Exploitation under ARS 13-705(F) and be sentenced to a range of 10 to 24 years in Prison.
We have fought and have won many of these cases. Juries get especially upset when the Detectives send a photograph of the Undercover Agent trying to look young, who clearly looks to be in their 20’s. In addition, the Juries do not like the fact that the person that the Undercover Detective was portraying did not explicitly state “I am only 16 years of age,” or “I’m in high school, and I want to meet up with you to have sex.” If the Defendant did agree under these facts, then you need to look as to whether the Defendant thought the Detective was “role-playing,” because her photo did not look like that of anyone who is remotely under the age of 20. All of these are very powerful Defenses that we have used with great success.
Alleged Victim Lied On-line About Age Regarding a Luring a Minor Criminal Charge
It is commonplace in today’s society to meet up with people online. Many times people will lie about their age, and they’ll also send photos which are either not of them, or that have been heavily “filtered.” Regarding Luring a Minor for Sexual Exploitation Charges, the Defendant has to know or believe the Alleged Victim is a Minor in order to be convicted of this charge. Per ARS 13-1407(B), it is a Defense both to Luring and Sexual Conduct with a Minor if the Defendant “did not know and could not reasonably have known the age of the victim.” This applies if the victim is 15, 16 or 17 years of age. We have seen cases involving a situation where two people have hooked up on various Apps (such as Tumblr, Tinder, Kik, Grinder, etc.), then later on a parent found out that their daughter was having sex with an adult. We have successfully shown that our Client did not know, and could not reasonably have known she was under 18 years old (because of how mature the Alleged Victim looked, and the surrounding circumstances would not lend itself to a person “reasonably believing” they were in an underage situation.)
Misunderstanding of Text String/Emojis On-line Regarding Luring a Minor for Sexual Exploitation
Many times, Detectives will send emojis when trying to prove Solicitation/Luring, or they will review text strings and try to interpret the emojis improperly. For example, many times there will be emojis regarding peaches (ass), eggplants (penises), cat (vagina), and squirting water (ejaculation). These are commonly-known emojis but many other ones can be misinterpreted. We have seen cases with Detectives who thought a winky face with a kiss meant “I am just kidding.” In reality, an upside smiley face, or a face with the eyes rolled up, means “I am just kidding.”
We successfully used this Defense in a recent Trial in which our Client was facing life in prison if we would have lost. He was Successfully Acquitted of the Luring charge for Child Prostitution. We have also seen cases in which people are from a different country, and do not understand the emojis at all. This also applies to people who are older, as emojis have only recently become commonplace with smart phones. This is why it’s important to have a Certified Criminal Law Specialist put together a spreadsheet and chart regarding the possible meanings of all emojis, if they are involved in a Sex Crimes case.
16-19: Age-Based Defenses
Alleged Victim Lied About Age
In cases involving actual Sexual Conduct or Sexual Contact with an Alleged Victim who is 15, 16, or 17 years of age, it is a Defense under ARS 13-1407(B) if the Defendant did not know, and could “not have reasonably known,” that the alleged victim was under 18 years of age. It is important to distinguish that although a person may have lied online and sent photos that were not of themselves, or were heavily filtered, it is still a person’s responsibility to ascertain age when they physically meet somebody face-to-face. This does not mean they need to ask for an ID, but if somebody clearly looks to be under 18, this Defense will not work.
However, in the real world, most 15, 16 and 17-year-olds can dress and use makeup, and easily appear to be 18 years of age and older. In addition, if during a conversation the Alleged Victim makes statements such as “I graduated from such and such high school,” or “I’m currently at such and such college,” this tends to indicate they’re 18 years of age or older. When defending these cases, we always look to secure all texts that may have gone back and forth between our Client and the Alleged Victim. In addition, we will download the Alleged Victim’s social media to see if they’re holding themselves out on the internet to be over age. This is especially true if they are posting a profile on Tinder, Match, etc., in which they claim to be 18 or older.
Romeo and Juliette Laws/Close-in-Age Defense
Under Arizona’s Romeo and Juliette/Close-in-Age Defense, per ARS 13-1407(E), it is a Defense for the Defendant if he is under 19 years of age (i.e., 18), or is still attending high school (even if 19), plus he is no more than 24 months older than the Alleged Victim, and the Sexual Conduct is Consensual. This means that a person who is 19 and a half years old whose still in high school and has a girlfriend who is 17 and a half years old, they have a Defense to this charge. Normally, Charges are not brought in this situation unless the parents are upset about their daughter’s sexual activities, or if during a breakup, allegations are being made against the ex-boyfriend that he was 18 or older and “had sex with me.”
When we have defended these cases, we will gather all text string communication, all written cards/letters, and interview all witnesses in order to prove that the Sexual Conduct was Consensual and did not begin before the alleged victim was 15 years of age.
Per ARS 25-102, a person who is 16 or 17 years of age may get married if the person they are marrying is not more than 3 years older than them, and: (1) one parent or guardian consents, or; (2) the 16 or 17-year-old minor has an “Emancipation Proclamation” from another Court in another state.
Under no circumstances in Arizona will they allow a person who’s 15 years of age or younger to get married. The only time we see any allegations of inappropriate Sexual Contact occur between a young married couple is when they are going through a Divorce and one side is trying to use the Allegation as leverage in some type of Custody Battle or Spousal Maintenance Dispute. Again, a Certified Criminal Law Specialist will be able to use their Private Investigators to help in defending these False Allegations.
16-19: Evidence-Based Defenses
Evidence Obtained Through Illegal Search and Seizure
All Search Warrants have to have what is known as a “Search Warrant Affidavit.” This is where the Officer specifies not only the exact reasons for a Search, but the exact areas and the time of the Search.
The Judge will read this document, and then sign it if they find “Probable Cause.” If the Officer has exaggerated evidence, or outright lied in the Search Warrant Affidavit, then all items Seized in the Search can be Suppressed. It is also important to make sure the Search was not executed outside of the time or place parameters specified in the Warrant.
Usually this time parameter is between 6 AM and 6 PM, or something of that nature. Also, the Search Warrant will state which rooms are specifically to be searched (i.e., the bedrooms as opposed to the garage). It is important to make sure the Officers did not enter rooms they were not supposed to go into while executing a Search.
Miranda Violations and Coerced Statements
In Arizona, the “Voluntariness Standard” is followed regarding the Admissibility of statements by a Defendant. As part of this requirement, Miranda Rights are normally to be read to a suspect prior to any questioning. In addition, if at any time the individual states that they wish to speak to their Lawyer (or their Parent if they are under 18), then all questioning should cease. If they are not provided access to a Lawyer or their Parent, then those answers can be suppressed.
In addition, Police Officers are not allowed to make promises or threats in order to secure any statements. This is considered Coercion and those answers can be Suppressed. Examples of promises or threats would include “if you answer my questions you will go home tonight” – which applies you will go to jail if you don’t. Or statements such as “answer my questions and we will go easy on you,” also implies some type of promise. It is important to have a Certified Criminal Law Specialist review all of the Axon Body-cam Video, and any audio/video recordings made at the Police Station in order to fully determine whether this may have occurred. These violations are quite common in Arizona, and the Police have a habit of minimizing or omitting any type of facts regarding this behavior in their Police Reports.
Police Bias, Exaggeration and Outright Falsehoods
Many Police Officers wear body cameras that are known as “AXON Video Cameras.” However, many officers will not “tap” the AXON camera with their hand in order to activate it prior to performing searches or questioning. It looks very suspicious if they did not videotape everything of relevance.
Finally, some Officers just flat-out lie in their Police Reports. It’s important to have a Firm that will utilize both Board Certified Criminal Law Specialists/Sex Crimes Attorneys, and Private Investigators to interview all Witnesses involved in order to expose these Falsehoods.
Coerced Face ID or touch ID to Access Devices
Most smart phone devices (such as the Apple I-phone or I-Pad) have the ability to have “Face ID” or “Touch ID”, in addition to a Password, in order to open up the device. Many times, when people are Arrested, Officers will simply hold that person’s phone up to their face in order to gain access to the device. Or they will tell the person to put their thumb or index finger on the I-Pad or MacBook in order to open up that device. Lastly, Officers will sometimes tell a suspect that they “have to” give them their password/code to these devices.
If a person was not already read their Miranda Rights, then it is a Defense that verbally being asked questions designed to get a Suspect to give consent of any type can qualify as Coercion. We have many times gotten all evidence which the police secured from an I-Phone or computer device Suppressed because a Search Warrant (which would have required Face ID or Touch ID) was not first issued by the Court. Again, a highly-skilled Sex Crimes Attorney will be able to properly analyze all these issues when defending your case.
20: Diminished Capacities And Mental Health Issues
Autism and Spectrum-Bases Defenses
Many people are on the Autism Spectrum and will download Child Pornography without realizing the seriousness of what they are doing. SARRC – Southwest Autism Research and Resource Center – has sent our Firm many concerned parents in the past.
We have been able to show that these issues/actions by a person who is on the Spectrum do not justify prosecution at all, or their behavior justifies a greatly Reduced Charge with Probation and no prison or jail time.
Other issues of Diminished Capacity and Mental Health Problems can include ADHD, ADD and OCD. Lastly, Juvenile Offenders have underdeveloped brains, as well as those with lower IQs and Diminished Capacity due to Traumatic Brain Injuries and birth injuries. Both of these diagnoses can be utilized in order to prevent charges from being filed, get charges Dismissed, or have them greatly Reduced. In addition, per ARS 13-701(E)(2), Diminished Capacity also serves as a Statutory Mitigator which “shall” be considered by the Court when determining a Sentence.