Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

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i. Basic Procedure: Jurisdiction and Offense Levels Criminal cases can only go to a court that has jurisdiction, and Texas has several types of criminal courts. “Jurisdiction” means the court’s authority to apply the law to a case and bind the parties to its decisions. Practically speaking, that simply means which court is allowed to hear a case. Jurisdiction also determines which court police must communicate with about the investigation, including requests for search warrants and arrest warrants. Which court has jurisdiction in a particular case depends on how severe the offense is. At the end of this section there is a helpful chart illustrating the different categories of crimes in Texas and their corresponding jurisdictional rules. Fortunately, you won’t need an extensive understanding of jurisdiction, because the same types of courts have jurisdiction over most offenses related to sexual assault. Just understand that an offense is either a misdemeanor (punishable by up to 1 year in jail and a $4,000 fine) or a felony (more severe punishments) and that most cases related to sexual assault will go before either a District Court or a County Court (p. 14, Sexual Assault Offenses). • District Courts and Criminal District Courts have jurisdiction to hear any felony case, cases transferred from county courts because the county judge is not a licensed attorney, and cases involving official misconduct. Because most offenses related to sexual assault are felonies, District Courts and Criminal District Courts can usually hear them. • County Courts, County Courts at Law, and County Criminal Courts have jurisdiction to hear misdemeanor cases involving fines in excess of $500. Misdemeanors with only $500 fines are the least severe class of misdemeanors (Class C —for example, threats of injury). As a result, most misdemeanor cases involving sexual assault will exceed that amount and will be within County Court jurisdiction. Sometimes cases go to courts not listed here, such as municipal courts, because the prosecutor has charged the defendant with a lesser offense in exchange for a guilty plea, also known as a plea agreement. (p. 46, Prosecutorial Discretion; p. 55, Plea Bargaining) As an advocate, be particularly vigilant about the survivor’s interests in municipal courts, where magistrates are frequently not attorneys and often lack your expertise on sexual violence issues. Many factors can affect the level and type of offense with which the prosecutor decides to charge the defendant. The chart on the following page will help you see how that decision affects the punishments available to the court. 8
MISDEMEANORS Category Class A Class B Class C Punishment up to 1 year in a county jail and/or a fine up to $4,000 up to 180 days in a county jail and/or a fine up to $2,000 fine not to exceed $500 Examples Assault (causes bodily injury); Stalking (first offense); Violating Protective/Magistrate’s Order (first offense) Terroristic Threat; Indecent Exposure; Harassment; Disorderly Conduct (discharge/ display firearm) Assault (threatens bodily injury or causes offensive or provocative contact) FELONIES Category Capital First Degree Second Degree Third Degree State Jail (Fourth Degree) Punishment death by lethal injection or life imprisonment 5-99 year or life in prison; may also be fined up to $10,000 2-20 years in prison; may also be fined up to $10,000 2-10 years in prison; may also be fined up to $10,000 180 days to 2 years in state jail, may also be fined up to $10,000; or court may impose Class A misdemeanor punishment Examples Capital Murder (murder of peace officer or fireman; murder in course of kidnapping, burglary, robbery, aggravated sexual assault, arson; for remuneration or hire; while incarcerated in or escaping from a penal institution; murder more than one person; or murder child younger than 6 years of age) Murder; Aggravated Sexual Assault; Aggravated Kidnapping; Aggravated Robbery; Arson (place of worship or causes bodily injury or death) Murder (sudden passion); Man-slaughter; Indecency With a Child (by sexual contact); Sexual Assault; Robbery; Aggravated Assault; Arson Intoxication Assault; Kidnapping; Stalking (subsequent conviction); Violating Protective/Magistrate’s Order (third conviction or commits assault or stalking) Criminally Negligent Homicide; Burglary of a Building; Theft/Criminal Mischief of $1,500 or more or Criminal Mischief of less than $1,500 to a habitation with a firearm or explosive weapon; Forgery 9
Page 1: Sexual Assault Legal Advocacy Manua
Page 5: Table of Contents: 05 Manual Prefac
Page 8 and 9: 6 PART ONE: THE CRIMINAL JUSTICE PR
Page 12 and 13: ii. Substantive Law: The Texas Pena
Page 14 and 15: Defenses Defenses to Prosecution So
Page 16 and 17: iii. Sexual Assault and Related Off
Page 18 and 19: Indecency with a child, Tex. Penal
Page 20 and 21: Indecent exposure, Tex. Penal Code
Page 22 and 23: Possession or promotion of child po
Page 24 and 25: Prostitution, Tex. Penal Code § 43
Page 27 and 28: Crime Victims’ Rights Introductio
Page 29 and 30: Attorney Representation Enforcing c
Page 31: • The right to a private waiting
Page 35 and 36: The Criminal Investigation Introduc
Page 37 and 38: In addition, survivors can complete
Page 39 and 40: Legal Advocacy for Child Survivors
Page 41 and 42: iv. Medical Forensic Examinations W
Page 43 and 44: Not only are survivors entitled to
Page 45: The Role of the Legal Advocate in t
Page 48 and 49: i. The Charging Process and Prosecu
Page 50 and 51: The victim (or the victim’s guard
Page 52 and 53: ACP is available to victims of sexu
Page 54 and 55: v. The Right to HIV/STI Testing Sur
Page 56 and 57: If a survivor fails to include some
Page 58 and 59: ADVOCACY ACTION: The survivor has t
Page 60 and 61:
ix. The Trial Preparation Thorough
Page 62 and 63:
Preparing for Pretrial Litigation B
Page 64 and 65:
x. Verdicts and Sentencing Criminal
Page 66 and 67:
Under community supervision, the de
Page 68 and 69:
xi. Appeals If the prosecutor succe
Page 71 and 72:
Sex Offender Monitoring and Treatme
Page 73 and 74:
What Does Registration Entail? Regi
Page 75 and 76:
Restrictions on Internet Usage for
Page 77 and 78:
In addition, regardless of level of
Page 79 and 80:
ii. Civil Commitment The idea behin
Page 81 and 82:
What Does Civil Commitment Entail?
Page 83:
Bottom Line: The Role of the Legal
Page 86 and 87:
i. Rights of Crime Victims’ in Ju
Page 88 and 89:
ii. Pre-Adjudication Detention As n
Page 90 and 91:
Informal Proceedings The consequenc
Page 92 and 93:
The biggest difference between a ju
Page 94 and 95:
The Process If the prosecutor wants
Page 96 and 97:
94 PART TWO: CIVIL LEGAL REMEDIES F
Page 98 and 99:
General Civil Issues Almost every s
Page 100 and 101:
Safety Sexual Assault Protective Or
Page 102 and 103:
No-Contact Orders as Conditions of
Page 104 and 105:
If the survivor incurs any of the a
Page 106 and 107:
There are separate and slightly dif
Page 108 and 109:
Protections for Sexual Assault Surv
Page 110 and 111:
• Eviction of Perpetrator: Public
Page 112 and 113:
Initial Strategies The first two so
Page 114 and 115:
Title VII of the Civil Rights Act o
Page 116 and 117:
Americans with Disabilities Act The
Page 118 and 119:
Ripple Effects of Sexual Assault: E
Page 120 and 121:
Formal Disciplinary Action A formal
Page 122 and 123:
• Required Continuing Assistance
Page 124 and 125:
Texas Law: Protective Orders and St
Page 126 and 127:
Legal Remedies for Survivors of Sex
Page 128 and 129:
VAWA Self-Petitions For certain sur
Page 130 and 131:
Crime Reporting Mandatory Reporting
Page 132 and 133:
130
Page 134:
6200 La Calma, Suite 110, Austin, T
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