Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

vii. Plea Bargaining
The vast majority of criminal prosecutions result in a plea bargain, or plea agreement. Therefore, it is very
important for advocates to know how best to serve survivors in the process.
A plea bargain is a negotiated arrangement between the prosecutor and the defendant to secure a guilty
plea. In exchange for pleading guilty, the prosecutor typically agrees to charge the defendant with a
lesser crime than if the case went to trial, and/or pursue a lesser punishment. Plea bargains fall within
the prosecutor’s broad authority to decide which offenses to charge and how to prosecute them (p. 46,
Prosecutorial Discretion).
Obviously, it is important for sexual assault survivors to participate in the plea bargaining process. If a plea
bargain would result in the defendant not having to pay restitution, for example, the survivor would have a
financial interest that the prosecutor should know about. If it would result in little or no imprisonment, the
victim could have serious safety concerns. In addition, being consulted and listened to by the justice system
provides a sense of significance and dignity that can aid in the survivor’s psychological or emotional healing.
Finally, survivors can provide intimate information about the defendant’s crime that no one else can, and
that means their input is vital for prosecutors and courts to reach just decisions. Nevertheless, the prosecutor
always makes the final decision about offering a plea bargain.
ADVOCACY ACTION: Keep in mind the survivor’s constitutional right to confer with a
representative of the prosecutor’s office, and consider asserting that right to promote
the survivor’s participation in the plea bargaining process. (p. 25, CVR)
In all cases, survivors have the right to participate in plea bargaining using the Victim Impact Statement
(“VIS”) (p. 53, VIS). Article 56.02(a)(13), Code of Criminal Procedure, guarantees survivors the right to
have the VIS considered by the prosecutor and the judge before accepting a plea agreement.
Lesser Offenses
There is no single rule that controls which offenses a prosecutor can substitute for sexual assault as part of
a plea bargain. The decision will depend on all the specific facts of the case—what the defendant did and
all the surrounding circumstances. However, lesser offenses often include any of the “Sexual Offenses” or
“Assaultive Offenses” listed in Chapters 21 and 22 of the Texas Penal Code. (p. 14, Offense Sections).
The crime the defendant is charged with matters, because different crimes have different legal effects.
For example, a felony will have greater negative effects on the defendant’s rights than a misdemeanor,
including rights to gun possession 1 (p. 62, Sentencing). In addition, some sexual offenses require registry
as a sex offender. (p. 70, Sex Offender Registry)
Lesser Punishments
Regardless of what crime is charged, the defendant’s punishment will be relevant and important to the
survivor. Even if the plea bargain requires the defendant to plead guilty to a felony, it may also reduce the
prison time by many years or eliminate it completely. As noted earlier, the defendant might also try to
avoid paying restitution to the victim.
1
Federal law prohibits anyone convicted of an offense punishable by more than one year imprisonment from possessing a firearm (18 U.S.C. §
922(g)). Texas’s law is much more lenient, but if the federal law applies it supersedes Texas law.
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