Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

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Under community supervision, the defendant avoids time in jail or prison—or spends less time confined—and adheres to a set of rules the judge imposes. For example, the jury might sentence a defendant to 5 years in prison but recommend a 10-year community supervision instead. During that ten years, the defendant might have to pass drug tests, hold a steady job, and/or do community service. In every case the defendant will have to avoid committing another offense. If the defendant violates any of the conditions of the supervision, the prosecutor can request that the court put the defendant in jail pending a hearing on whether the defendant’s probation should be revoked. If revoked, the defendant can only be sentenced to a prison term less than or equal to the one originally part of the sentence, which may be less than the original duration of the supervision (5 years in the example above). The court can usually make community supervision last for between five and ten years, depending upon the offense charged, with a possible extension up to 20 years’ duration for some sex crimes. Typically, the judge or jury will impose a sentence less than the maximum, as in the example above, and recommend a longer supervision period. ADVOCACY ACTION: If the survivor would feel unsafe with the perpetrator on community supervision, the advocate should talk with her or him about the possibility at the beginning of the prosecution, when the survivor has the chance to submit a Victim Impact Statement. The VIS is the survivor’s opportunity to tell the jury or judge about the victimization, including any continuing safety concerns. The survivor also has a separate right under Tex. Code Crim. Proc. Art. 56.02(a)(5) to provide information about the impact of the crime the probation department as part of its Pre-Sentence Investigation (“PSI”). If the survivor wishes to speak with the probation department—especially if the survivor did not submit a Victim Impact Statement—the advocate should immediately put the survivor in touch with the Victim Assistance Coordinator in the prosecutor’s office. (p. 53, VIS) Deferred Adjudication Texas also has a second type of probation, called “deferred adjudication.” Deferred adjudication allows the defendant to avoid being officially convicted of the offense. First, the defendant admits guilt, and the judge determines whether sufficient evidence exists for a guilty finding. If so, the judge sets out conditions for the defendant to adhere to, just like a community supervision plan. Deferred adjudication is different, because if the defendant successfully completes the supervision, the original charge is dismissed without an official conviction. However, unlike regular or “straight” probation described earlier, if the defendant violates the terms of a deferred adjudication supervision, the judge can find the defendant guilty and sentence him or her to the maximum punishment for that crime. The admission of guilt alone can have negative consequences for the defendant (e.g., gun possession, professional licensing, immigration), and it is actually considered a conviction under federal law. However, despite any negative collateral consequences, deferred adjudication is usually a much better deal for defendants than regular community supervision. Courts typically reserve deferred adjudication for first-time offenders, and the judge must find it to be in the best interests of society and the defendant. Only the judge can order deferred adjudication (i.e., not a jury), and only after the defendant has admitted guilt. Therefore, if the defendant declines plea offers and chooses to go to trial, deferred adjudication is not an option. 64
ADVOCACY ACTION: In order for the judge to order deferred adjudication in a sexual assault, aggravated sexual assault, or indecency with a child case, the judge must first make a finding in open court that it is in the best interest of the victim. The judge must make that finding regardless of the victim’s age. Therefore, if the court is considering deferred adjudication for a defendant charged with one of those three offenses, and the survivor opposes it, the advocate and survivor should consult with the prosecutor immediately about the effect that would have on the survivor. Parole If the defendant receives a prison sentence, he or she may be eligible for parole after some time has passed. Upon the recommendation of the Board of Pardons and Paroles after a formal hearing, the offender could be released from prison to serve the remainder of the original sentence under the supervision of a parole officer. The Board’s decision depends on a number of factors, including the offender’s remorse for the offense, the impact the offense had on the victim and the community, and the offender’s demonstrated rehabilitation. Parole hearings are another important time when the Victim Impact Statement comes into play. In addition to the offender’s criminal history, his or her record in prison, and other evidence, the Board will also consider the Victim Impact Statement when deciding whether to recommend the offender’s release. (p. 53, Victim Impact Statement) Often, offenders who are eligible for parole are denied parole several times first. Unfortunately, that means survivors might receive notices of new parole hearings long after the conviction, and more frequently than they would like. Nevertheless, it may be in the survivor’s safety interests to stay informed about parole proceedings while the offender is incarcerated. Survivors have the constitutional right to be informed about the offender’s release (Tex. Const., Art. 1, § 30(b)(5)) and the statutory right to be informed about parole proceedings (Tex. Code Crim. Proc. Art. 56.02(a)(7)). However, to assert those rights, the survivor must request the information from the prosecutor’s office. (p. 25, CVR) As a general rule, the advocate should help the survivor submit a written request for those rights at the beginning of the prosecution, and again after sentencing. Once the defendant is sentenced, the advocate should anticipate the need for the survivor to request information on parole and release, and advise the survivor of her or his rights. 65
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 10 and 11:
i. Basic Procedure: Jurisdiction an
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 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
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