Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

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The biggest difference between a juvenile delinquency proceeding and a criminal trial is that if a child is found to have engaged in delinquent conduct, the conduct is not treated as a crime. Instead, the court views the juvenile’s conduct as proof of the child’s need for supervision, counseling, discipline, or some other rehabilitative measure. For more dangerous conduct, the court might also determine that the child should be confined to protect the safety of those around him or her. Basically, because the offender is a child, pure retribution against the offender is not the chief purpose of the juvenile justice system. The court can respond to delinquent conduct in several different ways: • Probation: Juvenile probation can include any of the restrictions or requirements ordinarily associated with probation (p. 88, Informal Juvenile Probation). In addition, in the juvenile context, the court has 3 placement options for the juvenile to carry out his or her probation: (1) in the child’s home or in the custody of a relative or other fit person, (2) in a suitable foster home, or (3) in a suitable public or private institution—but not a Texas Youth Commission (“TYC”) facility. The placement decision will depend on the juvenile’s particular circumstances, and the probation period cannot extend beyond the juvenile’s 18th birthday. • TYC Commitment: The Texas Youth Commission is the institutional arm of the juvenile justice system. Its purpose is to provide for the care, custody, rehabilitation, and the reestablishment in society of juveniles who have engaged in delinquent conduct. Only juveniles who are adjudicated for felonies can be committed to TYC’s custody. TYC has exclusive discretion as to how long the juvenile must stay in its custody, but the length of the commitment cannot extend beyond the juvenile’s 21st birthday. Decisions by TYC about when to release a juvenile depend on such factors as the nature of the juvenile’s offense, the juvenile’s history and background, and the juvenile’s behavior while in TYC. TYC also sets minimum lengths of stay for all offenses. • Orders Affecting Persons Other Than the Child: Because a major purpose of a delinquency adjudication is to improve conditions in the child’s life that could be contributing to his or her delinquency, the juvenile court has authority to issue orders enforceable against the child’s parents or guardians. The orders can require a parent to pay child support, enroll the child or the family in counseling, or refrain from doing something. The court can also order a parent or guardian to pay court costs and probation fees. • Orders for Restitution or Community Service: These orders often fall under a juvenile’s probation agreement. In fact, for any child placed on probation, the court must order community service (up to a maximum of 500 hours). On the other hand, an order to pay restitution may or may not be part of a child’s probation. The court can also order the child’s parents to pay restitution. • Driver’s License Suspension: In any formal delinquency proceeding, the juvenile court can choose to suspend the child’s driver’s license as part of the disposition. For certain offenses involving drugs or alcohol, in fact, the court must suspend the child’s license. Sex Offender Registration Additionally, juveniles convicted of certain sexual offenses may be required to register publicly as sex offenders under Chapter 62, Code of Criminal Procedure. Refer to the previous chapter on Sex Offender Management and Treatment to see the specific circumstances where juveniles must register. (pp. 70, 75, Sex Offenders) 90
There are also some special requirements on juveniles who are required to register. Section 54.0405(a)(2) (B), Family Code, requires those juvenile offenders to provide a DNA sample as part of the registration. In addition, as a probation requirement, the court can also require the child to attend psychological counseling for sex offenders and submit to polygraph testing to monitor the child’s treatment progress (Tex. Fam. Code § 54.0405(a)(1)). Determinate Sentencing Prosecutors can invoke “determinate sentencing” for juveniles who commit particularly serious offenses. Essentially, the policy allows the state, if appropriate, to confine juvenile offenders for longer than the juvenile system would normally allow without certifying the child as an adult. Determinate sentencing does not necessarily result in a longer period of confinement, but it creates that possibility. It can also result in a juvenile offender who is on probation to be transferred to adult probation. One could think of it as a TYC commitment with more teeth. Determinate sentencing is only available for juveniles who commit certain offenses. Those include: • Sexual assault • Aggravated sexual assault • Indecency with a child • Criminal solicitation of a minor • Capital murder • Attempted capital murder • Murder • Attempted murder • Aggravated kidnapping • Aggravated assault • Aggravated robbery • Injury to a child, elderly individual, or disabled individual (except state jail felonies) • Arson with bodily injury or death • Aggravated controlled substance offenses • Criminal solicitation • All offenses listed in Section 3(g), Article 42.12, Texas Code of Criminal Procedure: o Sexual assault o Aggravated sexual assault o Indecency with a child o Capital murder o Murder o Aggravated kidnapping o Aggravated robbery o Drug free zone enhanced controlled substance offenses • Any “habitual” felony conduct 91
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Sexual Assault Legal Advocacy Manua
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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 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 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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Sexual aSSault LEGAL ADVOCACY MANUAL - Texas Association ...

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