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«© 2015. J. Jeffrey Lee. All rights reserved. 2 Table of Contents Question #1: How much trouble am I in?. 4 Question #2: Do I have a good chance at ...»

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Defending Against

the Charge of

Statutory Rape

J. Jeffrey Lee

Attorney At Law

Certified Criminal Trial Specialist


The content in this book is intended to

be general legal information for unrepresented

defendants. I do not know the specifics of your

case, and this book is not legal advice based

upon the particular details of your case. I do

not automatically become your attorney just

because you are reading this book. If you are

already represented by an attorney, then you should listen to him or her. With that out of the way, happy reading!

© 2015. J. Jeffrey Lee. All rights reserved.

2 Table of Contents Question #1: How much trouble am I in?............. 4 Question #2: Do I have a good chance at trial?... 5 Question #3: What facts can make the charge more serious?

Question #4: Could this charge put me on the Sex Offender Registry?

Question #5: Can I get a diversion on this charge?

Question #6: What defenses are unavailable?.... 12 Question #7: What is the Rape Shield Law and how will it affect the case?

Question #8: Could law enforcement seize my house or car over this?

The Statute


Special Offer

About the Author



© 2015. J. Jeffrey Lee. All rights reserved.

3 Question #1: How much trouble am I in?

As with many sex crime offenses, the greatest penalty of a conviction may not be not the actual potential jail time, but the social stigma it can cause. Imagine that a potential employer does a background check on you, and he or she learns that you were convicted for trying to sleep with a prostitute! So whether you actually have to serve jail time on it or not, your primary focus should be trying to avoid a conviction altogether.

Depending on the facts of the case, a conviction for this offense could result in jail, placement on the Sex Offense Registry (in some cases), a felony on your record, loss of your marriage, child visitation, employment, immigration status, loss of car or house (in some cases), and many more.

You are about to have to make a very difficult decision – do you have the heart for the battle to come? It will be very tempting to plead guilty rather than go to trial because it’s cheaper, quicker, and easier … but you will be wearing a scarlet letter forevermore.

© 2015. J. Jeffrey Lee. All rights reserved.

4 Question #2: Do I have a good chance at trial?

I can only give general advice here without having read the specific facts in your case, but I can say this – as you read this guide, you will probably be surprised at how many things you would like to present at trial but cannot.

The first thing you need to understand about the offense of statutory rape is that a minor (under 18) cannot legally consent to have sex, so any evidence that you might like to show to suggest that the minor explicitly consented or implicitly consented by her actions (never said no, never said stop, actively participated, “wanted it”1, etc.) is irrelevant, and therefore inadmissible.

Even if you had a text message from the minor saying “I want to have sex with you,” the Forgive me for handling this content indelicately, but 1 unfortunately these are the facts that we have to deal with. You might as well get used to the unsettling feeling of discussing your private conduct under the bright lights and judgmental attitudes of the courtroom; it’s just the nature of sex crime cases.

© 2015. J. Jeffrey Lee. All rights reserved.

5 jury would never hear it because she still cannot consent.

On a related note, the parents of a minor cannot “give consent” on her behalf. They may tell a person that it’s okay, but having them write a permission slip will not protect you from prosecution; the fact is that the act is illegal, and that isn’t waived by getting the parents’ permission.

The second thing you need to know about this offense: statutory rape is a “strict liability” crime, which means that your mental state does not matter. I know, it seems crazy, but you could not even present proof that the minor lied to you and that you relied on her false statement and acted upon an honest, reasonable, but mistaken belief that she was of legal age.

Perhaps you were planning to tell the jury that you demanded that the minor show you her driver’s license, and that she had a fake driver’s license showing that she was twentyone. Now all that you’ve done is admit that you had suspicions about her age! So you see, it cannot help you, and but it can absolutely hurt you. Besides, it’s irrelevant and inadmissible.

© 2015. J. Jeffrey Lee. All rights reserved.

6 If you look at the statute, you’ll see that there is no mental requirement, such as “intentionally,” “knowingly,” “recklessly,” or “negligently” – the prosecutor does not have to prove that you knew the minor’s age because it’s simply not part of the offense. (And on the flip side, you can’t testify that you didn’t know either.) The third thing you need to understand about this offense is that statutory rape is completely different from forcible rape. For many years, I have griped to everyone who will listen that statutory rape should be re-named “Unlawful Sexual Intercourse with a Minor.” Okay, that doesn’t sound like something you would want to be charged with either, but the point is that people would understand that it’s different from the “rape” that most people think of, which is accomplished by “force or coercion.” Tenn. Code Ann. § 39-13-503.

Because the two offenses are different (Statutory rape being about sexual intercourse with a minor, and Rape being about sexual intercourse through force or coercion), the same act could actually qualify as both Statutory Rape and Rape at the same time if it might the elements of each offense.

© 2015. J. Jeffrey Lee. All rights reserved.

7 Question #3: What facts can make the charge more serious?

Statutory rape is the unlawful sexual penetration of a victim by the defendant or of the defendant by the victim when: the victim is at least thirteen (13) but less than fifteen (15) years of age and the defendant is at least four (4) years but less than ten (10) years older than the victim; or the victim is at least fifteen (15) but less than eighteen (18) years of age and the defendant is more than five (5) but less than ten (10) years older than the victim. Statutory rape is a Class E felony. The range of punishment for a Class E felony is “not less than one (1) year nor more than six (6) years.

In addition, the jury may assess a fine not to exceed three thousand dollars ($3,000).” Tenn.

Code Ann. § 40-35-111.

Aggravated statutory rape is the unlawful sexual penetration of a victim by the defendant, or of the defendant by the victim when the victim is at least thirteen (13) but less © 2015. J. Jeffrey Lee. All rights reserved.

8 than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim. Aggravated statutory rape is a Class D felony. The range of punishment for a Class D felony is not less than two (2) nor more than twelve (12) years.” In addition, the jury may assess a fine not to exceed five thousand dollars ($5,000).” Tenn. Code Ann. § 40-35-111.

Keep in mind that each sexual act can count as a separate incident and support multiple convictions. State v. Hogg, -- S.W.3d

--, 2014 Tenn. LEXIS 668 (Tenn. Sept. 25, 2014).

Question #4: Could this charge put me on the Sex Offender Registry?

Statutory rape will not normally place a criminal defendant onto the Sex Offender © 2015. J. Jeffrey Lee. All rights reserved.

9 Registry. However, there’s a bit of a wrinkle here, because the statute states that the trial judge “may order, after taking into account the facts and circumstances surrounding the offense, including the offense for which the person was originally charged and whether the conviction was the result of a plea bargain agreement, that the person be required to register as a sexual offender.” In general, the wording suggests that in case the prosecutor were to take the case too lightly (like that’s ever happened), but yet the judge is offended and thinks that the defendant got ‘too good of a deal,’ the judge could consider the fact that if the original charge was the aggravated statutory rape or if the facts were especially heinous, the judge could consider the original allegations and disregard the agreed upon plea agreement between the prosecution and the defendant.

This is a new development and it’s not entirely clear how this will play out; for example, will they person who is judicial diversion eligible be placed on the registry only until the successful completion of diversion, and then be removed afterward? Time will tell.

© 2015. J. Jeffrey Lee. All rights reserved.

10 Question #5: Can I get a diversion on this offense?

If you’ve done some research online (perhaps on my website, which is located at MemphisDiversion.com), then you know that judicial diversion is a wonderful program that allows individuals with little to no criminal background to enter a guilty plea in a manner that avoids future jail time and the eventual expunction of the criminal charge upon the successful completion of a probationary period. Tenn. Code Ann. § 40-35-313.

After the criminal defendant enters a guilty plea, the sentence is suspended and the charge would show on a criminal background check as a pending offense (not a conviction).

If the criminal defendant is successful, he or she has achieved the same result as winning at trial.

© 2015. J. Jeffrey Lee. All rights reserved.

11 Statutory rape is eligible for diversion unless the defendant is accused of Statutory rape by an authority figure, as described in Tenn. Code Ann. § 39-13-532. (But see the previous question regarding for more information on this).

Question #6: What defenses are unavailable?

A criminal defendant seeking to raise a defense against the criminal charge of statutory rape cannot argue that because the minor actively participated in the act, she should be charged as an accomplice. Further, the defendant cannot argue that accomplice testimony is insufficient to sustain a conviction without additional corroboration, and that he or she cannot be convicted unless there are other witnesses or other evidence beyond the minor’s testimony.

© 2015. J. Jeffrey Lee. All rights reserved.

12 At one time, this argument was wellsettled law in Tennessee, so you may find some cases on the Internet that suggest as much.

However, Tennessee courts recently ruled that a victim of a statutory rape cannot be charged, and thus does not qualify as an accomplice.

These courts also overruled all prior decisions requiring corroboration of the victim’s testimony, so these prior cases are no longer “good law.” State v. Collier, 411 S.W.3d 886, 899 (Tenn. 2013) Question #7: What is the Rape Shield Law and how will it affect the case?

The Rape Shield law is a rule of evidence that determines the admissibility of the alleged victim’s sexual behavior when a defendant is charged with certain sexual offenses. See Tennessee Rule of Evidence 412.

© 2015. J. Jeffrey Lee. All rights reserved.

13 Generally speaking, reputation testimony, opinion testimony, and specific instances of a victim’s sexual behavior are all ‘shielded,’ or inadmissible from court proceedings. This means that the jury will not be able to hear any of this information regarding the victim’s sexual behavior. The rule makes a distinction between evidence of sexual activity between the alleged victim and the defendant and evidence of sexual activity between the alleged victim and other sexual partners.

Why does it exist? This rule was put into effect because some defendants might introduce this evidence in an attempt to shame the victim or make the victim’s morality the central issue in the case. Additionally, the rule may make more victims hesitant to report sexual offenses for fear that their personal sex lives will become public. One can certainly understand that a rape victim who has had multiple sexual partners in his or her personal life should not fear that such information would be make public during the rape trial when it has nothing to do whether or not a rape occurred.

© 2015. J. Jeffrey Lee. All rights reserved.

14 Does it go too far? While this rule achieves positive social aims, some people feel that the rule goes too far when it denies the jury from being able to hear whether the victim has made false accusations in the past, as this might certainly be relevant in determining whether the alleged victim is making a false claim in the present case. Other people do not believe that the rule goes too far and believe that it should be even more expansive.

When does it apply? This rule applies not only to the actual trial, but also to the preliminary hearing, depositions, and other proceedings. This rule applies when a defendant is accused of certain sexual offenses, as listed below. In the few exceptions where evidence of the victim’s sexual behavior is admissible, there are additional conditions that must be met. The defense attorney must comply with a pre-trial procedure if this testimony is to be admitted, wherein the court can determine whether the evidence will be used for a permissible purpose.

Tennessee Rule of Evidence 412: Sex Offense Cases; Relevance of Victim’s Sexual Behavior.

© 2015. J. Jeffrey Lee. All rights reserved.

15 “Notwithstanding any other provision of law, in a criminal trial, preliminary hearing, deposition, or other proceeding in which a person is accused of … 39-13-506 [statutory rape] …, or the attempt to

commit any such offense, the following rules apply:

(a) Definition of sexual behavior. In this rule “sexual behavior” means sexual activity of the alleged victim other than the sexual act at issue in the case.

(b) Reputation or opinion. Reputation or opinion evidence of the sexual behavior of an alleged victim of such offense is inadmissible unless admitted in accordance with the procedures in subdivision (d) of this Rule and required by the Tennessee or United States Constitution.

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