A common misunderstanding by a person accused of a sex crime in Kansas is that the police charge the suspect with a crime. In fact, police can investigate any crime in the field, and may make an arrest or issue an order to appear in court; but it is only a prosecutor who can file charges for a crime.
This fact is crucial to anyone charged with a sex crime because prosecutors operate very differently than do local police. For starters, a prosecutor is held too much higher standards when making decisions to charge and formally prosecute for a crime and has to consider whether a charge can ultimately be proven beyond a reasonable doubt.
This is why having an experienced sex crime defense lawyer throughout the police investigation can be very beneficial to the accused. An attorney who understands the investigation process, knows the mindset of the detective, and who has a working relationship with local law enforcement, may succeed in mitigating erroneous and/or potentially harmful findings.
However, once police investigation reports reach the prosecutor’s desk, there is still much in the way of determinations and weighted considerations to be made before charges might be brought. At this stage, a prosecutor will review the merits of the sex offense case by asking 3 key questions:
1. Was a crime committed? Our experience has shown that more false reports of sex crimes occur than the public may think. For instance, possible workplace sexual harassment can be wrongly elevated to a statutory sex crime. Or, normal developmental experimentation may be wrongly elevated to a crime. A prosecutor will examine the reports for compelling evidence that a real sex crime occurred. If she/he believes there was one, they will evaluate the case considering the next question:
2. Is there a suspect? A lack of witnesses, physical evidence, or even victim testimony may lead the prosecutor to conclude that a clear suspect/(s) is out of reach. This can happen, for instance, when the victim passes out at a party and wakes up to realize that a sexual act has occurred. However, if police lack compelling evidence to tie one suspect to the sexual act/assault, then a prosecutor will not be able to proceed with confidence. If the prosecution can identify one or more suspects, they will move on to question #3:
3. Can I prove the case beyond a reasonable doubt? A prosecutor need only show probable cause in order to file a case. However, they must demonstrate proof beyond a reasonable doubt in order to convict. This is a much higher legal standard under Kansas sex crime law.
In most circumstances, a prosecutor will only file charges in a sex case if they can answer “yes” to all three questions above.
LEGAL ISSUES IN A SEX CRIME CASE
Kansas statutes provide specific definitions regarding sex crime law. Whether the investigation is ongoing, or if formal charges have been filed, the accused will need legal representation to consider the following:
1. AGE The ages of both the accused and the alleged victim at the time of the reported event are of paramount importance. Kansas has enacted Jessica’s Law, which prescribes harsh, mandatory punishment of anyone at least 18 years of age who is convicted of a sex crime involving a minor less than 14 years of age.
2. MENTAL HEALTH It is possible for an accuser’s mental health to be examined and entered into evidence if the judge deems it relevant. This is also true of the accused.
3. CONSENT Lack of criminal intent by the suspect in a sex case can significantly mitigate the charges and/or outcomes in a Kansas sex crimes case. Showing there was consensual engagement is a proven defense trial strategy.
4. PROOF Without DNA evidence, witness testimonies take the lead. It is vital that a sex crime defense attorney knows the procedural laws controlling allowed testimony, especially in the case of a child’s forensic interview that is to be submitted to the court. Even if DNA is to be entered, procedural rules and protocols must be strictly followed by law enforcement; otherwise, the defense can file favorable motions on behalf of the defendant.
The mere filing of formal criminal charges for a sex offense can have devastating effects on a person’s life. If the case is dismissed or later unable to be proven, the person may have already lost a job, family, his reputation, and/or freedom.
In today’s society, nearly every employer conducts background checks on potential employees and criminal records checks are done before an apartment can be rented. A sex crime allegation or charge can create enormous obstacles for an individual in many different areas of life.
If you or someone you care for has been accused of a sex crime in Kansas, act immediately and contact Defense Attorney John DeMarco who can protect your interests during investigation, and who will fight for you until the end.