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Sex crimes carry serious charges and leave a permanent mark on someone’s criminal record. In appealing a sex crime charge, an experienced Virginia sex crimes appeals lawyer will help you navigate the process and provide information regarding the nature of the charge being appealed.
Most sex crimes in Virginia are under the same section of the criminal code. They include rape, forcible sodomy, object sexual penetration, aggravated sexual battery, misdemeanor sexual battery, and what are known as “hands-off offenses” that do not involve actual contact, which can include child pornography and offenses involving solicitation of a minor or of prostitution.
All hands-on sex crimes involve sexual contact, as defined by the statute, and lack of consent, which is also subject to legal analysis. These are going to be points that are will be seriously discussed at trial and recorded, and are probably going to be areas where the appeal could lie. Offenses involving solicitation or child pornography do not require actual contact. This is also true in the case of solicitation, which is what is known as an inchoate offense. An inchoate offense is an offense where the attempt to commit the crime is a crime itself.
There are a lot of reasons to appeal a conviction. First among them is that these are very serious charges, but sometimes there is ambiguity in what happened. Most sex crimes require registration on the Virginia Sex Offender Registry, and this is a black mark that will affect a person’s ability to get employment, to live in certain places, and is something that will follow someone around, in many cases, for the duration of their life and so if there is a way to avoid that it may well be worth the defendant’s while to pursue it.
Even if there could be evidence sufficient to show the defendant committed a non-sexual crime, there may be cause for an appeal if jury instructions could be corrected or excluded evidence is stricken on appeal, because this may provide a defendant with leverage to plead to a less serious charge on retrial, which would not carry the same stigma and additional consequences of a sex crime, as well as not carrying the same actual punishment.
Often, the issues that are going to be appealed will relate to whether there was consent to the sexual encounter. In order for the prosecution to be successful, the Commonwealth has to prove that there was no consent. Very often, a Virginia sex crimes appeals attorney will look to the jury to determine whether the jury was properly instructed in the definitions of “force, threat or intimidation,” which are indicators of lack of consent, or whether the jury was properly instructed about incapacity of a victim, and whether they could have made the appropriate findings based on those instructions.
Another issue that arises fairly often is whether there is improper character evidence that was admitted against the defendant in the sex crimes case. Usually, character evidence is not admissible in a criminal proceeding. However, there are exceptions, especially in Virginia sex crime cases, where evidence of prior bad acts may be used against the defendant. The determination of what is admissible is an ambiguous area, and errors sometimes occur.
Statements made to investigators may give rise to an appeal if those statements were made in violation of the Fifth Amendment. If, for example the defendant was arrested, but was not advised of his or her rights, or if the defendant was improperly arrested, then these statements could potentially be suppressed by the Court of Appeals if they were not suppressed at trial.
There are issues about reliability of expert testimony. There are very technical issues related to psychological exams and things like this where, because judges are not necessarily experts in those areas, they may make rulings that are not correct based on what is and is not relevant or what is or is not reliable in this area. Appellate courts may be able to review this.
Sometimes there could be issues with forensic evidence or DNA evidence that come up. It is difficult for a defendant to introduce this evidence on appeal because in order to have it considered by the trial court, which has a lot freer reign to consider it, that evidence has to be introduced within 21 days of the conviction order. Virginia is notorious for this very strict limitation.
However, with DNA evidence, defendants sometimes are able to petition the Court of Appeals for what is called a Writ of Actual Innocence. If that evidence comes up and the defendant can show that they were either not available at that time during the course of the 21-day period or that the defendant had no way of knowing that it was available at that period, then the defendant can seek a Writ of Actual Innocence from the Court of Appeals or the Virginia Supreme Court, which will give greater consideration to forensic or DNA evidence that was not introduced at trial than otherwise would be given on a direct appeal.
Most sex crimes are very serious felonies. Because of this, the defendants are entitled to all protection of the law. Felony cases are tried in Circuit Court. However, misdemeanor offenses are often tried in either the General District Court or the Juvenile and Domestic Relations Court depending on whether they involve an example of a family member or a minor.
Felony sex crime cases can also often originate in General District Court or Juvenile and Domestic Relations Court for preliminary hearings on the sufficiency of the evidence to establish probable cause, unless the defendant is directly indicted by a grand jury, in which instance the case would initiate in the Circuit Court.
Being convicted of a sex crime in Virginia is a very serious matter that can stain someone’s life forever. An experienced Virginia sex crimes appeals lawyer can look for any and all possibilities for you to appeal your case and will stand besides you every step of the way during the fight for your fair trial. Contact our firm today.
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