July 25, 2012

The Most Serious Kinds of Child Sexual Abuse

California has a series of laws that address the sexual abuse of children. Primary among these is Penal Code 288 – Lewd Acts on a Child. This section makes it a crime to touch a child anywhere on the child’s body, if done for sexual purposes. A conviction carries up to eight years in state prison.

But the legislature has enacted other laws that deal with the most extreme instances of child molestation.

Continuous sexual abuse of a child (Penal Code 288.5) is when a person engages in sexual contact with a child under 14, and does so three or more times over a span of three months or greater. A conviction under this section carries up to 16 years in prison.

Sexual acts with a child under 10 (Penal Code 288.7) is when a person engages in sexual conduct with a child under 10 years old. This section carries a sentence of life in prison even on a first offense.

These laws reflect the legislature’s view that a perpetrator who engages in repetitious conduct, or who chooses very young children as victim, represents an even greater danger to the community and thus should be dealt with in the harshest terms.

July 24, 2012

Oral Copulation Law in California

California has laws that address rape and child sexual abuse generally. However, it also has specific laws that address oral copulation in particular.

To be sure, oral sexual activity is not inherently illegal. Consenting adults are perfectly free to engage in it. But oral copulation by force is a very serious crime treated with comparable punishment to that of rape. Likewise, oral copulation on a minor child (Penal Code 288a) is treated as a form of child sexual abuse, and sentenced the same.

California law also defines the concept of oral copulation more broadly than most people would think. “Oral copulation” is any contact, even the most slight contact, between one person’s mouth and the other person’s sexual organ or anus. To convict someone of an oral copulation crime, the prosecutor does not need to prove that actual penetration or ejaculation occurred.

In addition to having sentencing schemes comparable to rape and child sexual abuse, almost all of the oral copulation crimes count as strikes under California’s three strikes law, and require a convicted defendant to register for life as a sex offender.

July 19, 2012

Disturbing a Meeting: Protest or Crime

Found in Penal Code 403, California’s “disturbing a meeting law" makes it a misdemeanor to “disturb” or “break up” any meeting or assembly that is not unlawful in nature.

As with unlawful assembly, failure to disperse, and a host of related crimes, this statute raises Constitutional concerns.

That is, most cases of disturbing a meeting arise in the context of political protest, such as at rallies or conventions. Protesters have a right to assemble peacefully and engage in free expression. But the people in the meeting they are protesting also have a right to conduct their meeting without unreasonable disruption.

Courts have played the role of striking this balance by limiting application of the statute. Specifically, courts have said that attention is to be paid to whether the disruption is typical and customary of the meeting in question. Chanting and heckling, for example, might be appropriate at a political rally but not at prayer vigil.

Courts have also said that it’s the medium of the disruption, and not the content of the disruptors’ message, that may be punished.

July 18, 2012

"Lynching" in California is Not What You Think

The term “lynching” conjures up horrific images of violent mobs hanging people from trees. But in California law, the crime of “lynching” actually refers to something entirely different.

Stated in Penal Code 405a and 405b, a “lynching” in California law is when a group of rioters breaks a detainee free from police custody.

A classic example was the scene at the start of the 1992 Los Angeles riots. LAPD officers were trying to arrest a suspect near the flashpoint at Florence and Normandie. An angry mob charged the officers and broke the suspect free.

“Lynching” a detainee from police custody is treated as a very serious crime. A conviction is a felony, and the person convicted can get locked up in California state prison for up to four years. This is often a much harsher punishment than the crowd might have received just for rioting, and often more serious than the crime for which the detainee was originally being arrested.

To be sure, Penal Code 405a and 405b “lynching” is not a common crime. In fact, it’s so obscure that few people have even heard of it. Most people confuse the term “lynching” with its commonplace meaning of hanging people from trees.

But as more crowds clash with police at events such as May Day rallies and Occupy demonstrations, we are likely to see more arrests and prosecutions for lynching.

July 17, 2012

"Occupy" Arrests Create Constitutional Quandary

The recent Chalk protest at Art Walk shows that the Occupy Movement is alive and well, and likely to manifest itself with police clashes for years to come.

In response to the demonstrations, police and prosecutors have turned to a number of criminal statutes--mostly misdemeanors--with which to charge the protesters.

If an event involves actual violence or property destruction, police are likely to make arrests for participation in a riot or inciting a riot. By definition, a “riot” in California law is when two or more people gather together to commit violence, threaten violence or disturb the peace.

“Participation in a riot” requires that the arrestee actually and personally engage in rioting. A person can “incite a riot,” on the other hand, merely by encouraging and instigating others to riot, even if the inciter doesn’t actually participate.

Other common charges in these cases include “unlawful assembly” and “failure to disperse.” The statutes define unlawful assembly as two or more people gathering together to do something illegal or to act in a “violent, boisterous or tumultuous manner.” Failure to disperse is when people refuse to leave the scene of a riot or unlawful assembly after having been properly ordered to do so.

The larger Constitutional issue behind all these laws is the extent to which they infringe on the First Amendment Freedom of Assembly. Namely, the Constitution guarantees the freedom to assemble peacefully and the freedom to express one’s ideas, even if they are unpopular and potentially subversive.

The power of government to use criminal charges to punish political protesters must be strictly limited. Courts have taken the role of drawing this fine line. Time and again, the line is drawn at violence or the disruption of lawful activities.

Regardless of whether we agree with the political agenda of the Occupy and other such movements, we as the public need to pay attention. We need to make sure that the cause of maintaining order doesn’t become pretext for law enforcement’s silencing of unpopular voices.

July 17, 2012

Prosecutors Need to Disclose Records of Police Misconduct

By Attorney Nicole Valera

I was reading the LA Times and ran across an article discussing how the LA County officials may have withheld evidence of wrong doing by LA County Sheriff's deputies. One of the issues the article discusses concerns the LA District Attorney's policy of what is turned over to the accused.

Prosecutors are under a duty to provide any evidence they plan to use against an accused, as well as any evidence that may exculpate, or exonerate, the accused. What I have noticed in resisting arrest cases (PC 148) and battery on a peace officer cases (PC 243(b)), is that there is often an "Internal Affairs Investigation". Most often, my clients accused of these crimes have allegations included in their police report that they used force on the police officers. However, I find that my clients are actually victims of excessive force used by the officers and the criminal case against them is only filed to avoid liability.

When an Internal Affairs investigation is conducted, I will make requests for that information - any statements, witnesses, or any audio or video recording in connection with that investigation. I am told by prosecutors that it is not "policy" for their office to turn over what is considered a "civil matter". However, it is my opinion that this evidence may be relevant to my client’s innocence and that it is unjust and unconstitutional.

July 3, 2012

Online Piracy Laws Apply in California

It may seem harmless to upload, copy or share creative works on the internet. But federal laws do prohibit taking the copyrighted creative work of third parties without their permission.

In fact, the No Electronic Theft Act makes it a federal crime to share computer files containing copyrighted songs, programs, movies or the like with third parties through the internet.

In reality, though, most people are only prosecuted if they are sharing such files for profit, or if they are sharing large numbers of files. The law itself only applies to for-profit activities, reproducing or distributing works more than $1000.00 in value, or distributing a work being prepared for distribution.

These cases are generally prosecuted by the United States Attorneys Office, and a conviction could potentially land a person in federal prison for a number of years.

July 2, 2012

Is Incest a Crime in California?

Yes, California incest laws make it a crime for certain categories of blood relatives to have sexual relations. Indeed, Penal Code 285 – which codifies the incest laws – makes such conduct a wobbler, meaning it can be filed as a misdemeanor or a felony. As a felony, it could land a person in prison for up to 3 years.

But it’s not the case that all blood or family ties put people in the incest category. The categories include parents and children, grandparents and grandchildren, brothers and sisters, cousins, aunts and uncles, nieces and nephews.

Although incidents of and prosecutions for incest are rare, it does raise the policy question of whether the law should apply to consenting adults. That is, if two mature adult family members freely decide to have a sexual relationship, should the government be in their bedroom telling them no, even if the community may find the behavior deviant?

The rationale behind California incest laws is to deter inbreeding, which has a higher incidence of birth defects. But if that’s the purpose of the law, it could be written so as to prohibit incestuous childbearing, rather than sexual relations altogether.

In any case, California incest laws have been on the books for many years, and that is unlikely to change any time soon.