Sexual assault is one of the worst crimes a person can be charged with. Even the mere accusation of sexual assault is enough to derail a person’s life and alter it forever. It can interfere with employment, divorce and child custody matters, and one’s standing in the community. This is particularly true if the alleged victim is a child. It is always a good idea to consult with an experienced sexual assault attorney if any hint of this accusation is made. Sexual Assault of a Child is governed by Chapter 21 of the Texas Penal Code, and certain provisions of the Texas Code of Criminal Procedure. However, his paper is not intended as a discussion of these statutes. It is intended to walk a person through the process of a child sexual assault prosecution to remove some of the mystery.
1. OUTCRY
The first event in a sexual assault of a child case is the “outcry.” A child tells someone they trust that abuse occurred. An outcry witness is the first person over the age of 18 to whom a child makes a statement about abuse. Statements made by the child to the outcry witness are deemed admissible in court when typically such statements would be barred as hearsay. The outcry witness is, therefore, one of the most important witnesses in the case. Often a child will make more than one outcry, potentially generating multiple outcry witnesses or multiple charges. Occasionally, prosecutors will see value in picking and choosing which statement they prefer to treat as the outcry statement in order to make conviction of the accused more likely. For this and other reasons, it is, therefore, essential to identify the correct outcry witness so that only certain statements by the child are brought before the court.
2. INITIAL POLICE INVESTIGATION
After the outcry, the police are typically called. The police will interview whatever witnesses are available, but will make certain not to speak to the child about the outcry. The first statements made after the outcry are the most important evidence in a child sexual assault case, and the state has people trained especially to take these statements. Typically, the accused is briefly contacted by police during this process or in the days shortly after. This is when the accused should contact an experienced sexual assault defense attorney if they have not already done so.
3. MEDICAL EXAMINATION, and ANALYSIS
The child will then be taken for a sexual assault exam to a hospital, where a full medical examination will be made, evidence collected, and statements taken down. These statements are often deemed admissible in court because they are statements made for medical care. There is much controversy in this area because there is also an argument that these statements are actually made in preparation for litigation. At the conclusion of this examination, doctors and nurses who examined the child will write a report detailing the condition of the child, and including rudimentary sketches and statements. Often there will be no visible signs of sexual assault, yet based on the statements of the child and witnesses, the medical people will make a finding that sexual assault likely occurred. Any DNA collected will be sent to a lab for analysis.
4. FORENSIC INTERVIEW
Next, the child will be referred for a Forensic Interview with a “Sexual Assault Nurse Examiner,” (SANE nurse) who is specially trained to interview children who have made a sexual abuse outcry. These interviews take place in facilities staffed by several departments who all work together prosecuting sexual assault cases. Invariably, the interview is video recorded. The SANE nurse is a very difficult witness to cross-examine on the stand. They have been specially trained to do two things – interview children, and testify about their interview under oath. A particularly skilled SANE nurse can elicit further outcries of other sexual abuse. These are often deemed admissible as outcries for new offenses, and may become the basis of additional charges, or may be used as extraneous evidence in court to obtain a conviction and higher sentence. This witness can be fatal to a defense case. The SANE nurse will develop an opinion whether abuse occurred, will often say that their opinion is that abuse occurred, and they will be allowed to say this in court as an expert witness. It is essential that a defense attorney knows how to attack expert witness testimony and disqualify or discredit it where possible.
5. INTERVIEW OF THE ACCUSED
After these two steps, the accused will generally be invited to come in to speak with detectives in the same facility where the forensic interview occurred. It is EXTREMELY IMPORTANT that anyone accused of sexual assault consult with an experienced sexual assault attorney before agreeing to such an interview. The interview typically proceeds as follows: the accused is invited in and brought to an interview room. The interview is being recorded, but the accused may or may not be made aware of this. Often, but not always, there is two-way glass on the walls and other officers and caseworkers may be watching from adjacent rooms, or they may be watching the video elsewhere. The detective will typically be friendly, and conversational, and will usually say that the accused is not under arrest and is free to leave. The detective will then read the accused his Miranda Rights, including a right to an attorney. The accused will often agree to talk, and sign an acknowledgment and waiver of rights, meaning everything said in that room, and on that video is admissible in court. Often at the conclusion of the interview, the accused is still free to leave.
6. ARREST, BOND, COURT, DEFENSE ATTORNEY CASE BUILDING
At some point, the accused will be arrested and a bond will be set. This bond will either be high or very high due to the nature of the offense. After the arrest, court dates are set, and the accused and the attorney will attend these court dates as the attorney gains access to the evidence in the case. At this point, the best practice is for the attorney to retain a private investigator on behalf of the client to assist with investigation and preparation of the case. The state will get an order signed by the judge to allow collection of the DNA of the accused. This DNA goes into a databank with specimens from similarly situated people, and may be cross-matched in other cases.
7. GRAND JURY PRESENTATION, INDICTMENT, TRIAL
The case will then be brought in front of a Grand Jury, who will either “no true bill” the case or will “indict” the case. If the case is indicted the grand jury has simply determined enough evidence exists to proceed with the case. Occasionally, it may be a benefit to an accused person for his attorney to make a grand jury presentation, in hopes of obtaining a “no true bill”. Evidence of alibi or mistake may sometimes be presented at this time. If the case is indicted, many defendants will at this point press for trial.
8. DNA
If there is DNA in the case, it is essential to have it examined by an expert hired by the defense. Especially today, and especially in cases of mixed DNA, the science is coming under fire like never before.
9. RISKS OF CONVICTION
Risks of conviction for sexual assault include significant prison time, reduced ability to secure parole, significant fines and being a convicted felon, as well as having to register as a sex offender, potentially for life, having housing and job restrictions, interference with child custody, and the increasing risk of civil liability. Child sexual assault accusations should not be taken very seriously from the beginning. An experienced attorney should be hired as soon as possible, and preparation for trial should begin immediately even though no trial may ever occur.
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