It is early on a Sunday morning and I am in my office working. Sometimes this happens – I wake up and after fifteen or twenty minutes I know that I am not going back to sleep, so off I go to do a little work. Today I am listening to a tape recorded "interview" by a detective. The suspect is charged with a sex crime. The officer has been nice and comforting along the way – taking his time to eke information out of the defendant – and in the end the defendant has sealed his fate. He has told the officer that he fell in love with a minor, and that of course led to sex, and that will lead ultimately to a criminal case. Sex crimes are in the news here lately, as a prominent local business man is currently on trial for having a sex party with two minors. I am not going to talk about his case – I did that under oath as a witness last week – but the question of just when it is permitted to have sex with a minor is frequently one I deal with. The answer is – drum roll please – NEVER! That’s right friends and neighbors, not ever.
The law in Idaho FORBIDS a minor from consenting to sexual contact. Simply stated: a minor (someone under eighteen) cannot legally consent to any sexual contact. Idaho Code § 18-1508 prohibits "lewd conduct" with a minor under 16 years of age. Penalty – LIFE. And truly they mean it. You may not go to prison for life (you might), but your life will forever be changed if convicted. In addition to prison, sex offender treatment, victim restitution and lawyers fees, there is also a requirement that you REGISTER as a sex offender under Idaho Code § 18-8301 et. seq. If the victim of the crime is 16 or 17, it is still a crime if you (as the defendant) are more than five (5) years older than the victim (Idaho Code § 18-1508A), and the maximum term of imprisonment is twenty-five (25) years.
So if you are being investigated for any sex crime remember that the investigators are playing for keeps. Here are my top three rules if you are under investigation for any crime:
1. Guilty or innocent you cannot talk your way out of the investigation, so shut up! Remember that little "you have the right to remain silent" talk BEFORE the nice officer gets you the coffee. Sure, you may be guilty and there may be a time to confess, but don’t do so at the station to the officer who says he just wants to "get your side" so it can be included in his report to the prosecutor. WAIT. Breathe deeply and tell him you do not want to make a statement. There will be plenty of time to spill your guts later.
2. The prosecutor is not your friend. I know prosecutors, and like many of them. They are almost always believers in what they are doing, sometimes to a fault. The same is true of most defense lawyers. Heck, my daughter is a prosecutor. But as one of my clients says, prosecutors are just cops with nicer suits. They are there as the state’s lawyer in a case in which your liberty is very much at risk. Do not expect a break from the prosecutors. They may decide that you are a nice person but that will not be enough to convince them to "overlook" your indiscretion and dismiss the case.
3. You know that money you saved for a rainy day? Get it out and buy the best lawyer you can afford because "it’s pouring" outside. Again this week I had the call from a young woman who is looking for an appellate lawyer because her husband is on his way to the big house. Who was his lawyer, I ask. He had a public defender, she says. "We decided to wait and see how the trial went before spending our own money." Bad call. That public defender may have been great, but he also may have had 60 – 80 cases he was managing. Money buys time – which is why I am here at 6:00 am on a Sunday morning. Time is the difference between winning and losing, sometimes. Sometimes there is nothing the best lawyers can do to get you acquitted. For example – if you are guilty of doing whatever they are investigating. But your money can buy that lawyer’s time and effort to review the documents, learn the case, get to know you and your life and convey "you" to a judge or jury. I may not be the right lawyer for your case, but somewhere there is a lawyer who will work for you – maybe just to lessen the time you face – hire the best lawyer you can afford.
There you have it – back in the saddle again and now it’s time to get back to work. Next time – what do we do about the confession?