Spousal Rape

Spousal rape, in California, is a severe sex crime that will result in a felony charge, punishable by three, six or eight years in state prison. An individual who suffers a spousal rape conviction must also register as a sex offender, in accordance with California Penal Code 290, and may be required to pay up to $1,000 to a battered women’s shelter and to reimburse his or her spouse for any reasonable costs of counseling or other services that the court determines were incurred as a result of the defendant’s offense. It should be noted that community property may not be used to pay these costs until all of the defendant’s separate property has been used. In order to best avoid these devastating and life-altering penalties, it is vital that the accused hires a criminal defense lawyer who has mastered this unique area of the law. The outstanding criminal attorneys at The Kavinoky Law Firm have done just that. They excel in California sex crime defense and are well-qualified to provide their clients with unsurpassed representation and the most comprehensive defenses available. Their thorough understanding of this complex field of law provides their clients with a tremendous advantage over other lawyers, which is clearly reflected in and exemplified by their exceptional results.

Spousal rape can be charged under a number of circumstances. It may be charged if it was accomplished against the spouse’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the spouse or another. It may be charged if the spouse was prevented from resisting due to intoxication and this condition was known, or reasonably should have been known, by the accused. It may be charged if the spouse was unaware or unconscious of the nature of the act, and this was known to the accused. It may be charged if the accused threatened to kidnap, falsely imprison, seriously injure or kill the spouse or any other person, and there was a reasonable possibility that the accused could have executed the threat. It may be charged if the accused threatened to use the authority of a public official to incarcerate, arrest, or deport the spouse or another, and the spouse had a reasonable belief that the accused was a public official, regardless of whether or not the accused was, in fact, a public official. It should be noted that attempted spousal rape will also be prosecuted as a felony if the accused intended to rape his or her spouse, but due to some intervening circumstance (which is typically that the spouse was able to successfully resist or fight off the accused), he or she was not able to commit the actual offense.

Consent is the most commonly argued defense to this crime. Although consent will not be inferred from the fact that the couple was involved in an ongoing sexual relationship, it can be used as a defense if the accused can show that the spouse consented to the intercourse, and has subsequently filed a false allegation out of revenge, anger or jealousy. Insufficient evidence, which includes a lack of witnesses or physical evidence, can also be raised as a defense under appropriate circumstances by a seasoned sex crime defense attorney.

Spousal rape is a serious crime that has serious repercussions. To properly defend against it, the accused needs an attorney who knows how to conduct an effective witness interview and examination, who knows how to recognize all of the evidentiary issues that could lead to suppressed evidence or an early dismissal of the case, and who understands how to successfully communicate all applicable defenses to the judge and jury. The unparalleled attorneys at The Kavinoky Law Firm know what it takes to win, and they give 110% to each client in an effort to provide the best defense possible. To secure outstanding representation from attorneys known for their exceptional legal advice, contact The Kavinoky Law Firm today for a free consultation.

California’s Statute of Limitations Relating to Sex Offenses

A statute of limitations is a certain time allowed by law that a prosecuting agency has to commence prosecution, which means that the prosecution of a criminal case will be barred if the case isn’t filed within the statutory period. The statute of limitations varies, depending on the maximum sentence of the underlying sex crime, and on the specific facts of the case. When determining which statute applies, the law looks to the maximum punishment allowed by law, regardless of the punishment that is actually sought or imposed, and enhancements do not factor into that calculation. If more than one time period applies to the same offense, the controlling time will be the period that expires last.

An experienced sex crime defense attorney is aware of the statute of limitations for each offense, and will immediately move to dismiss a case that is beyond the specified period. The exceptional attorneys at The Kavinoky Law Firm pride themselves on their thorough reviews of every case, which allows them to determine the defenses that are most likely to ensure favorable outcomes for their clients.

Although there is quite a bit of variation, the general statutory schedule relating to California’s sex offenses is as follows:

The prosecution of a felony that is punishable by eight or more years in state prison (for example, most instances of rape, some crimes relating to obscene materials, and certain acts of sodomy or oral copulation) must typically be commenced within six years of the offense. However, if the crime is a felony offense that requires sex offender registration, pursuant to California’s Penal Code 290, the prosecution must be commenced within ten years of the offense. With respect to these crimes, an additional extension applies when DNA evidence is involved. The prosecution of one of these felonies in which DNA conclusively establishes the identity of a suspect may be commenced within one year of that finding if the offense was committed on or after January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than two years after the date of the offense.

If the alleged felony offense is for rape, sodomy, lewd or lascivious acts, continuous sexual abuse of a child or oral copulation, and the victim was younger than 18 years of age at the time of the offense, the prosecution may be commenced at any time prior to the victim’s 28th birthday. Similarly, the statute of limitations may be extended by one year (if necessary) when a person of any age makes a report to a California law enforcement agency that he or she was the victim of rape, sodomy, lewd or lascivious acts, oral copulation, continuous sexual abuse or forced penetration as a minor. This extension may take place if the generally applicable statute of limitations expired, if the crime involved substantial sexual conduct, and if there is corroborating evidence to support the allegation. It must be noted that if the person reporting is 21 years old at the time of the report, the corroborating evidence must be clear and convincing.

If the charged felony offense is for employing a minor to pose for or perform obscene sexual acts, the prosecution must be commenced within 10 years of the date of production of the pornographic material.

Finally, the prosecution of misdemeanor sex crimes must typically be commenced within one year of the offense.

For more information on the statute of limitations concerning a specific sex crime, contact the knowledgeable and experienced California sex crime defense attorneys at The Kavinoky Law Firm today for a free consultation and for unsurpassed legal representation.

Sodomy is a California sex crime that takes place when there is any sexual contact between the penis of one person and the anus of another. Sodomy may be charged as either a misdemeanor or a felony, depending on the severity of the case. Regardless of how it is classified, a conviction carries the requirement that the guilty party register as a sex offender, in accordance with California Penal Code 290. A skilled criminal defense lawyer who specializes in California sex crimes is the key to securing a favorable outcome, as he or she is the most qualified to represent a client charged with this type of emotionally unique and socially stigmatized case.

Sodomy, much like rape and oral copulation, may be charged under a variety of circumstances. The more aggravated the offense, the more severe the punishment. Some of the less serious sodomy charges involve situations where the accused (who can be any age) engages in sodomy with a person who is under the age of 18, where the accused engages in sodomy with another while both are incarcerated or where the accused engages in sodomy with another while both are confined in a state hospital or other treatment facility, and the alleged victim is incapable of giving consent due to his or her mental or physical disability (a fact which is known or should have been known by the accused). Under any of these scenarios, a defendant would face either a misdemeanor or a felony, punishable by a maximum one-year jail or prison sentence.

The other circumstances under which an individual may be charged with this crime lead to more serious penalties. Anyone over 21 years of age who engages in sodomy with another who is under 16 years of age will automatically be charged with a felony. Likewise, anyone who engages in sodomy with someone who is under 14 years of age and who is more than 10 years younger than he or she will automatically be charged with a felony and faces three, six or eight years in state prison. It should be noted that attempted sodomy will be criminally prosecuted as well, since the act would have been accomplished but for some intervening force (which typically means that the alleged victim was able to defend against the unwanted act).

Any force, intimidation or threats that the accused used in order to sodomize the alleged victim will also lead to a three, six or eight year state prison sentence. Similarly, if the alleged victim was unconsciousness at the time of the alleged offense (and that fact was known by the accused), or lacked the capacity to consent due to intoxication (and that fact was either known or should have been known by the accused), consented (believing that the accused was his or her spouse because the accused induced him or her into believing so) or lacked the capacity to consent due to a mental or physical disability (and that fact was either known or should have been known by the accused), the accused will face the same three, six or eight year state prison sentence.

The most aggravated sodomy offense occurs when an individual voluntarily acts in concert with another person, either personally or by aiding and abetting that other person, to engage in sodomy against the will of the alleged victim. Under that type of scenario, the accused faces imprisonment in the omit state prison for five, seven or nine years. It must be noted that consecutive sentencing applies to California sex offenses, which means that a defendant convicted of multiple illegal sex acts could actually be imprisoned for life.

The outstanding criminal attorneys at The Kavinoky Law Firm meticulously analyze and review all the facts of every case to determine what defenses will be the most effective and which evidentiary issues might lead to a reduced charge or an early dismissal. They have mastered California sex crime defense, which is clearly revealed in their skill and practice. For the most trusted legal advice and unequaled representation, contact the Kavinoky law firm today for a free consultation.

The Penalties For California Sex Crimes Involving Great Bodily Injury and/or Weapons

California felony sex offenses that result in great bodily injury to anyone other than the accused or an accomplice, and offenses that involve firearms or other dangerous or deadly weapons, will result in severe and enhanced punishment for the accused. The experienced sex crime defense attorneys at The Kavinoky Law Firm are the key to avoiding these devastating penalties.

An individual convicted of inflicting great bodily injury during the commission or attempted commission of a felony sex offense will receive a consecutive three-year prison sentence in addition to the punishment that he or she receives for the underlying offense. If the victim’s injury resulted in a coma or paralysis or if the injured victim was over 70 years of age, the accused will receive an additional and consecutive five-year sentence. If the injured victim is a child under the age of 5, the accused will receive a four, five or six-year consecutive enhancement. It should be noted that when three sentencing options are available, the judge is required to impose the middle term unless aggravating or mitigating circumstances support either the higher or lower term. The enhancement will be the same if the injured victim is an intimate partner of the accused, meaning his or her heterosexual or same-sex partner, the person with whom he or she lives, the person whom he or she is dating, or a person with whom the accused was formerly involved.

An individual convicted of inflicting great bodily injury on a victim during the commission or attempted commission of certain acts of rape, spousal rape, rape in concert, lewd or lascivious acts, forced penetration, sodomy or oral copulation will also receive a five-year enhancement for each violation. In circumstances such as this, where a consecutive sentence is not mentioned, it means that the judge has the option whether to impose the enhancement consecutively or concurrently. It must be noted that if two or more enhancements are applicable to the same victim for the same offense, only the highest great bodily injury enhancement will be imposed, however, enhancements for other situations may still apply.

An individual convicted of being armed with a firearm or of using a dangerous or deadly weapon while committing or attempting to commit a felony sex offense, will receive an additional one-year enhancement. If the individual was acting in concert with another during the offense or attempted offense, and knew that the other person was armed, he or she will receive an additional and consecutive term of one, two or three years.

An individual convicted of being armed with a weapon during the commission or attempted commission of a rape, spousal rape, rape in concert, sodomy, lewd or lascivious acts, oral copulation or forced penetration, will receive a one, two or five-year additional enhancement. An individual convicted of using a firearm or deadly weapon under those same circumstances will receive an additional three, four or ten-year enhancement.

An individual convicted of using a firearm during the commission or attempted commission of a felony sex offense will receive an additional and consecutive term of three, four or ten years. If the firearm is an assault weapon, the accused will receive an additional and consecutive term of five, six or ten years.

It should be noted that an individual convicted of using a firearm during the commission or attempted commission of lewd or lascivious acts, rape, spousal rape, rape in concert, the continuous sexual abuse of a child, sodomy, oral copulation, sexual penetration or the aggravated sexual assault of a child, will not be granted probation. It should also be noted that only one enhancement (the one that imposes the greatest sentence) will be applied for a crime involving a weapon, however other enhancements for other circumstances (for example, great bodily injury) may be additionally imposed.

To learn more about sex offense penalties and defenses, contact the outstanding criminal defense attorneys at The Kavinoky Law Firm today for a free consultation.

The California Three Strikes Law

California enacted a “Three Strikes Law” in March of 1994 that dramatically increases punishment for those who repeatedly commit “serious or violent felonies”. Many sex crimes constitute serious or violent felonies, which means that, under this law, a twice-convicted sex offender could face life in prison if he or she commits any subsequent felony offense. This is a very important reason why it is critical that an individual accused of a felony sex crime immediately contacts an experienced criminal defense lawyer who specializes in California sex crime defense, and who knows how to successfully challenge this law.

Under the California Three Strikes Law, sex offenses that are serious or violent felonies count as a “strike,” even if they were committed prior to the enactment of the Three Strikes Law, committed in another state, or committed as a juvenile. When an individual is charged with a felony (any felony, not just a serious or violent one) and has a prior “strike” on his or her record, he or she will be referred to as a “second-striker” and the sentence in the new case will be twice the term otherwise required by law. When an individual is charged with a felony – again, any felony – and has two prior “strikes” on his or her record, he or she will be referred to as a “third-striker” and will serve a minimum mandatory sentence of 25 years to life in state prison.

There are ways to defend against this sentencing schedule, but only a skilled criminal attorney has the knowledge to effectively do so. The unparalleled defense attorneys at The Kavinoky Law Firm have mastered the California laws that relate to sex crimes in order to provide the most comprehensive and vigorous defenses for their clients. They keep up-to-date on this complex and ever-changing area of the law, which includes the latest evidentiary rulings, policy debates and cutting-edge trial strategies.

When a client of The Kavinoky Law Firm faces a third strike offense, the first line of attack is the pending charge. The attorney will aggressively defend against the allegation to either acquit his or her client, to have the case dismissed or, at the very least, to try to reduce the charged offense. In a case where the open charge is a wobbler, the savvy lawyer knows the most effective ways to convince a judge that it should be sentenced as a misdemeanor, which avoids the California Three Strikes Law. The qualified attorney also knows what arguments are most likely to persuade a judge to dismiss a prior “strike” to similarly avoid a 3-strikes sentence. It should be noted that although the decision as to how to charge a wobbler lies in the hands of the prosecutor, it is ultimately the trial court that has the authority to reduce a felony charge to a misdemeanor at the time of sentencing.

California’s Three-Strike Law demands that anyone accused of a wobbler or felony sex offense hires an exceptional criminal attorney to defend against the severe penalty that this law imposes. This unfair, indiscriminate sentencing scheme allows a relatively minor misdemeanor sex offense to transform into a felony at the discretion of the prosecutor, which could result in a permanent strike on an individual’s record or worse, in a lifetime prison sentence.

With law offices in Los Angeles and throughout California, The Kavinoky Law Firm is conveniently located for those in need of an outstanding California sex crime defense attorney. To best avoid these devastating consequences, contact them today for a free consultation, for the most trusted legal advice and for unsurpassed representation.

Internet pornography is governed by both California state law and by federal law too. Generally, the purposes of the internet pornography laws are similar to pre-existing pornography laws that govern such things as books, magazines, and pornographic videos. Many of the laws either fall under the category of obscenity laws or laws that were created to prevent the exploitation of children.

Obscene material, whether it is on the internet or in magazines is considered illegal and a person can be prosecuted for selling such material. There is no First Amendment right to obscene speech. According to current Supreme Court law on obscenity, material is considered obscene when “to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.” This confusing language is quite ambiguous and the Supreme Court often finds itself debating about the meaning of this standard. A conviction for obscenity crimes can result in both civil and criminal forfeiture.

The question of obscenity is one for the jury. Therefore, it is best to use an experienced and qualified criminal defense attorney who can develop a rapport with the jury. Often times in American history, overzealous prosecutors with political intentions have prosecuted obscenity cases. These cases are often controversial and high profile. It is important to use an attorney who is used to the spotlight and not a person who may not be able to handle the pressure that such cases bring to bear upon the defendant and the defense team as well.

Federal and state law prohibit images that depict a minor either engaging in or simulating sexual conduct. This prohibition extends to anyone who mails, transports, distributes, reproduces, advertises, promotes, solicits, or presents such material. The state and federal definitions do vary, so it is important to get a qualified criminal lawyer who knows the differences. Furthermore, the penalties and fines between California law and federal law vary too.

The California Penal Code states that, every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, is guilty of a public offense and shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment.”

Federal law requires anyone who produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer manipulated image of an actual human being, picture, or other matter which contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct that will be interstate or foreign commerce, shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction. This requires that a person producing such material to get proper identification from the performer as well as to ascertain any information that may be necessary to determine the performer’s age. A producer is considered someone who creates the original material or someone who puts the material in a catalogue or on a website as a thumb nail. The definition of producer is broad and therefore, almost anyone who puts images of persons engaged in actual sexually explicit conduct on the internet will be required to maintain such detailed records. For purposes of this law, “actual sexually explicit conduct” means actual but not simulated conduct. This differs from the standard that is applied to performers under the age of 18.

Internet pornography law is very much influenced if not the same as laws that govern pornography in the US and throughout the states. It is important to find legal counsel who has an understanding of the often complex issues involved in pornography cases.