A conviction for the offense of child molestation in Georgia can carry severe penalties and a lifetime of sex offender registration. If you are facing child molestation charges in Georgia, it is critically important that you hire a criminal defense lawyer who has both the experience and drive to adequately defend your case.
What is child molestation?
Under Georgia law, the offense of child molestation can be committed in two different ways. Each way has its own set of elements that the State must prove beyond a reasonable doubt. The statute for child molestation is found at O.C.G.A. § 16-6-4. The first way involves doing something in the presence of the child and has the following elements:
It is important to note that Georgia’s child molestation statute specifically states that when a person touches multiple parts of a child’s body, the touching of each area constitutes a separate offense. Thus, one incident of touching can result in a defendant being charged with multiple counts.
The second way the offense of child molestation can be committed is by electronic communication, which includes the following elements:
Georgia law also has the distinct offense of aggravated child molestation, which is a more severe offense. Aggravated child molestation includes an additional element consisting of either physical injury or sodomy (oral or anal sex).
What are the penalties for child molestation?
The penalties for child molestation are severe. For a first-time offender, Georgia’s child molestation statute calls for a prison sentence between 5 and 20 years. The offense of aggravated child molestation is even more severe and carries a sentence of 25 years to life in prison.
How does a lawyer defend against child molestation charges?
Defending against child molestation charges is a difficult and time-consuming endeavor. A good defense involves a multi-tier approach and often requires the use of highly trained investigators and expert witnesses. If possible, an individual accused of child molestation charges should hire a criminal defense lawyer who is experienced in handling such cases and who has the time and energy to devote toward crafting a robust defense.
It is important to understand that child molestation cases are different from other types of criminal cases. While the legal system requires the state to prove each element of an offense beyond a reasonable doubt (and does not require the defendant to put forth any evidence), a defendant must keep in mind that juries are predisposed to believe children who are alleged victims of sexual abuse. This benefit of the doubt makes the State’s job much easier to win a conviction (in comparison to say a theft or drug charge). For this reason, a defendant in a child molestation case must seek out evidence which shows that the child is either lying or not telling the whole truth. Establishing a reason to fabricate the allegation, or showing that the allegation just isn’t possible, is a central tenant of a robust defense in a child molestation case.
To understand how to defend child molestation cases, it is important to first understand how the prosecution builds it case. Anytime there is an allegation of child molestation, law enforcement will try to gather as much evidence as it can to 1) corroborate the child’s allegation through independent evidence, and 2) make the defendant appear to be the type of person capable of committing such an offense. The State gathers this independent evidence by obtaining search warrants to rifle through a defendant’s home and electronic devices; recording statements made by the defendant to law enforcement; having the child undergo a forensic interview to capture the allegations on video; and interviewing people close to the defendant and the child about the allegations.
Properly defending a child molestation allegation therefore includes being able to poke holes in the State’s case and producing evidence showing the allegation to be false. These two tracks can be divided into two different stages of building a defense. The first stage involves filing pre-trial motions. The second stage involves defending against the allegations at trial.
Defending the Case: Pre-Trial Motions
There are a number of pre-trial motions that a defense lawyer should always consider filing in a child molestation case. These motions seek to exclude evidence that the State will try to use at trial. If successful, the defense can chip away at the strength of the State’s case, and in some instances, have the case dismissed outright. These pre-trial motions include the following:
1. Motion to Suppress Evidence.In many child molestation cases, the State will obtain a search warrant to search a defendant’s residence or electronics (such as computers and cell phones). These searches can yield problematic images, videos, text messages, emails, and sexual paraphernalia that the State will try to show a jury to suggest that the defendant is a deviant person capable of harming a child. If the evidence was obtained due to a faulty search warrant or search, a good criminal defense lawyer will file a motion to suppress evidence to exclude such evidence from trial.
2. Motion to Suppress Statements.Law enforcement will often attempt to interview a defendant about the allegations. Law enforcement will usually convince a defendant to submit to an interview by explaining that they just want to “figure out what happened” so they can close the case. In reality, law enforcement is usually trying to get a defendant to confess to the allegations or to admit to certain portions of the allegations (e.g., being in the same place and at the same time as a child). If the statement was improperly obtained by law enforcement, a defense lawyer can file a motion to suppress the statements and ask that a judge exclude the defendant’s statement from trial.
3. Motion to Exclude prior “bad acts.”The State is going to do everything it can to paint the defendant as a bad person and this includes trying to introduce evidence of alleged improper sexual conduct in a defendant’s past. This includes not only convictions but anytime the defendant was accused of improper conduct. A good criminal defense lawyer will file motions to challenge this evidence to exclude it from trial.
4. Motions to Exclude Prejudicial Evidence.There are times that the State will seek to introduce evidence that is highly prejudicial but has only slight relevance. This may include sexual paraphernalia that was seized at a defendant’s home, a prior conviction, or some other piece of evidence that doesn’t directly concern the alleged victim’s allegations against the defendant. A good criminal defense lawyer will attack these pieces of evidence by filing a motion to exclude under O.C.G.A. § 24-4-403.
5. Special Demurrers.Allegations of child molestation will often span months or even years. Imagine trying to present an alibi defense when the State claims that the act took place at some point over the course of a year. It is virtually impossible. To prevent this, the State is required to narrow the date range to allow the defense to properly defend against the charges. In many cases, the indictment (which is the official charge in the case that allows the State to take the defendant to trial) will provide a very broad date range. If the evidence shows that the State can narrow the range, the defense can file a special demurrer arguing that the indictment should be dismissed.
6. Other Pre-Trial Motions.There are a host of other motions that a good criminal defense lawyer may file depending on the facts in a particular case, including a motion to dismiss based on the statute of limitations, a general demurrer, and a motion to exclude testimony of the State’s experts.
Defending the Case: Trial Defenses
It is imperative that the defense conduct its own thorough investigation into the allegations. In doing so, a good defense will investigate the following areas in an effort to obtain evidence beneficial to the defense:
1. A motive to lie. A motivation to fabricate is often the single most important piece of evidence in the defense’s arsenal. Many cases involve family members where the is a divorce pending or some other type of bad blood. Other cases may involve a monetary motivation on the part of the child’s parents. It is the job of the defense lawyer to ferret out these possible motivations. To do this, a defense lawyer may hire an investigator to sift through social media accounts, talk to people who know the alleged victim’s family, and review old text messages and emails.
2. Inconsistent statements. Even when there isn’t a strong motivation to lie, the State’s evidence will often contain significant inconsistent statements by the child or the outcry witness (the person who the child first informed of the alleged molestation). Inconsistent statements show that the child’s story changed or evolved over time and ultimately serve to call into question the child’s credibility.
3. The child’s school, DFCS, and counseling records. Prior to trial, the State will provide the defense with discovery, which is the evidence that the State acquired in its investigation. The State, however, rarely obtains the child’s school, counseling, and DFCS records, which can contain a treasure trove of evidence indicating that the allegations are false. It is therefore imperative that the defense lawyer file motions with the court for these records and then obtain these records. These records can contain recantations, inconsistent statements, behavioral issues, family issues, and other matters which can mean the difference between a conviction and an acquittal.
4. Expert testimony attacking the forensic interviews. In many child molestation cases, the strongest evidence for the State is the child’s forensic interview. The State knows that a child’s testimony at trial may be shaky. In fact, a child will often shut down on the witness stand and not say a word. This is why law enforcement will almost always record an interview between the child and a forensic interviewer prior to trial during which the child details the allegations. These forensic interviews, however, are often unfairly conducted. The forensic interviewer may lead the child, use inappropriate techniques, or fail to explore alternatives about what really happened. A good criminal defense lawyer will hire an independent expert witness to critique the State’s forensic interviewer and to explain why the interview could have provided inaccurate results.
5. Expert testimony attacking the child’s credibility. The defense must be able to call into question the veracity of the child’s statements. In addition to pointing out inconsistent statements and having a defense expert critique the forensic interview, the defense’s expert should be able to inform the jury about whether the child statements are consistent with the average child of the same age. If the words and phrases used by the child are not typically used by children of the same age, the child may have been coached by an adult to say certain things. If the child should be able to provide contextual or sensory details but fails to do, or if the child uses improper contextual details, this may also be evidence the child is fabricating the allegations.
6. Expert testimony attacking DNA or medical evidence. In most child molestation cases, there is no medical evidence or DNA evidence linking the defendant to the alleged crime. When there is such evidence, however, it is critically important that the defense be able to respond and attack such evidence. It is important to understand that jurors tend to believe that DNA and medical evidence is unassailable. But this assumption is not true, and it the defense lawyer’s job to help the jury understand why the State’s DNA or medical evidence is either wrong or doesn’t lead to the conclusion that the defendant is guilty. In one case, for example, the State’s medical expert argued that marks on the child were from the defendant’s teeth. In fact, the marks were from a rubber band that the child’s friend had placed on the child.
7. Character witnesses. The State will often attempt to argue that the defendant is the type of person who would commit the act of child molestation. It is important fight this argument by presenting evidence from people in the community who know the defendant well. In doing so, the defense should present different types of witnesses, including family members, close friends, current and ex-significant others, and employers. The defense’s goal is to leave the jury with the feeling that the defendant can be trusted around children and would never harm a child. For instance, if the alleged victim is a young girl and the defendant is a father with daughters, the defense should consider calling the daughters and their childhood friends as witnesses.
8. Negative character witnesses.The defense should also use negative character witnesses who can attack the child’s character for truthfulness. In some cases, the child will have a reputation for lying or telling half-truths. If this is the case, it is critically important that the jury be made aware.
9. Prior false allegations.It is not uncommon to have cases where the alleged child victim has accused others of molestation only to have the allegation turn out to be false. A good defense lawyer will do everything he can to unearth these prior false allegations and present such evidence to a jury.
If you or someone you know is facing child molestation charges in Georgia, you should contact an experience criminal defense lawyer with the ability to properly defend against the charges. Our law firm has handled child molestation cases for 15 years and has won acquittals, dismissals, appeals, and obtained reduced charges. Give our firm a call today. The initial consultation is always free.
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