In Arizona, and especially in the Phoenix metropolitan area, law enforcement agencies are investing a lot of resources in the investigation and prosecution of sex crimes. For example, several police departments and sheriff’s offices in the area have formed the Arizona Internet Crimes Against Children (“ICAC”) task force: http://azicac.org. This task force focuses specifically on sex crimes committed over the internet.
While the protection of our communities and our children is extremely important, the increased investigation and prosecution of these types of crimes means that many more individuals than ever before are finding their lives (both online and in the real world) under the watchful eyes of law enforcement. This results in many individuals being treated as and grouped with sex offenders when such a classification is unwarranted based on the individuals alleged behavior or history. In an environment of over prosecution, an aggressive sex crimes defense attorney is necessary when many more behaviors will result in prosecution than ever before.
Online messaging and luring a minor for sexual exploitation
Law enforcement agencies are now using sophisticated investigative techniques to target individuals suspected of soliciting sexual acts with minors over the internet. Unfortunately, many of their tactics end up targeting individuals who never intended to communicate with a minor and significantly impinge on an individual’s online privacy.
A.R.S. § 13-3554 defines luring a minor for sexual exploitation as “offering or soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor”. It is punishable as a class three felony, but can become a class two felony under A.R.S. § 13-3560 (aggravated luring a minor for sexual exploitation) if there is an allegation that the individual uses an electronic device to transmit images or video that is harmful to minors (e.g., revealing pictures or video).
Individuals often find themselves charged with aggravated luring or luring a minor for sexual exploitation after online messaging or texting. Law enforcement agencies often have a detective impersonate a minor on internet dating websites or chat rooms, and this undercover detective will try to lure individuals into sexually charged conversations. To identify the individual messaging with them, the undercover detective will obtain a warrant or court order for subscriber information and internet protocol address (known as an “IP address”) data. While these methods are effective, the problem is that individuals who never intended to communicate with a minor are often targeted and an individual’s privacy rights can be infringed.
When facing prosecution for luring a minor for sexual exploitation or aggravated sexual exploitation of a minor, a person accused of these crimes may have defenses related to whether or not they knew or had reason to know the other party was a minor, whether or not sexual conduct was in fact solicited, or whether they were entrapped (known as the affirmative defense of entrapment) to engage in the conduct. If police obtained IP address data or other “private” information, the accused individual’s right to be free from unreasonable searches or seizures under the Fourth Amendment may have been violated. If so, much or all of the government’s evidence against them may be suppressed or otherwise unusable.
Possession of child pornography and sexual exploitation of a minor
Possessing child pornography is a serious crime and is actually called sexual exploitation of a minor by Arizona’s criminal code. For example, if the child depicted in the image is under fifteen years of age, the minimum sentence for this offense is ten years in prison all the way up to twenty-four years in prison.
There’s a saying in the law that “possession is nine-tenths of the law” (https://en.wikipedia.org/wiki/Possession_is_nine-tenths_of_the_law), and whether someone “knowingly possesses” an image of child pornography is likewise often thecentral issue or defense in sexual exploitation of a minor cases. There may be several defenses or mitigating facts related to this concept which the attorneys at Lane, Hupp, & Crowley, PLC may be able to exert on an individual’s behalf.
For example, even if an image depicting child pornography is located on a phone or computer possessed by the individual, a forensic analysis of the phone or computer may be able to establish that the image was never knowingly downloaded or accessed. Or the image may be located on an area of a hard drive or memory storage which is inaccessible to the user. Finally, in an age where individuals often allow others to share their phone, online account, or computer, the State may not be able to prove that a specific individual (the one accused of the crime) knowingly downloaded, viewed, or possessed the image in question.
Other sex crimes (sexual assault, sexual conduct with a minor, indecent exposure, and public sexual indecency).
Many other sex crimes do not typically involve on-line behavior or use of the internet, but the use of sophisticated surveillance techniques by law enforcement still means that an experienced and aggressive criminal defense attorney is necessary. Sexual assault, sexual conduct with a minor, indecent exposure, and public sexual indecency can all involve real life victims, and many criminal defense attorneys lack the experience to cross-examine sex crimes victims or are uncomfortable doing so.
The attorneys at Lane, Hupp, & Crowley, PLC handle all types of sex crimes allegations, including sexual assault, sexual conduct with a minor, indecent exposure, and public sexual indecency, and are prepared to thoroughly investigate and defend against these types of allegations.
Sex offender registration
Sex offender registration is a regulatory requirement that is imposed after a conviction for certain sexual based offenses. Among other things, being listed on the sex offender registry can prohibit an offender from living near schools or parks, require neighbors to be notified by flyer of an offender living in the area, and require the offender to notify the sheriff’s office of a change of residence within a certain period of time. These are in addition to the social stigma, devastating employment consequences, and other negative consequences of having one’s name on a publicly searchable list of sex offenders. And, unfortunately, for the vast majority of offenders, the Arizona legislature and the Courts consider sex offender registration a lifetime requirement that cannot be terminated. This is why you need a skilled, experienced, and aggressive criminal defense attorney if you are facing prosecution for a sex crime.
In Arizona, sex offender registration is governed by A.R.S. § 13-3821. For certain crimes (e.g., sexual assault, molestation of a child, sexual conduct with a minor, child prostitution, luring a minor for sexual exploitation, and sexual exploitation of a minor which is possession of child pornography) sex offender registration is a requirement after a conviction. There are also some crimes for which sex offender registration is a requirement for if the individual has multiple prior convictions for the same offense (e.g., indecent exposure or public sexual indecency).
Finally, though the Arizona legislature has required sentencing judges to impose sex offender registration for the offenses described above, it has given judges the authority to impose sex offender registration in any case where there is a conviction for a sex crime. Meaning, sex offender registration is a possibility, but not a requirement of a conviction for all sex crimes. The question is then, what is a sex crime? The Arizona legislature has defined a “sex crime” as “any violation of chapter 14 or 35.1 [of title 13] or for an offense for which there was a finding of sexual motivation pursuant to section 13-118.” You need an experienced sex offense attorney to know whether you are facing the requirement of sex offender registration.
This complex scheme gives a skilled sex crimes attorney the ability to argue against or help their client avoid the imposition of sex offender registration by a sentencing judge. In several cases, the attorneys at Lane, Hupp, & Crowley, PLC have been able to present legal arguments to judges that sex offender registration is not authorized by law, or is not appropriate based on the facts of the case. The skilled sex crimes attorneys at Lane, Hupp, & Crowley, PLC have also been able to negotiate plea agreements with prosecuting attorney which allow their clients to avoid sex offender registration.