Interviewer: Sex crimes are pretty sensitive topics. Why do you choose to work with sex crime cases?
James Phillips: Mainly because of the challenge of them. Not all attorneys want to deal with them because they can be complex. Some of them involve a lot of scientific evidence and some involve sensitive materials or the alleged victim maybe a child.
I find them very challenging because in most sex cases, especially when you go to trial, the odds are somewhat against you just because of the society’s perspective on them. When it comes to sex crimes the notion of innocent until proven guilty just does not exist in society. The vast majority of society believes that anyone charged with sex crime is already guilty. I enjoy the challenge of somewhat being the “underdog”.
The Serious Sex-Related Crimes that Carry a Life Sentence or Minimum Mandatory Sentence
Interviewer: Let’s discuss different types of sex crimes, starting off with some of the serious cases and then maybe some of the minor ones or some of the more irregular ones. Can you tell us about some of them?
Sexual Battery Where the Victim Is under the Age of 12 years old and the Perpetrator is 18 years old or older Is a Capital Offense
James Phillips: The charge of sexual battery on a person 18 years or older on a person less than 12 years old a capital felony. Although this is considered a capital felony, a person convicted of sexual battery on a person under the age of 12 cannot be sentenced to death, but instead must be sentenced to life in prison. In Florida” life means life” and there is no possibility of parole. Sexual battery means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.
It is also a capital felony if a person 18 years of age or older attempts to commit sexual battery on a person under the age of 12 years old and while in the process of the act injures the sexual organ of the victim.
Sexual Battery on a Person 12 Years of Age or Older Involving Threat to Use Deadly Force; Uses a Deadly Weapon; or Uses Actual Physical Force Likely to Cause Serious Personal Injury
James Phillips: if during the course of committing sexual battery on a person 12 years of age or older without that person’s consent, the person uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury, commits a life felony. Anyone convicted of a life felony on or after July 1, 1995, is subject to a life sentence in the department of corrections.
Sexual battery is defined as oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object. When the term “serious personal injury” is used in connection with the charge of sexual battery it means great bodily harm or pain, permanent disability, or permanent disfigurement.
A Conviction for Lewd and Lascivious Molestation Where the Victim Is under the Age of 12 Carries a Minimum Mandatory 25-Year Prison Term
if a person 18 years of age or older intentionally touches the breasts, genitals, genital area, buttocks, or the clothing covering them in a lewd or lascivious manner of a person between the ages of 12 and 16 years old, or forces or entices a person between the ages of 12 and 16 years to touch the perpetrator commits the charge Lewd Or Lascivious Molestation which is a second degree felony. However, if the victim is less than 12 years of age, then the perpetrator commits a life felony, which is punishable by a term of imprisonment for life or a split sentence that is a term of not less than 25 years of imprisonment and does not exceed life imprisonment followed by probation or community control for the remainder of the persons natural life.
The terms “lewd” and “lascivious” mean the same thing. Both terms mean a wicked, lustful, unchaste, licentious, or sensual intent on the person doing the act. The perpetrator’s ignorance, the victim’s misrepresentation of his or her age, or the perpetrator’s bona fide belief of the victim’s age is not a defense to the charge of lewd or lascivious molestation.
The Age of Consent in Florida Is 18
Interviewer: What is the age of consent in Florida?
James Phillips: The age of consent in Florida is 18 years old. However, the age of consent is 16 years old if the other party is 23 years old or younger.
Interviewer: Does Florida have a “Romeo and Juliet” law and if so what is it?
The Romeo and Juliet Laws
James Phillips: Yes, Florida does have a “Romeo and Juliet” law. The law was enacted in 2007 to deal with this issue of school age kids being labeled a sex offender or sexual predator for having consensual sex with a minor. This law does not mean that what the offender was convicted of is not a crime, it just allows the offender from having to register as a sex offender or sexual predator. Section 943.04354, Florida Statutes provides the mechanism in which an eligible offender may petition a court to remove the registration requirement associated with being a sex offender or a sexual predator.
In order to be eligible to petition the court to remove the registration requirement, the following criteria must be met:
Interviewer: At what point does someone become a sex offender?
James Phillips: There are certain statutes where if a person is convicted, they are required to register either as a sex offender or a sexual predator. Most of the sex crimes, including charges like traveling to meet a minor or even showing obscene material to a minor does carry sex offender registration. It really just depends on the charge itself and if it falls up under the registration statute. Section 943.0435, Florida Statutes lays out what offenses require sex offender registration. Section 775.21, Florida Statutes, lays out what offenses require an offender to register as a sexual predator.
Sex Offenders Must Register Each Time They Change Address
Interviewer: In the process of registering, what do they have to actually do? Do they register anywhere that they move?
James Phillips: Correct. Anyone who is required to register as a sex offender or a sexual predator, must appear in person at the sheriff’s office in the county in which the offender establishes or maintains a permanent, temporary, or transient residents within 48 hours of establishing the permanent, temporary, or transient residents within the state. Once you notify the sheriff of your address change, the sheriff then notifies people in the community that you’re moving there. Not only that, anytime anyone has to register as a sex offender, their information is public record. Anyone can just go online and just type in sex offenders and you can pull up all the sex offenders living within a certain address.
Convicted Sex Offenders Also Have Special Labelling on Their Drivers’ Licenses
Not only do you have to go and register, but your driver’s license has a special notification to anyone that pulls over that you’re a sex offender.
Interviewer: As far as these laws, are there similar laws across the state or the country or is it region specific?
The State of Florida Has Two Classifications—Sex Offender and Sexual Predator
James Phillips: Each state is different. In Florida, they really have two types of classification, either a sex offender or a sexual predator. I know other states have different classifications of a sex offender, for example, someone may be sex offender level one and they have to do certain requirements. There may be a sex offender level two and they have different requirements. It does vary amongst the states.
Interviewer: What are some common misconceptions people have about sex offenders?
The Sex Offender Classification Encompasses a Broad Group of Offenses
James Phillips: Well everyone thinks if someone is a sex offender that they had to be a pedophile and that they molested a child, which is not the case. Someone can be designated as a sex offender because when they were 26 and they showed a 17 year old pornography. It could also be a situation where the offender was 24 years old and had sex with a 17-year-old girlfriend. However whenever anyone hears the term sex offender they just automatically think that the offense involved a child.
How Long Do Sex Offenders Have to Register in Their Communities?
Interviewer: How is the sex offender notification sent to community members?
James Phillips: Emails are sent out to people in the community or it’s posted or the sheriff’s office will go around and notify people. The actual person who is registered as a sex offender has no obligation to go tell anybody.
Allegations of Sex-Related Crimes Are Taken Very Seriously by Law Enforcement
Interviewer: It could be as simple as a college party and someone claims that there was non-consensual sex due to over-drinking, and that person or several people could end up being registered sex offenders for the vast majority of their life.
James Phillips: Absolutely. Listen the scariest thing about sex cases is all it takes is someone saying somebody did something to me. For example, if an 11-year old says, “That guy touched my private area,” that could be enough to establish probable cause which can lead to arrest and ultimately could be convicted.
Little or No Physical Evidence May Be Needed to begin an Investigation into a Sex-Related Crime
There are tons of sex cases where there is no physical evidence. It is, in essence, a he said she said scenario. It’s very scary.
Interviewer: Have you ever worked court cases where someone retracts their statements or there, something they have said or claimed well after that person has been convicted?
James Phillips: I have not personally had any cases where after someone was convicted, the accused came back and said, “Oh, it never happened.”
I have seen where people have made the allegations and during the course of the investigation or the case, it came out that they lied about it and charges were dropped. I have had that happen.
Interviewer: I want to go into other sex crimes like soliciting prostitution. What are some of the laws or some of the different regulations they have in Florida in regards to that? What are some of the things that you see? How do you handle cases like that?
James Phillips: Prostitution and soliciting a prostitute is not a sex crime. Now people think of it as sex crimes because it involves some kind of sex conduct, but it is not something that a person would have to register as a sex offender if they’re convicted of. In fact, soliciting a prostitute, solicitation, the charge itself is actually a misdemeanor charge. If someone is charged with prostitution and has been previously convicted of prostitution, that person could be charged with a felony. So the charge prostitution, in itself, the first time is just a misdemeanor. There’s no sex offender registration, those charges very seldom every carry jail time.
The Sale of Child Pornography and the Charge of Traveling to Meet a Minor Are Sex Offender Crimes
What you see a whole lot of lately is child pornography. These cases involve selling child pornography, as well as the charge of traveling to meet a minor that obviously everyone knows about from Catch a Predator.
You have those cases that do not involve any sexual touching, but the charge does carry sex offender registration and sex offender penalties.
Child pornography does require someone to register as a sex offender, but it’s not a crime that someone committed a sex act.
Interviewer: You’re talking about distribution, or someone owns it?
Distribution of Child Pornography Can Be Prosecuted on the Federal Level
James Phillips: I have handled cases involving istribution of child pornography at the federal level.
In federal court it is nine common for a person to be charged with distribution of child pornography if they used a file sharing program to obtain in trade images depicting child pornography. It is common for people to associate production of child pornography with a person who is charged with distribution. Distribution and production of child pornography are two separate charges. In most of the cases in which I have represented people charged with distribution of child pornography, there was no allegation of production.
The FBI Conducts Many Undercover Sting Operations to Locate and Arrest Child Pornography Distributors
Interviewer: How are people investigated for a child pornography distribution charge?
James Phillips: Usually law enforcement begin their investigation either by monitoring websites that are known for having child pornography or by using file sharing usernames that they have acquired from people they have previously arrested for similar charges.
Once the FBI Makes an Arrest, They Confiscate the Accused’s Computer and Access Other Individuals That Are Distributing Child Pornography
What they’ll do is they’ll go on and they’ll start investigating, and create a profile, make friends with someone who gets child pornography. They end up arresting that person, getting search warrants, and confiscate their computers. Then in the process they’ll have access to the accused’s screen name. This allows them to go on these sites as the accused and they’ll arrest all the friends that he was sharing pornography with and it just goes on and on.
Peer filing sharing is actually an easy way to get caught with child pornography.
The FBI Utilizes Online Sting Operations to Locate Other Sex Offenders as Well
Interviewer: Are the FBI utilizing those tactics with other crimes as well?
James Phillips: They use the internet all the time in these catch a predator cases. Online sting operations are used to pursue traveling to meet a minor and solicitation of minor charges.
They do it in a different way where they actually create their own personalities and they go out and pose as a 14 year old. They create a fictitious person and post it online on Craigslist or Back Page or other common sites where you can list personals. They’ll just go into a chat room and say, “Hey I’m 14 years old looking for fun.” And see who hits.
Law enforcement, especially here in Florida, have done a lot of sting operations over the last three years and have had success arresting people on these catch a predator and traveling to meet a minor cases.
Interviewer: When you see shows like To Catch a Predator, you always get one guy every now and then that says, “Hey I wasn’t going to do anything.”
These Cases Can Be Difficult to Defend
James Phillips: What’s going to happen when it goes to trial is the accused is going to have to say, “Oh I didn’t go over for that.” Then it’s going to be up to the jury to decide whether they believe them or not.
That is a hard defense to sell. I have gone to trial to defend traveling to meet minor cases and they are very difficult. This is especially so in situations where law enforcement is pretending to be a 14 year old.
I have seen and gone to trial on cases where law enforcement will pretend to be a 34 year old aunt with a 14 year old niece. What they do is they try and make contact with adults, wanting to have sex with adults, and then they bring in the whole issue well I have a 14 year old niece, I want to have sex.
Those cases are a little bit easier to try because there is an issue of did they come over to have sex with a 14 year old or come over to have sex with the adult. Those make it a little bit easier, but when it’s an undercover just saying, “Hey I’m 14, home alone, come over.” Those are difficult cases.
There Are a Number of Prostitution Solicitation Ads on Sites Such as Craigslist and Back Page
Interviewer: I’ve heard some talk about Craigslist and prostitution. Have you ever seen any of that happening in Florida?
James Phillips: Oh yes, quite a bit. Pretty much all the solicitation of prostitution charges and prostitution charges all come from Craigslist, Back Page, or other community sites. You very seldom see the solicitation of a prostitute case involving someone just walking down the street or an undercover officer just walking down the street arresting people; at least not in Florida.
Don’t get me wrong, I’ve had cases where that had happen, but most of them are done responding to ads online.
Interviewer: Just generally speaking when you’re working with a client, what are some of the things that can help their case? What are some things that you’re going to ask them to bring toe the table? What are going to ask them to do?
Polygraph Tests and Psycho-Sexual Evaluations
James Phillips: There are several things. If they’re denying that something happened, sometimes I will have my clients submit to a lie detector or a polygraph test. Polygraph tests are not admissible in court, but if it comes back positive it gives me ammunition to go to the prosecutor and say, “Listen, my client took a polygraph test, on his own, and it showed he was being honest that this didn’t happen.”
That’s a tool a use quite a lot. Another tool is, especially in child pornography cases, I have my client submit to a psycho-sexual evaluation to show that they’re not pedophiles. Then I take that to the prosecutor.
I had a case just last year where a gentleman was charged with possession of child pornography, denied that he knew it was there, and they only charged him with a couple accounts of it.
He had large amount of adult pornography and said, “It must have been accidentally downloaded. I’m not interested in that.” I had him submit to a psycho-sexual evaluation that showed he was not a pedophile and had no interest in children. The prosecutor took that into consideration and dismissed the case.
Character letters can be helpful. I sometimes get other people involved that say, “The defendant has been with my children and there’s nothing wrong, I trust him.”
Is a Claim of Entrapment a Defense Tool?
Interviewer: Can you build a case around someone who may have been entrapped? It seems that authorities are trying to bait people. Some of these people may not have ever in their life committed any acts or deeds like this, and it seems like they just fell victim to it. Do they have any defense?
James Phillips: There is a defensive entrapment and it’s something that’s been used in the traveling to meet a minor cases. That the only reason that they even did it is because they were entrapped in doing it, that law enforcement enticed them to make, to commit the crime.
That is a defense to the charge. But the problem with it is that in most cases, the defense of entrapment is an affirmative defense, and it’s something that jury would have to decide. Pretty much you’d go to trial and say, “Well the only reason I did it is because the government entrapped me.”
Then if the jury believes that you were entrapped then you could be found not guilty, but if they don’t that’s their problem. Entrapment doesn’t usually cause a case to be dismissed. It just is a defense to be used at trial. However, there are situations in which the defensive entrapment can be used pretrial and may warrant the dismissal of the case. This usually involves some egregious conduct by law enforcement.
College-Age Individuals May be Involved in the Traveling to Meet a Minor Cases
Interviewer: Tell me about some of the situation with college university students. What common sex crime do you see happening on their end?
James Phillips: At the college level, I see a lot of traveling to meet minor cases. This is where they’re 22 or 23 going to meet an 11-year old or a 13-year old. I have also seen the typical rape charge, a girl is at a party and gets too drunk and someone take advantage of her. You also see the typical statutory rape case, where the college student’s girlfriend is a minor.
The solicitation for a prostitute, even though it’s not a sex crime it’s sexually oriented, I see those. I’d say the vast majority of the college ones are people in college going to meet underage girls.
On occasion I have had a couple college kids with child pornography charges.
Interviewer: Well it seems a sex crime case is pretty much an uphill battle. Now if a client reveals that he or she feels that they are guilty, should they plead guilty, should they try to make a plea bargain or not?
James Phillips: Whether or not a person is guilty of a crime is not so significant. It’s whether or not the state can prove the charge beyond reasonable doubt. Yes, sometimes people elect to enter a plea because it is in their best interest. It’s something that’s going to be based on a case-by-case basis and only after a thorough investigation from the defense can you decide whether it’s a plea option or not.
Capital Sexual Battery and Lewd and Lascivious Molestation both Carry Mandatory Sentences
Then there are some charges that one can never really plea to or there is no real benefit in accepting a plea offer. Again, the capital sexual battery, carries a mandatory life sentence if you’re found guilty of it. Unless the prosecutor is going to give an offer below life, then there is not really any incentive to enter a plea.
Also on charges like lewd and lascivious molestation that carry a 25-year minimum mandatory trying to negotiate a plea isn’t worthwhile. That is unless the prosecutors willing to offer a plea under the minimum mandatory, but again each case is different and ultimately it is up to the client.
Interviewer: If someone is under investigation for a sex crime, could they move to another state if they had a job offer?
James Phillips: If a person has been arrested they may or may not be able to relocate pending the outcome of the case. It really depends on the conditions of the bond, fax of the case, the judge, and other relative factors on whether or not an individual be able to relocate.
Interviewer: What about sex offenders, once they’re registered sex offender, are they able to leave the country?
James Phillips: They are allowed to move to other states, but they have to comply with the sex registration of that state.
Are There Restrictions on Where Sex Offenders Can Reside?
Interviewer: I heard about communities and neighborhoods that permit sex offenders to live there. Is that another one of those TV concepts or is that a reality?
James Phillips: Many times you will have sex offenders living in the same vicinity. The reason why is because they’re limited on where they can live. They can’t live next to a church or a school or a park.
In some towns it is difficult for a sex offender sexual predator to find a residence because there is a school or a park or a church almost on every other corner, especially with daycares and preschool popping up everywhere in Florida. What you’ll find is if there’s a spot that falls within what’s allowed you’ll end up seeing sex offenders almost grouped together. This is not necessarily intentional but just because that’s where they’re allowed to live. They are restricted on how close they can live to certain buildings.
Interviewer: What if I have been charged and I’m going to have to research a lawyer? What are some of the things that I should be looking for in a lawyer that’s going to defend me for a sex crime? At the same time, what are some red flags I should look out for?
Experience Is an Important Factor
James Phillips: Well the first they should look at the attorney’s experience. Are they a former prosecutor? Are they a former public defender? Are they a trial attorney? Do they actually go to trial?
One aspect about Google is it allows past clients to go on and leave reviews. So prospective clients can look at the reviews and see what other people are saying about the lawyer. The Internet is a great tool and you can find you anything about everybody. There’s other websites such as Avvo which discuss a lawyer’s ratings, how is he viewed by his peers and by clients. Look at their credentials.
Meeting in Person with the Attorney
The second thing is you need to interview them. Sit down with them, talk to them, ask them what cases have they handled. What percentages of their cases involve sex cases? How often have they gone to trial? Have they been successful at trials? Have they ever handled a case similar the facts of your case? Those are the things that you want to look for, because not all criminal defense attorneys handle sex cases.
How Many Sex-Related Cases Has the Attorney Handled?
As far as red flags, if an attorney says, “Oh, I’ve never lost a sex case.” Or “I’ve handled thousands of them.” You got to be wary about how many the attorney has actually handled. Sex cases are out there a lot, but not everyone has the money to hire a private attorney.
The attorneys that handle sex cases usually charge a descent amount because of the complexity of the case, the nature of the case, and the time that it’s going to take. This is unlike DUIs and petty thefts, where an attorney can easily handle a hundred DUIs in one year. If an attorney said he handled a hundred sex cases in one year and he wasn’t a prosecutor, I would see that as a red flag.
Just like when you asked me earlier, how many have I done? I said maybe somewhere between 30 and 50. That doesn’t sound like that much, because if you ask me how many DUIs I’ve handle I’d tell you I’ve handled thousands. It’s just because the nature of the charge.
How Long May It Take to Resolve a Sex-Related Case?
Interviewer: As far as the case, how long could a case potentially last?
James Phillips: It varies on a case-by-case basis. However, it is not uncommon for these types of cases to take a year or longer to resolve
Interviewer: During that time, how public is their case going to be? If they need to make ends meet, and if they’re working, is their job going to find out?
James Phillips: Any arrest of a crime in Florida is public record. They may lose their job over that. People may find out, it just depends.
It Is Possible to Lose Your Job While the Case Is Pending; Many Registered Sex Offenders become Self-Employed
I’ve represented people who had not been arrested but were under investigation and the world didn’t know about. Then obviously when they get arrested, everyone knows and they lose their job at that time.
In some situations, when someone is charged with a capital sexual battery, they may be in jail the whole time. They may not get a bond.
Interviewer: For someone that’s seeking employment and they’re a registered sex offender. Are they going to really have a hard time in this day and age finding a good job?
James Phillips: Absolutely. Most people who have to register as sex offenders end up doing something that allows them to be self-employed. Not many companies are going to hire a registered sex offender. This relates back to what we talked about earlier. The first thing they think of is he’s a pedophile.
Interviewer: What registration process, what if someone fails to register or they’re late?
James Phillips: If someone fails to register they can be arrested, it is actually a felony not to register. Law enforcement takes failing to register very seriously.
Sex-Related Offenses Often Require the Attorneys to Examine Scientific Evidence—Does Your Attorney Have the Necessary Background and Education?
Interviewer: Why should someone choose you as a lawyer to represent them for a sex crime?
James Phillips: One reason why someone should consider hiring my law firm to handle their sex cases is we have a team of lawyers who have handled sex cases.
We’ve gone to trial on these and we routinely represent people who have these charges pending against them. One thing I bring that’s an advantage is I actually have a science background. If there is DNA or scientific evidence, I have a unique background because most lawyers don’t have science background. I actually have a Bachelors of Science in Biology and a Bachelors of Science in Psychology. That’s one factor that helps me.
Does Your Attorney have the Resources Needed to Build a Defense for Sex-Related Charges?
Also, it’s just something that I have experience handling because I’ve done them. My firm goes to trial, not just on sex cases but other criminal cases. I’m comfortable in the courtroom and my firm has the manpower to spend the time that’s needed for handling these complicated, delicate cases.
Also one thing about our law firm is someone who’s charged with one of these, they’re not going to have just one attorney they will actually have a whole team of attorneys working on their case. If it goes to trial they’ll have me, one of the partners, and another attorney trying the case together. They actually get the benefit of multiple attorneys.
What Should You Do If You Are Informed You Are Under Investigation for a Sex-Related Crime?
Interviewer: How does someone know that they’re being investigated?
James Phillips: Usually law enforcement contacts them.
Interviewer: What are they going to ask them? Should they answer their questions or should they contact a lawyer first?
Always Ask to Speak with Your Attorney before Providing Any Statements to Law Enforcement
James Phillips: If anyone is ever contacted by law enforcement or any government agency, the first thing you need to tell them is, “I need to speak to an attorney before I speak with you.”