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For a Sexual Assault Charge does "Sexual Intent" need to be proven?

New York, NY |

I have been told a very strange thing by the lawyer assigned to represent my children. My 5 year old son was attacked by a special needs child of a friend of my ex-wifes. By technical specifications this was 3rd degree sexual assault. The lawyer for my children who should be protecting their interests has said that one needs to prove "sexual intent" on the part of the perpetrator. If the act that was committed was sexual in nature, but the special needs 8 year old child does not understand what he was doing, how could there be an onus on the victim to prove "Sexual Intent" .

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Attorney answers 5

Posted

"Crimes" are not strict liability events. This means the defendant doesn't get railroaded simply because a bad act took place. In our "crime" world, traditionally, there also had to be proven beyond a reasonable doubt the mental intent to commit the crime.

Your lawyer is telling you the child did not or could not form the mental intent to commit the crime. So no crime took place. Indeed not every indescency is a crime.

Good luck.

Asker

Posted

But a plea of "Diminished Capacity" acknowledges that the perpetrator committed the act, and therefore the act took place. This focus on the mind state of the perpetrator seems irrelevant.

Peter Christopher Lomtevas

Peter Christopher Lomtevas

Posted

Nope. That's not how it works."Diminished capacity is not a plea; it is a defense to the mental intent to commit the crime. Also, if you look at the statute ( § 130.55 Sexual Abuse in the Third Degree) the ages of the participants is also key to a failure of proof of the allegation. I fully comprehend your utter shock and dismay that you child was subjected to a 130.55 "sexual contact". That is horrible. However, the criminal code incorporates the knowledge that children will be children and they don't get arrested and thrown in front of a family court judge to be remanded into a facility. We're not at that stage yet although I note that 25% of the world's prison population is found within the U.S. That's an embarrassment. That shows a super-power in a state of paranoia, fear and vulnerability. Stay away from the 8 year old.

Asker

Posted

But wouldn't the vicarious liability of the 'adults' who were supervising these children be established by negligence? Especially in that the 8 year old perpetrator was known to have psychological issues.

Peter Christopher Lomtevas

Peter Christopher Lomtevas

Posted

Then you don't have a crime; you have a civil action. Civil actions cost a mint and require years of litigation, all to prove that a parent was negligent in supervising his kid who pinch the crotch of a younger kid. In actuality, I do not know what the 8 year old did to your 5 year old. The terms in the statute or unconstitutionally vague - "abuse", "sexual contact". Nevertheless, you are furious and I am certain you want to vent your anger. I would suggest that an ounce of prevention is worth an attorney retainer.

Asker

Posted

The 8 year old pulled the pants down of the 5 year old and attempted to put some sort of toy into him, The 5 year old reported that "It Hurt" and he said it hurt worse because 'everyone' meaning the adults present "laughed at me". I am not furious as much as wanting to establish conditions that protect my child. This 8 year old has a history of 'bizarre sexual behavior' My 8 year old reports that she does not like him around because he "puts toys down his own pants". I just want to ensure that i am not reporting a more serious issue in the near future.

Peter Christopher Lomtevas

Peter Christopher Lomtevas

Posted

Keep your child away from the eight year old. The legal system is not the tool you need to fix that problem.

Asker

Posted

That legal system has given a mother who never took care of these children custody, and permission to have "Sleepover guests" in an apartment with 2 beds, such guests that include the problem child.

Peter Christopher Lomtevas

Peter Christopher Lomtevas

Posted

Are we still on this? Let me explain it another way. We have a one-size-fits-all legal apparatus. I am not insulting the apparatus. Life is bigger than the law and no 'code' or 'act' can anticipate all the variables possible in modern living. This means mom gets the kiddies. Dads are disgruntled. Moms are good for kids. Dads are bad for kids. These are the limits of understanding when five year olds are involved in custody litigation. This all means that your allegations are not going to sustain a finding of a change in circumstances if you make a try for custody. Your argument is very sophisticated. You tie together a CAPTA allegation and phrase it in a catchy way. Catchy phrases are an important component in family litigation. However, what you allege is not enough to flip the child over to you. You are stuck in a stability rut. The court and its employees/assignees will not disturb the stability of the child in your case. It appears you have impaled upon a court, a law guardian and various attorneys who have concluded that your case requires no changes despite the allegations of pants pulling. This does not mean a different court with a different set of employees/assignees will find make the exact same determination. One judge will flip for the asking while another will maintain custody with one parent. Are we done with this? You have insufficient allegations. The court wants to maintain stability. That's it.

Asker

Posted

You should well know that any parent regardless of gender will do whatever is possible within the boundaries of the law ( and some will exceed those boundaries) in order to protect their child and provide that child with the best life possible. Now regardless of gender bias that the court system of New York State has, it is not proper to put the child into the custody of a parent that has shown a history ( be it vicarious liability ) of endangering that child. This incident has so far been the peak of bad judgement, and I intend that it is the end that such bad judgement. Had the custodial parent not been previously warned about this child, this in court documents, i would consider your point the final one. As it is, I must press on to ensure the court acts in the Best Interest of the Children as per their mandate.

Peter Christopher Lomtevas

Peter Christopher Lomtevas

Posted

We all take credit cards.

Posted

Yes they must approve intent to commit sexual assault. The scenario does not sound like a crime at all, because it is doubtful that a child at that age could form intent.

Asker

Posted

But wouldn't the vicarious liability of the 'adults' who were supervising these children be established by negligence? Especially in that the 8 year old perpetrator was known to have psychological issues.

Posted

Intent is necessary. Sex crimes are not strict liablity.

Asker

Posted

So at the end of the day anybody with diminished capacity can walk on a sexual assault charge? This seems very odd to care about motive more than the act that was committed.

Marco Caviglia

Marco Caviglia

Posted

Statutory rape in NY is a strict liability crime and is a sex crime.

Posted

I agree with my Avvo colleagues. You should talk and discuss the issues in this case with your attorney. Understanding how the law applies to a specific situation is seldom easy. Communicating how the law works us one of the tasks of lawyers. Some of us pride ourselves the explanation to our clients.

Of course, every answer is based on the question asked and requires a complete context. This answer should NOT be relied upon to make any legal decisions. Seek the advice of an experienced criminal defense attorney in YOUR JURISDICTION -BEFORE you do or say anything. Law Offices of Raymond G. Wigell, Ltd. Admitted in Illinois and Federal District Courts in Illinois(Northern, Central and Southern Districts) and Indiana(Northern District), Defenders of the Constitution since 1975; Aggressive Creative Defense Strategies. Website: www.waaltd.com Email: rwigell@waaltd.com Available - 24/7 Office (708)481-4800 Cell. (708)218-0923

Posted

Almost all crimes need specific intent to commit the criminal act, not just the physical act. I bump into you accidentally, you fall and break your wrist, there is no criminal intent. If I purposely bump into you or push you, and you fall and break your wrist, it is a crime, because of my specific intent to harm you. Typically, a child under 6 years of age is by law considered incapable of forming criminal intent (it varies with jurisdiction). An 8 year old, depending upon what "special needs" means in terms of his mental abilities, may similarly be unable to form criminal intent. Many laypeople confuse the physical act with the criminal act. One is part of the other, but not the other way around.

If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.