Aggravated Child Molestation

Aggravated child molestation in Georgia is an extremely serious charge. It carries a sentence of aminimum of 25 years in jail without the possibility of parole. Additionally, if a defendant decides to go to trial and loses, he runs the risk of receiving a significantly higher sentence from the Judge. Possibly Life! Historically, Courts tend to punish the Defendant for rejecting plea offers that were made to the Defendant before trial and for ultimately forcing the child to testify at trial. Watching a child testify on the stand is a grueling ordeal to observe by all parties including the defendant, so you have to be tactful. Thus, the best practice from a defense standpoint is not to lose and this is where I come in, so let's talk.

First, let's understand the elements of the charge of aggravated child molestation. According to Georgia Law, O.C.G.A. 16-6-4 (2010), in order to prove aggravated child molestation in Georgia, the State must first prove that a person committed an offense of child molestation and that act physically injured the child or involved an act of sodomy. This is not an easy charge to prove. The State needs a considerable amount of evidence to prove its case. Of that evidence needed, the statements of a fairly consistent victim (child) can be used at trial. Why do I say fairly consistent? The reason is that just because a child has made some inconsistent statements does not mean that the child is lying. People expect that children don't remember all the fine details when trying to recall traumatic events of the past or in the distant past for that matter. This is where the child hearsay statute comes into play, which allows statements that the child made to anyone to come directly into a trial. These type of statements would normally not be allowed in a regular trial and would be inadmissible as hearsay. However, in a child molestation trial, it comes in.

Child Hearsay statements are usually made by the child to outcry witnesses such as parents, teachers, church members, police officers, forensic investigators, even strangers online and video! Outcry statements help the State. They do not help the defense, unless there are numerous inconsistent statements. Additionally, there are defense strategies to keep witnesses and statements from coming into a trial and in some instances can result in a mistrial or a new trial. For example, improper bolstering. See the case of Strickland v. State, 311 Ga.App. 400, 403(a), 715 S.E.2d 798 (2011), ("It is well established that credibility of a witness is a matter for the jury, and a witness's credibility may not be bolstered by the opinion of another witness, as to whether the witness is telling the truth."). So what exactly does this mean? It means that if the child takes the stand and gives his or her testimony, then no other witness, at that trial, can get on the stand and testify that they believe the child's previous testimony, at that trial, is believable and true. This is improper bolstering, which, depending on different defense strategies can either keep witnesses out, or be grounds for a mistrial or a new trial. Call The Law Office of Timothy McCalep for legal assistance with aggragated child molestation cases.

Recanting victim - a recanting victim is a child who made the outcry and then later changes their mind and later says that they made the allegations up. Basically, the child is saying that she lied and her outcries were all a lie. This happens quite a bit and although this type of witness is better for the defense, it does not mean an automatic dismissal or win at trial. The reason being, the State is always reluctant to drop the case of a recanting victim, because the State typically believes that the reason for the recantation is that the child is being coerced by a family member. In cases like these, it can be the father, mother or any authoritative figure to the child, who wants the child to change his or her statements for any significant reason. The most common reason to coerce a child to recant his or her statements is so the family can stay together as a unit. However, the State has a duty to prosecute the case if they believe the child was telling the truth in their original outcry. Regardless, the recanting victim is good for the defense. They are not good for the State. Pre-trial negotiations, motions and arguments with an experienced attorney, such as myself can lead to a dismissal with a recanting victim.

DNA - The State does not always have to have DNA, but it is definitely beneficial to their case if they have some amount of DNA. Usually DNA will come into play when there is an immediate outcry and rape kits are performed within 72 hours of the alleged incident. Conversely, when a child makes an outcry 3 or 4 years after the alleged incident(s), there usually isn't any DNA at all and if there is DNA, a strong legal team like the Law Office of Timothy McCalep should be effective in refuting its collection. This is based on the probability of the evidence having the likelihood of being taken from anywhere over the last few years, due to the delayed disclosure by the victim.

Hypothetically speaking, let's assume that the State does have DNA. In this case it is important to know that there is more than just DNA extracted from semen. The DNA from saliva can also be collected from the mouth, genital and even undergarments. Given this scenario, a defendant will have a very tough time explaining how his saliva got on a complaining victim's panties. However, it can also be tough to prove that there is an exact match for saliva DNA. With the right experts and legal team, an effective argument and presentation can be made, that the DNA saliva does not match just the defendant in this case, but it also matches all other male relatives of the defendant dead or alive. This opens the door for reasonable doubt, which is all the Defendant needs for an acquittal at trial. This is one type of defense that can be made. Call Timothy McCalep for a free consultation on defense arguments, and strategies in an aggravated child molestation case.

Witnesses- Generally, cases where there is an allegation of aggravated child molestation, there are no eyewitnesses' other than the alleged victim and defendant. This could be perceived as favorable for the Defense, because it's just one person's word versus another person's word. And juries are reluctant to convict based upon just the statements of a child without some corrobating evidence. Wrong. I don't agree that this is totatlly favorable for the defense because, based on my experience, people in general want to believe that there is no way a child would lie about an alleged event/incident. It is hard for most jurors to believe that the child has the capacity to know about the alledged adult-like acts, unless it actually did occur. Additionally, in most cases a child will break down and start crying on the stand which causes everyone in the courtroom to empathize with the child and ultimately negatively impacts the defendant. Likely, the jurors are left with feelings of disgust or distain towards the defense. Thus, I would say it's more like 60-40 in favor of the child, in cases where it is the child's word, against the word of the defendant. In sum, this is why it is important for the defendant to hire competent representation in order to strategize on the best presentation for the defense. In my opinion, the proper presentation can result in evening the playing field back to 50/50 in a case involving the child's word versus the defendant's word. This can lead to reasonable doubt and ultimately success for the defense team. By choosing the Law Office of Timothy McCalep, you can be confident that I will fight to get you the best possible outcome.

The Forensic Interview: When a child makes an outcry, and a proper investigation is done, the child will do a forensic interview with a professional who has been trained to talk with kids and get the truth out of them. Most important to know about this interview is that it's being recorded via video and audio and it will be admissible at trial. What happens in this video? Well essentially the interviewer gains the child's trust by talking about all the things the child likes to do and talk about. The interviewer won't bring up the incidents in question initially. The first part of the interview begins with the 2 of them sitting at a small table in a small room. It starts with introductions and crayons and books or whatever is most desired and appropriate for the child's age. A trained interviewer will know just want to bring, to garner the child's attention and ask the right questions, based upon her experience with children. The total interview can be 30 minutes to an hour long. At some point and time, during the interview, the interviewer will bring up comments (the outcry) that the child made. This is when jurors get on the edge of their seats. The perception is that if the child were making things up, then this is the moment that the lies will be detected. Conversely, it is also a moment when jurors and viewers believe they can determine the truthfulness of the child's outcry statements.

Regardless, there are specific strategies that the defense can employ by allowing this interview to come into a trial. As mentioned above, the first is improper bolstering. If the child testifies at trial, and they allow the forensic interview video is played at trial and the forensic interviewer testifies live at trial, the defense can make a great case for improper bolstering under the new rules of evidence.

Additionally, there are a multitude of arguments and strategies to employ to discredit the interview itself including:

  1. the experience of the interviewer;
  2. the manner in which questions were asked by the interviewer
  3. who talked to the child before the interview and possibly coached the child on what to say in the interview.
  4. did the guardian (mother/father) talk to the interviewer before the interview

Motives to lie: A child can have any and all motive to lie and it may not be perceptible to anyone. Things that may seem trivial to you and I, to a child, can be perceived as life and death type situation. For example: refusing to let her go to the mall, go out on dates, not buy candy, etc. can be motive to a child for revenge. Unfortunately, children who do make up stories do not understand the ramifications that their comments can have on an individual's life.

A wrongfully charged defendant needs all the help that he or she can get. It starts with getting the defendant a bond after they have been arrested. Judges in greater metropolitan Atlanta are reluctant to give bonds right away in cases of violence, child abuse and molestation cases. The reason is because judges are fearful that if the allegations are true, then there is a strong possibility that the defendant may commit the same offense again or flee from court proceedings. For this reason, defendants are routinely denied bond at their first appearance before a magistrate judge which will occur with 72 hours of the initial arrest. However, all is not lost after the first denial. The Law Office of Timothy McCalep has a great deal of experience in getting bonds for defendants no matter the charge.

The factors that go into whether a defendant should be granted a bond or not, do not involve the case itself. Although the judge may want to know some background information about the allegations in the case, the only factors that should go into the granting of a bond are the 4 Ayala Factors which are:

  1. Whether the Defendant is a flight risk (are they going to come back to court)
  2. Whether the Defendant is likely to commit a felony while out on bond.
  3. Whether the Defendant is likely to commit a violent offense while out on bond.
  4. Whether the Defendant is likely to intimidate witnesses.

When it comes to obtaining a bond in child molestation cases and getting clients out of jail in Atlanta, there is no firm better or more qualified than the Law Office of Timothy McCalep. Not only do we have a 98% success rate in getting a bond, in some scenarios we are able to get signature bonds for our clients. This means that the client will not have to pay any money to get out of jail and can essentially walk out of jail for free.

The Law Office of Timothy McCalep has a proven track record of helping families with child molestation cases, understand everything that they are facing. We take cases from the beginning to the end and we have a history of getting cases dismissed with careful case study, pre-trial motions, negotiations, strategy and trial. The following is helpful information and case law that I have collected and used in aggravated child molestation cases. If you have any questions about anything, don't hesitate to call me.

An act of child molestation does not have to involve skin-to-skin contact or under- the-clothes contact. It can be done while in the same room and without touching each other.

Walsh v. State, 236 Ga. App. 558 (1999) (over-the-clothes touching).

The Child Molestation statutes were enacted to protect children from psychological damage just as well as physical damage. The 25 year jail sentence is obviously meant to deter the behavior but also to keep those who are found guilty of this type of crime in jail for an extremely long period of time.

Bowman v. State, 227 Ga. App. 598, 599 (1997).

An act of child molestation, does not necessarily require physical contact between the perpetrator and the child. A defendant can merely lift a child's bed sheets and stare at her buttocks and this will be child molestation

Cavender v. State, 329 Ga. App. 845 (2014); Bentley v. State, 179 Ga. App. 287 (1986)(lewd exposure is "in the presence of"); Odom v. State, 267 Ga. App. 701 (2004)(sex acts in a child's presence).

An act of child molestation cannot be committed over the telephone, a child must be physically present.

Vines v. State, 269 Ga. 438 (1998); but see OCGA 16-12- 100.3 16-12-100.3 (obscene telephone calls to a child not cm).

A defendant's misunderstanding that the child was16 is not a defense that we can use in a child molestation case.

Disabato v. State, 303 Ga. App. 68, 70(1) (2010); Haywood v. State, 283 Ga. App. 568 (2007); Veasey v. State, 234 Ga. App. 795, 795-796 (1998).

Any person who aids or abets another in commission of CM may be accused of a party to a crime.

OCGA 16-2-20 (or otherwise advises, encourages, hires, counsels, or procures another to commit the crime); Newman v. State, 286 Ga. App. 353 (2007) (mother directed child to put "medicine" on perpetrator's penis); Spivey v. State, 224 Ga. App. 227 (2005) (mother carried child to bed she shared with perpetrator).

There is no requirement that the testimony of the child victim be corroborated.

The victim's testimony alone is sufficient to sustain a conviction.

Chastain v. State, 236 Ga. App. 542 (1) (1999); Putnam v. State, 231 Ga. App. 190 (1998); OCGA §24-14-8 (the testimony of a single witness is generally sufficient to establish a fact).

Juries can be reluctant to convict based when it is just the child's word versus the defendant's word.

The State will always be seeking to obtain corroborating evidence.

Consent is not a defense. Any sexual act with any person 15 years or younger will be an act of child molestation.

Haynes v. State, 302 Ga. App. 296, 302(3), fn. 4 (2010); Ellison v. State, 296 Ga. App. 752, 758 (2009); Driggers v. State, 291 Ga. App. 841 (2008)(rejected defense that a 15-year-old victim had been "flirting with the defendant and that the sexual acts were consensual").

A child's testimony that the act of molestation "hurt" may be sufficient to prove physical injury, and the charge of aggravated child molestation.

Mangham v. State, 291 Ga. App. 696 (2008); Waters v. State, 288 Ga. App. 260 (2007); Grooms v. State, 261 Ga. App. 549, 550(1)(2003)(no medical testimony required).

The credibility of a witness, including a child witness, is a matter to be determined by the jury.

OCGA 24-6-620; Fiek v. State, 266 Ga. App. 523(1) (2004).

No witness, including an expert witness, may give his or her opinion as to the truthfulness of the child's testimony.

Bowman v. State, 232 Ga. App. 766(3) (2015) (whether child is telling the truth is "the ultimate issue of fact" - a matter that is not beyond the ken of the average juror); Patterson v. State, 278 Ga. App. 168 (2006).

An expert may, however, express the opinion that medical evidence or other objective evidence is "consistent with" the victim's account of the abuse Reinhard v. State, 331 Ga. App. 235(2) (2015) (rejecting the defendant's "bolstering" claims); Canty v. State, 318 Ga. App. 13(1) (2012); Howell v. State, 278 Ga. App. 634(8)(2006).

An expert's testimony may be helpful in convincing the jury that a child's allegations of abuse are true even when a child has a delayed outcry or delayed recantation.

Robinson v. State, 275 Ga. App. 537(2) (2005)(delayed disclosure); Dameron v. State, 267 Ga. App. 671 (2004)(recantation).

Georgia's Child Hearsay Statute A child's hearsay statement to another person regarding an act of physical or sexual abuse will be admissible if:

1. The child was <16 years of age when the hearsay statement was made to such person

  1. The State provides pre-trial notice to the defendant, that it intends to offer such hearsay statements at trial
  2. The State calls the person to whom the child made such hearsay statements in its case-in-chief

□To permit the deft. to cross-examine such person about such statements

□The State calls the child as a witness in its case-in-chief

□To permit the deft. to exercise his constitutional right to confront his accuser - the child

Evidence of an accused's commission of another offense of child molestation shall be admissible because "propensity" to commit sex acts with children is relevant!

OCGA 24-4-414; U.S. v. McGarity, 669 F.3d 1218 (11th Cir. Fla. 2012) (holding that FRE 414 is an exception to the rule against so-called "propensity" evidence established by FRE 404(b)

New Law Effective July 1, 2014, children under 17 years of age (formerly under 11) may be permitted to testify by closed circuit TV.

OCGA 17-8-55 (court must find by preponderance of the evidence that such child is likely to suffer serious psychological or emotional distress or trauma which impairs such child's ability to communicate as a result of testifying in the presence of the accused); Maryland v. Craig, 497 U.S. 836 (1990)(upheld against Confrontation Clause challenge).

Other Accommodations made for children in a child molestation trial

  1. Clearing the courtroom while child testifies
    O.C.G.A.§17-8-54;Goldsteinv.State,283Ga.App.1(2) (2006).
  2. Leading questions are permitted on direct examination
    O.C.G.A. §24-6-611(a) and (c); Hayes v. State, 268 Ga. 809(6)(1997).
  3. Protecting child against harsh or insulting demeanor
    O.C.G.A. §24-6-623; Schneider v. State, 267 Ga. App. 508(3) (2004).

Rape Shield Statute

In any prosecution for rape (aggravated sodomy, sodomy, Aggravaged Child Molestation, Child Molestation, Incest, Sexual battery, or Aggravated Sexual bBattery), evidence relating to the past sexual behavior of the complaining witness (child) shall not be admissible.

OCGA 24-4-412.

2 Important Rape Shield Exceptions

Exception 1:

Evidence of a prior sexual encounter with another person can be admitted into a trial, if its necessary to show an alternative explanation for physical or psychological injuries.

Johns v. State, 253 Ga. App. 207(3) (2001), Rocha v. State, 248 Ga. App. 53 (2001).

Exception 2:

Evidence of a "prior false allegation" of Child Molestation made by the child victim against another.

Benton v. State, 265 Ga. 648(5) (1995); Smith v. State, 259 Ga. 135(1) (1989)(deft must make a "threshold showing" of falsity).

A defendant may call an expert to testify regarding proper interviewing techniques (to avoid the risk of suggestibility in child statements).

Barlow v. State, 270 Ga. 54 (1998).

Georgia has held that an expert witness may not express his or her opinion as to the ultimate issue of whether or not a child has been molested. This could be grounds for a mistrial or a new trial.

Atkins v. State, 243 Ga. App. 489 (2000); cf. Noe v. State, 287 Ga. App. 728(1) (2007) (medical or other objective evidence "consistent with" child's account), but see OCGA 24-7-704(a).

If you have any questions for yourself or for a loved one, do not hesitate to call the Law Office of Timothy McCalep. We are the leading law firm in sexual misconduct and child molestation cases in Greater Metropolitan Atlanta including Fulton County, Dekalb County, Cobb County, Gwinnett County, Clayton County, Henry County, Douglas County, Cherokee, Newton, Paulding, and all other counties throughout the State of Georgia.