Misdemeanor sexual battery
November 16, 2015 1:40 PM   Subscribe

My son has been accused of misdemeanor sexual battery, California Penal Code 243.4e. He talked to a detective, but has not yet been charged. What now? You are not his lawyer and cannot give legal advice... but maybe you can give some insight?

About two months ago, my 23-year-old son ("Jack") went on a third date with a young woman ("Mary") he met on Tinder. They were drinking beer and smoking hookah late one night on the patio behind my house, and kissing now and then, when Jack touched Mary's breast through her clothes. Mary, an accomplished martial artist, immediately knocked him on his ass. Jack, who had been very drunk, became instantly less drunk, and apologized profusely. Jack offered to call Mary an Uber, and when Mary called one herself, he attempted to pay for it, which Mary refused. In response to Jack's continued apologies, Mary said, "It's OK -- call me tomorrow."

The next day, Jack did not call Mary.

The day after, Jack texted Mary some innocuous thing, a meme or something. Mary asked Jack why he did not call her, and he told her that he was too ashamed. Mary said it was OK, but the way it was left, Jack felt it was unlikely he would ever hear from Mary again.

And he did not, for two months. On Friday, Jack received a call from a detective, who stated that she was investigating a crime of misdemeanor sexual battery 243.4e allegedly committed by Jack, and wanted Jack's side of things. Jack told her frankly and fully everything he could remember, stating at several points that he was unsure about a particular detail, but if Mary said it happened that way, he believed it. He also provided the detective with all of the text messages between him and Mary. Jack asked the detective if Jack could call Mary, and the detective advised against that. The detective told him that their conversation completed the detective's investigation, and that she would now turn the case over to a prosecutor.

Jack -- my son -- is not a slimeball. He would never have laid a finger on Mary if he had understood his advances could possibly be unwelcome at that place and time. On the other hand, Jack was hammered, and Mary may very well have been giving him stop signals that he just didn't perceive.

Jack knows that the maximum penalty for his actions is $2,000 or six months in jail or both. He expects to get a letter telling him to report to jail any day -- he doesn't know if there would be a trial first or what.

You are not Jack's lawyer, and you do not give legal advice over the internet. Hopefully you are a lawyer though, or someone with personal experience in these matters, and can shed some light on what to expect. (Telling Jack not to drink so much, particularly in a dating situation, is undoubtedly good advice, but he has already thought of that.)

Thanks for any assistance you can give!
posted by anonymous to Law & Government (19 answers total) 2 users marked this as a favorite
Jack should not be talking to a detective, let alone handing over evidence, without first talking to a lawyer. Do you have a criminal defense attorney? If not, please proceed calmly to the advice on the wiki and get a lawyer. In the meantime, nobody should talk to the police or Mary unless specifically directed by Jack's lawyer.
posted by zachlipton at 1:47 PM on November 16, 2015 [40 favorites]

He expects to get a letter telling him to report to jail any day -- he doesn't know if there would be a trial first or what.

Well, the good news is that he's entitled to more due process than that. Jack should get himself to a reputable criminal defense attorney.
posted by craven_morhead at 1:54 PM on November 16, 2015 [3 favorites]

Get a lawyer. And find out ASAP what the specific allegations against Jack are.

It's not impossible but it seems incredibly unlikely to me that only the behavior you have described would result in prosecution so you need to be clear what exactly he is being accused of. And given his intoxication on the night in question you need to be prepared for the possibility that his recollection of events may differ very significantly from the victim's.
posted by Nerd of the North at 1:56 PM on November 16, 2015 [17 favorites]

From what you say, it sounds like she has made an accusation and the detective has done some investigating. But now it is up to a prosecutor to determine whether or not to file any charges or to go any further with it. It could be dropped completely.

It seems to me like a lawyer could help to make sure it gets dropped completely, and sexual battery charges are nothing to mess around with.
posted by SLC Mom at 2:19 PM on November 16, 2015 [4 favorites]

Don't Talk to Police.
posted by LoveHam at 2:20 PM on November 16, 2015 [15 favorites]

You can assure your son that you don't just get letters in the mail telling you to show up to jail. First he would need to be charged. Then either plead guilty or be found guilty. Then sentenced. This process takes months and does not happen without your awareness. And lots of people are found guilty of a lot worse things and don't go to jail.

He should not be talking to the police, though, especially if he's feeling guilty and ashamed and unsure. His position should not be "how can I help clear this up." It would be nice if that should be his position, but we don't live in that world.

I would talk to a lawyer and have them look into it just for your sons well-being.
posted by orsonet at 2:22 PM on November 16, 2015 [6 favorites]

Side note - please make sure that Jack does not communicate in any further way with Mary, unless instructed to by a lawyer. Doing something like apologizing or trying to clear it up with her directly can just end up digging himself deeper.
posted by Candleman at 2:34 PM on November 16, 2015 [13 favorites]

It bears repeating: Jack should not say one more word to the police, full stop. This includes trying to clear things up or to give his side of things. The only time he should be talking to the police at all, if he ever does, is with his lawyer present.
posted by holborne at 2:42 PM on November 16, 2015 [7 favorites]

Jack would still need to be charged with a crime and he can still plead not guilty. No more conversations with police or Mary. Lawyer lawyer lawyer lawyer.
posted by kat518 at 2:56 PM on November 16, 2015 [3 favorites]

And make sure he doesn't discuss her or the allegations or anything remotely related on social media or texts or email.
posted by cecic at 3:02 PM on November 16, 2015 [2 favorites]

I'm going to chime in and say exactly what everyone else is saying because it cannot be said enough.

Jack should not talk to the police. Jack needs a lawyer. Period.

And I can see all the ways you might try to rationalize why it's different in this case, but you are wrong.

Jack should not talk to the police. Jack needs a lawyer. Period.

I'll go a step further and say you should not be posting about this to the internet, even anonymously.
posted by AaRdVarK at 3:05 PM on November 16, 2015 [10 favorites]

I am a California criminal defense lawyer; I am not your lawyer or Jack's lawyer. I agree wholeheartedly with the above, including the fact that you should not be posting about this on the internet. Jack should not only not be talking to police, he should not be talking to you. And you should not be talking to us. (But thank you for illustrating perfectly why I do not talk to my client's families about specifics.)

If he is charged, he's entitled to a public defender if he can't afford a lawyer. If he can afford a lawyer, he should get one right now.
posted by xeney at 3:22 PM on November 16, 2015 [9 favorites]

From a Mefite who wishes to remain anonymous:
I had a similar occurrence (which I greatly regret to this day) when I was around your son's age about 10 years ago. If your son's telling is accurate he comes off much better than I did, so there's that at least. This is what I remember from the experience:

A few days after the altercation I spoke voluntarily with the police without a lawyer, while being audio taped. I wasn't charged immediately, but a few days later I was booked, charged, and got a lawyer. I'm not actually sure when in that process I got a lawyer, but it might very well have been after being booked and charged. I got a private lawyer, paying a retainer of I think $2000. After being charged I was not jailed and for bail I was released on my own recognizance. Once I got the lawyer I had basically no contact with the police at all. It goes without saying I haven't spoken with the other party since before I spoke with the police either. The lawyer worked something out with the prosecutor and I pleaded down to something that wouldn't be on my record forever and I could get it expunged contingent on good behavior after a certain amount of time. The plea arrangement was to be on probation for 18 months and to attend weekly group therapy, which was pretty intense. There were also fees and fines. Surprisingly few places even asked about misdemeanors when applying for work and background checks didn't keep me from pretty good jobs. I ended up getting my record expunged with help from the same lawyer who represented me though. It's possible to do it yourself, but I didn't want to risk it.

This being in likely a different jurisdiction and with different circumstances: your mileage will likely vary. But I strongly suggest you have a lawyer ready to defend him.
posted by LobsterMitten at 3:32 PM on November 16, 2015 [3 favorites]

1. shut up
2. lawyer
posted by Sebmojo at 4:24 PM on November 16, 2015 [1 favorite]

A friend of mine went through something similar. It turned out that the plaintiff, acting on the advice of a very shady attorney, was using the criminal complaint as leverage in a civil suit. Upon learning of the two trials, the civil judge tossed it out of court, saying he wasn't going to be a pawn in this game.

Which is a long way of saying, get a good lawyer and watch out for the civil aspect.
posted by Cool Papa Bell at 5:22 PM on November 16, 2015 [2 favorites]

Do not talk to the police. Do talk to a lawyer.
posted by Aizkolari at 5:51 PM on November 16, 2015 [1 favorite]

Please get a lawyer as soon as possible. As others have said do not talk to the police without the lawyer present again. Do exactly what your Lawyer tells you. Yes innocent people get lawyers, it will not make you look guilty it will just assure that things are done correctly & you do not accidentally make matters worse than they need to be.

Do not let him call or try to contact Mary in any way whatsoever.

IANAL, this advice is based on a relative in law getting himself into a similar position.
posted by wwax at 9:45 PM on November 16, 2015 [1 favorite]

I'm the OP -- Jack's mom.

Jack and I talked to a few lawyers, and based on their advice Jack decided to wait until he was charged before engaging one of them. A few days later, he got a call from the detective he spoke with earlier, letting him know the prosecutor had declined the case. Yay! No consequences for Jack! Other than greater wisdom and caution, and a total conversion to the practice of affirmative consent, California style. And his guilt about Mary, with whom he can never make it right.
posted by pH Indicating Socks at 12:36 AM on November 27, 2015 [2 favorites]

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