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Life for child object sexual penetration- Fairfax criminal lawyer weighs in

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Jan 08, 2020 Life for child object sexual penetration- Fairfax criminal lawyer weighs in

Life for child object sexual penetration- Fairfax criminal lawyer weighs in- Picture of jury box

Life for child object sexual penetration- Fairfax criminal lawyer weighs in

Life sentencing is mandatory for object sexual penetration with a victim under 13, says Fairfax criminal lawyer

Life in prison is the mandatory sentence that will come to any adult convicted in Virginia for object sexual penetration against someone under thirteen. As a Fairfax criminal lawyer, I know that a large percentage of adults not only are sexually attracted to children, but that too many people act on that interest (rather than keeping it in their minds, which is not a crime), with child pornography, soliciting sexual activity with children, and engaging in sexual activity with children.

Virginia criminal lawyer on why adults commit sex crimes involving minors

A significant percentage of adults have sexual interest in children. Several forensic psychologists have explained to me that this interest often stems from childhood where the person’s mentality gets stunted through sexual, physical or verbal abuse, and then that person becomes an adult who is a sexual being but identifies sexually with children. I can argue to a sentencing jury or judge until I am blue in the face about that phenomenon, but the prosecutor can retort that it is not a crime to have badthink, but is a crime to act on the badthink. Nonetheless, such abuse is a mitigating circumstance for sentencing. Of course, with life and other mandatory minimum sentencing, mitigation arguments are of less value in court.

Object sexual penetration only requires slight penetration of the labia majora or anus

Read in combination, the statutory and caselaw only requires slight penetration — Jett v. Virginia, 29 Va.App. 190 (1999) — of the labia majora or anus to constitute object sexual penetration. “An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness … other than for a bona fide medical purpose, or causes such complaining witness to so penetrate his or her own body with an object.” Va. Code § 18.2-67.2.  Life imprisonment can come with such slight penetration of someone under thirteen years old.

When the evidence is equivocal about whether there was even slight penetration, the defendant wins. Moore v. Virginia, 254 Va. 184 (1997). At the same time, “’Penetration of the vaginal opening ․ clearly [is] not required. ‘…  According to the anatomical description, the clitoris lies within the labia majora;  therefore, evidence of penetration or stimulation of the clitoris is sufficient to establish penetration of the labia majora under Code § 18.2-67.2.” Jett, supra. In affirming Jett’s conviction, the Virginia Court of Appeals stated: “The evidence of the victim’s pain and swollen clitoris established by circumstantial evidence the element of penetration.” Luckily for Jett, the law had not yet changed — as discussed below — to make life the mandatory minimum prison term for object sexual penetration with a person under thirteen  years old.

Life imprisonment only became mandatory in 2012 for object sexual penetration with someone under 13

Not until 2012 did life imprisonment become mandatory in Virginia for object sexual penetration of someone under 13. Consequently, a criminal defense lawyer will wish to consider challenging whether such alleged behavior preceded the effective date of this legislative change. 2012 Virginia Laws Ch. 575 (S.B. 436). Before then, it seems the sentencing range was five years to life, pursuant to the 2006 amendment to the statute.
Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, DUI, sex, and drug prosecutions. To discuss your case with Jon Katz, please call his staff at  703-383-1100 to schedule a confidential consultation. 
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