Tag Archives: Skagit County Criminal Defense

Washington Supreme Court Will Address How to Reduce Racial Disparities & Reform Juvenile Justice

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Bias in Criminal Justice - Common Reading Research Guide 2020-21 - LibGuides at Elon University

According to a press release, on July 13, 2022, a task force will present recommendations to the Washington Supreme Court on reducing and, where possible, eliminating racial disparities in Washington’s criminal and juvenile justice systems. The public presentation is scheduled for 10:30  AM – 12:00 PM, and will be livestreamed and recorded by TVW.

The recommendations come from a work group of Task Force 2.0: Race and Washington’s Criminal Justice System, a project coordinated by the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law. Presenters will include Korematsu Center Executive Director Professor Bob Chang, Assistant Directors Jessica Levin and Melissa Lee, public defense attorneys, child welfare experts, Pierce County Superior Court Judge André M. Peñalver, and more.

Task Force 2.0 last year presented extensive research to the Supreme Court detailing racially disproportionate treatment and outcomes in the state’s criminal justice system, outcomes significantly impacted by historically racist laws and practices. The follow-up presentation provides recommendations in 14 areas – such as policing and traffic stops, prosecutorial decision-making, pre-trial release, sentencing and prison, community supervision, legal financial obligations and more – as well as recommendations for reforming the juvenile justice system from a special sub-committee.

The Task Force was launched in mid-2020 by the deans of Washington’s three law schools following the death of George Floyd, nationwide protests for racial justice, and the June 4, 2020 Open Letter of the justices of the Washington Supreme Court challenging members of the state judiciary and legal community to recognize racial injustice and take steps to eliminate it.

The Task Force is dubbed “2.0” because it is a re-launch of the Race and Justice Task Force established in 2010 following comments made by two then-sitting Washington Supreme Court justices about criminality and race. That first task force produced a report in 2011 with data that has guided a number of efforts since then, including an annual symposium presented by the Washington State Minority and Justice Commission focusing on specific issues of racial disparity.

My opinion? We’ve GOT to be proud of our WA Supreme Court for being so proactive in resolving racial disparities in the justice system.

The rise of mass incarceration may seem like a recent phenomenon, but it is a repeating pattern throughout this country’s history. From America’s founding to the present, there are stories of crime waves or criminal behavior followed by patterns of disproportionate imprisonment of those forced to the margins of society: Black people, immigrants, Native Americans, refugees, and others.

The result has been the persistent and disproportionate impact of incarceration on people of color, immigrants, and people experiencing poverty. From 1850 to 1940, racial and ethnic minorities—including foreign-born and non-English speaking European immigrants—made up 40 to 50 percent of the prison population. In 2015, about 55 percent of people imprisoned in federal or state prisons were Black or Latino.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Low-Level Robbery Won’t Get A Reduced Sentence

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In State v. Thomason, the WA Supreme Court held that the low-level, de minimis nature of some crimes can allow for an exceptional downward sentence. However, the minimal level of force used to prove Robbery makes it inappropriate to allow a downward sentence.

FACTUAL BACKGROUND

On September 5, 2018, Thomason entered Yoke’s Fresh Market grocery store in Spokane.  A plainclothes security guard, Mr. Swartz, followed Thomason around the store. Swartz watched Thomason pick up about $15 worth of meat and cheese. Thomason proceeded to another part of the store and tucked the food down his pants. Thomason then left the store without paying.

Swartz followed Thomason out and confronted him. Swartz grabbed Thomason’s arm, displayed his badge, and asked Thomason to go back inside the store. Thomason tried to pull free, and Swartz warned him that he was only making the situation worse. The two pulled at each other back and forth as Swartz tried to detain Thomason and Thomason tried to break free.

During this exchange, Thomason swung at Swartz two times. Thomason used a closed fist, aimed at Swartz’s face both times, and hit Swartz the second time with a glancing blow. Swartz yelled at his partner, a guard in training, to help. Thomason punched Swartz a third time. Swartz testified that the third punch “hurt” and caused a minor injury. His face was sore and slightly red for a day or two. Thomason escaped by pulling out of his sweatshirt and running. He was seen getting into a passenger car and was eventually apprehended.

The State charged Thomason with second degree robbery just before trial. A jury convicted him as charged.

THE SENTENCING

At sentencing, the parties agreed that Thomason’s offender score was 10. That made his standard sentencing range 63-84 months. Thomason requested a 12-month sentence. This was a exceptional downward departure from his sentencing range.

The trial court judge considered an exceptional sentence below the standard range. The judge said that the crime was no more than a “glorified shoplifting charge” that should have been treated as a misdemeanor. Nevetheless, the judge determined that the law barred him from imposing an exceptional downward sentence. The judge imposed 63 months, the bottom of the standard range, instead.

Thomason appealed on several grounds. However, the Court of Appeals affirmed his conviction. The WA Supreme Court granted appellate review solely on the exceptional sentence issue.

COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that Washington’s Sentencing Reform Act lists mitigating circumstances that can support an exceptional sentence below the standard range. It explained that in appropriate cases, the de minimis nature of a crime can support an exceptional sentence below the standard range. An appropriate case is one in which (1) the legislature did not consider the mitigating factor already when it listed the elements of the crime or set the standard sentence range and (2) the factor constitutes a substantial and compelling reason to depart below the range.”

The Court acknowledged Thomason’s argument that his crime was de minimis. The value of the items taken was low and no force was used to accomplish the taking. Although force was used to retain the property, it was “minor” force. However, the court disagreed with Thomasan’s argument that he was allowed an exceptional downward sentence.

The Court reasoned that the plain language of the robbery statute shows that the legislature did consider a defendant’s minimal use of force when it defined the crime of second degree robbery.

“As the emphasized language shows, the legislature clearly considered whether the crime of second degree robbery should punish a taking combined with a minimal showing of force. It criminalized a taking in which either ‘force’ ‘or’ no force at all—just ‘fear’—is used to accomplish the taking . . . The legislature even said that where, as here, such force or fear is used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, the degree of force is immaterial.”~WA Supreme Court

With that, the WA Supreme Court affirmed Mr. Thomason’s conviction.

My opinion? I agree with Chief Justice Steven Gonzalez’s concurring opinion. He wrote separately because he was increasingly troubled by our controlling, unchallenged precedents and the sentencing laws they interpret.

“Washington’s sentencing guidelines suggest, among other things, that unconstrained discretion in sentencing operates to favor whites and disfavor members of minority groups,” said Justice Gonzalez. As part of the concurrence, he references an article about prosecutorial discretion and sentencing guidelines. He ended his opinion with choice parting words:

“We must find a way to live justly with one another. We must not steal from each other or strike each other. But when it happens, the State must not respond with a disproportionate punishment. I am increasingly concerned that sentences like this for what amounts to glorified shoplifting are simply not just and speak to deep problems with our sentencing systems.” ~Chief Justice Steven C. Gonzalez, WA Supreme Court.

Please contact my office if you, a friend or family member are charged with Robbery or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Criminal Conviction Reversed on Prosecutor’s Race-Based Misconduct & Voir Dire.

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Survey: Trump's immigration rhetoric is negatively impacting Latinos' health

In State v. Zamora, the WA Supreme Court held that a Prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

BACKGROUND FACTS

This case arises from a violent police confrontation that escalated far beyond what should have happened. On Super Bowl Sunday, February 5, 2017, Joseph Zamora was walking to his niece’s house. A neighbor called the police to report a possible vehicle prowler. When Zamora reached the driveway of his niece’s home, he was contacted by responding officer Kevin Hake. Hake quickly became nervous because of Zamora’s demeanor. Fearing Zamora had a weapon, Hake grabbed Zamora and attempted to restrain him.

A struggle ensued and escalated to include what may be described as extreme acts of violence. Ultimately, eight officers were involved in subduing Zamora. When responding paramedics arrived, Zamora was handcuffed, hog-tied, and lying face down in the snow with two officers restraining him. He had no heartbeat or pulse. It took the paramedics seven minutes to revive him. Zamora was taken to the hospital and remained in intensive care for approximately four weeks.

Zamora was charged with two counts of Assault Third Degree on the officers who “restrained” him. Officer Hake’s injuries included some small scratches around his hand and wrist and some bruising. Officer Welsh sustained an injury to his hand from punching Zamora in the back of the head multiple times. Zamora’s case proceeded to trial.

The Grant County Prosecutor began voir dire. He introduced the topics of border security, illegal immigration, and crimes committed by undocumented immigrants. The prosecutor repeatedly elicited potential jurors’ comments and views on these topics. At one point, he referred to “100,000 people illegally” crossing the border each month. He asked jurors whether “we have or we don’t have enough border security.” He also asked jurors if they had “heard about the recent drug bust down at Nogales, Arizona where they picked up enough Fentanyl to killed 65 million Americans.” Defense counsel did not object to the prosecutor’s questions and remarks on border security, illegal immigration, undocumented immigrants, and drug smuggling.

A jury found Zamora guilty as charged.

Zamora appealed. He argued his right to an impartial jury was violated when the Prosecutor appealed to jurors’ potential racial bias during voir dire. Division Three of the Court of Appeals affirmed Zamora’s convictions, concluding that his constitutional rights were not violated. Zamora appealed to the WA Supreme Court. They accepted review.

LEGAL ISSUE

Whether the prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

COURT’S ANALYSIS & CONCLUSIONS

The Court concluded that the prosecutor intentionally appealed to the jurors’ potential racial bias in a way that undermined Zamora’s presumption of innocence. Therefore, Zamora was denied his constitutional right to an impartial jury because of the prosecutor’s race-based misconduct.

Justice Charled W. Johnson authored the Court’s opinion. He began by explaining that the Sixth and Fourteenth Amendments to the United States Constitution and the Washington State Constitution guarantee a criminal defendant the right to an impartial jury. Justice Johnson said the Court has long recognized that the constitutional right to a jury trial includes the right to an unbiased and unprejudiced jury. He also upheld the right to fair trial in the face of prosecutorial misconduct:

“As a quasi-judicial officer and a representative of the State, a prosecutor owes a duty to a defendant to see that their rights to a constitutionally fair trial are not violated. Thus, a claim of prosecutorial misconduct directly implicates the constitutional right to a fair trial.” ~Justice Johnson, WA Supreme Court.

Justice Johnson also explained that in order to prevail on a prosecutorial misconduct claim, a defendant who timely objects must prove that the prosecutor’s conduct was both improper and prejudicial in the context of the entire trial. If the defendant does not object, on appeal the defendant must show the improper conduct resulted in incurable prejudice.

However, when the misconduct implicates racial bias, “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence,” courts will vacate the conviction unless the State proves beyond a reasonable doubt that the race-based misconduct did not affect the jury’s verdict.

“To determine whether the prosecutor’s conduct in this case flagrantly or apparently intentionally appealed to jurors’ potential racial bias, we ask whether an objective observer could view the prosecutor’s questions and comments during voir dire as an appeal to the jury panel’s potential prejudice, bias, or stereotypes about Latinxs. The objective observer is a person who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination.” ~Justice Johnson, WA Supreme Court

Here, the Court reasoned that the prosecutor’s questions and remarks implicated the defendant’s ethnicity. The prosecutor’s conduct appealed to the jurors’ potential racial or ethnic bias, stereotypes, or prejudice. The Court said we must be vigilant of conduct that appeals to racial or ethnic bias even when not expressly referencing race or ethnicity:

“The state-sanctioned invocation of racial or ethnic bias in the justice system is unacceptable. Accordingly, we hold that the prosecutor in this case committed race-based misconduct during voir dire, and the resulting prejudice to the defendant is incurable and requires reversal. We reverse the Court of Appeals and reverse and vacate the convictions.” ~Justice Johnson, WA Supreme Court

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA State Cracks Down on Organized Retail Theft

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What is Organized Retail Crime

King5 News reports that the Organized Retail Crime Theft Task Force was recently formed. State Attorney General Bob Ferguson says the Task Force will focus on sophisticated, organized crime rings and work to stop them.

According to the Retail Industry Leaders Association, organized theft cost Washington’s retailers around $2.7 billion last year.

Given the magnitude of losses, State Attorney General Bob Ferguson says it’s vital that multiple agencies and retailers work together because organized retail theft is simply too big for one organization to take on alone.

“No one retail store, no one prosecutor, no one attorney general, no one US Attorney can solve the problem. It’s just way too big. I found in my experience, from working with other task forces and other contexts, that sharing of information helps with enforcement, helps with prevention, raises the profile of the issue, and gets folks in the room to make sure we go after the bad guys, hold them accountable, and the provide the resources we need to help retailers and small businesses who’re dealing with these challenges.” ~State Attorney General Bob Ferguson

Organized crime could look like three men coordinating an early morning break-in, or it could occur on a smaller scale, like at the downtown Seattle Target, where police arrested a man after he stole alcohol 22 times over the course of a few days.

However, one of the biggest concerns of the task force is stolen baby formula, which is then resold on secondary sites like Amazon and becomes a risk for parents.

“That means that parents who unwittingly buy stolen formula on the secondary market may be putting their babies at significant risk if the thieves, for example, fail to store the product at the appropriate temperatures, or if the thieves manipulated the packaging, such as exchanging the expiration date,” Ferguson said.

He said the task force hopes to have an immediate impact statewide.

“We’re all stepping up to address what really is a true crisis in our state (and) … has significant implications for businesses and for the people of our state,” said Ferguson.

In Washington, Organized Retail Theft is a Class C Felony. Please contact my office if you, a friend or family member are charged with Theft or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Operation Dry Water” Works to Reduce Boating Under the Influence

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Operation Dry Water Launches

According to Kiro 7, police are looking for alcohol and drug-impaired boaters this Fourth of July weekend.

Washington State Parks supports a nationally coordinated effort called Operation Dry Water.  This large-scale effort works to reduce boating-under-the-influence (BUI) accidents and fatalities. As part of the campaign, emphasis patrols are conducted annually around the Fourth of July. Independence Day is known for increased boating activities, use of alcohol, and an increase in the number of boating accidents and fatalities. Operation Dry Water includes the Coast Guard and local, state and federal law enforcement agencies. There will be an increase in patrols on Puget Sound waters.

Similar to DUI, a BUI outlaws the use any substance that impairs a person’s ability to operate a vessel in the state. A “vessel” includes kayaks, canoes, paddleboards and other watercraft. It is also illegal to operate a vessel with a blood alcohol content level of 0.08 or higher, the same as a vehicle.

Below are some things for boaters to know:

  • State law allows law enforcement officers to require boaters suspected of operating a boat while intoxicated to submit to a breath or blood test.
  • Refusing to submit to a test is a civil infraction with a maximum fine of $2,050.
  • The penalty for operating a boat under the influence is a gross misdemeanor punishable by a maximum fine of $5,000 and 364 days in jail.
  • Additionally, a BUI is considered a prior offense if there are later convictions for driving under the influence (DUI).

In 2021, more than 570 local, state and federal agencies participated in Operation Dry Water, which resulted in nearly 640 BUI arrests and more than 42,440 citations and warnings for safety violations that were issued.

Please contact my office if you, a friend or family member are charged with BUI, DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

U.S. Supreme Court Expands Gun Rights

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Gun Bans and Regulations: From a Second Amendment Advocate – The Wildezine

In New York State Rifle & Pistol Association v. Bruen, the U.S. Supreme Court held that Americans have a right to carry firearms in public for Self-Defense. Their ruling marks a major expansion of gun rights after a series of mass shootings. It’s also a ruling likely to lead to more people legally armed.

BACKGROUND FACTS

The state of New York passed a law requiring a person to show a special need for self-protection in order to to receive a license to carry a firearm outside their home. Robert Nash and Brandon Koch challenged the law after New York rejected their concealed-carry applications based on failure to show “proper cause.” A federal district court dismissed their claims, and the U.S. Court of Appeals for the Second Circuit affirmed. The U.S. Supreme Court took the issue up on appeal.

LEGAL ISSUE

Does New York’s law requiring that applicants for unrestricted concealed-carry licenses demonstrate a special need for self-defense violate the Second Amendment?

COURT’S ANALYSIS & CONCLUSIONS

Holding: New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violates the Fourteenth Amendment. It prevents law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms.

Justice Clarence Thomas wrote the majority opinion and said the following:

“The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self- defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.” ~Justice Thomas, United States Supreme Court

With that, the Supreme Court reversed the lower federal court’s holding.

The Court’s split was 6-3 with the court’s conservatives in the majority and liberals in dissent. Justice Alito filed a concurring opinion. Justice Kavanaugh filed a concurring opinion, in which Chief Justice Roberts joined. Justice Barrett filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Justice Kagan joined.

In a dissent joined by his liberal colleagues, Justice Stephen Breyer focused on the toll from gun violence. He wrote that since the beginning of this year, there have already been 277 reported mass shootings — an average of more than one per day. He accused his colleagues in the majority of acting “without considering the potentially deadly consequences” of their decision. He said the ruling would “severely” burden states’ efforts to pass laws “that limit, in various ways, who may purchase, carry, or use firearms of different kinds.”

Several other conservative justices who joined Thomas’ majority opinion also wrote separately to add their views.

Justice Samuel Alito criticized Breyer’s dissent, questioning the relevance of his discussion of mass shootings and other gun death statistics. Alito wrote that the court had decided “nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun” and nothing “about the kinds of weapons that people may possess.”

“Today, unfortunately, many Americans have good reason to fear they will be victimized if they are unable to protect themselves.” The Second Amendment, he said, “guarantees their right to do so.”

Justice Brett Kavanaugh, joined by Chief Justice John Roberts, noted the limits of the decision. States can still require people to get a license to carry a gun, Kavanaugh wrote, and condition that license on “fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.”

Please contact my office if you, a friend or family member are charged with Firearm Offenses or any other crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

Kitsap Judges’ Ruling Could Invalidate DUI Convictions Statewide

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How Does a Breathalyzer Work? And Should You Refuse One?

Journalist reports that the Kitsap County District Court invalidated the results of a breathalyzer test (BAC Test) used by police. This ruling could have state-wide implications in thousands of DUI cases.

All four judges of the court agreed the state toxicologist violated state law when she approved software for the Dräger breathalyzer. This device is commonly used to test a person’s blood-alcohol level. The Dräger breathalyzer has been in the field since 2015 and is now used by nearly every law enforcement agency in the state.

Background Facts

On May 9, 2020, Mr. Keller was involved in a single-vehicle crash in Bremerton. Court records showed a Kitsap County sheriff’s deputy responded and smelled alcohol on Keller’s breath. He gave Keller a field sobriety test and Keller submitted to a blood alcohol test in the field using the portable Dräger breathalyzer. The test resulted in a 0.132 blood alcohol level. The legal limit in the state is .08.  Keller was arrested and is awaiting trial for DUI. On pretrial motion, his defense attorneys argued a  CrRLJ 3.6 Motion to Suppress the BAC Test. And apparently, they were successful.

How the Dräger Functions

The Dräger machine takes four samples of a person’s breath and then calculates the median, the center point of all four results.  It then provides a median number that is truncated to several decimal points. State law said the machine needs to truncate to four decimal points and then round up or down to three decimal points. Because the rounding was not part of the final calculation, any result the machine produced using the software approved by the state toxicologist violated state law.

The Court’s Ruling & Analysis

The judges reasoned that the Washington State Patrol oversees the State Toxicology Lab and is responsible for distributing the Dräger breathalyzer with the proper software to all local law enforcement in the state. However, the software approved by then-state toxicologist did not follow the calculations mandated by state law.

The judges issued two rulings. First, they wrote an 89-page ruling explaining their decision to their findings that the software did not follow state law. Second, they issued a court order stopping the use of results of the Dräger machine as evidence in all cases in Kitsap County.

Kudos to the defense attorneysGeorge Bianchi and Tom Weaver. They fought hard for justice. Thankfully, other defense attorneys in other counties can use the Kitsap County ruling in their own DUI cases. The state toxicologist approved software that was used in the Dräger machine across the entire state of Washington. Clearly, the software did not have the proper calculations and is presently being used by prosecutors and police.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Whatcom County Jail Tightens Booking Restrictions

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Riverside County jails are so crowded, car thieves and drug dealers are being sent home

Journalist David Rasbach of The Herald reports the Whatcom County Jail has stopped booking people suspected of low-level offenses.

JAIL POPULATIONS HAVE INCREASED

in a letter to local leaders, Sheriff Bill Elfo explained the main reason behind less bookings was an increase in the jail population.

“Since the beginning of 2022, populations at both the Downtown Jail and Work Center have steadily climbed despite increased booking restrictions that were put into place in October of 2021.” ~Whatcom County Sheriff Bill Elfo.

According to recent reports, the current jail population has grown 28% in the last three months. And it’s grown 44% larger than six months earlier.

Today’s population shows an increase over the previous two years during the COVID-19 Pandemic. We’re at or above the levels seen the two summers before the pandemic.

OFFENDER CHARACTERISTICS HAVE CHANGED

“In addition to the number of offenders, the characteristics of the offender population has also changed,” Elfo wrote. He states that approximately 83% of the jail population is now being held on suspicion of a pending felony offenses. Additionally, approximately 42% of the people housed in the jail have been diagnosed with a serious mental illness. Adding to the despair, 80% have an existing substance use disorder.

These behavioral issues has led to an increase in assaultive or self-harming behavior. As a result, fewer people in the jail can be housed with others.

OVERWORKED JAIL CORRECTIONS STAFF

In addition to a growing jail population, Elfo reported that workloads for corrections staff ARE stretched past all reasonable limits due to COVID protocols. There’s also an increasing need for care of vulnerable people housed in the jail, growth of the Medication for Opioid Use Disorder program, more fights and assaults among the jail population and of staff and problems created by an aging and sometimes failing facility.

Whatcom County is currently trying to fill 11 correction deputy vacancies, or approximately 16% of the full-time staff that it is budgeted for. According to Elfo, this has created the need for mandated unvolunteered overtime and mandatory callbacks to work. The current workloads, a perceived sense of apathy and new demands have taken their toll.

To help mitigate some of the challenges Elfo mentioned in the letter, he reported that Whatcom County is negotiating to contract for 45 beds in Snohomish County. Elfo wrote that he anticipated an agreement soon and would submit an interlocal agreement and supplemental budget request to the Whatcom County Executive and county council in June.

My opinion? It’s in our best interests for Whatcom County to construct a new, better jail. We must hire more jail deputies and train them to manage today’s jail population. And we must improve conditions for all, including the jail staff who oversee the incarcerated.

Buck up, taxpayers.

Please contact my office if you, a friend or family member are charged with a crime and incarcerated. Making bail and hiring an effective and competent defense attorney is the first and best step toward justice.

Proposed Federal Law Prohibits “Stealthing,” Non-Consensual Condom Removal

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Is stealthing sexual assault? | WHP

Excellent article by journalist  Anne Branigin reports that “Stealthing,” the act of removing a condom during intercourse without the other partner’s consent, is gaining attention among lawmakers.

Fair warning: the following subject matter discusses sexual offenses. Sexual assault is both a common and a very serious crime. It is investigated by the police with an intensity second only to that of homicide and manslaughter.

Yes, there are defenses to these charges that are discussed later in this blog. However, sexual consent should always be clearly communicated. There should be no question or mystery. Silence is not consent. And it’s not just important the first time you’re with someone. Couples who’ve had sex before also must to consent before engaging the act every time.

“Stealthing” Defined.

“Stealthing,” is the practice of a man removing a condom during sexual intercourse without consent, when his sex partner has only consented to condom-protected sex. While victims of stealthing tend to be clear about its harms, what has been less clear is how to define it. Is it assault? And could — or rather, would — the law do anything about it?

Fedeal Legislation is Proposed to Outlaw “Stealthing.”

This month, federal legislation was introduced offering clarity and a legal remedy for survivors of stealthing. One bill introduced last month would explicitly name stealthing as a form of sexual violence and create a legal pathway for victims to sue perpetrators for damages and relief. A separate bill, called the Consent Is Key Act, would encourage states to pass their own laws authorizing civil damages for survivors by increasing funding for federal domestic violence programs in states that pass those laws.

The federal legislation mirrors a first-of-its-kind California law passed in October. That law expanded the definition of sexual battery in the state’s civil code to include removing a condom without verbal consent. The U.S. House bill defines stealthing as removing any “sexual protection barrier” without the consent of each person involved in the sexual act.

“Stealthing is a grave violation of autonomy, dignity, and trust that is considered emotional and sexual abuse,” reads the House bill, titled the Stealthing Act of 2022.

What Do Studies on Stealthing Suggest?

In the last several years, a number of researchers have attempted to quantify how many people experience nonconsensual condom removal.

In one Melbourne study, which surveyed more than 2,000 people visiting a local clinic over a three-month period in 2017, nearly one in three of the women surveyed said they had been “stealthed” at some point in their life. About 19 percent of men who had sex with other men said this had happened to them. Another 2019 study — which recruited women 21 to 30 with “increased sexual risk characteristics”— found that 12 percent of respondents said a partner engaged in stealthing (nearly half said they had experienced some form of coercive resistance to condoms).

One narrow 2019 study that recruited 626 men who were “inconsistent condom users” between the ages of 21 and 30 found that 10 percent said they had removed a condom without their partner’s consent; men with greater hostility toward women and more severe sexual aggression had “significantly higher odds of engaging in nonconsensual condom removal behavior,” the study’s author wrote.

Is Stealthing a form of Sexual Assault?

The growing narrative says “Yes.” Katie Russell, a spokesperson for the advocacy and support organization Rape Crisis, said the following:

“Ultimately what we’re talking about is rape . . . It’s not something that’s a bit cheeky or naughty to try to get away with — this is something serious that can have really damaging impacts for other person’s whole life and health.” ~Katie Russell, Spokesperson for Rape Crisis.

Defenses to Sex Crimes.

Sex crimes are very serious and being accused of committing one should be taken very seriously. While there aren’t very many, there are a few defenses to such an accusation: he or she is innocent; he or she engaged in consensual sexual activity, or he or she can’t be held guilty due to mental disease or defect.

  1. Actual Innocence.

Like all crimes, the most widely used defense is innocence. To prove innocence, an individual must generally be able to prove that it would be a physical impossibility to be guilty since they were at another location at the time or by providing a credible alibi. It’s the burden of the prosecution to prove that a defendant is guilty. The defendant will want to establish reasonable doubt. If he or she can do so then under the law the jury should acquit him or her.

In cases concerning an alleged victim’s intoxication, RCW 9A.44.030 offers a defense if the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Again, this statutory defense exists if the alleged victim is drunk/intoxicated beyond the point of consent. The defendant must prove this defense by a preponderance of the evidence.

          2. Consensual Act.

Consent is also a substantive defense. If a defendant can prove that the act was consensual, a crime does not exist. Consent means that at the time of the act of sexual intercourse and/or contact, there are actual words or conduct indicating freely given agreement to have sexual intercourse/contact.

However, it’s important to understand whom – and who cannot – provide legal consent. Those without legal capacity cannot consent no matter what. This includes minors. If an individual engages in sexual activity with a minor, it is statutory and there can be no legal consent – even if there is verbal consent. The fact that majority of assailants are known to the victims and that a large numbers of cases are associated with drinking alcohol complicates the picture.

Hire an Attorney As Soon As Possible When Facing a Potential Sex Offense.

Merely being charged with a sexual offense is devastating. An allegation of sexual misconduct can cost someone their employment, their family, their loved ones and their home. Please contact my office if you, a friend or family member are charged with a sex offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Offender Scores Include Bail Jumping Even When the Underlying Conviction Was Dismissed Under State v. Blake

Assault, Bail Jumping, Bellingham, Drug Offenses, Firearm, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

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In State v. Paniagua, the WA Court of Appeals held that convictions for Bail Jumping are appropriately included in the offender score even when the offender failed to appear at a scheduled hearing for a pending charge of Blake-related Drug Offense.

FACTUAL BACKGROUND

This appeal considered one of many consequences attended to the Washington Supreme Court’s landmark decision in charge of State v. Blake. The decision held Washington’s possession of a controlled substance criminal statute unconstitutional. In turn, Washington courts have removed, from offender scores, earlier convictions for possession of a controlled substance.

This appeal travels further down the path and asks whether a court should remove, from the offender score, a former conviction for bail jumping when the offender failed to appear at a scheduled hearing while on bail pending charges for possession of a controlled substance.

Victor Paniagua only challenges his sentence for his 2018 convictions for Homicide and other crimes. The relevant facts begin, however, with earlier convictions.

In 2007, the State of Washington convicted Victor Paniagua with unlawful possession of a controlled substance. In 2011, the State again convicted Paniagua with possession of a controlled substance and the additional charge of bail jumping. The bail jumping charge arose from Paniagua’s failure to appear at a court hearing on the 2011 possession charge.

In June 2018, a jury found Victor Paniagua guilty of second degree murder, second degree assault, unlawful possession of a firearm, and witness tampering. The trial court calculated Paniagua’s offender score at 8 for the murder and assault charges. It also calculated a 7 for the unlawful firearm possession and witness tampering charges. The offender score calculation included one point each for the 2007 and 2011 possession of a controlled substance convictions and one point for the 2011 bail jumping conviction. As a result, the
court then sentenced Paniagua to 453 months’ total confinement.

After the issuance of State v. Blake, Mr. Paniagua requested resentencing. He argued the superior court should resentence him and reduce his offender score by three points. Ultimately, the superior court deducted only two points from Paniagua’s offender score. The superior court resentenced Paniagua to 412 months’ total confinement.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying that State v. Blake held that Washington’s drug possession statute violated the due process clause. The statute penalized one for passive, innocent, or no conduct without requiring the State to prove intent.

“The Washington Supreme Court also did not address, in State v. Blake, the retroactivity of its decision,” said the Court of Appeals. “Nevertheless, the State and other courts have operated on the assumption that Blake should be applied retroactively. If a statute is unconstitutional, it is and has always been a legal nullity.”

Next, the Court of Appeals decided whether the bail jumping conviction was invalid on its face. When a defendant is convicted of a nonexistent crime, the judgment and sentence is invalid on its face. Here, however, the State did not convict Mr. Paniagua of a nonexistent crime when convicting him of bail jumping. “The crime remains in existence today,” said the Court of Appeals. “The conviction is not facially invalid.”

Next, the court raised and dismissed Paniagua’s arguments that the State convicted him of bail jumping while facing charges brought pursuant to an unconstitutional statute:

“Still, he cites no decision supporting the proposition that being convicted or held, under an unconstitutional criminal statute, renders escaping from jail or bail jumping permissible. To the contrary, under the universal rule, the unconstitutionality of a statute under which the defendant was convicted or charged does not justify escape from imprisonment . . . We find no decision addressing bail jumping when facing charges under an unconstitutional statute.” ~WA Court of Appeals.

With that, the Court of Appeals affirm the superior court’s inclusion of Victor Paniagua’s 2011 conviction for bail jumping in his offender score and affirmed his resentencing.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.