AuthorZakirova, Eza Bella

    Any crime concerning a child victim is a matter of public concern and a concern of the criminal justice system as a whole. (1) When it comes to child sexual abuse, children are considered to be the "perfect" victims due to the challenges that surround them and their tendency to refrain them from reporting the crime. (2) To settle down the public's concern about the safety of their children, the federal government passed various acts, which provide federal funding and guidance to agencies including non-profit organizations and research centers for "prevention, assessment, investigation, prosecution, and treatment" of child abuse, including sexual abuse. (3) However, scholars and reporters have come to the conclusion that there are times when the jury, (4) and even judges, (5) tend to have a preconceived decision about defendants charged with child sex abuse. (6) In addition, a child sex abuse charges, by itself, can easily brand the individual and strip off his presumption of innocence before adjudication. (7) Therefore, defendants charged with the crime are more likely to plea bargain before adjudication since they fear a more severe punishment by the jury, (8) especially (1) those who have a prior criminal record or pending charges, (9)(2) underage or handicapped defendants that fall under the pressure of police investigations, and (3) those who are given limited time constraints to make a decision whether to plea tend to sign the plea deal. (10) Therefore, Part II will define child sexual abuse and guilty pleas/plea bargaining and examine its frequency in wrongful conviction cases for child sex abuse. Part III will discuss the rationality behind plea bargaining offers. Part IV will offer recommendations.


    Plea bargaining, (11) an efficient tool used to reduce a court's workload, provides both parties an alternative means of resolving the dispute by permitting the parties to make a deal at the prosecutor's office, rather than having to appear in court. (12) Specifically, nearly ninety-five percent of criminal cases get resolved in plea bargaining. (13) It has become a panacea in the criminal justice system since it benefits everyone who takes part in the case. (14) Since the nineteenth century, plea bargaining has been the go-to solution to manage the growing caseloads of courts. (15) Therefore, the initial deal was that if the court gets to save time and close cases using guilty pleas, then the judge will grant a lenient sentence to the defendant who is pleading guilty. (16) That is why the main player in the case gets to be the prosecutor, and sometimes even the defense attorney, whose simple roles become pushing the defendant to plead guilty, despite him being innocent of the crime. (17) This push is effectuated by using one of the three types of plea bargaining: charge bargaining, (18) sentence bargaining, (19) or fact bargaining. (20) Furthermore, when it comes to child sex abuse cases, due to the case sensitivity, the defendants are often notified that the jury can be unpredictable since this particular crime does not leave anyone apathetic. (21) Yet, it is important to note that to date, there is a lack of data showing the procedures of offering and obtaining guilty pleas, and as a result, there is a lack of information regarding how these guilty pleas are obtained and whether they are induced or coerced. (22)

    It is known that child sexual abuse is a crime where the perpetrator engages in "sexual conduct that is harmful to a child's mental, emotional, or physical welfare." (23) This definition is broad enough to cover various types of acts a perpetrator can do, which can be considered child sexual abuse. (24) As of 2010, nearly 9.2% of children under the age of seventeen who were victims of a crime, were sexually assaulted at some time in their life. (25) Specifically, roughly "[one] in [five] girls and [one] in [twenty] boys is a victim of child sexual abuse" (26) and "62,939 cases of child sexual abuse were reported in 2012." (27) However, various organizations, including the National Center for Victims of Crime, note that child victims can exhibit a list of challenges, (28) even in their adulthood that prevent him or her from reporting child sexual abuse and that is why the numbers can be far higher. (29)

    Keeping this in mind, in child sex abuse cases, there is usually an absence of real evidence such as the crime scene or witnesses. (30) In addition, victims are known for not reporting the crime more often than they do, (31) therefore, the victim's accusation in addition to the jury's assessment of the victim and the defendant is enough for the verdict. (32) So, in a nutshell, the guilty plea, plus the prosecutor's offer, seems to be so compelling that even the innocents file the guilty plea. (33)


    Various scholars note that the prosecutorial decision to offer a plea bargain is in all probability due to the prosecutor's lack of confidence that the trial will result in a conviction. (34) The prosecutor can offer a lesser charge, which is often favored by the defendants. (35) The downside is that once the defendant agrees to plea bargain, he waives his right to be found innocent by the jury, and if he is innocent, he gets wrongfully convicted. (36) It has been found that innocent defendants are more likely to plead guilty because rationally, the deal offered seems to be a good one, (37) and they tend to accept it while forgetting about their innocence. (38)

    To date, in the National Registry of Exonerations, there have been over thirty cases where an innocent agreed to a plea bargain in a child sex abuse case. (39) Among the cases, James Blackshire (40) and co-defendant Antrone Johnson (41) pled guilty to aggravated sexual assault and were sentenced to ten-year deferred adjudication. (42) When it comes to cases where there are co-defendants, one of the prosecutor's tactics is to persuade one of the defendants to plead by letting him know that his accomplice can put all the blame on him. (43)

    Forensic evidence implicating the defendant tends to be one of the factors that the prosecutors present to the defendants to "elicit guilty pleas." (44) In cases of child sexual abuse, co-defendants are crucial to securing convictions due to the lack of forensic evidence in most cases. (45) Acknowledging the influence forensic evidence can have on the judge and jury, it plays an important role in the determination of whether the defendant committed the crime. (46) It is found that forensic evidence results are also used to influence the defendants to file guilty pleas, but when the forensic evidence is false, it leads to a wrongful conviction, (47) as in the case of Knolly Brown, Jr. (48) Brown Jr. pled no contest to second-degree rape when the forensic experts from various agencies confirmed that the evidence gathered from the victim and from Brown's residence matched. (49) In turn for Brown's plea, the prosecutor dismissed charges for first-degree rape and first-degree kidnapping and when Brown Jr. pled, he was sentenced to five to six years and nine months in prison. (50) Another case is of Michael Trevino who was charged with sexual assault of his daughter, pled no contest to indecency with a child after the forensic expertise showed that the victim was sexually active and he was sentenced to eight years of probation. (51) Kevin Peterson was also wrongfully charged with sexually abusing two of his children, and once the medical examination came to find that the child had signs of sexual abuse, he pled no contest to second-degree child abuse, and instead of fifteen years in prison, the court sentenced him to one year in prison, three years of probation, and completion of a sex offender treatment program. (52)

    However, in some cases, the forensic evidence may show that the defendant was not the perpetrator, but there are instances when the prosecution withheld such evidence to reach a conviction, thus violating the Brady rule. (53) As was in the case of Clyde Ray Spencer, who was charged with and pled no contest to first-degree statutory rape and four counts of complicity to statutory rape and was sentenced to two life terms along with an additional fourteen years in prison. (54) Only when Spencer hired a new attorney and a private investigator was it discovered that forensic evidence detrimental to his acquittal was withheld, and only then was he allowed to withdraw his plea and got exonerated. (55)

    The issue of plea bargaining, where prosecutors are "trying to sell" a supposedly good deal, has been discussed by various scholars, (56) and among the solutions was to grant the defense attorney equal power to that of the prosecutors. (57) However, it may still lead the innocent to plead guilty because the deal seems rational. (58) Take, for instance, the case of Edward Easley who faced thirty years in prison for molesting his niece, but was advised by his attorney to plead no contest and was sentenced to ten years in prison. (59)

    If you look closely at plea bargaining, some of the deals seem rational, and prosecutors can significantly reduce the charges and length of prison term, but defendants should also consider extra-legal factors which can worsen the situation for the defendant who decided to plea. Among these factors, one of them is immigration status. (60) As was the case of Carlos Lopez-Siguenza, who was wrongfully charged with two counts of aggravated sexual assault, two counts of child abuse, and two counts of endangering a child's welfare, pled guilty to one count of second-degree sexual assault of a minor and sentenced to three years in prison. (61) However, once he served his sentence, because he was a resident of U.S., he was deported to his home country, El Salvador. (62) Another case is of Juan Carlos Gonzalez-Barboza, who was wrongfully charged with first-degree rape, pled guilty...

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