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Marsha411JD
Marsha411JD, Lawyer
Category: Criminal Law
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Experience:  Licensed attorney with 28 yrs. exp. in criminal law
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I found out about "dirty" email conversations happening between

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I found out about "dirty" email conversations happening between my then 14 yr old sister and a mutual family friend who was 27 at that time. As soon as I found out, I confronted the guy and yelled at him among other things, mentioned to him that is he crazy to be talking "dirty" and having sexual conversations with my sister and also pointed out to him that she is 14 yrs old and that he should find someone of his age. All of this took place in 2009.

Well just couple of days ago, my sister confessed to me that after my encounter with the guy, few months after, they started chatting again. They chatted thru yahoo messenger, Instagram, MySpace for about a year until they met in October of 2010. And that is when they had intercourse the first time. She was 15 and he was 28.

Can we press charges against him for statutory rape even though now she is 18 and he is 31? And the only evidence I can think of is my sister's word against him.... Unless the prosecutor can try to recover chat conversations between them from 3-4 yrs ago. And is that likely that will happen? I'm feeling helpless. We live in MA (and so does the guy) but the first sexual encounter happened in RI. And then many more in MA during their 3-4 yr relationship.

My sister thought at that time she was in a relationship with the guy and have sexual intercourse with him multiple times. She has had a troublesome childhood as well. When she was 7 yrs old she was sexually molested by an older guy in our family. When she turned 14 yrs old her brother in law molested her several times and now this.

She came out clean to me now because she clearly thinks that she was taken advantaged by this guy even though she thought she was in a relationship with him and loved him.

She started counseling last year. She said she needed it for her own mental help; my parents or I didn't think too much at that time perhaps we thought she has stress of her education, teenage life, etc. and through that she realized that she was a victim of being innocent and felt in his trap through his manipulation and her being in "so called love" during that time. Couple that with her past of sexual molestation, she couldn't tell right from wrong. She's clearly traumatized and now wants justice. My sister strongly believes that if the police can confiscate his laptop and cell phone they will easily find history of their conversations and how they planned their every meeting and pictures of them being together as well. He made my sister delete conversations/ emails from her end by saying to her that she can risk herself getting caught by the family.

Please guide me what steps should be taken and what are our chances of winning, if any, and what judgments can be ruled against him, if any?

My sister had spoken to a rape counselor as well.

The first sexual encounter happened in RI when she was 15. After that, they had their "secret meetings" in MA but I'm afraid she had turned 16 by then. I'm not sure if I can still file charges in MA? Given that even though she turned 16 but the manipulation started when she was 15 and their first intercourse happened when she was 15 and other acts such as oral sex, etc.

-Helpess
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question and I am sorry to read about your sister's situation. In Rhode Island the age of consent is 16. It is a sexual assault in the 3rd degree for a person over 18 to have sexual relations with a child under 16, but since she was over 14 when it happened, it would be this 3rd degree charge which carries a potential 5 year prison term. The good news is that RI has no statute of limitations of sexual assault charges. Meaning that if your sister wanted to she could go to the RI prosecutors now and file a complaint. That said, the prosecutor has prosecutorial discretion. So, unless they think they can prove their charge, they won't move forward with the prosecution.

A lot goes into that decision. Not only your sister's cooperation, but also, her believability, and like it or not, her background. It will be relevant, what, if anything was reported in these two other cases of sexual molestation that you shared. If she says those occurred, but she never reported them before and now only wants to report this one, then the prosecutor will likely discount what she is saying. Obviously if they have other evidence, like a confession from this guy or any records of admissions in writing, then that would help. But in any event, she can certainly file a complaint and see where it goes.

As for Massachusetts, since you are saying that she was 16 by the time the relationship continued in Mass, then that is a little more complicated. Massachusetts sexual molestation and assault charges are a little complicated, but essentially the only law that would have arguably been violated was one that has only been enforced once that I can see since 1987. That is a law as follows:

MGL c.272, s. 4. Inducing person under 18 to have sexual intercourse.

Whoever induces any person under 18 years of age of chaste life to have unlawful sexual intercourse shall be punished by imprisonment in the state prison for not more than three years or in a jail or house of correction for not more than two and one-half years or by a fine of not more than $1,000 or by both such fine and imprisonment.

The problem is with a couple of words "chaste" and "induces." In this case, your sister had already had sexual relations, not only with this individual, but unfortunately apparently from the previous molestations. In addition, since they were together, I am assuming that he would say that she was a mutual participant and he didn't "induce" her. The statute of limitations would not be a problem as she would have 6 years from the time of the act, but it is really a stretch to think that the State will take this to prosecute. But again, she can file a report.

To answer your question about computer records, etc., as long as the computer is still available, if the police got possession of it, they could recover any record that had ever been created on it. In terms of what might be in email or social network systems, their records usually go back a few years, so there is a chance that they may be able to retrieve those.

Ultimately, your sister will have to decide if she wants to take this on since it can be protracted and unpleasant, or if she just wants to try to put this behind her and move on.

Please let me know if you need any clarification. I would be glad to assist you further if I can.

Expert:  Marsha411JD replied 1 year ago.
Hello again-- I see that you read my answer but not where you had any follow up questions. If you do please feel free to ask them. However, I just want to clarify that your sister was actually living in RI when the sexual relationship began in that State. If not, how did this occur in RI? Did this man take her there or tell her to meet him?
Customer: replied 1 year ago.
My sister and family had gone to RI for a wedding. He was not invited, but they planned to meet there. They met in his car (parking lot of the hotel where the wedding reception was held) and had their intercourse in the car as well... Any thoughts?

What evidence will help or you think is best to have in cases like these to prove this above mentioned first incidence? I would imagine there's not a lot of prove generally in statutory rape cases.... So how do they get prosecuted?
Expert:  Marsha411JD replied 1 year ago.
Hello again and thank you for that additional information. There may be an additional course of action under the statute below, which is the RI "enticement" statute. So, that would be two charges that are possible in RI. In Mass, if she was living there and they did not have sex there until she was 16, then there probably is no statute other than the one I shared before, although there is an "enticement" statute in Mass., it applies to children under 16.

Finally, if he had convinced your sister to go to RI, rather than her going anyway because she was going to a wedding, there might be a Federal criminal action since he would have been getting her to cross state lines to engage in criminal conduct.

So, if she is up to it, she should consider filing a complaint with RI and the Mass law enforcement authorities and see where their investigation goes.

As far as proof goes, as I touched on before, they will start with her statement and then try to establish other facts/evidence which support her statement of the facts. That would be done by interviewing all of the potential witnesses and attempting to interview the accused, as well as looking at any physical evidence, like diaries, letters, emails, photos, etc., to establish their case. These cases do sometimes come down to one person's word against the other. But most prosecutors will not take a case to trial these days unless they have more than a he said, she said. That is the unfortunate fact. They just don't want to spend time, money and their reputation on a case they "know" they can't win. But, as I mentioned, they will investigate and try to put facts together to build a case if they are there.


§ 11-26-1.5 Enticement of children

(a) A person shall be guilty of a felony if that person attempts to persuade, or persuades a minor child under the age of sixteen (16) years, whether by words or actions or both, with intent to engage in felonious conduct against that child to either:
(1) Leave the child's home or school;
(2) Enter a vehicle or building; or
(3) Enter an area, with the intent that the child shall be concealed from public view; while the person is acting without the authority of: (i) the custodial parent of the child, (ii) the state of Rhode Island or a political subdivision of the state, or (iii) one having legal custody of the minor child. Nothing contained in this section shall be construed to prevent the lawful detention of a minor child or the rendering of aid or assistance to a minor child.
(b) Every person convicted of a violation of the provisions of this section shall be guilty of a felony, and shall be punished by imprisonment for not more than five (5) years, or by a fine of not more than five thousand dollars ($5,000), or by both fine and imprisonment.
(c) Every person convicted of, or placed on probation for a violation of this section, may be ordered to attend appropriate professional counseling to address his or her behavior
Customer: replied 1 year ago.
Well the thing is she was in a 3-4 yrs relationship with this guy. So she cannot recall every single detail.

Let me ask you this: during the course of this relationship she remembers certain details that might help the case. However, I don't think that would apply since all those details/ encounters happened in MA with her being 16+ old. Am I right in thinking this? Or can we establish that to argue the fact that the first incidence really took place?

I talked to my parents about the first incidence and they remember that my sister disappeared for awhile from the wedding and they wondered where she had disappeared. They also called her cell but she never answered. They had assumed that she was probably somewhere and surely she came back. My parents don't recall exactly if it was half hr to 1 hr where they noticed she had disappeared. Do you think this information helps? The only other way is probably to get records from email or cell of their conversations to meet up.... Do u think the cops will dig that further to investigate? Or do you know how I can go about retrieving records from cell and email from 3 yrs back?

Also, can the police question him once she files a report? Or do they question if they decide to charge him based on their investigation and if there's a case?
Expert:  Marsha411JD replied 1 year ago.
Any and all facts may assist in establishing that the first event occurred. I really can't dissect this particular case though since I don't have all of the facts. I would be just stabbing in the dark, but as I mentioned, investigators get any and all facts that they can and then they try to put the pieces of the puzzle together. So, yes, any memories will help. Yes, police will attempt to speak to the suspect, they always do before deciding whether to prosecute them.

You can't retrieve the phone records, the State will have to get a warrant or a subpoena or any phone records they need to build their case or investigate.
Customer: replied 1 year ago.
I just want justice for my sister. Of course, I understand that she had a part as she was in "so called love" relationship with him, however, we have to understand that she was just 14 at that time. And few months before that she had gone through molestation at the hands of our brother in law who is married to our elder sister and resides in Canada. The brother in law threatened her not to mention it to anyone or life will get tough on everyone and he made her feel guilty, so she kept those emotions inside of her until she let it out recently.

Honestly speaking, had she not gone to counseling in the past 6 months or talked to a rape hotline, we might not have ever become aware of them.

I know it's hard for you to say one way or another, but I'm just sitting here wondering if this have enough meat to pursue and files charges. Is it going to be worth it for her to come out in public and go through the emotional stages that lie ahead?
Expert:  Marsha411JD replied 1 year ago.
I certainly understand your feeling about this. Your sister was victimized more than once and it is hard not to want to see these people punished. I can only tell you what the law is and what the process is and how evidence will be gathered. I did mention in a prior answer that this is not a sure thing and that the process is uncomfortable at the very least. She must be prepared for possibly intense questioning from the police, the prosecutor and the defense counsel, should it ever get that far and this other person is arrested and pleads not guilty. So, it has to be worth it to her and her only. That is a decision she should make on her own without pressure from anyone.

But if she does feel like she can handle the pressure, then she should start now by filing her complaints and see where it goes.
Marsha411JD, Lawyer
Category: Criminal Law
Satisfied Customers: 17275
Experience: Licensed attorney with 28 yrs. exp. in criminal law
Marsha411JD and 8 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

 


1) Can I go to district attorney office and see one of the prosecutors to discuss the case and how much weight is going to be in our favor without filing a case?


2) And can I do the same thing going to a police detective without pressing charges?


3) An option my sister's counselor presented to us that we might want to settle and confront the guy and his family to settle this; if it helps us and more importantly my sister to cope with it better. My question is if we decide to go that route, is there state assistance provided in a legal way where we can have a legal document/ agreement in place between both the parties? And if any conditions in the agreement is broken by the guy then we can have a legal recourse and can enforce it?

Expert:  Marsha411JD replied 1 year ago.

1) Can I go to district attorney office and see one of the prosecutors to discuss the case and how much weight is going to be in our favor without filing a case? You can try, but it is doubtful that they could take the time to talk to you. Normally when a criminal complaint is made directly to the DA's office, the alleged victim will speak to an investigator and perhaps a victims' advocate, but no one of the attorneys. Until there is a complete investigation no one can tell you what the results will be.


2) And can I do the same thing going to a police detective without pressing charges? First, just to make clear, it is your sister, and not you, who would need to be filing the criminal complaint. Again, no one is going to tell you the results of a case until there is an investigation, so although they might initially indicate if they have jurisdiction, etc., they won't tell you yes or no on the charges.


3) An option my sister's counselor presented to us that we might want to settle and confront the guy and his family to settle this; if it helps us and more importantly my sister to cope with it better. My question is if we decide to go that route, is there state assistance provided in a legal way where we can have a legal document/ agreement in place between both the parties? And if any conditions in the agreement is broken by the guy then we can have a legal recourse and can enforce it? No, you will need to find a local attorney fee based to assist you in sending him a demand letter and getting the process started.

Customer: replied 1 year ago.

Lets just say, if someone were to get a confession from him on video/ audio and/or a written signed statement, would that help? And how much can be admissible in court?


 


Or if my sister decides to get in touch with him to meet and lets all her frustration out on him and he agrees that he did wrong. And my sister records their conversation, would that help? And how much can be admissible in court?


 


So i'm assuming a demand letter can be enforced legally if the conditions are not met by the guy? And if he accepts the demand letter, doesn't it mean he is admitting guilt to the crime?

Expert:  Marsha411JD replied 1 year ago.
That would help, but it may or may not be admissible. The rules of evidence are very complex and there is no way to say yes or no. The court would look at the circumstances of how the statement was taken and the state of mind of the person making the statement.

The same thing applies for a recorded conversation, but it is even more difficult to admit those into evidence since there is a lot of foundational evidence that must be established first to establish if the recording in what the proponent says it is, etc.

Again, can't give you absolutes at all, no one can.

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