MAKING A CASE: DO MITIGATING FACTORS HAVE AN EFFECT ON SEX OFFENDER SENTENCING?

While sexual offenses vary from viewing illegal images to sexually violent crimes, the phrase “sexual offender” can conjure up images of brutality and violence, fueled by media and political platforms. As a recent article in Champion magazine notes, the U.S. Sentencing Guidelines for child pornography offenses skyrocketed as a result of direct legislative amendments, conceivably rooted in response to public outcry. From 1994 to 2007, the mean sentence in federal child pornography cases rose from 36 months of incarceration to 110 months.

Defending Against Charges of Sexual Offenses

Experienced defense attorneys recognize the value of a strong support network and involvement of sexual disorders specialists to overcome the blind fear of offender recidivism. For example, in United States v. McDonald, the federal district court ordered a downward departure from the sentencing guidelines appropriate for a 25-year-old defendant who pled guilty to possession of child pornography. The court explained that the defendant demonstrated a dramatic level of acceptance of responsibility and had an unusually high likelihood of rehabilitation and strong support network. It is important that these mitigating factors and others are presented at sentencing to allow a judge to impose an appropriate and meaningful sentence on the convicted sex offender.

Psychosexual evaluations can provide a foundation upon which judges and probation officers can base a sentencing disposition. Offenders maybe classified into one of five categories:

• Violent child offenders are estimated at five percent or less of all child offenders and engage in hostile acts toward children, often requiring long-term or permanent incarceration and monitoring
• Situational/regressed offenders account for approximately 80 percent or more of all child offenders and are the most likely to benefit from sexual offender treatment
• Fixated/dedicated offenders make up approximately 10 to 15 percent of the child sexual offender population and, because they are sexually oriented toward pre- or post-pubescent children, remain difficult to treat and have some of the highest rates of recidivism
• The actions of developmentally delayed or mentally disturbed child offenders may be more reflective of the disability as opposed to an actual sexual fixation on children and treatment to improve social skills and an understanding of healthy adult sexuality may be effective
• The final category of the sexually addicted offender is the least researched and remains somewhat controversial

Incarceration may be appropriate in some cases but an attorney can and should help defendants explore other options, including appropriate placement options, electronic monitoring as an alternative to detention and alternative sentencing plans. Those who have been charged with a sexual offense should contact a lawyer promptly to protect their rights.

Marcilliat & Mills PLLC provides North Carolina residents with experienced criminal defense representation including for those facing sex crimes charges.