Interviewer: What possible defenses are there to this scenario?
Attorney Churak: There aren’t many defenses. The question boils down to what is the nature of the communications? Is the communications the type that is sexually oriented? Is it looking to have sex with a child? That’s what they’re looking for.
It’s got to have some sexual connotation and the authorities need to have that. If it’s just communication without any real deep sexual connotation, they usually don’t even prosecute. Most of time, when they prosecute they’ve already decided that they’ve got a strong enough case and they’re going to go forward with it.
In that situation, the police already have the IP address, the e-mails and they’ve got everything in line to prove it’s him that’s doing it. They’ve got the computer. They’ve pulled everything off the computer.
If the communication was with an officer, of course, they have all the evidence on the other side. At that point in time, you look at damage control and what we try to do is avoid the situation of having to go to prison. Some of these people are family men that are working and supporting families and they just get addicted to this behavior.
Usually, in these situations, what we do is we’re looking at a probation deal and usually the DAs are particularly fond about recommending probation in these types of cases. The defense attorney has to prepare a fairly strong case to the judge to try to get probation.
What I do is deal with a sex offender counselor who has worked for 30 years and just doing evaluations and counseling sex offenders. She has worked with the county and the criminal justice system and juveniles and so she has a good reputation.
We send the defendant over to her to work up an evaluation to see whether this individual is truly a predator or not and have that information for the court. I have her come in and testify that this individual warrants probation and needs help and the best way to get this help is through sex offender counseling.
We try to get these people probation. The truth of the matter is it works about 50% of the time. It just depends on the judge involved. Of course, if there’s photographs involved, it really complicates the issue because then you now have to defend a little more than just words.
Interviewer: How much does the counseling recommendation help?
Attorney Churak: I think it helps a lot because you have some evidence presented to the court that this person needs help. The main thing the court is looking for is the fact that he’s not a predator.
They do all the testing, including the plethysmograph to determine whether the defendant is just going to be a predator or he’s just somebody who needs help. Sexual Addiction is considered a true ailment.
Interviewer: What happens if a minor solicits another minor? Is that a crime as well?
Attorney Churak: That would depend. Technically, it is a crime. There is a defense, an affirmative defense in the State of Texas that if there is 3 years age difference between the kids, 36 months, that it’s an affirmative defense. But if the child is younger than 14, then it is considered a crime.