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Jackson Faces Tougher Laws

November 23, 2003|Gerald F. Uelmen

Even though Michael Jackson was accused in 1993 of molesting a 13-year-old boy, no charges were ever brought against the entertainer -- reportedly because the alleged victim announced at the last minute that he no longer wanted to pursue the case. Prosecutors, lacking a star witness, backed down.

And because the alleged victim had agreed to an out-of-court settlement in a civil suit, the whole affair left many with concerns that Jackson had used his enormous wealth to "buy his way out " of his problems.

But this time around, Jackson is in deeper legal trouble -- he has already been charged with multiple felony charges in connection with the alleged molestation of a 12-year-old.

And a host of laws enacted after 1993 have made it easier to prosecute accused child molesters in California. For example, 10 years ago, a defendant could avoid criminal conviction for a misdemeanor molestation offense through what is called a "civil compromise." If the alleged victim appeared in court and acknowledged receiving satisfaction -- monetary or otherwise -- for the injury, pending charges could be dismissed.

But in 1997, the California Legislature amended the law. "Civil compromises" are no longer allowed in cases involving the molestation of a child, making prosecution more likely.

Of course, a child victim of a sexual assault can still refuse to testify. California law states that no victim of a sexual assault, regardless of age, can be forced to testify about the assault.

But even the refusal of a child victim to testify might not derail a case, because a law enacted in 1995 allows into evidence out-of-court hearsay statements of children under 12 describing acts of abuse. The prosecution need only show that the statements are "reliable" and that the child is "unavailable." A child's refusal to testify would be enough to make him "unavailable."

Today, just as in 1993, a cooperative victim willing to testify is the linchpin of a strong prosecution case. Here too the Legislature has provided new laws making it easier for child-abuse victims to testify. Their preliminary-hearing testimony can be videotaped and used later at trial so they can avoid the trauma of a second court appearance. Child-abuse victims are legally entitled to "support persons" to accompany them to the witness stand. Testimony via closed-circuit television is also available, but only for victims ages 10 or younger.

The change in the law that will present the most serious problems for Jackson was passed in 1995. It provides that when a defendant is on trial for a sexual offense, evidence of a prior sexual offense is admissible to show his propensity to commit such offenses. What's more, the prior offense need not have resulted in a criminal conviction. This means that the alleged victim in the 1993 incident can be called as a witness in the current case to support a prosecutorial attack on Jackson's character.

The state Supreme Court upheld this law in 1999. The court rejected a constitutional challenge claiming that the admission of bad-character evidence to show "propensity" violated the defendant's constitutional right to due process of law.

Despite the new laws, there are still loopholes. If a child-abuse victim is 12 or over, then hearsay evidence of the abuse won't be admissible. If a previous victim refuses to testify, a prior offense can't be established. And purported victims can still pursue civil cases, settle and then pull out of criminal proceedings.

However the case unfolds, more is at stake in this case for Jackson than his career as a pop star. Sentencing laws for sex offenses in California are the most severe in the country, and they've only gotten tougher in the last 10 years. As the late state Supreme Court Justice Stanley Mosk put it, when it comes to sex offenses, the California Legislature believes "nothing succeeds like excess." It is not uncommon for convicted child molesters to receive sentences of 40 years to 50 years, and multiple acts even with a single victim frequently result in consecutive sentences.

Gerald F. Uelmen is a professor of law at Santa Clara University School of Law.

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