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#371929 - 10/07/11 10:55 PM Arizona Stat. of Limitations for CSA Pt. 1
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Hello All,

A few weeks ago, it occurred to me that a specific young man here might be able to prosecute the criminal who committed crimes against him. This young man lives in Arizona. I'm a lawyer in Georgia; I don't practice in Arizona, but I can read the current Arizona statutes and appeals cases from probably the last 30 years. So I did some reading.

After doing this reading, I wrote to Pufferfish and asked him if he thought this information might be useful to post in F & F. He thought so. So I've taken some time to write it up. It is not complete, but it does give a good handle on the subject.

Now, some caveats. As I said, I don't practice in Arizona. I don't even practice criminal law. But I do have access to current Arizona laws and the last 30 years of cases.

Also, part of my concern about providing this information is that law changes. It has nuance. It turns on small details. I have concern if I provide a black and white statement, someone will believe his case can be prosecuted because it is still in time, but it can't, because due to old law versus new law, or to technical points, time has run out.

Therefore, rather than providing a black and white statement on how long CSA can be prosecuted in Arizona, I've written something that shows some of the intricacies of it all. In years past I specialized in appellate work (writing briefs for cases in front of appeals courts), so if the writing is too lawyerly, I apologize.

First, some general concepts.

Each state has its own criminal statutes, however, what follows are some general concepts which most employ in one fashion or another.

1. Crimes are generally prosecuted in the political subdivision where the crime occurred. Therefore, if you were abused in Cochise County, Arizona, but not within the city limits of a town in Cochise County, then you would contact the Cochise County law enforcement, be it a sheriff’s department or county police department.

2. Typically, you call law enforcement in that political subdivision and tell them you want to report a crime. They can send out an officer, or sometimes, you can go into an office to make a report. Some of the smaller precincts may not be manned at all times, so sometimes it’s more convenient to have them come to you. This really depends on the department and how they’re set up.

3. Each kind of crime has a “Statute of Limitations.” Actually, each kind of criminal case and civil case, has such a statute. Basically, it provides that a crime can be prosecuted for a period of years, usually calculated from the date the crime was committed. There are exceptions to this method of calculation. As an example of time calculation, if a crime was committed on July 27, 2003, and the statute of limitations for the type of crime is 4 years, then typically the crime can be prosecuted until July 26, 2007. “Prosecuted” is a legal term. It doesn’t mean the trial must take place within 4 years, usually it means an indictment must be filed within that time.

4. Statutes of limitation can be “tolled.” Using our example in number 3 above, if a crime was committed on July 27, 2003, but the state in which the crime was committed stops the running of the statute of limitations for any period of time the criminal is outside of that state, then the 4 years statute of limitations can be extended. So, if the criminal leaves the state on January 1, 2003 and returns on December 31, 2004, then the statute of limitations is extended until July 26, 2009, more or less.

Different states toll statutes of limitations for different events. No, I don’t remember why it’s called “tolling.” :^)))

5. If a statute becomes more favorable to victims, there is still a question as to its applicability to past crimes. In other words, is the change RETROACTIVE? This is a very important area for prosecution of childhood sexual abuse, because many times the crimes occurred many years or even decades earlier.

So consider a possible hypothetical:

In our fictional state, the statute of limitations for CSA occurring before 2005, the limit is 4 years with no tolling provided. But in 2005, the legislature changes it to 10 years, tolled until the victim is 18 years old.

If the question is can a case be prosecuted now, in 2011, it depends on if it is retroactive.

If abuse occurs in 1993, on the child’s 9th birthday, the ability to prosecute would expire in 1997. If the new 2005 statute is not retroactive, he will not be able to prosecute. If it is retroactive, he will be able to prosecute from the time of the crime, plus 10 years after he turns 18, or 1993 + 9 years of tolling to reach age 18 which equals 2002, plus an additional 10 years given under the new statute, or until 2012. So as of 2011, it could still be prosecuted.

Each state can handle this question differently.

_________________________
Female.

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#371930 - 10/07/11 11:01 PM Re: Arizona Stat. of Limitations for CSA Pt. 2 [Re: Disappointed]
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Arizona Statute of Limitations in Childhood Sexual Abuse

In 2010, Arizona adopted a new statute of limitations for certain sexual assaults with minors under the age of 15. There are exceptions to what follows, but its a good starting point.

Under Arizona statute 13-107, the statute of limitations for certain categories of class 2 felonies has been eliminated, and “may be commenced at any time.” This elimination of a time limit includes prosecution for “any attempt” to commit such an offense. Offenses included are any of those listed in title 13, chapter 14.

This new rule applies in all offenses in chapter 14 of title 13 which are class 2 felonies.

Under A.S. 13-1405.B., “[a] person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.” Such conduct with a minor who is under fifteen years of age is a class 2 felony.

Further, “...[s]exual conduct with a minor who is at least fifteen years of age is a class 2 felony if the person is or was the minor's parent, stepparent, adoptive parent, legal guardian or foster parent or the minor's teacher or clergyman or priest...” A.S. 13-1405.B. Therefore, this criminal activity also may be prosecuted at any time.

Arizona statute 13-1406 defines “sexual assault” as “intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.” It is a class 2 felony in title 13, chapter 14.

As far as lesser offenses, the Arizona code defines “molestation of a child” as “intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.” Molestation of a child is a class 2 felony. A.S. 13-1410.

It also provides that a person who over a period of three months or more in duration engages in three or more acts of sexual conduct, or sexual assault or molestation of a child who is under fourteen years of age is guilty of “continuous sexual abuse of a child,” and is a class 2 felony. A.S. 13-1417.

To convict a person of continuous sexual abuse of a child, the jury, or judge if a bench trial, shall unanimously agree that the requisite number of acts occurred. They do not need to agree on which acts constitute the required number.
Not researched the limitations for any type of sexual exploitation of a minor for financial gain, or for other forms of child abuse.

What were the previous statutes of limitations for CSA in Arizona?

I dont have copies of the law old law.. Instead, I have read some cases decided by the Arizona appeals courts to “reverse engineer this information.

In the 1983 case of Martin v. Superior Court In and For Yuma County, 135 Ariz. 99 (1983) decided by the entire Arizona Supreme Court, the opinion relates some information on some previous statutes of limitations for felonies.

There, the defendant was charged with sexual assault and “lewd and lascivious acts,” all charges being felonies.

I’ll put this in table form. [I don't know how to insert a table}

Crime Charged Dates Occurred Date of Indictment S.O.L. at time of Crime
Sexual Assault May 8, 1982 September 2, 1982 New criminal code effective on October 1, 1978. Under it, the felony SOL was 7 years. A.R.S. § 13-107.
NOT retroactive. Only applied to offenses committed AFTER effective date.
Chapter 142, Section 179 of 1977 Sessions Laws.
Prosecutable.
Lewd/Lascivious Acts March 1977
May 1977
December 1976
June 1973 September 2, 1982 Previous criminal code, felony SOL was 5 years. A.R.S. § 13-106.
Not Prosecutable.

For these types of felonies committed previous to October 1, 1978, the SOL was 5 years. After that, it was 7 years.

Is there any tolling for SOLs in Arizona? The case of State of Arizona v. Escobar-Mendez, 195 Ariz. 194 (Ariz. Ct. of Appeals, 1999) dealt with a criminal who committed class 2 felonies of “sexual conduct with a minor.” He argued the SOL had run by the time he was indicted, and thus his convictions should have been reversed. it shows the positive evolution in SOL law in Arizona for CSA cases.

In November of 1994, a detective investigated a claim of sexual assault by a criminal against his girlfriend’s minor daughter. Let’s call her Sarah. During the investigation, he heard that the criminal may have impregnated the daughter of a previous girlfriend.

The detective contacted this other daughter in December 1994. We’ll call her Mary. At this point, Mary disclosed for the first time that the criminal had sexually assaulted her repeatedly between 1984 and 1987 while she was a minor and he lived with her mother. Born in July 1972, Mary was 10 years old when he began molesting her. When she was 12, he had intercourse with her. During these events he would threaten her, threaten to kill her mother, and told the child it would be her “fault” if she disobeyed and he killed her mother.

In February 1986, at age 13, Mary had a baby. The criminal told her to tell everyone the father was a boy from school who had moved away. As stated above, Mary never told anyone what the criminal had done to her, until December 1994.

The accused was indicted for his crimes against Mary in October 1995, and later convicted.

Here is a table for this case. State of Arizona v. Escobar-Mendez, 195 Ariz. 194 (Ariz. Ct. of Appeals, 1999)

Crime Charged Date of Crime Date of Indictment S.O.L. at time of crime Tolling of SOL?
Sexual Conduct with a minor 1987 October 1995 7 years Yes, does not begin to run until the political subdivision having jurisdiction actually discovers or should have discovered, the offense occurred. A.R.S. § 13-107

Arizona changed its SOL from the more standard method of calculation to a method more favorable to victims in 1978. “[P]rosecutions ... must be commenced within the following periods after actual discovery by the state or political subdivision having jurisdiction of the offense or discovery by the state or such political subdivision which should have occurred with the exercise of reasonable diligence, whichever first occurs: 1. For a class 2 ... felony, 7 years.” A.R.S. 13-107(B) (emphasis added).

The criminal argued that when 13-year-old Mary had a baby at the hospital, this amounted to “actual discovery,” or “discovery which should have occurred with reasonable diligence.” But the court of appeals ruled the hospital was not a political subdivision, and did not have jurisdiction over prosecution of offenses. The appeals court also declined to impute the knowledge of the doctors to the State.

The court noted that “reasonable diligence” turns on the details of each case, and that in this case, within 11 months of being tipped off to the crimes, the indictment was delivered. Further, the court took into account the active steps the criminal took to conceal his crimes, such as threatening the child, telling the child he would kill her mother, and telling her to tell everyone a young boy impregnated her, which would not necessarily be a crime under Arizona law (person under 14 not criminally responsible absent clear proof person knew conduct was wrong).

i'll change this post if i find out how to insert the tables

_________________________
Female.

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#371931 - 10/07/11 11:08 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Disappointed]
Marinan Offline
Guest

Registered: 07/03/07
Posts: 329
Whaat if I don't remember when it happened? I was in Junior High at the time.


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#371932 - 10/07/11 11:14 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Marinan]
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Well, give me some years.

Your date of birth.
Specific Year or range of years in junior high.

_________________________
Female.

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#371933 - 10/07/11 11:16 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Disappointed]
Marinan Offline
Guest

Registered: 07/03/07
Posts: 329
I was born 12/10/83
Uh.. Let's see, I graduated High School in '03, I may have been 14 at the time.


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#371934 - 10/07/11 11:21 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Marinan]
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Okay, now understand, I'm not in the business of giving legal advice here. I'm just speculating.

Okay. Born in '83. Graduated in '03. Probably junior high in '98, '99?

So crimes probably committed near those two years. As I understand the decision in State of Arizona v. Escobar-Mendez, after 1978, the statute of limitations does not begin to run until the political subdivision knows, or has reason to know, of the crime.

Did you ever tell any police officer, or anyone like that, because if you did, the 7 year limit would have begun running at that time?

_________________________
Female.

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#371936 - 10/07/11 11:22 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Disappointed]
Marinan Offline
Guest

Registered: 07/03/07
Posts: 329
I didn't tell anyone.


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#371937 - 10/07/11 11:26 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Marinan]
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Well, honestly, even speculating, I don't know the answer. The statute in the Escobar-Mendes case was from 1978. I have not researched to find out if that is still good law.

If it was, then I think it is still prosecutable. HOWEVER, I'm concerned, because you being born in '83, you turned 21 about 2004. I would be really surprised if there wasn't some limit on the time after you turn 21.

If I were you, I would at least contact law enforcement, and see what they say. There is a chance it is still prosecutable.

I'm sorry I'm not more sure, but I've been writing all evening, and I'm a little tired.

_________________________
Female.

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#371938 - 10/07/11 11:28 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Disappointed]
Marinan Offline
Guest

Registered: 07/03/07
Posts: 329
Thanks. By the way, just so you know, I'm not Pufferfish. lol


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#371939 - 10/07/11 11:31 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Marinan]
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Well, I KNEW that P Hes 50 or something.

P

_________________________
Female.

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#372160 - 10/11/11 07:32 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Disappointed]
InsideTheWall Offline


Registered: 01/10/09
Posts: 280
Any sort of statute of limitations in regards to this stuff deserves nothing but the strongest contempt. This whole process where the traumatized victim has to take the stand, yet the subhuman kiddie fiddler doesn't, is alone more than I need to think the law is fucked up beyond any possible words.



Edited by InsideTheWall (10/11/11 07:32 PM)

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#372166 - 10/11/11 09:14 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: InsideTheWall]
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Dear InsideTheWall,

I agree. The point of my posting isn't to talk about what the law should be, only to tell those who wish to prosecute NOW, what the rules are.
This is especially helpful information for those in their 20s, who perhaps haven't thought about prosecuting, because they assume the statute of limitations has already passed.
As I state in my summary, which still needs formatted correctly, as of 2010 in Arizona, they DID eliminate the statute of limitations. However, these changes normally only begin for crimes committed on the date of the change forward.

Before that, as I understand the Arizona, from 1978 felonies had a 7 year statute of limitations, and this 7 years did not begin to be counted, until the political subdivision BECAME AWARE of the crime.

I did this research specifically for one person. Then I posted it helping to benefit others who might have assumed their time had run.

Thank you sharing your thoughts,
D.

P.S. I have also posted asking if anyone would like me to research another state. No requests thus far, the offer is still open.

_________________________
Female.

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#372333 - 10/13/11 08:46 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Disappointed]
MartinB Offline


Registered: 09/13/11
Posts: 22
Loc: New Jersey
I was somewhat lucky enough (if you can call it luck) that I came forward at the age of 24 to report to the DA and police department that I was abused by four separate men as a child, somewhere between the ages of about 3 to 15 or 17. PA SOL is 12 years after the victim turns 18.

I wanted to take the stand. I wanted to scream across the courtroom and I wanted everybody in that courtroom to understand that Daniel ##### was not the good and decent man everybody thought he was. Did it hurt? Yes. Was it difficult? Absolutely. I thought for sure I had used up all of my emotional energy to get my truth out there, and in the end I won. The one abuser I was able to charge criminally and civilly was already serving a 66 year prison term for raping a 7 yr old boy.

When I went forward about the two Catholic priests who abused me, the church tried to pay me off. They offered me $700,000 and even wanted to pay my rent and pay off my car. I told them to stick it! Unfortunately when I decided I wanted to go after the church criminally and civilly, the SOL had run out, one of the two priests who abused me had died (good), and the law that's supposed to protect the innocent made it very clear to me that it was more willing to protect the perpetrator.

We are trying to change laws around the country. There should be no SOL on child abuse/soul murder. Anyone who abuses a child should be punished just as those who murder a child.

Please... stand up and let your voices be heard. You are not alone and many of us are fighting for your rights, your justice, and the protection of children now and in the future. Let's place the blame where it belongs.

Martin

_________________________
Please call me Martin. One of my abusers would call me "Marty" and it just brings back too many awful memories.

Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen.- Winston Churchill

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#372408 - 10/14/11 05:19 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: MartinB]
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Dear Martin,
Thank you for telling us your experiences in this.

_________________________
Female.

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#376325 - 11/21/11 01:58 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Disappointed]
brother2none Offline
Member
MaleSurvivor

Registered: 01/30/09
Posts: 265
Loc: Undisclosed
bump to this topic. good stuff here, thanks.


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#381362 - 01/03/12 08:26 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: brother2none]
brother2none Offline
Member
MaleSurvivor

Registered: 01/30/09
Posts: 265
Loc: Undisclosed
I was wondering... if one was to file a civil suit against a perp in Pennsylvania (or any state) that was otherwise beyond the statute of limitations in PA, how far would it proceed, and when its dismissed, does it prevent re-filing if/when a window statute is enacted?


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#381422 - 01/04/12 12:10 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: brother2none]
brother2none Offline
Member
MaleSurvivor

Registered: 01/30/09
Posts: 265
Loc: Undisclosed
More... I assume I would draft and file the complaint, and then it would be processed by the court and sent to the defendant for an answer, and that's where it gets vague...

Would interrogetories (list of questions)be prepared?

At what point does the court say it's beyond the SOL or is that for the defendant to figure out?

Hoping a lawyer or someone who has done this in PA or any state can respond, either here or by PM. Thanks.


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#381426 - 01/04/12 12:47 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: brother2none]
unhappycamper Offline


Registered: 10/21/11
Posts: 597
Loc: VA
In any jurisdiction (state, province) the statutes of limitations are different for civil and criminal cases. Usually the civil statutes are shorter for tort cases (civil suits seeking money damages for personal injuries), hence the resistance to extending civil S/Ls for CSA survivors.

As we've heard in the news lately, criminal statutes vary tremendously: Bernie Fine the Syracuse coach can't be prosecuted because the S/L is six years in New York, but some of Jerry Sandusky's charges in PA go back more than ten years. In Virginia there is no S/L at all on felonies.

John

"I'm a lawyer, but I don't play one on the Internet."


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#381427 - 01/04/12 12:56 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: unhappycamper]
Avery46 Offline


Registered: 09/23/10
Posts: 1243
Loc: USA
This post is very interesting.

I would like to have the laws changed here in Minnesota. I am not even sure who can help with this without money changing hands.

I am in a place where I share the computer so, can not look at the thousands of pages of law.

Some interesting thoughts.

_________________________
aka DJsport

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#381432 - 01/04/12 01:53 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Avery46]
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Hey A. what do you want to look up, ill see if I can

_________________________
Female.

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#381434 - 01/04/12 02:06 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: brother2none]
Disappointed Offline


Registered: 08/11/09
Posts: 540
Loc: U.S.A.
Originally Posted By: brother2none
I was wondering... if one was to file a civil suit against a perp in Pennsylvania (or any state) that was otherwise beyond the statute of limitations in PA, how far would it proceed, and when its dismissed, does it prevent re-filing if/when a window statute is enacted?



Dear Brother 2 None,

I don't know Pennsylvania civil procedure statutes and rules. However, I would strongly advise against filing such a suit because in some states, such as Georgia where I practice, a filing without legal justification can find the filing party assessed for attorney's fees in favor of the party being sued.

As far as a change in the civil statute of limitations (which is normally NOT the same as the criminal statute of limitations), it would depend precisely on how that statute was drafted. Therefore, it would be the purest of speculation to answer the second part of your question.

However, I will say, the doctrine of res judicata would prevent refiling if you had previously filed a case which was dismissed by the court on legal grounds.

D.

_________________________
Female.

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#381680 - 01/06/12 04:37 PM Re: Arizona Stat. of Limitations for CSA Pt. 1 [Re: Disappointed]
brother2none Offline
Member
MaleSurvivor

Registered: 01/30/09
Posts: 265
Loc: Undisclosed
Just saw at nj.com that two survivors have filed civil suits in NJ even though the SoL is expired. I'm on the mobile so I can't give link.


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