Criminal lawyers defending against lewd or lascivious battery charges need to be very mindful of the alleged victim’s credibility. Since lewd or lascivious battery charges are victim crimes, juries will usually base most of their decision on the testimony of the victim and the testimony of the defendant (if the defendant testifies).
Victim’s Age as a Factor
Given the nature of lewd or lascivious battery, the victims in these cases are always teenagers at the time of the offense. At the very most, an alleged victim may be just over 18 by the time the case goes to trial. Regardless, most alleged victims will still be perceived as being young.
This fact is one that can both hurt and help the defense. On the one hand, it can hurt the defense if the victim looks and acts young because jurors will sympathize with the victim. The greater the age discrepancy between the victim and the defendant, the more sympathy a jury will have for the victim.
However, when the victim and defendant are very close in age, such as when a 18-19 boy is prosecuted for having sex with a 16-17 year old girl, juries sometimes sympathize with the defendant. In fact, some juries think such conduct shouldn’t be prosecuted, even though it isn’t necessarily legal.
At the same time, young victims sometimes have credibility issues. Given their maturity level, it is not uncommon for younger witnesses to testify inconclusively or inconsistently. Younger witnesses may also lack reliability when they give differing stories to law enforcement while the case is being investigated.
A criminal lawyer working on a lewd or lascivious battery case must also be cognizant of how the matter came to the attention of law enforcement. In my experience, many of these cases come to light when parents learn of their teenager’s tryst with an older person. Since most of the alleged victims in these cases are female, parents are naturally upset when an older male gets involved with their daughter. Such situations can become exasperated when the older male is the first person the alleged victim has ever dated.
Forensic Evidence
Forensic evidence commonly plays a role in lewd or lascivious battery cases as well. Since these offenses involve sexual trysts between teenagers and adults, it is not uncommon for these cases to include a plethora of electronic evidence. The following electronic evidence is most common in lewd or lascivious battery cases:
- Text Messaging
- Emails
- Instant Messaging
- Phone Videos
- Phone Pictures
- Cellular GPS Data
Contrary to popular belief, text messages are very easy to retrieve. All law enforcement has to do is either obtain them from the victim or issue a subpoena duces tecum to the cellular provider. A subpoena duces tecum is a document that forces a person or entity to disclose documents or other items to the requesting party.
Subpena duces recum are very easy for law enforcement to issue. In fact, cellular companies regularly get so many of these subpoenas that they have entire departments dedicated to servicing requests made by law enforcement.
Different cellular companies maintain instant messaging records for different periods of time. To my knowledge, there is no statutory or other legal requirement that dictates when and for how long a cellular company must maintain chat logs. After a certain period of time they get deleted if they aren’t retrieved and preserved.
Of course, when an alleged victim provides the text messaging him/herself, it makes it a lot easier for law enforcement. The problem is, however, that text messages can be lost by an alleged victim when he/she deletes the messages or loses their phone.