Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Articles Posted in Sexual Crimes

Yep, sometimes things go wrong in the criminal justice system, no matter which side you are on.

But, no, not in the way we have been discussing in my last few postings.

We turn Northward, to Peabody. According to the Salem Daily News, A gent who had been labeled by a judge in February as an “uncontrollable danger” to women walked out of court yesterday a free man. Case dismissed.

Mark Papamechail, 55, of Peabody (hereinafter, the “ExDefendant”) had been ordered held without bail since the fall after a woman accused him of “date rape” in October. The allegations were that the woman had been in her 50’s, she had gone on a few dates with him, he invited her back to his place where he pressured her for sex and then forced himself upon her.

The allegations of the case were similar to those in a 2014 case involving another woman in her 50s who had met the ExDefendant on a dating website called Plenty of Fish. She too said he had invited her to his apartment after a date, where a sexual assault allegedly took place.

That case went to trial and, in 2016, he was found to be not guilty.

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Okay… maybe that is a little misleading. Maybe they weren’t really lies.

Perhaps, when you were taught them, your teachers and parents thought that they were actually true. Maybe they even were true at the time.

But not any more. Not really.

Attorney Sam’s Take On Criminal Justice Reality

Time and again I am saddened by clients who thought they were playing “by the rules”, actually were playing by those rules and yet the system made them suffer for it. Here are a few examples of what I mean:

  1. If you always do what you feel is the morally correct thing to do, you won’t get into trouble.

While it would be nice if that were true, it is not always true. First of all, it completely ignores that different people feel that different things are the “right thing to do”. I am not even referring to those of us who are deranged or otherwise have a broken moral compass. Sometimes even doing what seems to be obviously the right thing to do can get you in trouble. For example, the law may not agree with you in terms of the right thing to do.

I once handled the case where my client was trying to help a child, who was a close friend of his young daughters, in a very physically painful situation. The girl was young and her parents where nowhere reachable. Helping her pain was easy and something that he had had to do several times for his own daughter of that same tender age. In fact, the child was begging him to provide the medication that would eliminate the pain.

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Today’s Boston Globe  updated us about a certain Uber driver, rape allegations against him and his showing the poor judgment of making a statement to law enforcement.

26-year old Ranjan Thapa (hereinafter, the “Defendant”) stood before the court on Monday. He has been accused of raping an intoxicated female passenger in his car in Boston over the weekend.

His statement?

He allegedly told the police, “I know I’m in trouble, I had sex with her,” prosecutors told the court.

His reward? Held on $10,000 bail.

Authorities allege the Defendant preyed on a woman who was so incapacitated that she could barely speak to investigators soon after the alleged rape.

She had been visiting a college friend Saturday evening, and the two became separated while they were drinking at a South Boston bar, a Boston police incident report said. The Commonwealth argues that an Uber was called for the woman, and a bouncer had to escort her to the Defendant’s vehicle when he pulled up shortly after 11:10 p.m.

At some point after midnight, the Defendant drove around Northeastern University police officers and told them that “his passenger was drunk,” had urinated in his car, and wouldn’t tell him where she wanted to go, the report said. The officers noted the woman was “reclined in the [front] passenger” seat with her pants unzipped and partially pulled down, according to the report. He allegedly also explained that, “I know I’m in trouble, I had sex with her.” The police report said the woman was “unable to communicate” on Hemenway Street and still couldn’t talk to investigators at a city hospital early Sunday.

The Defendant was able to talk, though. And according to the prosecution, that he did. He gave an interview to Boston police investigators, claiming the woman “refused to put her seat belt on” in his car and appeared drunk, the report said. “He further stated that at some point the victim did put her feet up on the dashboard, pulled down her pants, and urinated on his front passenger seat,” the report said.

In his apparent own defense, the Defendant is said to have claimed that the woman began grabbing him and saying she “wanted to [expletive] him,” the filing said. He told police they had intercourse twice, once on the driver’s seat and again on the front passenger seat, according to the report.

He apparently also explained that he had accepted the woman’s advances because he hadn’t “been with a woman in several years.” He rounded it all out with telling the police, “I knew I shouldn’t have done it. I knew I’d get in trouble”.

And the police ended up proving him right.

Attorney Sam’s Take On Taking Your Own Legal Advice…Especially When You Are Not A Lawyer

It would seem that it was the Defendant himself who involved law enforcement into his evening’s activities. That being the case, I guess it become alittle less shocking that he made the statements attributed to him.

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The crime of rape, whether committed by someone the victim knows and trusts or a complete stranger, often involves alcohol or other drugs. Women who have had too much to drink are particularly vulnerable to sexual assault and rape, including date rape. Although certain drugs come to mind when the term “date rape drugs” is used, any drug can increase the risk of sexual assault.

That being said, there are three drugs that are commonly referred to as date rape drugs – Ketamine, GHB and Rohypnol (often called “roofies”). Simply being in possession of one of these drugs won’t necessarily carry a stiffer penalty than being in possession of a non-date rape drug of the same class. If, however, you committed a sexual assault while in possession of the drug, or the prosecution believes you intended to do so, you may be facing some serious time behind bars.

What is Rohypnol?

Commonly referred to as roofies, Rohypnol is a prescription drug used to treat severe insomnia. In addition to being a powerful muscle relaxer and sedative, the drug can also induce amnesia. Even a very small amount of the drug can have these effects, which generally last for up to 12 hours. Although not approved for use in the U.S., Rohypnol is available in Mexico and Europe.

Although most commonly associated with date rape, Rohypnol is also a popular recreational drug. The same is true of Ketamine (often called Special K) and GHB, both of which produce similar effects to Rohypnol. A Boston drug crimes defense attorney can help you protect your rights if you’ve been charged with drug possession.

Penalties for Possession of a Date Rape Drug

As with all criminal offenses, the punishment is based on multiple factors, including prior criminal history, the severity of the crime and the unique circumstances of the case. In MA, you may be facing the following penalties if you are found in possession of Rohypnol.

  • Simple possession: Up to three years in prison and a minimum fine of $5,000.
  • Possession with intent to distribute: A minimum of 10 years in prison, up to life, and a fine of up to $4 million. If the crime resulted in someone’s death, the minimum sentence is increased to 20 years.

Although Rohypnol is classified as a Schedule IV drug (low risk of abuse), it is punished as a Schedule I drug. Other Schedule I drugs include heroin, MDMA (ecstasy) and LSD. A MA drug crimes defense lawyer can help you determine how to proceed if you’ve been charged with any type of drug crime.

The penalties above pertain to possession, not drugging a person with the intent to engage in sexual intercourse. If you used Rohypnol, GHB, Ketamine or any other drug to sexually assault another person, you may be facing 10 years imprisonment with the possibility of life in prison. Continue reading

Well, 28-year-old Miles Anderson (hereinafter, the “Defendant”) is in criminal court type trouble.

Police in New Hampshire say that he has been accused of breaking into a home, taking off his clothes, and assaulting a sleeping child.

Law enforcement says that the Defendant entered the Concord home shortly after 4 a.m. Monday. He made his way into the child’s bedroom and disrobed. Police say he then assaulted the child, who was able to run away and alert family members.

Another man who lives in the house was able to restrain the Defendant while other household members called the police.

According to Boston.com, the Defendant was arrested on charges of burglary, indecent exposure, and simple assault

Attorney Sam’s Take On What You Think This Means

Most folks will look at these facts and assume that the Defendant forced himself into a home, found a child sleeping and sexually assaulted her.

This would be inconsistent with the charges that are now pending. I should advise you that this is a New Hampshire case. Although the criminal laws tend to be similar, I offer this proviso that I am writing about this as if it were a Massachusetts case.

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Often, I receive calls from victims of crimes.

Yes, I know that I generally call them “complainants” because I am a criminal defense  attorney. I do know, however, that crimes do indeed happen and, when they do, it is usually a victim that they happen to.

Besides, as far as I am concerned, if my client tells me that he or she is a victim of a crime, I can hardly disagree. After all, I was not there at the event.  If I were, i would be a witness.  But that is a whole other subject.

Does it surprise you that I am sometimes hired by victims of crimes to help them through the criminal justice system?

It shouldn’t.  For the uninitiated, the criminal justice system is a foreign and scary land.

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Well, the hearing in Lansing, Michigan, has grabbed the attention of the nation over the past week or so. The court’s judgment came down yesterday.

Larry Nassar, hereinafter, the “Defendant”, the 54-year-old former sports doctor (who had already been convicted of dealing in child pornography) has now been given his sentence in his most recent brush(es) with the law. I invoke the plural given the sheer number of victims.

As reported by the Boston Herald, the Defendant has admitted sexually assaulting  some of the nation’s top gymnasts for years under the guise of medical treatment.

There was no room for doubt as to how the judge felt as she sentenced him. Aside from indicating that she would not be opposed to a death penalty sentence in his case, statements like “”I just signed your death warrant” and “It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again.” Left little room for doubt.

Neither did the sentence of 40 to 175 years in prison. He had already been sentenced to a 60 year sentence for the above-mentioned child pornography case.

The sentence came after a seven-day hearing in which scores of the Defendant’s victims were able to confront him face to face in court for the sentencing hearing.

Attorney Sam’s Take On Massachusetts Criminal Sentencing

First, let’s deal with the question which serves as the title for today’s posting. The answer is “I doubt it” as to whether the sentencing hearing would have played out differently in Massachusetts. The only reason there is any doubt is that different personalities might be involved The process of a sentencing hearing is the same.

By law, victims are accorded the right to address the court as to the effects of the crimes by a given defendant. Their input is considered along with other factors when the judge considers the proper sentence.

“Sam, what are the factors?”

 

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Yesterday, We began discussing some realities of Massachusetts sexual assault prosecution about which you may not be aware.

In this case, what you don’t know can ruin your life. I have seen it happen time and again.

Once the allegation is made, getting an experienced criminal defense attorney is your one best option to fix your life…but there will be damage nonetheless. So, it is worth taking the time to realize this reality now.

Better to not need my help.

    Attorney Sam’s Take The New Realities of Sexual Assault Prosecutions

We discussed the new understanding of what constitutes a “no”…particularly if you want to be safe in avoiding criminal prosecution. There are some instances in which even a “yes” is not good enough to overcome an assumption of “no”.

For example, lets say that Peter Partier is at a party where he meets Adorable Annie. Both of them have had a few drinks and they hit it off. Annie is clearly pretty loaded, but Peter is pretty buzzed too. He walks her to her apartment (or dorm room) and begins to make “the moves” on her. She responds affirmatively and they have sex.

In the morning, Annie seems a bit embarrassed, but still friendly and they agree they will get together again later in the week. Peter leaves, perhaps figuring he has a new “girlfriend”. He is wrong. He may have a new “victim”.

I have seen this scenario play out many times where Annie’s friends explain to her that, because she was drunk, she was raped. I have seen other rationales as well, such has having to explain to a boyfriend, or a simple remorseful feeling of “That’s not me!”

“Well, that’s ridiculous, Sam! She cannot simply claim that after the fact! “

No? Why not? Few rapes are reported before the fact.

“You know what I mean. She never indicated, or even thought, that she did not want to consent to sex”.

True. However, she may have been drunk. Under the law, if she were drunk, she could not, as a matter of law, have consented. Its like saying an infant can consent to sex.

“But Peter was buzzed too!”

Yes, but Peter is not claiming he was raped. Annie is. Remember something we have spoken about in the past many times. Often, the difference between who will be the “victim” and who will be the defendant is in who makes the complaint first.

Besides, there is an obvious presumption that the male is the aggressor.

Again, maybe Peter will win at trial. But what I am trying to do here is to avoid that harrowing adventure for him.

I mentioned that this could have taken place in a dormitory room. This brings us to the fact that many of these cases take place in schools. For a student to be facing such allegations, the prosecution, or even the allegation is never prosecuted by law enforcing, it is twice as devastating.

“Why is that?”

 

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As exemplified by the “Me Too” movement, stories of sexual harassment and sexual assault are rampant. The prevalence of the reports are staggering to most people.

One of the most recent spotlights on the subject was none other than Oprah Winfrey who commented on the movement, as CNN tells us, at the Golden Globe awards.

Oprah announced that she had been “inspired” by “all the women who have felt strong enough and empowered enough to speak up and share their personal stories.”

She further stated, “For too long, women have not been heard or believed if they dared to speak their truth to the power of those men, but their time is up…. I want all the girls watching here, now, to know that a new day is on the horizon! And when that new day finally dawns, it will be because of a lot of magnificent women, many of whom are right here in this room tonight, and some pretty phenomenal men, fighting hard to make sure that they become the leaders who take us to the time when nobody ever has to say ‘Me too’ again”.

It would seem that the type of stories Oprah is talking about are pretty obvious tales of sexual harassment and abuse.

In my experience, however, on both sides of these types of cases, the “rules” regarding sexual interaction are often not so clear.

That is primarily because they have been changing.

    Attorney Sam’s Take On Being Clear on Sexual Assault

When I was a prosecutor in the Sex Crimes and Special Victims Bureau in the Brooklyn DA’s Office, things seemed to be pretty clear and simple.

Most of the cases reported were women who were forced, by threat or violence, to perform sexual acts on someone. They would range from the on-the-street assault by a stranger, to a relationship gone sour. There would also be cases involving professionals like doctors and dentists abusing their standing to abuse a patient or even drug deals gone sour resulting in rape.

Now, having been a criminal defense attorney for more years than the mortal mind can remember, either the reality or my perspective has changed. Probably both.

The point is that we all know that “no” is supposed to mean know. When an aggressor disregards the “no”, there is no consent and so whatever happens is a sexual assault.

Many cases today, however, are not quite that simple. Further, the rules have been changed which confuses the situation even more.

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Most people have heard the term sexting by now. It’s a play-on-words, combining “sex” and “texting” to refer to sending and receiving lewd or suggestive images via smart phone or another electronic device. When sexting occurs between two consenting adults, no criminal offense is committed. However, when one or more of the parties involved is a minor, it’s an entirely different story. Criminal charges may even apply when both parties are under age.

Last week, the Washington State Supreme Court upheld a conviction for sexting-related child pornography charges. At first glance, that statement may not seem particularly unusual, but the details surrounding the case are anything but usual. At the time of the incident, the defendant was a minor. He also has Asperger’s syndrome, and the incriminating sext was a photo he sent of himself to an adult woman.

In 2013, the then 17-year-old boy texted a picture of his penis to a 22-year old woman. The photo was accompanied by explicit, and unsolicited, statements. The woman reported the texts and several harassing phone calls to the local Sheriff’s Office, and the boy was subsequently charged with distribution of child pornography, a felony. A MA defense attorney can help you protect your rights if you’ve been charged with a crime.

It is illegal to deal in any depiction of a child engaged in conduct that is deemed sexually explicit. Washington state law defines sexually explicit conduct as anything that depicts “genitals or unclothed pubic or rectal areas of any minor, or the unclothed breast of a female minor, for the purpose of sexual stimulation of the viewer.”

“Subjecting of all Children to Felony Prosecution”

The state supreme court ruled that to “destroy the blight of child pornography everywhere, from production of the images to commercial gain” requires legislation that also pertains to minors who take explicit photos of themselves. Critics worry that, in the future, similar rulings will be extended to teens who consensually sext each other, and that this interpretation of the law will lead to the “subjecting of all children to felony prosecution.”

In fact, consensual teens have already been criminally prosecuted for their sexts. In 2015, a Colorado school found itself at the center of a major scandal. Dozens of students were sending lewd texts, many of which appeared to have been taken at the school. George Welsh, Superintendent of the scandalized Canon City Schools, was not surprised. “There isn’t a school in the United States probably at this point that hasn’t at some point dealt with the issue of sexting,” said Welsh. A Boston criminal defense lawyer can help you determine how to proceed if you’ve been charged with any type of crime.

The debate over criminalizing sexting focuses on the real purpose of child pornography laws, to protect children from unsavory adults. But if sexting between two consenting teens turns into a crime, what message are we sending? According to David Ball, law professor at Santa Clara University in CA, such rulings go against the basic tenets of criminal law. “You can’t be an accomplice to an act that has you as the victim,” said Ball, referring to two teens who were both charged with endangering a child. They also happened to be the victims in each others’ cases. Continue reading

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