The Cosby Guilty Verdict: Other Bad Acts and the Power of Repetition      

For victims of sexual assault who are coming forward with their allegations of wrongdoing, proof of the accused’s other “bad acts” has made it clear that there is truly strength in numbers – that is, the more victims coming forward about the bad acts of a specific person being accused, the more likely that the victims will be believed. For the person accused of the wrongdoing, a wise plan of action is to attempt to exclude as many instances of these other “bad acts” as possible. Whether you are a victim or the accused, an understanding of this environment is critical to navigating it successfully, and that includes knowing what other “bad acts” evidence is.

 

On Thursday, April 26, 2018, comedian Bill Cosby, who played Cliff Huxtable on “The Cosby Show,” was found guilty of three counts of Aggravated Indecent Assault and faces up to 30 years in prison. Aggravated Indecent Assault used to be known more commonly as rape. This was the second jury trial in Cosby’s matter. Last year, a jury did not come to a unanimous verdict; on April 26, 2018, a different jury did. The two trials involved the same facts and the same accuser (Andrea Constand); but for the proof of other “bad acts” evidence, it was the same case.

 

In the first trial, there was testimony from a second woman that Cosby had allegedly sexually assaulted, and that incident was used as evidence of “Other Bad Acts.” In the second trial, there was testimony from four additional women. It is not difficult to see why the presentation of increased Other Bad Acts significantly impacted the jury’s decision in reaching a verdict. This begs the question, does repetition make something more true?

 

Other Bad Acts, also called Prior Bad Acts evidence, also called Other Crimes Evidence, are now the rule in sexual assault prosecutions. Other Bad Acts evidence allows the prosecution present to the jury in a criminal trial evidence of the defendant’s other bad acts. State and federal legislatures have passed laws that provide this exception to the No Character Evidence Rule. Federal Rules of Evidence 404.

 

In the federal system, evidence of a prior bad act is not admissible to prove a person’s character or to show that because they did the first thing, they probably did the second (or third, or fourth) act. However, (and it’s a huge however) there are exceptions: that same prior bad act can be admitted for other purposes, such as showing motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. These are the same exceptions that Illinois allows, as Illinois rules of evidence are based on the federal rules of evidence.

 

In Cosby’s first trial, the jury heard about only two women: the Complaining Witness, Andrea Constand, and one other. The jury did not reach a unanimous verdict as to whether or not the prosecution met its burden beyond a reasonable doubt. In Cosby’s second trial, which culminated in a guilty verdict, the jury heard about five women: Andrea Constand and four others. The testimony of and regarding the four other women is what is considered evidence of other bad acts in Cosby’s matter. The majority of states have laws that allow for other bad acts evidence to be presented at trial.

 

Other Bad Acts evidence creates very important concerns and considerations for both sides. Attorney Gloria Allred, who represents some of the Cosby accusers, noted the difference between the court allowing only one witness regarding other bad acts, versus allowing multiple ones. Testimony that offers repetition of conduct that is similar – as in the Cosby case – has the effect of buttressing the testimony of those that testify, and showing evidence of modus operandi and more. Clearly, in the Cosby matter, the additional witnesses and their testimony about what they experienced made a big difference to the jury.

 

As stated previously, for victims making allegations of sexual assault, proof of other “bad acts” has made it clear that there is strength in numbers. For people accused of sexual assault, it is important to attempt to exclude as many instances of other bad acts as possible. Whether you are a victim or a defendant in a situation like this, an understanding of the environment is critical to navigating it successfully. Wigell Law Group, is more than familiar with the sexual accusation environment with more than 40 years experience.  We will protect your rights and maximize your options.

 

 

Possession with Intent to Distribute a Controlled Substance: Maximum Sentence of 20 Years, with Government Requesting 70-87; Result: With good time credit our client will serve 43 months.

Our client was charged with possession with intent to distribute a controlled substance in the United States District Court of the Northern District of Illinois. He was charged with having a loaded firearm in his home while being a convicted felon and a member of a notorious Chicago street gang, as well as selling approximately 2 kilos of cocaine to various individuals in the Chicago area. Federal agents raided his home and found a loaded Glock handgun and cocaine hidden in his home. Upon finding the firearm and the controlled substance, they arrested him.

In the federal criminal system, the charge of Possession with Intent to Distribute a Controlled Substance is a serious charge that carries a statutory maximum of 20 years in prison. But the statute is only one part of the sentencing parameters; a complex calculation is made under the United States Sentencing Guidelines to determine, based on the offense itself and the defendant’s criminal background, what sentencing range is advisable. The Guidelines are advisory, but most judges still sentence within the Guidelines.

Our client hired Wigell Criminal Defense to represent him in this case after a search warrant was executed on his home, but before he was charged with a crime. This is not unusual; many individuals hire Wigell Criminal Defense before they are formally charged as a way of being proactive. As far as strategies go, this is a smart one: it is best to have an experienced attorney involved as soon as possible. Narcotics and guns are a hot-button issue in Chicago, especially under the current presidential administration and the current Attorney General, who has ordered federal prosecutors to file the toughest charges and to seek the highest sentences they can in any narcotics or gun related case. Our client wanted us on board protecting him as soon as possible, and made it happen. He knew waiting would not help him in a case where the federal government was coming after him hard for drugs and guns.

This proved true. Our client had a rap sheet that some would say was a mile long, which was guaranteed to increase the suggested Guideline range. Although a plea

agreement was negotiated, the sentencing range was still very much the subject of argument.

The advised Guideline range, according to calculations in the plea agreement, was 84-105 months in prison, or approximately 7-9 years. A Presentence Investigation Report, which is an independent report prepared by the Probation Office, contained a calculation that the advisory Guideline Range should be 70-87 months.

The Government, citing our client’s lengthy criminal background, his career as a drug dealing gangster, and the amount of the controlled substances sold, made strong arguments for a sentence close to the maximum of the Guideline range.

The Government maintained that our client was irredeemable, a danger to the community, and that the public needed to be protected from him by way of a lengthy prison sentence.

This was not the version of our client that we knew. At Wigell Criminal Defense, we believe in a holistic approach that takes into account the entirety of the person and their life story. A person’s history, characteristics, and an explanation as to why they may have committed an offense, are very important when it comes to federal sentencing.

With multiple and regular meetings with our client, attorneys Raymond Wigell and Huma Rashid drafted a detailed sentencing memorandum that explored the client’s life history, including his tragic childhood filled with abuse and violence, the multiple attempts on his life during his teen years, stifled opportunities for growth and education at every turn, and the violence he faced from the gang he had reluctantly been a part of. We also gathered approximately twenty letters of support from family and friends who were all too happy to talk about the wonderful man they knew, and how there was more to him than a gangster.

After hearing all arguments, the federal judge ordered a sentence of 78 months in federal prison, well below the Government’s request of close to 87 months. With credit for time served, our client has 3 and a half years left to serve, subject to good time credit. He was pleased with the result, knowing he’d soon be back to his family and be able to move forward and start anew.

Distribution of a Controlled Substance Analog: Maximum Sentence of 20 Years, with Plea Agreement Stating 70-87 months in Prison, and Probation Officer and Government Recommending 35 months in Prison; Result: 30 months in the Bureau of Prisons!

Our client was charged with the Distribution of a Controlled Substance Analog in the United States District Court of the Northern District of Illinois. He was charged with selling a compound very similar to a scheduled controlled substance, in the form of synthetic marijuana. A young man bought synthetic marijuana in a shop in Aurora, which had been produced by our client’s former business partner in the offense. The young man consumed the synthetic marijuana despite warnings not to do so, and drove his car at 90mph in a residential area before crashing into a house and being killed on impact. According to the deceased victim’s mother, he was a wonderful young man and she could not recall him ever doing anything wrong.

In the federal criminal system, the charge of Distribution of a Controlled Substance Analog is a serious charge that carries a statutory maximum of 20 years in prison. But the statute is only one part of the sentencing parameters; a complex calculation is made under the United States Sentencing Guidelines to determine, based on the offense itself and the defendant’s criminal background, what sentencing range is advisable. The Guidelines are advisory, but most judges still sentence within the Guidelines.

Our client hired Wigell Criminal Defense to represent him in this case before he was formally charged. We armed him with an Assertion of Rights document, which functions as a shield between the person being investigated and all law enforcement agencies that are involved. Immediately after, we initiated contact with the federal prosecutor who was about to charge him with a federal crime. This is important to do because it plants the seeds that grow to a favorable result at the end of the case, at sentencing.

It did so in this case. Our client, despite receiving the Assertion of Rights, instructed us to cooperate fully with the Government. A father himself, he had learned that a young man had died and he wanted to be able to bring the family justice and peace through his continued cooperation.

Negotiations commenced prior to our client being charged with a crime, which is somewhat unusual. Our client turned over all pertinent records to the federal agents and federal prosecutors, and explained is role in the offense and everything he knew about his former business partner and their dealings. Partly because of our client, who Wigell Criminal Defense painstakingly prepared and then debriefed after every interaction with the federal government, DEA agents were able to arrest at least three other co-defendants who played a role in the young man’s death at the time of the car crash.

Negotiations are delicate, and there is no template approach. Although they usually occur after a person has been charged, this is not always the case. Early, prompt, and complete cooperation meant that senior attorney, Raymond Wigell, was in a stronger position to have influence over which charges were filed against our client, and which charges our client ultimately pled guilty to. Due to such detailed and meticulous work staging all the meetings and proffers with the government, Wigell Criminal Defense was able to properly position the case to resolve it with the least amount of prison time as possible. Although a plea agreement was negotiated with the Government, the sentencing range was still very much the subject of argument.

The advised Guideline range, according to court filings and calculations, was 70-87 months in prison. The Government, citing the fact that our client had cooperated so quickly and so comprehensively, recommended a sentence of only 35 months in prison.

Our lengthy interactions with our client had enabled us to know his true character, and we were well aware of the depth of his cooperation. For this reason, we believed that we had strong holistic arguments for a sentence less than the Government’s already reduced recommendation. At Wigell Criminal Defense, we believe in holistic approaches that take into account the entirety of the person and their life story. A person’s history, characteristics, and an explanation as to why they may have committed an offense, are very important when it comes to federal sentencing. To the court, they put the client in a stronger position to get a lower sentence.

It seems counterintuitive, but is not, to a range in the plea agreement, and at the sentencing hearing, argue for a sentence toward the low end of that range. In many circumstances, it requires very little work or creativity to do so. But to try to maximize a client’s position and get him the lowest sentence possible, an attorney has to put a lot of work into doing a thorough mitigation intake and preparing a detailed sentencing memorandum presenting all of it properly to the judge.

With multiple and regular meetings with our client, attorneys Raymond Wigell and Huma Rashid drafted a detailed sentencing memorandum that explored the client’s life history, including his traumatic childhood abuse, the process through which he became a productive American citizen, his beautiful family, and his full cooperation with the government.

After hearing all arguments, the federal judge ordered a sentence of 30 months, which was below the Government’s request of 35 months and well below the plea agreement range of 70-87 months.

Our client was very grateful that the sentence was 6 months less than the Government’s request, and less than half of the range in the plea agreement.

Thanks to the detailed mitigation work and the holistic defense strategies employed, as well as taking advantage of an opportunity to cooperate before other criminal defendants in the scheme did so, Wigell Criminal Defense was able to save our client several years of his life in federal prison.

Possession of a Firearm by a Convicted Felon: Maximum Sentence of 10 Years, with Government Requesting 96 Months in Prison; Result: 66 months (1/3 less than Government’s request) in the Bureau of Prisons!

Our client was charged with possession of a firearm by a convicted felon in the United States District Court of the Northern District of Illinois. He was charged with having a loaded firearm, including full ammunition, in his home while being a convicted felon and a lifelong member of a notorious Chicago street gang. Federal agents raided his Englewood home and found packaged marijuana and a loaded Taurus firearm hidden inside. Our client was then arrested.

In the federal criminal system, the charge of Possession of a Firearm by a Convicted Felon is a serious charge that carries a statutory maximum of 10 years in prison. But the statute is only one part of the sentencing parameters; a complex calculation is made under the United States Sentencing Guidelines to determine, based on the offense itself and the defendant’s criminal background, what sentencing range is advisable. There is also a plea agreement in place that allows both sides to argue for whatever they choose. The Guidelines are advisory, but most judges still sentence within the Guidelines.

Our client hired Wigell Criminal Defense to represent him in this case. Guns are a hot-button issue in Chicago, especially under the current presidential administration and the current Attorney General, who has ordered federal prosecutors to file the toughest charges and to seek the highest sentences they can.

This proved true in our case. Our client had a rap sheet that some would say was a mile long, which was guaranteed to increase the suggested Guideline range. Although a plea agreement was negotiated, the sentencing range was still very much the subject of argument.

The Government, citing the fact that our client’s convictions numbered easily in the double digits, that he had been in and out of jail and prison since he was a juvenile, that he had been convicted of being a felon in possession before without learning his lesson, and that he was a lifelong member of the Conservative Vice Lords, made strong arguments for an increased sentence of 96 months in federal prison, which was in well in excess of the Guideline range.

The Government maintained that our client was irredeemable, a danger to the community, and that the public needed to be protected from him by way of a lengthy prison sentence.

This was not the version of our client that we knew. At Wigell Criminal Defense, we believe in holistic approaches that take into account the entirety of the person and their life story. A person’s history, characteristics, and an explanation as to why they may have committed an offense, are very important when it comes to federal sentencing.

With multiple and regular meetings with our client, attorneys Raymond Wigell and Huma Rashid drafted a detailed sentencing memorandum that explored the client’s life history, including the tragic death of his two older siblings while they were all children, walking the family dog, as well as our client’s 6 children, all of whom are productive citizens, workers, and students.

Following an impassioned argument for a sentence less than the requested 96 months, the federal judge complimented Attorney Huma Rashid in her eloquence in presenting information about our client’s life and his struggles, saying that he learned a lot about who our client truly was thanks to the detailed and holistic filings from the Wigell Criminal Defense Team.

After hearing all arguments, the federal judge ordered a sentence of 66 months in federal prison, well below the Government’s request of 96 months. With credit for time served, our client has 3 and a half years left to serve. He was pleased with the result, knowing he’d soon be back to his family and be able to move forward and start anew.

Thanks to the detailed mitigation work and the holistic defense strategies employed, Wigell Criminal Defense was able to save our client 2 .5 years of his life.

Wire Fraud: Maximum Sentence of 20 Years, with Government Recommending 51-63 Months in Prison; Result: 36 months in the Bureau of Prisons!

Our client was charged with Wire Fraud in the United States District Court of the Northern District of Illinois. He was charged with embezzling almost $2,000,000.00 USD from a large, well-known corporation over a period of approximately 8 years. According to the Government’s salacious sentencing argument, much of the money went to his many mistresses, for vacations, gifts, romantic hotel suites, and even breast augmentation surgeries.

In the federal criminal system, the charge of Wire Fraud is a serious charge that carries a statutory maximum of 20 years in prison. But the statute is only one part of the sentencing parameters; a complex calculation is made under the United States Sentencing Guidelines to determine, based on the offense itself and the defendant’s criminal background, what sentencing range is advisable. The Guidelines are advisory, but most judges still sentence within the Guideline range.

Our client hired Wigell Criminal Defense to represent him in this case before he was formally charged. This is called the Investigation Stage. We armed him with an Assertion of Rights document, which functions as a shield between the person being investigated and all law enforcement agencies that are involved. Immediately after, we initiated contact with the federal prosecutor who was about to charge him with a federal crime. This is important to do because it plants the seeds that grow to a favorable result at the end of the case.

Negotiations commenced, as there was a wealth of documentation illustrating that our client had obtained funds that were not his. More importantly than this, however, was the fact that based on Senior Attorney Raymond Wigell’s 40+ years of experience on both the federal and state level, he advised our client to cooperate with the Government; this would get our client the best result possible at the resolution of the case. He was an upper middle class man with a beautiful wife and children, no criminal background, and was in mental health counseling to help him address and heal some of the issues that he believed caused him to behave inappropriately.

Negotiations are delicate, and there is no template approach. With senior attorney Raymond Wigell’s forty-plus years of white collar defense experience and his advanced degree in Taxation, as well as senior associate Huma Rashid’s detailed mitigation work, Wigell Criminal Defense was able to properly position the case to resolve it with the least amount of prison time as possible. Although a plea agreement was negotiated with the Government, the sentencing range was still very much the subject of argument.

The advised Guideline range, according to court filings and calculations, was 51-63 months in prison. The Government, citing the fact that our client’s conduct created a loss amount of almost $2 million, and that the theft occurred over the period of several years, made strong arguments for a sentence within that range.

But this was not the whole story of our client. At Wigell Criminal Defense, we believe in a holistic approach that take into account the entirety of the person and their life story. A person’s history, characteristics, and an explanation as to why they have committed an offense, are very important when it comes to federal sentencing.

With multiple and regular meetings with our client, attorneys Raymond Wigell and Huma Rashid drafted a detailed sentencing memorandum that explored the client’s life history, including his traumatic childhood abuse, his beautiful family, and his dedication to counseling and therapy in order to heal and fix his bad patterns.

After hearing all arguments, the federal judge ordered a sentence of 36 months in federal prison, well below the Government’s request of 51-63 months. Our client was very grateful that the sentence was 27 months below the maximum end of the range recommended by the Government. After all, just because a plea agreement states a certain sentencing range that the parties agree to does not mean that proper mitigation and argument can’t change the result to make it more favorable to the client.  

Thanks to the detailed mitigation work and the holistic defense approach employed, the Wigell Criminal Defense Team was able to save our client a little more than 2 years of his life in federal prison.

 

Misdemeanor Obscenity – Not Guilty at Trial

Our client, a young man on federal mandatory supervised release (formerly known as parole), was charged with a misdemeanor obscenity. He was accused of printing obscene images of children at a printer at a Walgreens located in south suburban Cook County. Over one hundred images were part of the incident, all depicting underage girls in their underwear and suggestive poses.

To make matters worse for our client, a conviction on this charge, even if it did not result in jail time, would have resulted in a federal charge of Violation of Mandatory Supervised Release. As he had a very strict trial judge in that federal drug matter, and because he had served a little less than a decade for that federal drug crime, the likelihood was high that a violation of mandatory supervised release would have resulted in federal prison time.

He said that he chose us because he realized the stakes were high, and saw our excellent client reviews that referred to our holistic winning defense strategies.

After entering the case, attorney Huma Rashid obtained discovery from the Cook County State’s Attorney’s Office. After a comprehensive and detailed review of the discovery, the Wigell Criminal Defense Team drafted numerous pre-trial motions in limine, which are normally reserved for serious felony or death penalty cases, and not one-count misdemeanor complaints. That’s because at Wigell Criminal Defense, we treat every case, even a straightforward misdemeanor, like a death penalty case.

The numerous and detailed motions in limine, making numerous requests of the court to provide clarity and/or limit the evidence that the State could present at trial, resulted in lengthy arguments and a hearing that lasted for two days.

It was decided, upon discussions with our client, that the matter should be set for trial in the Circuit Court of Cook County. This was done not only because of the legal strength of the defense’s arguments (although the fact pattern alone was weak and indicated a finding of guilt), but because of the ramifications and likely federal prison time that would result if the misdemeanor conviction resulted in a violation of mandatory supervised release.

At trial, our client did not testify, choosing instead to assert his fifth amendment right not to testify. An an effective motion for a directed finding and a strong closing argument revealed the legal weaknesses in the prosecution’s state such that the trial judge found that the State was unable to meet its burden to convict our client on a charge of obscenity, despite the fact that the images as described in the complaint were of scantily clad young women.

Thus, our client was found NOT GUILTY of the misdemeanor charge of obscenity.

The client and his girlfriend were overjoyed at the excellent result obtained by the Wigell Criminal Defense Team. He was also relieved, as an acquittal on the misdemeanor charge would not result in a federal charge of violation of mandatory supervised release, and he would thus not be facing new federal charges that would likely cause him to be incarcerated in the Bureau of Prisons.

Many people think of misdemeanor charges are not that serious, or unlikely to do lifelong damage. But misdemeanors are quite serious; all criminal charges are very serious, as they expose the person to a loss of freedom, a loss of reputation, and a conviction on their criminal record. Our client was very grateful for the seriousness with which Wigell Criminal Defense treated his case.

Unlawful Possession of Cannabis with Intent to Deliver: Maximum Sentence of 30 Years and Mandatory Minimum of 6 years; Result: 88 days in county jail!

Our client was charged with the unlawful possession of a controlled substance with the intent to deliver, in Grundy County located in Morris, Illinois. He was charged with having approximately 50 lbs and/or 23 kilos of marijuana in several bags in his motorhome as he drove east on I-80, passing through Morris, Illinois, on his way home to New York. An Illinois State Trooper pulled him over on the highway and there was a Cabella search, meaning that a trained K-9 police dog did a drug search, also referred to as a “stop and sniff.” The marijuana was located in our client’s vehicle, and he was placed under arrest.

The charge of Unlawful Possession of a Controlled Substance with Intent to Deliver is a serious charge. It is a Class X felony, meaning there is a mandatory minimum of 6 years of prison, and a maximum of 30 years in prison.

Our client hired Wigell Criminal Defense to represent him in this case, wanting someone who was not a local attorney and could instead come in and shake things up. Marijuana is a hot-button issue; despite national trends toward legalization, it remains illegal. Additionally, I-80 is well known to be a route frequently used by marijuana traffickers, resulting in Illinois State Troopers making frequent stops.

Wigell Criminal Defense made it clear that this was a case we were ready to pursue to trial. In repeated conversations and meetings with the State’s Attorney’s Office, we reminded them that they had a proof problem and we were in a strong position to win on a motion to suppress, arguing that the Trooper’s traffic stop and subsequent search of the motorhome, revealing the marijuana, was potentially unconstitutional.

This sort of predicament generally causes prosecutors to become eager to negotiate. After lengthy negotiations and discussions with our client, the prosecution offered a reduction in charges to allow for a lesser sentence of 90 days in the local jail located next to the courthouse.

At Wigell Criminal Defense, we believe in holistic defense strategies, which require looking at, among other things, risk and reward. The reward of successfully arguing a detailed motion in suppress exposing the illegal stop and search would have been great: a not guilty and a dismissal of the charges. The risk, however, was a denial of the motion and a mandatory sentence of 6 years in prison or more.

Our client was aware of every development in the case, and in the end, after much consultation and deliberation, decided that he wished to accept the offer of 88 days in custody in the local jail.

Thanks to the detailed mitigation work, strong negotiations, and the holistic defense strategies employed, Wigell Criminal Defense was able to save our client from a mandatory minimum sentence of 6 years. After the full exhaustion of both negotiation tactics and trial tactics, our client received less than 3 months in the county jail, as opposed to a mandatory minimum of 6 years in the state prison system. This was an extraordinary result.

 

Charges: 1 Count of Home Invasion (Class X Felony 6-30 Years IDOC); 9 Counts of Aggravated Criminal Sexual Assault (Class X-6-30 Years IDOC, Consecutive Sentencing*, Lifetime Sex Offender Registration Requirement); 1 Count of Aggravated Battery (Class 3 Felony 2-5 years IDOC); Potential Sentence: 54 years (Mandatory Minimum)-270 years IDOC; WCD Result: ALL CHARGES DISMISSED PRIOR TO TRIAL

Our client was accused by a former female acquaintance of breaking into her home and violently sexually assaulting her in her bedroom. The client was charged with the offenses of Home Invasion, Aggravated Criminal Sexual Assault and Aggravated Battery.

Realizing the life altering implications these charges could have upon his life, client retained Wigell Criminal Defense to represent him. The Wigell Criminal Defense Team vowed to fight the case and take the matter to trial.

The Wigell Criminal Defense Team conducted a detailed analysis of the tendered discovery in this case which revealed many flaws and weaknesses. During the course of the defense investigation into the client’s case, it was discovered that there were a series of electronic instant messages (IM’s) between the client and the complaining witness that illustrated a prior consensual sexual relationship (with a BDSM role playing fantasy).

The instant messages cast doubt on the complaining witness’s credibility and negated many of the allegations that she made to the police. The Wigell Criminal Defense Team, through Attorney DiQuattro tendered these electronic IM’s to the prosecutor in the case. Additionally, a series of defense pretrial motions were strategically filed in relation to the electronic IM’s and other evidentiary issues in the case.

The prosecutor, after conducting an investigation into the electronic IM’s, recognizing the weaknesses of the case, and acknowledging Wigell Criminal Defense’s continuing aggressive opposition of the case, DISMISSED ALL CHARGES.

Client was very grateful for the hard work and zealous representation of Wigell Criminal Defense which led to this outcome. Now the client can move on with his life and continue to raise his growing family.

*Consecutive Sentencing means that an individual must serve a sentence on each count one after another. In this case, the client was facing a mandatory minimum of 54 years of IDOC due to being charged with 9 counts of class x aggravated criminal sexual assault and the minimum sentence on each class X count is 6 years. (i.e 9 + 9 + 9 + 9 + 9 + 9 = 54)

Charges: 3 Counts of Predatory Criminal Sexual Assault (Class X Felony, 6-60 Years IDOC, Consecutive Sentencing, Lifetime Sex Offender Registration Requirement); 6 Counts of Aggravated Criminal Sexual Abuse (Class 2 Felony, 3-7 Years IDOC, Lifetime Sex Offender Registration Requirement); Potential Sentence: 18 Years-180 Years IDOC; WCD Result: ALL SEX CHARGES DISMISSED, SENTENCE OF TIME SERVED ON AMENDED NON-SEX CHARGE OF UNLAWFUL RESTRAINT, NO SEX OFFENDER REGISTRATION

Our client was charged with the offenses of Predatory Criminal Sexual Assault (In layman’s terms, child molestation) and Aggravated Criminal Sexual Abuse. Our client was accused of sexually assaulting his girlfriend’s young daughter over a period of 6 years in Chicago.

Realizing the severity of the charges against him, the client retained the Wigell Criminal Defense Team to represent him. During the course of this case, it was discovered that the same complaining witness made allegations that the client committed similar sexual acts upon her during a vacation in Las Vegas, Nevada. The client was taken into custody based on a warrant for charges filed in Nevada based on the complaining witness’s allegations.

As the case continued, a series of pretrial motions were litigated. The attorneys at Wigell Criminal Defense continued to fight the case with no intention of giving up. The State made a series of offers which in turn were rejected by the client and the attorneys of Wigell Criminal Defense. WCD argued for a disposition to a non-sex charge in exchange for time served. This was rejected by the State.

As the fight continued, the State’s case weakened and the defense position strengthened. WCD’s efforts significantly weakened and cast doubt upon the complaining witness’s credibility. As the WCD team continued their fight and the State recognizing these weaknesses, the State acquiesced and made an offer that was not only extraordinary under the circumstances, but unheard of. Consistent with Wigell Criminal Defense’s previous suggested disposition, the State agreed to dismiss all sex charges. The client pleaded guilty to an amended charge of unlawful restraint with a sentence of time considered served.

Client was grateful for the hard work and zealous representation that achieved this extraordinary result. The resolution of this case brings the client one step closer to being reunited with his family.

The Varying Meanings of Sexual Misconduct

Because of the onslaught trend and frenzy of allegations related to “sexual misconduct,” it is very easy to misconstrue and confuse the meanings of individual instances of allegations. “Sexual Misconduct” is more of an umbrella term relating to variety of types of allegations. “Sexual Misconduct” for example does not always mean an accuser is a victim of an actual physical sexual assault by the accused. This post is to provide the public with a clear definitional understanding of different instances of allegations that flow from the umbrella term of “sexual misconduct.”

CIVIL

Definitions of Civil Actions Related to “Sexual Misconduct” in Illinois and On the Federal Level

ILLINOIS

Illinois Human Rights Act

According to the Illinois Human Rights Act, sexual harassment is defined as:
Any unwelcome sexual advances, requests for sexual favors or any conduct of a sexual nature when:

1. Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment;
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or 3. Such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment

The Illinois Human Rights Act also identifies other conduct which may constitute sexual harassment that includes:

• Verbal: Sexual innuendos, suggestive comments, insults, humor, and jokes about sex, anatomy or gender-specific traits, sexual propositions, threats, repeated requests for dates, or statements about other employees, even outside of their presence, of a sexual nature.
• Non-Verbal: Suggestive or insulting sounds (whistling), leering, obscene gestures, sexually suggestive bodily gestures, “catcalls”, “smacking” or “kissing” noises.
• Visual: Posters, signs, pin-ups or slogans of a sexual nature, viewing pornographic material or websites.
• Physical: Touching, unwelcome hugging or kissing, pinching, brushing the body, any coerced sexual act, or actual assault.
• Textual/Electronic: “Sexting” (electronically sending messages with sexual content, including pictures and video), the use of sexually explicit language, harassment, cyber stalking and threats via all forms of electronic communication (e-mail, text/picture/video messages, intranet/on-line postings, blogs, instant messages and social network websites like Facebook and Twitter).

FEDERAL

Title VII of the Civil Rights Act of 1964

The EEOC (Equal Employment Opportunity Commission) defines sexual harassment as a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser’s conduct must be unwelcome.

Under Title VII there are two recognized types of sexual harassment:

1) Quid Pro Quo
Quid pro quo sexual harassment occurs when tangible employment benefits are conditioned on one’s compliance with a harasser’s sexual demands. Brill v. Lante Corp., 119 F.3d 1266, 1274 (7th Cir. 1997); Bryson v. Chicago State University, 96 F.3d 912, 915 (7th Cir. 1996)
Section 1604.11 of the Equal Employment Opportunity Commission guidelines explicitly describes such conduct:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or impliedly a term or condition of an individual’s employment, [or] submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. 29 C.F.R. §1604.11(a).

2) Hostile Work Environment
A plaintiff who alleges a hostile work environment in violation of Title VII must demonstrate that (a) the unwelcome conduct was of a sexual nature, (b) the conduct was directed at the plaintiff because of his or her sex, (c) the conduct was severe or pervasive enough to create a hostile work environment, and (d) there is a basis for employer liability. Roby v. CWI, Inc., 579 F.3d 779, 784 (7th Cir. 2009).

(legaltechdesigns.com)

 

CRIMINAL

Definitions of Crimes related to “Sexual Misconduct” in Illinois:

(720 ILCS 5/11-1.40) Predatory criminal sexual assault of a child.
(a) A person commits predatory criminal sexual assault of a child if that person is 17 years of age or older, and commits an act of contact, however slight, between the sex organ or anus of one person and the part of the body of another for the purpose of sexual gratification or arousal of the victim or the accused, or an act of sexual penetration, and the victim is under 13 years of age.

(720 ILCS 5/11-1.20) Criminal sexual assault.
(a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:

(1) uses force or threat of force;
(2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;
(3) is a family member of the victim, and the victim is under 18 years of age; or
(4) is 17 years of age or over and holds a position of trust, authority, or supervision in relation to the victim, and the victim is at least 13 years of age but under 18 years of age.

(720 ILCS 5/11-1.30) Aggravated Criminal Sexual Assault.

(a) A person commits aggravated criminal sexual assault if that person commits criminal sexual assault and any of the following aggravating circumstances exist during the commission of the offense or, for purposes of paragraph (7), occur as part of the same course of conduct as the commission of the offense:

(1) the person displays, threatens to use, or uses a dangerous weapon, other than a firearm, or any other object fashioned or used in a manner that leads the victim, under the circumstances, reasonably to believe that the object is a dangerous weapon;
(2) the person causes bodily harm to the victim, except as provided in paragraph (10);
(3) the person acts in a manner that threatens or endangers the life of the victim or any other person;
(4) the person commits the criminal sexual assault during the course of committing or attempting to commit any other felony;
(5) the victim is 60 years of age or older;
(6) the victim is a person with a physical disability;
(7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim without the victim’s consent or by threat or deception for other than medical purposes;
(8) the person is armed with a firearm;
(9) the person personally discharges a firearm during the commission of the offense; or
(10) the person personally discharges a firearm during the commission of the offense, and that discharge proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.

(720 ILCS 5/11-1.60) Aggravated criminal sexual abuse.

(a) A person commits aggravated criminal sexual abuse if that person commits criminal sexual abuse and any of the following aggravating circumstances exist (i) during the commission of the offense or (ii) for purposes of paragraph (7), as part of the same course of conduct as the commission of the offense:

(1) the person displays, threatens to use, or uses a dangerous weapon or any other object fashioned or used in a manner that leads the victim, under the circumstances, reasonably to believe that the object is a dangerous weapon;
(2) the person causes bodily harm to the victim;
(3) the victim is 60 years of age or older;
(4) the victim is a person with a physical disability;
(5) the person acts in a manner that threatens or endangers the life of the victim or any other person;
(6) the person commits the criminal sexual abuse during the course of committing or attempting to commit any other felony; or
(7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim for other than medical purposes without the victim’s consent or by threat or deception.
(b) A person commits aggravated criminal sexual abuse if that person commits an act of sexual conduct with a victim who is under 18 years of age and the person is a family member.
(c) A person commits aggravated criminal sexual abuse if:
(1) that person is 17 years of age or over and: (i) commits an act of sexual conduct with a victim who is under 13 years of age; or (ii) commits an act of sexual conduct with a victim who is at least 13 years of age but under 17 years of age and the person uses force or threat of force to commit the act; or
(2) that person is under 17 years of age and: (i) commits an act of sexual conduct with a victim who is under 9 years of age; or (ii) commits an act of sexual conduct with a victim who is at least 9 years of age but under 17 years of age and the person uses force or threat of force to commit the act.
(d) A person commits aggravated criminal sexual abuse if that person commits an act of sexual penetration or sexual conduct with a victim who is at least 13 years of age but under 17 years of age and the person is at least 5 years older than the victim.
(e) A person commits aggravated criminal sexual abuse if that person commits an act of sexual conduct with a victim who is a person with a severe or profound intellectual disability.
(f) A person commits aggravated criminal sexual abuse if that person commits an act of sexual conduct with a victim who is at least 13 years of age but under 18 years of age and the person is 17 years of age or over and holds a position of trust, authority, or supervision in relation to the victim.

(720 ILCS 5/11-1.50) Criminal sexual abuse.

(a) A person commits criminal sexual abuse if that person:
(1) commits an act of sexual conduct by the use of force or threat of force; or
(2) commits an act of sexual conduct and knows that the victim is unable to understand the nature of the act or is unable to give knowing consent.
(b) A person commits criminal sexual abuse if that person is under 17 years of age and commits an act of sexual penetration or sexual conduct with a victim who is at least 9 years of age but under 17 years of age.
(b) A person commits criminal sexual abuse if that person commits an act of sexual penetration or sexual conduct with a victim who is at least 13 years of age but under 17 years of age and the person is less than 5 years older than the victim.

(720 ILCS 5/11-6) Indecent solicitation of a child.

(a) A person of the age of 17 years and upwards commits indecent solicitation of a child if the person, with the intent that the offense of aggravated criminal sexual assault, criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse be committed, knowingly solicits a child or one whom he or she believes to be a child to perform an act of sexual penetration or sexual conduct as defined in Section 11-0.1 of this Code.
(a-5) A person of the age of 17 years and upwards commits indecent solicitation of a child if the person knowingly discusses an act of sexual conduct or sexual penetration with a child or with one whom he or she believes to be a child by means of the Internet with the intent that the offense of aggravated criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse be committed.

(720 ILCS 5/11-25) Grooming.

(a) A person commits grooming when he or she knowingly uses a computer on-line service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child, a child’s guardian, or another person believed by the person to be a child or a child’s guardian, to commit any sex offense as defined in Section 2 of the Sex Offender Registration Act, to distribute photographs depicting the sex organs of the child, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child.

(720 ILCS 5/11-9.1) Sexual exploitation of a child.

(a) A person commits sexual exploitation of a child if in the presence or virtual presence, or both, of a child and with knowledge that a child or one whom he or she believes to be a child would view his or her acts, that person:
(1) engages in a sexual act; or
(2) exposes his or her sex organs, anus or breast for the purpose of sexual arousal or gratification of such person or the child or one whom he or she believes to be a child.
(a-5) A person commits sexual exploitation of a child who knowingly entices, coerces, or persuades a child to remove the child’s clothing for the purpose of sexual arousal or gratification of the person or the child, or both.

As the onslaught of allegations continue to permeate the media, it is important that public is aware of the varying definitions and aspects of the term “sexual misconduct” as it is easy to misconstrue what this term truly means. If you or someone you know has been charged or accused of sexual misconduct, it is imperative that contact an experienced criminal defense attorney to help you navigate through these complex issues. Contact Wigell Criminal Defense to speak to an experienced attorney to discuss your matter.

Ratings and Reviews

10.0Raymond G. Wigell
Raymond G. WigellReviewsout of reviews
National Trial Trial Lawyers Top 100 badge