Friday, August 31, 2007

Lunsford killing inspires law makers

Editor’s note: The following article is the first in a three-part series concerning new Texas State laws effective September 1.

Danie M. Huffman

When 9-year-old Jessica Marie Lunsford was killed, her story aired nationally and sparked state legislators to reconsider current laws across the United States.
Lunsford was kidnapped, molested then murdered in Florida by John Evander Couey, 49. He buried Lunsford alive in his back yard after binding her hands and wrapping her in two trash bags.

A Florida judge sentenced her kidnapper, molester and killer to death last week.
Couey was a convicted sex offender with accusations of abducting a child dating back to 1978, and more charges of fondling a child in 1991.

Many concerned law makers around the nation gathered after the incident to improve state laws relating to child sex offenders, cracking down on their punishment.

For the past four years, Parker County Assistant District Attorney Jeff Swain has volunteered to update Parker County law enforcement officers of new state laws.

“I try to make sure officers are up to speed as much as possible on the changes of the law,” Swain said.

Weatherford Police Capt. Wayne Slimp said he is grateful for Swain’s help.
He said the DAs office has done so for more than a decade.

“It’s very important for us to know updates prior to when the laws come into effect,” Slimp said. “We’re always appreciative of Jeff and the DA’s office. They’re always cooperative and make themselves available to us day and night on questions concerning the law.”

Beginning Saturday, Sept. 1, “Jessica’s Law,” becomes effective in Texas.
Also known as House Bill 8, Jessica’s Law will include numerous provisions to current Texas laws.

Section 21.02 of the law states “continuous sexual abuse” elements to include two or more acts of sexual abuse committed against the same or two separate victims at least 30 days apart. The defendant must be 17 or older and the law pertains to victims younger than 14.

It explains the acts of abuse as aggravated sexual assault, sexual assault, aggravated kidnapping with intent to commit sexual abuse, burglary of a habitation with intent to commit sexual abuse and indecency with a child only by contact of the genital area.

The law does not include exposure offenses.

If convicted, punishment rules are mandated to 25 to 99 years or life in prison. Probation or deferred adjudication sentences are no longer possible.

An exclusion, called the “Romeo and Juliet Exception,” consists of stipulations as an affirmative defense if the defendant is within 5 years of age of the victim, did not use force, duress or threaten the victim during the commission of the offense and was not a registered sex offender prior to the crime. The exception does not change the existing three-year age difference rule for other offenses. The law also has an enhancement for “super” aggravated sexual assault crimes against children.

The penalty enhancement applies if the victim is younger than 6 years old or is younger than 14 and the crime causes serious bodily injury or attempts to cause death, threatens to kill, kidnaps, uses or displays a deadly weapon or uses a date-rape drug during the course of the offense.

The “super” penalty carries the same sentencing as other offenses related to Jessica’s Law.

HB 8 also includes second offenders under “super” charges of being eligible for the death penalty.

Other various changes were added with Jessica’s Law. After two strikes of indecency with a child, as with most other child sexual abuse offenses, a convicted offender will receive an “automatic life sentence.”

Stacking provisions will include continuous sexual abuse and online solicitation of a minor. A sexual performance by a child offense enhancement means an increase of penalty range by one level if the victim is 13 or younger.

For example, if the crime is a second degree felony, and the child is 13 or younger, the penalty will rise to a first-degree felony.

The final provision of the law states online solicitation will now include text messaging, also with the same penalty increase of one degree for second-time offenders.

Protective orders are now available for victims of continuous abuse by the separate order of HB 1988, for up to the life of the victim or the offender.

Changes to the statute of limitations were made for child victims of injury, increasing it to 10 years from their 18th birthday.

For child victims of sexual performance and those 17 years old or younger of aggravated kidnapping and burglary of a habitation with intent to cause serious bodily injury or sexual abuse, the statute increases to 20 years.

Other changes were made to HB 8 regarding probation.

Pertaining to trial cases, a jury may no longer assess a probated sentence for a defendant accused of the following crimes to children younger than 14:

- Indecency with a child by contact
- Aggravated sexual assault
- Sexual assault
- Aggravated kidnapping with intent to cause serious bodily injury
- Sexual performance by a child

A judge can still assess a deferred adjudication sentence under certain circumstances.

According to Swain, the changes may be the best thing to happen this legislative session.

“We recently had about a quarter of our jury panel disqualified because they could not consider assessing a probation sentence in an aggravated sexual assault case,” Swain said. “Under the law, the judge had no choice but to let them go. These would have been solid pro-law enforcement jurors who couldn’t serve because of this one issue. In some cases, that can be the difference between a good outcome and a bad one.”

“What Jessica’s Law does is enhances the penalties which already exist,” said Mike Wintemute, community director for Lt. Governor David Dewhurst. “What it’s got the most attention is for giving prosecutors the option of the death penalty in certain cases.”

Dewhurst pushed for Jessica’s Law during his campaign.

“Last year I presided over an execution involving a repeat sex offender,” Dewhurst said. “After reviewing the gruesome details of this case, I started asking questions and was shocked to learn that Texas has 46,000 registered sex offenders, more than half of which have molested children.”

According to Dewhurst, Texas’ version of Jessica’s Law is among the toughest in the nation, sentences could include the death penalty.

The last section concerning Jessica’s Law stated the Texas Attorney General’s Office shall offer assistance with sex cases involving children 17 and younger if requested by prosecutors.

* New State laws, provisions and updates were provided by Parker County District Attorney Jeff Swain.

For complete versions of the new laws, log onto

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