Monday, December 8, 2008


Hey kids, it's that time again for Max on Monday! Max is fixin to learn us a little more about the dangers of winkin cougars and has a few follow ups to some of last weeks comments...

Max Newport

Last week’s column left a few questions unanswered which were asked in the well thought out comments posted by the Beach House residents. I do want to applaud Miss Vero for her allowing comments. Just compare the intellect of the responses to Miss Vero to those at TCPalm. You guys have class and have asked some legitimate questions that I will try to answer.

On the subject of class, Max was at home for lunch on Friday and saw the O. J. Simpson sentencing live from Vegas. You have to love that Judge Jackie Glass. She was just too cool. Right in the middle of imposing the sentence, when Simpson looked like he was about to soil himself, she takes a long slurp through a straw of what looked like a Big Gulp. She definitely looked comfortable on the bench. Before sending “The Juice” away, for what will probably be a life sentence, she put it on the record that he was both arrogant and ignorant. She made Judge Lance Ito look like Pee Wee Herman. Max would not want to get on Judge Jackie’s bad side. If I ever go to Vegas, I will definitely behave. Maybe I will go see Donny and Marie and count construction cranes.

Back to our sexual predator cause célèbre Denise Harvey. It is pretty easy for Max to get free legal advice. Since we bought that 74 inch hi-def television, I just call a couple of old buddies from college, tell them I have a cold case of Fosters, and invite them over to watch our Alma Mater battle it out on the football field. College football season is over, except for the upcoming bowl games, so if y’all have any legal questions; time is running out.

Now you can’t talk about sex crimes without some pretty explicit commentary on some pretty grungy stuff so be forewarned. This will not be polite cocktail party conversation. I will try to keep it clean but this can get ugly fast.

First there is the general crime of Sexual Battery, commonly referred to as rape. For this crime, the state must prove that the victim did not consent to the sexual act unless the victim is under the age of 12, where the lack of consent is presumed. What is a sexual battery? It means “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object”. Union means contact and penetration means, well, penetration.

Denise Harvey was convicted of unlawful sexual activity with certain minors, where consent is not an issue and only applies to a victim who is 16 or 17 years of age. The definition of “sexual activity” is the same as “sexual battery”. The perpetrator of this crime has to be at least 24 years old. So a 23 year old can have sex legally with a 16 year old but a 24 year old cannot. How did they arrive at the magic age of 24? The Newport legal experts have no idea. The age of consent in Florida is 18. Prior to the enactment of this law in 1996, the state had to prove that the 16 or 17 year old was of “prior chaste character”. This was difficult, if not impossible, to prove since the victim was usually a willing participant (or it would be a sexual battery) and the only folks pushing for prosecution were the parents of the usually female victim. Prior to 1996, my hypothetical 16 year old daughter could have sex with a 40 year old and claim that she lost her virginity before hooking up with this guy, and there would be no crime. Under that scenario, I would have been a very unhappy parent of a 16 year old. The 1996 law eliminates the prior chaste character element and states specifically that the “victim’s prior sexual conduct is not a relevant issue in a prosecution under this section”. That means the victim could be turning tricks on the corner and the jury would never hear about it.

Bottom line . . . a person 24 years or older cannot have any sexual activity with a 16 or 17 year old. That is pretty much absolute, unless there is a court approved marriage before the crime occurs. You can’t get arrested, decide to marry the victim and make the crime go away. My judicial shark friends told me a lot of folks got married under those circumstances with the mistaken impression that the marriage would obviate the crime. Not gonna happen and Florida does not have conjugal visitation. If you are 23 and have a 16 year old girlfriend, you better get married before the stroke of midnight on your 24th birthday or either buy a chastity belt or wait until she turns 18 if you want to resume your “relationship”. If you continue to play after you turn 24, you better hope that your 16 year old girlfriend remains very, very happy with you because, friend, you are at her mercy.

There is another chapter of Florida law to protect children under the age of 16 from anything remotely sexual by an offender 18 years of age or older. Believe me when I tell you, if she’s under 16 and you’re over 18, you might want to consult an attorney before even asking her out for a date. This law is very, very broad. Since it does not relate to the Harvey case, I will spare you the details.

Another Beach House commenter referred to the appellate process. The appeals court can only overturn an illegal sentence. They cannot second guess the trial judge’s imposition of a sentence as long as it is legal under Florida Statutes. Since Harvey received the minimum legal sentence, they cannot do anything about that. They can, however, reverse the conviction based upon any error that is raised by the defense attorney on legal or procedural issues. If the case is reversed, it would be sent back to the trial court for a new trial. The Fourth District Court of Appeals has been known to be very creative in finding trial error if they disagree with the sentence, but it is not their job to reconsider a legally imposed sentence.

Others have pointed out that women convicted of similar crimes have received much lighter sentences. I read about a few cases here in Florida where very repentant defendants got probationary sentences based upon a plea agreement worked out between the defense attorney and the prosecutor. It seems that many of them violate their probation and end up in the big house anyway. The judge can accept a legitimate uncoerced plea agreement as the basis for a downward departure. The state made Harvey an offer she chose to refuse of eleven years in prison. Since there was no plea agreement, Judge Vaughn had no choice but to impose the sentence that he did. Why was the plea offer 11 years?

I have no idea, but usually any plea offer is reached with the cooperation of the victim. In this case, an offer would not have been extended without the full agreement of the victim. Many times somewhat lenient plea offers are made in sex cases to avoid further trauma on the victim by having to testify about the embarrassing details of the criminal act in front of a group of strangers. Was 11 years a reasonable plea offer? It really doesn’t matter what you and I think. The victim thought it was appropriate and his opinion is one that counts under the Florida Constitution, especially when the state could have made no offer and gone after the 75 year max.

Denise Harvey pretty much told the prosecutors to shove it. She remained unrepentant and defiant. I’m pretty sure her attorney went over the scoresheet with her prior to taking the case to trial and she knew going in that she was facing a minimum of 30 years if convicted as charged. This was a stupid move on her part. The evidence was overwhelming. The state had a taped confession, an eyewitness and her DNA found on a condom at the victim’s house. In addition, it is doubtful that her defiant attitude impressed any of the jurors. She was, and continues to be, a person who thinks she is above the law or maybe that the laws just don’t apply to her.

George Sigler has the right idea; if you don’t like the law do what you can to change it. I think he is going about it in a proper and perhaps effective way, but of course, I disagree with him. Changing the law because you disagree with one sentence imposed on one defendant will result in a bad law that will affect everyone. I don’t know what suggestions George has to change the law other than he doesn’t want it to apply to Denise Harvey. Do we want to go back to the “prior chaste character” standard and make all 16 and 17 year olds fair game for adult sex play? Or should we go back a few years where only females could be victims of sex crimes?There should not be a double standard in sex crimes based upon the gender of either the victim or the offender.

If you get a chance go to the law library and look at the 1970 Florida Statutes (that’s 1970 not 1870) where sexual battery or any unlawful sexual activity could only be imposed on a male defendant and a female victim. Do we really want to go back there? And it wasn’t really that long ago.

If the appellate process plays out as it should, the only chance Denise Harvey has is a pardon from the governor. Since Governor Crist was formerly the attorney general, that just ain’t gonna happen. The law is the law and Denise Harvey did exactly what the law was designed to punish.

Hopefully I have addressed the unanswered questions from last week. So far the info I have received from my Fosters legal team has been pretty good but time is tight.
My apologies to Randy and the Rainbows for the title of this article. I hope they don’t sue. My lawyers appear to be drunk.

MWAH! (Miss Vero would give y'all a wink too, but Max has just scared the bejeebees out of us!)


Anonymous said...

Dr. John says : I believe there are Psychological Issues with anyone over age 20 who is involved with a Teenager.

Miss B. Havior said...

Ah the conundrum……whether to treat or punish?

Incarceration, whether in jail or prison, does not rehabilitate sex offenders unless therapeutic services are also included. Punishment alone, especially in a penitentiary environment, often exacerbates many prisoners' assaultive potential. Additionally, incarceration without possibility of treatment discourages self-disclosure and makes reoffending after release more likely. All efforts at imposing justice must be matched with a corresponding effort to provide treatment for sex offenders.
Given the circumstances of Ms Harvey’s case, a shorter incarceration with a thorough assessment of sexual addiction, and susequent release into a treatment program which
required counseling and attendance at mutual help and/or therapy groups, would of perhaps served this community and Ms. Harvey better.
When a sex offender is motivated to change — and a great majority of them are — treatment can be very effective. Yet, fewer than 50 percent of convicted sex offenders receive treatment in lieu of prison or while in prison when that motivation to change is highest.

Anonymous said...

To guest columnist, I am having trouble reading so much, must be time for a drink.

LDouglas said...

Hmmm. On one hand the song is perfect but on the other it's a little creepy under the circumstances. Lol

Otherwise, I had no problem reading it all but have no further comment on the case.

Still sulking over learning a new acronym. ;-) ;-)