In Re Gault and Juvenile Interrogation/Arrest

[CdwJava]

by now you have gone back and reviewed my first post, like i did, and have seen that i did too say my niece was the accused. my sis is the parent.

I have now. My bad.

my dad, the warden, always brought us up to tell the truth, because that's the right thing to do.

Certainly. However, that does not mean that you always did so ... nor did any of us.

i have heard no dispute that some sexual play occurred that day (weds, mar 28, 2007).

Then a crime theoretically occurred.

what is wrong is to characterize it as sexual battery.

That's a legal interpretation. However, since there could be no legal consent, that may be the only legal conclusion that could be drawn from the acts.

it was four willing teens engaging in a consensual, experimental sexual liason.

Since they were underage, by statute, they cannot give consent. Ergo, the act was NOT consensual. It may not have been FORCED, but it could not legally be consensual.

I'm not saying that the charges are appropriate if it was truly as you say, only that I can see an argument being made in support of them.

yes, given the opportunity, all four should have been punished by their respective parents, received an update on their sexual education, and possibly even been referred to professional counseling.

I would tend to agree. However, it would seem that SOMEONE got bent out of shape about it and notified the police. And there may well be elements of the accusation(s) that add a different, more sinister, spin to the matter.

but those parental rights have been usurped and hijacked by a system and a process gone mad.

No, they haven't. As a matter of law, the actions here are apparently appropriate even if it is not what SHOULD have happened. Had your niece come home crying about the events of that afternoon, and complaining about being molested, I venture to guess that you would be here calling for blood. But, that is the nature of family - we tend to defend even the indefensible.

But, as it stands, I can see an argument FOR the charges, even though on the face of what you had written, parental involvement and counseling might have been the most appropriate course of action. However, it is till very likely that this will be the ultimate outcome. All because charges have been leveled does NOT mean that a court will not seek a different sort of resolution.

anyways, you said a miranda issue might exist, depending on the circumstances. on the day my niece was questioned, she was pulled out of her classroom and taken to a solitary room without benefit of counsel, her parents, or an adult friend. i think you could characterize this proceeding as one that happened 'in custody'.

Possibly. But, again, that is an issue to be decided by a court. The totality of the circumstances in that room would have to be evaluated to determine if, indeed, she was "in custody" for the purposes of Miranda. No one here can possibly make that determination, and I do not think anyone here is aware of the ins and outs of GA state law on Miranda issues.

she certainly did not feel as though she could leave.

That is not the sole determinant, though ti can be one of them. Remember, you are not free to leave a detention either, but Miranda does not generally apply there.

The court would have to find that the force used (handcuffs, locked door, etc.) was equivalent to that of a custodial arrest. Whether being called to the office rises to this level or not is questionable.

she claims that she did ask for 'her mommy', and was very scared by the circumstance.

All elements of a Miranda argument. However, GA may not have the same rule that CA does where a request for a parent in a Miranda situation is effectively the same as asking for an attorney. Additionally, if they argue that Miranda did not apply, then a request for a parent is moot. However, in my state her AGE would require some special treatment as she would not be considered to have the intent to commit a crime absent the establishment of her state of mind and understanding of the law and her actions.

hey, what do you mean attorneys don't read this site???? i thought that was the whole point of this site???!!!

I said they don't' TROLL the site searching for clients.

- Carl

 

[The Occultist]

hey, what do you mean attorneys don't read this site???? i thought that was the whole point of this site???!!!

The point of this site is for people to offer legal advice, not to find clients.