JD, who comments regularly at my site and who provided the invaluable overlay of a Google Earth Satellite photo onto the SPD Total Station diagram of the objects found at the crime scene, asked the following question:
His lawyer [Mark O’Mara] seems to want to make a point that GZ was still 17 at the time the cousin [W9] claims he was 18 and she 16. If none of this ever happened, what’s the point in making that claim?
Statutory rape statutes establish the age of consent, which is usually 16, and provide exceptions based on the age of the other person. In effect, these exceptions establish a sliding scale of criminal liability. For example, no crime would be committed if a 16-year-old boy had consensual sex with a 15-year-old girl.
I am not familiar with the Florida statutes, but O’Mara appears to have been pointing out that, even if W9’s allegation were true, it would not constitute a crime because she and GZ were too close in age.
That ignores her claim that she never consented to sexual contact.
Statutory rape statutes eliminate consent as a defense. Since she did not consent, the statutory rape statutes do not apply.
Assuming her allegations are true, we’re looking at rape and indecent liberties type offenses.
Rape requires proof of penetration “however slight,” and includes digital penetration.
Rape is generally classified into three degrees:
R1: forcible penetration while armed with a weapon;
R2: forcible penetration; and
R3: non-consensual penetration.
A victim is not required to physically resist in order to establish that she did not consent to sexual penetration. In other words, “no” means “no.”
I say “she” because W9 is a female and this article is about her allegations. It’s important to remember that males also can be victims of sex offenses. Jerry Sandusky’s sexual predation is a current example that is fresh in everyone’s mind.
Most date rapes fall into the R3 category where the perpetrator does not use force and the victim does not consent or physically resist.
During my career as a felony criminal defense lawyer, I did not see many cases that started out charged as R3. Instead, cases that started out as R2s and occasionally R1s were bargained down to R3s, due to proof difficulties.
I concede that my legal experience falls into the dreaded category of anecdotal information and I do not know if there are any studies that confirm it. Suffice to say that the R3 category has been a source of continuing debate in our society.
Indecent liberties offenses consist of fondling and may be forcible or non-consensual.
States also have statutes that exempt children from criminal prosecution below a certain age. I am not sure what it is in Florida, probably 10 or 12.
States also have statutes of limitation that prohibit prosecution after a certain time period passes. The states vary quite a bit in the area of sex crimes involving children because children are so reluctant to accuse their abusers until later in life, if at all.
I do not know whether GZ has any possible exposure to criminal charges based on W9’s allegations, given the passage of time.
I did not get the impression that W9 was seeking to have GZ charged with a criminal offense. I think she felt guilty for not reporting the abuse to the police because if she had, that might have changed his life in a way that would not have led to him killing TM.
She wanted the police to know that he is a frightening and intimidating person who lies and uses charm to manipulate and control others. She did not want him to lie, charm and talk his way out of responsibility for killing TM as he had gotten away with sexually abusing her for so many years.
That was the message she wanted to convey.
When O’Mara said GZ was still 17 at the time W9 claimed he was 18 and she 16, he was saying that even if GZ did what she claimed he had done to her, he did not commit a crime.
As with other aspects of this case, O’Mara seems utterly clueless.
Because she was not seeking to have him charged and I do not believe the prosecution is even considering charging him for what he did to her, I am not going to review Florida’s sex crime statutes to determine whether GZ has any potential exposure to criminal liability for rape, statutory rape and indecent liberties.
Such an inquiry and a discussion about it would be irrelevant and distracting. Readers who want to know can always look up the answer by reviewing the Florida Statutes.
Keep in mind that regardless whether the alleged misconduct constitutes a chargeable offense, it will not be admissible during the State’s case in chief pursuant to Rule 404(b). The only way the jury would get to hear about it would be if the defense opened the door by introducing evidence that GZ is a law abiding, peaceful and non-violent person who would not have killed TM, unless it was in self-defense.
Presumably, the defense would never risk opening that door.
As I demonstrated previously, but for O’Mara’s failure to let Judge Lester know that W9 had provided a tape recorded statement to law enforcement accusing GZ of digitally penetrating her vagina and fondling her multiple times during a 10-year period that began when he was 8 and she was 6, the public would not know about W9’s accusation.
He did not do his client any good by failing to keep her allegation from being released to the public.
In my title to this article, I asked if O’Mara was clueless as well as ineffective.
I think we know the answer.