The Difference Between State and Federal Sex Crimes Defense

Federal courts are governed by the U.S. Constitution and Title 18 of the United States Code. State courts are governed both by federal and state laws. This results in several differences that can have an impact on sex crimes defense and the process defendants face when they go to court, as well as on outcomes in the form of incarceration, fines and other consequences. If you or someone you know has been accused of this type of crime, seek a knowledgeable sex crime attorney who understands the difference between federal sex crimes and state sex crimes.

If the case will be tried in federal court, your attorney must be admitted for practice in federal court. To mount a successful federal sex crimes defense that protects your constitutional rights and the right of due process, a lawyer must be equipped to navigate federal criminal procedures, practices of federal law enforcement agencies and the U.S. Attorney’s office, the federal grand jury process, and federal sentencing guidelines.

Who Decides Whether Local or Federal Courts Handle Sex Crime Cases?

Sex crimes, like other crimes, are processed by law enforcement professionals and tried in courts within the jurisdiction where the crime took place. Some sex crimes are considered both federal and state violations. A case might begin in federal court, then be released to state court. Similarly, a case that begins at the state level might be elevated to federal court based on details of the case and seriousness of the crime. Sex crime cases can be tried in both federal and local courts at the same time. The U.S. Supreme Court has determined this doesn’t constitute double jeopardy (tried twice for the same offense).

The U.S. Constitution gives federal courts more power than local courts when laws overlap at the federal and state levels. In other words, federal courts can decide which cases to try. But they don’t always choose to undertake investigation and prosecution of a crime they have jurisdiction over.

Federal courts are likely to take on cases where a crime involved activity that crossed state lines, included use of the Internet, or affected a child or minor youth. Federal sex crimes are sometimes prosecuted in conjunction with other federal charges, such as kidnapping, drug trafficking, U.S. Postal Service violations, and terroristic threats.

Sex-related crimes typically processed by federal courts include:

  • Buying or selling of children and exploitation of minors
  • Child pornography, including possession or distribution
  • Online solicitation of a minor, especially if conducted across state lines
  • Aggravated sexual abuse or aggravated rape
  • Transportation of individuals, including minors, between states or to other countries, with the intent that they will engage in criminal sexual activity

Federal vs. State Criminal Processes for Sex Crimes

Investigating and trying a sex crime in federal court is more complicated than in a local court. This is to be expected simply because federal courts take on more serious crimes that are broader in scope. In addition, a greater number of law enforcement agencies and individuals may be involved in resolution of a federal case, which can lead to more considerations, more pages of material to research and prepare, and a greater amount of time—and money—needed for defense.

The FBI and DEA, agencies commonly engaged in federal cases, can and often do conduct long investigations, which complicates defense. Federal agencies have access to more resources and sometimes larger budgets than local law enforcement. They also tend to conduct uncompromising investigations and more aggressively prosecute the accused.

Not only do federal cases tend to be more complicated and intense, but federal prosecutors often pursue only cases they believe they have a high chance of winning. From a defense standpoint, this can require deeper research and a more focused and resolute approach by the defense attorney – and perhaps a higher skill level than that required to defend cases in local courts.

Step-by-Step Federal Sex Crimes Investigation and Litigation

With sex crimes, the accusation almost always begins on the local level. An alleged sex crime victim typically calls a local police department. Officers interview the accuser and, if they believe it’s warranted, open an official investigation.

Law enforcement professionals might interview several people who have knowledge of the case’s details, including the alleged perpetrator. The accused person may want to decline interviews and ask for counsel from a sex crime attorney to avoid inadvertently providing information that could be used against them. The right to stay silent and obtain the services of an lawyer is available to anyone in police custody.

If law enforcement officers decide evidence supports the claim that a crime has been committed, they will make an arrest and temporarily hold the accused person in jail. A court can grant bail if warranted, which means the arrested person can pay a bond fee and avoid jail while waiting to go to court.

At any time in the process, an alleged sex crime can appear to qualify for federal prosecution. A local judge, law enforcement agency, or attorney might decide to enter it for consideration in federal court. Federal courts and federal prosecutors determine whether they want to take on the case. If they do, it will leave the hands of local law enforcement and prosecutors, and federal offices will take over.

A federal sex crimes defense attorney works with federal law enforcement agencies and courts to produce evidence, witnesses, and other materials for the case, while prosecutors work on making their case against the accused at the same time. In some cases, an experienced sex crime attorney can get an investigation dropped, settle outside of court, or get a case handed down to local courts where it sometimes is easier to obtain reduced sentences or settlements when merited.

A sex crime attorney’s knowledge of these processes is important, because so much is at stake.

  • Penalties, prison time, and other consequences of a sex crime conviction in federal court can be more serious than in local courts. Sentences are often harsher and longer with federal cases because compulsory federal sentencing guidelines require mandatory minimums.
  • If a child/minor is involved, prison terms and fines can be twice as much as in state courts.
  • Under federal and state law, persons convicted of sex crimes must register with the national sex crimes registry (see more about this below).
  • Federal sex crime conviction can mean incarceration in a federal prison. Life in a federal facility can be very different from life in a local jail, where family and friends are close enough to support the person while they serve a sentence.

In addition to these formal consequences, the stigma associated with a federal conviction can be deeper and more damaging than the fallout from a local conviction.

Even if a person is not convicted, an indictment in federal court for a sex crime can lead to loss of a job, professional license, and/or reputation in the community. Some may find themselves unable to practice their profession ever again, not to mention losing the support and respect of colleagues, friends and family. All these consequences can be more serious with a federal court case.

Once a defendant is convicted, Federal Sentencing Guidelines must be used by federal courts to determine sentencing based on strict standards. State court sentences can vary more than in federal court, with sentencing based on a judge’s determination of whether a specific crime warrants a minimum sentence or maximum sentence, or somewhere in between.

Sex Offender Registry

One serious mandatory consequence of sex crime conviction in federal court is registration with the national sex offender registry. This registry contains details about each offender, including name, address, offenses, and a photo. Because anyone can access the sex crimes registry, a listing can result in difficulties getting housing, finding jobs, and other challenges, such as restrictions on how close the registered person can be to schools, parks, housing communities and public entertainment areas.

Certain rights advocates oppose sex offender registration and community notification laws in their current form, because they believe the registry does not classify offenders based on true risk—and they feel the law is too ambiguous. The National Association of Criminal Defense Lawyers, for example, has suggested modifications to federal law that would remove ambiguity and provide clear classification.

Your Attorney’s Role in Federal Sex Crimes Defense

If you are facing prosecution in federal court for a sex-related crime, your defense lawyer will educate you about applicable laws, communicate with law enforcement and court officials on your behalf, and formulate an aggressive defense strategy. The goal of a sex crime attorney is to guide you through the process and identify opportunities to reduce or eliminate penalties and other consequences of your arrest and conviction. Berry Law attorneys can offer a great deal of experience with federal sex crimes defense in Omaha, Nebraska, and Lincoln, Nebraska. For more information about investigation and litigation processes relating to federal sex crime, call Berry Law.

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