Maldonado and Schultz's charges and possible sentence ranges

I was originally told  that Maldonado and Schultz were charged with nineteen counts of criminal activity.  I was told at the time that the court website stops at eleven charges, but that is what each defendant's page appears to reflect, and that seems a little odd to me, so let's underestimate rather than overstate.

On Maldonado's case status page at DCCourts.gov you'll see that one charge was filed on the arrest date and eleven more at the indictment making a total of twelve.  It's possible that Charge 9 is a duplicate of the arrest charge-- you can't tell unless you are looking at the actual indictment because it could be alleging different facts, making it two separate charges of the same illegal activity-- but whatever, it's either eleven or twelve charges against Matthew Maldonado.

04/02/2013	Charge Filed	Charge Filed Charge #11: Robbery
04/02/2013	Charge Filed	Charge Filed Charge #10: Attempted Aggravated Aslt Knowingly Grave Risk
04/02/2013	Charge Filed	Charge Filed Charge #9: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #8: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #7: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #6: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #5: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #4: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #3: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #2: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #1: Kidnapping

01/05/2013

Charge Filed

Charge Filed Charge #1: Second Degree Sex Abuse- Incompetent

Nicholas Schultz's page reflects the same charges:

04/02/2013	Charge Filed	Charge Filed Charge #11: Robbery
04/02/2013	Charge Filed	Charge Filed Charge #10: Attempted Aggravated Aslt Knowingly Grave Risk
04/02/2013	Charge Filed	Charge Filed Charge #9: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #8: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #7: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #6: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #5: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #4: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #3: Second Degree Sex Abuse- Incompetent With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #2: First Degree Sex Abuse- Force With Aggravating Circumstances
04/02/2013	Charge Filed	Charge Filed Charge #1: Kidnapping

01/05/2013

Charge Filed

Charge Filed Charge #1: Second Degree Sex Abuse- Incompetent

This is what I was told:

Although the court's website shows eleven felony counts, the indictment actually contains nineteen separate counts– mostly sex offenses, both as principal and as an aider and abettor – but also on kidnapping, robbery and attempted aggravated assault for leaving her lying there on that cold concrete floor.  I'm told by a court official that perhaps the website maxes out at eleven, but nineteen is the real count.

From what I know, there was a plea offer on the table which is "wired" i.e. both guys have to take it or neither can take it.   The offer is that both plead to one count of second degree sexual abuse and agree to a Rule 11(e)(1)(C) sentence of a number of years in prison, some years above the top of the sentencing guidelines for second degree sexual abuse, but some years below the minimum for a first degree sexual abuse conviction under the guidelines (set out below).  This case is charged under D.C. law and is venued in D.C.’s Superior Court.  Rule 11 under D.C.’s rules is basically identical to federal Rule 11, meaning that the terms of a plea under Rule 11 has to be approved by the judge, who also “signs on” to such a plea.  Obviously we're past a plea deal now!

So here is some additional information on the law of rape in D.C.  I got the following from Westlaw, an online legal research service that includes the text of the statutes and laws of Washington DC, and a local attorney's website, Koehler Law.

There are four different “degrees” (levels of seriousness) for the crime of sexual abuse in Washington, DC.  This is in addition to a misdemeanor charge and separate charges related to sexual abuse and children.  There are also separate evidentiary rules for dealing with potential victims of sexual abuse.

While it is a valid defense that the victim consented to the sexual act, the defense has the burden of proving consent by a preponderance of the evidence (that is, more likely than not).  The requirement in D.C. for independent corroboration of a sexual act was abolished for women in 1976 and for members of both genders in 1985.

The D.C. Code defines “sexual act” as:  (1) the penetration, however slight, of the anus or vulva of another by a penis, (2) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus, or (3) the penetration, however, slight, of the anus or vulva by a hand or finger or by any object, with intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

“Sexual contact” is defined as the “touching with any clothed or unclothed body part or any object, either directly or indirectly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of another person.”  D.C. Criminal Code 22-3001.

First Degree Sexual Abuse

There are two elements to the crime of 1^st degree sexual abuse in Washington, D.C.  The first element is the requirement that the person either engage another person in a sexual act or cause the other person to engage in or submit to a sexual act.  This element is pretty self-explanatory.

The second element addresses the means by which the sexual act is committed.  It could be by using actual force against the other person.  It could be by threatening the person or by putting the other person in reasonable fear that if the person does submit, another person would be subjected to death, bodily injury or kidnapping.  This would cover, for example, threats that a family member could be seriously injured if the person did not submit.  Finally, covering the so-called crime of “date rape,” it could be by rendering the other person unconscious or by administering to that person – either by force or without the person’s knowledge — some type of intoxicant that would substantially impair the people’s ability to appraise or control his/her conduct. (I put that bit in bold because it's an important distinction between first and second degree...)

A person found guilty of first degree sexual abuse in D.C. can fined up to $250,000 and sentenced to up to 30 years imprisonment.  If the prosecution can prove certain aggravating circumstances (for example, that the victim sustained serious bodily injury as a result of the offense), the defendant can be given a life sentence.  D.C. Criminal Code 22-2002; D.C. Criminal Code 22-3020.

Second Degree Sexual Abuse

The first element of 2^nd Degree Sexual Abuse in Washington, DC is identical to the first element of 1^st Degree Sexual Abuse; namely, that the offender either engages another person in a sexual act or causes the other person to engage in or submit to a sexual act.

Where the two offenses differ is with respect to the second element.  Specifically, a finding of second degree sexual abuse requires the prosecution to prove that the offender threatened or put the other person in reasonable fear or that the offender knew or should have known that the other person was incapable of either appraising the nature of the conduct, declining participation in the sexual act, or communicating an unwillingness to engage in the act.  [This, I think, is most relevant in the NYE rapes.]

The difference between 1^st and 2^nd degree sexual abuse with respect to this last element is that, in 1^st degree, the offender needs to have actually participated in rendering the person unconscious.  In 2^nd degree sexual abuse, the offender need merely to have taken advantage of a person who is already unconscious.

The penalty for a person convicted of 2^nd degree sexual abuse is a maximum fine of $200,000 and imprisonment for up to 20 years.  D.C. Criminal Code 22-3003.

Third Degree/Fourth Degree Sexual Abuse

While the 1^st and 2^nd degree offenses address a sexual act (penetration, for example), sexual abuse of the 3^rd and 4^th degrees address sexual contact (for example, inappropriate touching).  The difference between the 3^rd and 4^th degree offenses is then the same as the difference between the 1^st and 2^nd degrees.  That is, 3^rd degree involves actual force, threats putting the person in fear of death, bodily injury or kidnapping, or rendering the person unconscious.  The 4^th degree offense involves reasonable fear of any type of injury or a victim who is already unconscious.

The penalty for someone convicted of 3^rd degree sexual abuse is a maximum fine of $100,000 and up to 10 years imprisonment.  The penalty for 4^th degree sexual abuse is a maximum fine of $50,000 and a maximum sentence of 5 years.  D.C. Criminal Code 22-3004; D.C. Criminal Code 22-3005.

Misdemeanor Sexual Abuse

A person can be convicted of misdemeanor sexual abuse if the person engages in either a sexual act or sexual contact with another person when the offender should have known that he or she did not have the other person’s permission. The penalty for this offense is a maximum fine of $1000 and no more than 180 days in jail.  D.C. Criminal Code 22-3006.