Sex Offense Appeals

A person convicted of a sex crime can appeal the verdict or the sentence and have a higher court consider whether any errors occurred at trial or in sentencing that entitle the convicted person to a new trial, dismissal of the case, or a different sentence.

By , Attorney (New Mexico School of Law)
Updated April 26, 2023

Sex crime convictions can result from a broad range of criminal conduct, from very serious offenses, such as rape, sexual battery, child molestation, child pornography, and child enticement, to less serious offenses involving teen sexting, prostitution, and statutory rape.

Someone who's convicted of a crime, including a sex crime, can appeal the conviction or sentence. By filing an appeal, the convicted person asks an appellate court to review and overturn the judge or jury's decision. A defendant who files an appeal is referred to as "the appellant" in the appeal process.

What Is an Appeal?

An appeal asks the appellate court to reverse the conviction or sentence based on errors of law that may have happened at trial. But an appeal isn't a second trial. Appellants don't get to present witnesses and evidence and try to convince the appellate court judges that they aren't guilty. Instead, the appellant tries to show that the trial judge made legal mistakes such as admitting evidence that should have been excluded or denying a motion.

For information on how a successful appeal can lead to the dismissal of a case, see Getting a Case Dismissed After Conviction.

Appealing From a Sex Offense Conviction

Appeals from sex offenses follow the same rules and procedures as appeals from any other conviction, though there might be some arguments on appeal that are unique to sex cases.

Criminal Appeal Basics

Appeals have very strict rules. One of them is that usually, appellants can't argue issues on appeal that weren't raised at trial.

For example, imagine that at trial, the defendant's lawyer argued unsuccessfully that a witness's identification should have been excluded because the police pressured them to identify the defendant. On appeal, the defendant can raise the same argument and ask the appellate court to review the trial judge's ruling on the identification evidence. But the defendant couldn't argue on the appeal that he should have been able to present evidence that eyewitness identifications are unreliable if he didn't ask the trial judge to let him present that kind of evidence.

Another rule is that the appellant's arguments must be based on the record on appeal (the transcripts and exhibits from the trial). The appellate court won't consider any evidence that isn't in the appellate record. (The defendant might be able to raise that new evidence in a petition for habeas corpus).

Common issues raised in sex offense appeals

Many of the issues raised in sex offense appeals will be similar to issues in appeals from any other type of conviction.

Here are a few of the common issues raised on appeal to attack convictions generally:

  • the judge shouldn't have excluded evidence the defense tried to present (such as evidence that someone else committed the offense)
  • the judge shouldn't have admitted particular items of evidence (such as evidence discovered during an illegal search)
  • the judge gave the wrong instructions to the jury
  • the prosecutor's arguments were inappropriate and unfair, and
  • there were problems with jury selection or deliberations.

Some arguments specific to sex offense appeals can include:

  • the judge wrongly excluded evidence of the victim's past false sexual assault allegations
  • the judge shouldn't have admitted expert testimony that sexual abuse victims rarely lie, and
  • the evidence was insufficient to show the offense involved "force" (in cases involving forcible sexual assault).

(Perry v. Commonwealth, 390 S.W.3d 122 (Ky. 2013); People v. Adams,198 Cal.App.3d 10, 16-19 (1988); State v. Myers, 382 N.W.2d 91 (Iowa 1986).)

Whether any of these issues have a chance of success depends on the specific facts of each case and the law of the state the case is in.

Getting the Court to Reverse Your Conviction

Even if an appellant can show that an error occurred at trial, the conviction normally won't be overturned unless the error was "prejudicial," meaning it could have affected the outcome at trial.

For example, if the appellate court finds that the trial judge shouldn't have admitted a certain type of evidence, the conviction won't be overturned if the court of appeal finds that the error didn't make a difference. Imagine the witness identification scenario mentioned above. Let's say the appeals court agrees that the witness ID should have been excluded. If no one else at trial identified the defendant and no physical evidence established that the defendant committed the crime, the court of appeal could well find that admitting the ID was prejudicial.

On the other hand, suppose that three strong witnesses identified the defendant and that his DNA was on the victim. In that situation, excluding one of the identifications probably would not have made a difference at trial, so the court of appeal could find the error wasn't prejudicial. Judges call such errors "harmless errors," because although they were mistakes, their impact was minor when looking at the trial as a whole.

Appealing From Sex Offender Registration or the Sentence

A sex offense appeal might also challenge aspects of the sentence the judge handed down. For example, the judge might have imposed more time than the law allows, failed to follow various (often complicated) sentencing rules, or miscalculated the number of custody credits the defendant has earned.

A defendant can also appeal an order requiring sex offender registration. If the appeal is successful, the defendant won't have to register or can be removed from the registry if already registered.

That said, winning this type of appeal can be difficult because most states have mandatory registration for most (if not all) sex offenses. If a defendant is convicted of an offense requiring mandatory registration, they won't get anywhere arguing on appeal that they shouldn't have to register. But every once in a while, a judge can make a mistake and think an offense requires registration when it doesn't.

And in some states, like California, there are two types of registration laws: mandatory and discretionary. Under the discretionary registration law, a judge can—but isn't required to—order registration for non-listed offenses if the defendant committed the crime for a sexual purpose. For example, simple assault doesn't require registration, but if the judge hears evidence at trial that the assault was sexually motivated, the judge might be able to order registration, depending on the state's laws. In those situations, there's a little more wiggle room to argue that the court "abused its discretion" and should not have ordered registration.

(See, for example, Cal. Penal Code §§ 290, 290.006.)

Sealing or Expunging a Sex Offense Conviction

In many states, if you're convicted of a less serious crime and then have no arrests or criminal convictions for a number of years, you might be able to expunge (destroy) or seal (hide) your criminal record. Once your record is expunged or sealed, you can honestly answer "no" if you're asked whether you've been convicted of a crime. However, each state has its own rules about whether sex offenses can be sealed or expunged. And most states don't allow it for violent sex offenses and sex crimes against children.

For more information, see Expunging or Sealing an Adult Criminal Record, Expunging or Sealing a Juvenile Court Record, and The Limits of Expunging Your Criminal Record.

Obtaining Legal Assistance

If you or someone you know has been convicted of a sex crime or any crime, you should contact an attorney who has experience handling criminal appeals. Many states have programs that will appoint an appellate attorney for people who can't afford one. A qualified appellate attorney can review the record of your trial and advise you whether anything occurred at trial that has a chance of reversal on appeal.

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