I need some help with a charging dilemma; here is a brief overview of my case facts…
The victim is a 12 year old male child
Defendant #1 is his maternal uncle
Proposed Defendant #2 is the victim’s mother
The allegations are roughly 4 years of sexual abuse (2007-2011) including exposure, touching, oral penetration and anal penetration
During the investigation, the victim’s mother (proposed Defendant #2) gave a handwritten statement. In her statement to the Detective she states that she knew her brother (Defendant #1) was abusing her son 4 years prior (she had actually witnessed an incident), and was aware of another incident that occurred earlier in 2011. She states that she never reported him, confronted him or told anyone because her mother has been sick and he is “her favorite son”
The statement by Defendant #2 indicates that she gave Defendant # 1 continued access to he children throughout this period of time, despite the fact she knew he was abusing her children
There is no indication that Defendant #2 ever “encouraged” the abuse or participated in the abuse

Under section 7.02 (a) (3) of the Penal Code I believe I can charge Defendant #2 (mom) as a party. My wonderful law student summer intern was able to pull some case law where mother’s like this were charged and convicted, in some cases upon proof that she only had knowledge of the abuse a failed to prevent the Defendant from having access to her child, see 2000 WL 34235207, McKenzie v. State. So, now my problem is, how do I word the indictment for continuous sexual abuse of a young child against both Defendants’?

I really would like to try them as co-defendants and have them sitting together in the courtroom! Any ideas for indictment language?

Also, if anyone reading this has concerns about what I am trying to do, I am open to opinions and suggestions. In looking at case law, I am seeing cases of indecency, agg sex assault and sex assault, but I haven’t seen any continuous cases… anybody know why? Is it just too new, or am I overreaching?

I had a similar issue come up with one of my cases. Your question contains several different parts so I'll answer each in turn.

First, my guess is that continuous sexual abuse is so new that no case law directly addresses the law of parties with regard to it specifically. However, I see no problem with using it. As for the indictment language it would be the same as that for Defendant #1 and when the jury instructions are drafted they will include an instruction for the law of parties. Obviously, you will also want to include law of parties in your voir dire.

Also if you keep old copies of "The Texas Prosecutor" check out Vol. 40, Number 1 for January-February 2010 which contains an article regarding ASAC and the law of parties. It is writtten by Crystal Levonius and Shannon Miller who are ADAs in Collin County (or were at the time of the publication).

I think you have a better argument if Defendant #2 was present during the abuse, had personal knowledge and allowed the child to be left alone with Defendant #1, etc. The more you can show that Defendant #2 shared culpability in more than a general sense the better.

The case I indicted this way was for a mom who knew dad was regularly sexually abusing their daughter. In fact, one episode (the one I used as the basis for my indictment)involved mom in bed when dad abused daughter. The case ended up pleading so I don't know how it would have faired with the jury or on appeal.

Hope this helps!

Here's the link to the Texas Prosecutor article to which SLJS refers. They are online under the Journal Archive link above.

Keep it down - I'm trying to sleep

Gretchen,
Thank you very much for the help! I am famiiar with the Texas Prosecutor article you mentioned and I already contacted Ms. Levonious by e-mail. I hope these types of charges are getting more popular, these mothers need to be held acccountable. Thank you again for your time and response!