In 2013 Four Vanderbilt football players were accused, arrested, and indicted for the rape of a Vanderbilt student. The case continues to proceed thru criminal court and continues to generate headlines.

The case represents what I believe from my years of experience as a former prosecutor, and now a defense attorney, to be one of if not the biggest threats to the safety of young women on campus as well as one of the biggest dangers of false allegations of rape or sexual battery against young men. This threat is the mix of alcohol and dating.

From news accounts the alleged Victim in the Vanderbilt case was dating one of the football players.   After becoming so intoxicated that she passed out she alleges that she was then raped by four of the football players. In this particular case because the alleged victim states that she was intoxicated to the point of unconsciousness there is no doubt and no argument that if what she claims is true, then she was raped. All states including Tennessee and Florida declare that consent for sexual activity cannot be formed by someone who is physically helpless – which include someone who is unconscious due to alcohol ingestion. This is just common sense.

The dangers to a young woman of drinking too much in the company of someone she cannot completely trust is obvious. The dangers to young men of drinking while dating are less obvious. What happens when a woman and a man are out drinking and the woman’s judgment and her physical abilities become highly impaired but she has not reached that point of becoming physically helpless? If she engages in sexual activity with the man but the next day has regrets, or cannot remember whether she agreed or not because she had a black out, is he in danger of being accused of rape? I have seen more than one of these types of cases in Tennessee. In Tennessee the rape statute Tenn. Code 39-13-503 states that consent cannot be formed by someone who is mentally incapacitated. In other words sexual contact with someone who is mentally incapacitated is considered rape or sexual battery, even if they say or act as if they are consenting. The problem is that mentally incapacitated is not defined by the statute. Is it mental incapacitation if the woman is very intoxicated and making very poor decisions she otherwise would not make but nevertheless is oriented to time, place, and who she is with? Or does mental incapacitation require a complete lack of understanding as to reality. How does it affect the situation if the man is also intoxicated and is intoxicated to the point he does not realize the woman is too impaired to consent? In Tennessee these issues and questions are largely left to the jury to figure out.

In Florida the Sexual Battery statute, FL Statute 794.011 provides a bit more guidance by stating mentally incapacitated means temporarily incapable of appraising or controlling a person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act committed upon that person without his or her consent.   Therefore in Florida it appears that until a person’s voluntary intoxication reaches the level that they are physically helpless that they cannot use their intoxication to claim they did not consent to sexual activity.

The bottom line is that although for different reasons it is very dangerous for both men and women to drink and date, unless you know the person you are with very well and have had a relationship in the past. Otherwise I advise that you just don’t “do it”. Yes, the pun was intended.

Brent Horst, Attorney, Nashville Tennessee

Board Certified in Criminal Trial Law. Licensed in Tennessee and Florida.

This week it was revealed that TV star Stephen Collins of the television show Seventh Heaven was allegedly secretly tape recorded by his wife during therapy sessions admitting to sexual abuse of children: TV Star Accused of Sexual Abuse

But can secretly recorded tapes made by a person’s spouse during therapy be used against that person in a criminal prosecution?

Privileged Communications

In the law there are some communications that are recognized as privileged, which mean that certain things you tell certain people in confidence cannot be used against you in court.  In the past these privileged communications included doctor and patient privilege or spousal privilege which meant that things you told your doctor or spouse in confidence could not be used against you in court.  While some of these privileged confidential communications still exist in the law, in child sexual abuse cases many states including Tennessee and Florida have removed all confidential communication privileges from all relationships except for the Attorney / Client relationship.  Therefore, assuming that the state where the counseling took place has similar laws the fact that the statements were made in confidence to a therapist and a spouse does not prevent their use by authorities in a criminal prosecution.  The therapist and the wife could be called to testify during a trial as to what Mr. Collins stated during the counseling session even if the tapes themselves are not allowed to be used.

Secretly Recorded Tapes

Whether the tapes themselves could be used depends upon whether California (or whichever state the counseling took place in) was a single party consent state or an all party consent state in regards to taped conversations.   In some states such as Tennessee only one person who is a part of a conversation needs to consent to the recording of the conversation.  Therefore, in Mr. Collins’ case, if California is a single party consent state, as long his wife was a part of the therapeutic session conversation she could lawfully record the conversation without telling her husband and the tape can be used against him in court.  However, if California requires all parties to consent to a recording like Florida law requires, then the tapes would likely not be allowed to be used in Court.  In Florida there is specific case law that prohibits the use of recordings made in violation of the State’s wiretapping statute, in other words if a conversation is recorded without all parties knowledge the tape cannot be used against the person who did not consent.

Brent Horst, Attorney at Law
Board Certified Criminal Trial Attorney, Nashville Tenn.
Licensed in Tennessee and Florida

It seems that at least monthly we hear about some teacher somewhere being accused by a student of having sexual contact with the student, so this is rarely news worthy. However, a recent case out of Louisiana has managed to put a new twist on an old story.

It was not just that the 24 and 34-year-old female teachers allegedly sexually involved with the 16-year-old student were very attractive and could have dated pretty much anyone they wanted but instead, if true, inexplicably chose to target minors – we have already seen that story in Tennessee, and in Florida , and in many other states. What made the recent Louisiana story “new” was the fact that these two teachers allegedly engaged in a “three-way” encounter with the young man. It was reported in at least one of the news stories that police were also investigating the possible existence of a video of the incident, and that if convicted the teachers were facing from 0-17 years in prison if convicted.

If these alleged offenses had been committed in Tennessee and if the teachers made the alleged video tape or if they even knew that the video tape was being made, these Teachers could have been facing:

• statutory rape, 3-6 years,
• solicitation of a minor, 1-2 years,
• solicitation of exploitation of a minor (requesting a minor to appear in photo or video while engaged in sexual activity) 8-12 years,
• Statutory rape by authority figure, 3-6 years and no probation eligibility,
• Sexual contact by authority figure (kissing a minor 13-17 for sexual purposes) 0-1 year,
• Sexual exploitation of a minor (possession of a photo or video with a minor engaged in sexual activity) 3-6 years,
• Aggravated sexual exploitation of a minor (Transmitting the video to anyone by the defendant) 3-6 years,
• Especially aggravated sexual exploitation of a minor (producing the video with the minor engaged in sexual activity) 8-12 years no probation no parole no early release.

Add this all up and if these teachers had been accused in Tennessee they would be facing a minimum mandatory 8 years in prison and up to a total of 51 years, not to mention sex offender registration for life.

If the allegations are true there is simply no way to understand or explain why these two very attractive young women teachers (who no doubt would have no trouble finding willing, attractive, and successful adults to date) would engage in this behavior and throw away their careers, many of their personal relationships, and possibly their freedom- especially in these days of social media and a recording device in everyone’s pocket in the form of a smart phone. They had to know the chances of getting busted were pretty good. After all, what 17-year-old boy does not brag about who he has had sex with? So what were these teachers thinking? As I once heard a judge very succinctly state: you cannot rationally explain the irrational.

If the allegations are not true, and false allegations against teachers do happen I hope the authorities throw the book at the accuser. Unfortunately few states, including Tennessee, have crimes that specifically make a false allegation of sexual battery or rape a crime. It is a class E or class C felony in Tennessee to make a false report of child sexual abuse. However, because these crimes are only misdemeanors, and because actual arrests and prosecutions for violations of false report statutes are rarely brought, the law does little to protect teachers or anyone else from a false allegation. Teachers and educators therefore need to be extremely careful about how they interact with students in order to avoid even the appearance of inappropriate behavior because the law does little from discouraging a disgruntled student or the troubled student seeking attention from making a false allegations.

It has been my experience as a Nashville criminal defense lawyer that once the allegation is made, the criminal justice system will always assume the allegation is true and will set out to prove the truth of the allegation. They rarely conduct an independent non-biased investigation. I have a case right now where a 16-year-old girl told a boy she liked she had been raped, when the boy reported this to the police the girl told the officer it was not true and that she had told the boy this for attention. The officer flat out told her he did not believe her and he believed she had been raped. With no physical evidence and only on the statement of a girl who said she had lied to get attention the police arrested, and the state indicted the man she had accused. He sat in jail for six months before he was able to post bail, and a trial date is pending.

Therefore, teachers should never allow themselves to be alone with any student anywhere, even same sex students. Teachers should be very careful about forming “friendships” with a student, and should never send the student personal notes, letters, emails, text messages. If special attention needs to be shown to a student and you need to demonstrate to the student that you are there for them, and that you care for them, always do it in a professional manner. Never even joke about topics that could be considered inappropriate. If a student asks advice about a sensitive subject tell them you would be glad to counsel them along with the guidance counselor Always, always, assume you are either being voice recorded or video recorded and if you would not want what you were planning on saying or doing to be played back to an administrator or parent, or on YouTube, that is a good indication that you should not go there, even if it was just a teacher trying to be a friend to a student who needed one. As a Nashville criminal defense lawyer, I know the criminal justice system has no hesitations about chewing you up and spitting you out. Even if you avoid going to jail based upon a false allegation you have lost your career.

Brent Horst, Nashville Criminal Defense Attorney

Board Certified Criminal Trial Law, licensed in Tennessee and Florida

Sexual assault and rape are not synonymous terms. In Tennessee law, indeed, they are two different types of sex crimes, although rape can generally be classified under the umbrella of sexual assault. Sex crimes charges are very serious, and a conviction can mean lengthy time in state prison. For this reason, if you have been charged with sexual assault or rape, you need to hire a strong Nashville sex offense lawyer.

Sexual Assault and Rape Compared

Sexual assault actually encompasses a number of different types of crimes that are generally characterized by the imposing of one’s will on another. They are comprised both of acts which involve bodily contact and acts which do not. Among the specific crimes that fall under contact sexual assault are:

• Forced penetration
• Inappropriate fondling
• Forced kissing and touching of body parts
• Sexual torture
• Rape

Sexual assault that does not involve contact includes voyeurism, sexual harassment, exhibitionism, incest, etc.

Rape, on the other hand, is a crime characterized specifically by the act of forced penetration. In other words, all rapes are sexual assaults, even though sexual assault is not just rape but other sex crimes as well.

Aggravated Sexual Assault and Rape

As your Nashville sex crimes lawyer will tell you, there are certain sexual assault crimes that combine the use of a weapon or are in some other way particularly serious, referred to aggravated sexual assault. Aggravated rape is an act of forced sexual penetration which involves the use of a weapon or is such that the victim has a reason to believe that one is being used. Aggravated rape of a child, aggravated sexual battery, and aggravated sexual exploitation of a minor also fall into this special category. Punishment for aggravated sexual crimes is significantly higher.

Your Defense in a Sexual Assault or Rape Case

A sexual offense conviction can mean many years behind bars. Your attorney will thoroughly question you about the event in question. It is very important that you are honest with your lawyer. He is the one person you can trust, for he is required by law to retain confidentiality. Do not talk about your case with others—not even a spouse or close friend. If you do, that person may be called upon and required to testify against you.

Hire Quality Legal Representation if You Have Been Arrested

If you were arrested and charged with rape or sexual assault, it is extremely important that you have a strong Nashville sex offense lawyer in your corner who will fight for you. Call Horst Law today to arrange a consultation at .

Last week I wrote about domestic assault and how special interest groups were exploiting the situation. As I was writing that article the news was breaking on the Adrian Peterson case and his indictment for child abuse by a Texas grand jury for spanking – or more accurately whipping his four year old child with a tree branch.

And just as I believe the Ray Rice situation was exploited by interest groups I believe the Adrian Peterson case is being exploited by interest groups to advance their own interests and agenda.

Make no mistake. There are social, victim, and political advocacy groups who would love to infringe upon your constitutional right to parent your child by making it illegal to spank your child. Also make no mistake, they are closer to accomplishing this goal than many of us would like to believe.

Before I go any further I want to make it clear that I do not prefer corporal punishment as a way to correct a child or set boundaries. However, I also believe there are some very strong willed and difficult children that on occasion will only recognize boundaries enforced by a spanking. Sometimes depending on the child and the situation a spanking is not only justified but is necessary. But is spanking legal?

I am unaware of any state that has expressly outlawed spanking by parents as a form of discipline. However, I know that many States including Tennessee have enacted child abuse laws that so broadly define “child abuse” that any spanking that is effective as punishment would by the definition of the “child abuse” statute necessarily be child abuse. For example, in Tennessee for purposes of being able to bring a child abuse petition against a parent in order for the State to step in and remove the child from the home Tennessee has defined abuse to include the “infliction of physical pain”. So, feel free to spank. Just don’t cause any pain or you have just committed child abuse. Of course one has to ask – is a spanking that does not cause any pain even a spanking? What is the point of a spanking that does not inflict a little bit of pain? Isn’t that the point?!

To bring sustain criminal charges or a criminal prosecution for child abuse in Tennessee the infliction of injury is required. However, there is no minimal level of “acceptable injury” so the slightest bruise, scratch, or red mark could be considered as injury and grounds for the State to bring a criminal case of child abuse against a parent.

Certainly the more serious the injury the more likely it is that the State will step in to remove the child from the home and to bring criminal charges. Although I have personally not seen any cases where the state has attempted to remove a child from the home where there was no injury inflicted, the fact that the State by statute has the authority to remove a child from a home simply because the spanking inflicted pain should be very scary to parents. Based upon other abuses of power that I have observed committed by the State of Tennessee and the Department of Children’s Services I certainly would not be surprised to see them bring such a case.

For example, I currently represent an individual who is the victim of just such an abuse of power by the State. My client was the step parent to a 14 year old girl. When she was caught lying he whipped her with a belt which caused some bruises. In Tennessee under a law called Haley’s Law which many other States have also enacted inflicting serious injury on a child between 8 and 18 is a class B felony punishable by an 8-12 year prison term, no probation, no parole. (for a child under 8 inflicting serious injury is a Class A felony, 15-25 years). Serious injury includes “serious bruises”, what constitutes serious bruising is not defined by Haley’s law. The bruises on the victim in this case were not permanent, they did not threaten her life, and did not require hospitalization, and were far less serious than the injuries Mr. Peterson’s son suffered which have been posted on my Facebook page .  Nevertheless the State is alleging that the bruises were “serious bruises” and is trying to put this man in prison for 8-12 years four inflicting bruises on a 14 year old, despite the fact that he has no prior criminal record for child abuse or any other violent behavior or any other felony.

We are defending the case on the grounds that 1) the bruises inflicted were not serious bruises and 2) the Statute is unconstitutional because the punishment is disproportionate to the offense and is therefore a violation of the constitutional prohibition against cruel and unusual punishment.

Therefore, to answer the question posed at the beginning of this article the answer at least in Tennessee and in most if not all States is yes you may spank a child as part of valid punishment. However, be aware that even if you do so responsibly you are putting yourself at risk of being accused of child abuse. The accusation may be unjust but you may be forced to defend yourself nonetheless. Also be aware that if you spank your child and leave any injury you are putting yourself at great risk of going to jail.

There is no question that Mr. Peterson went too far in his spanking, and his behavior on how he disciplines needs to be corrected, but it does not deserve a 15-25 year prison sentence which is what he would be looking at in Tennessee. I believe that the interest groups and the State, both of which want to be able to tell you how to raise your child, advocate for such harsh sentences not just to protect children but to scare parents from using any corporal punishment.

As for me if my child refuses to listen after all other attempts at discipline have failed and needs a spanking she will get one, and it will be tempered and measured, but it will hurt just enough to get her attention to correct her behavior. I will stand up for my right as a parent to discipline my child with a spanking if necessary, and I will continue to stand up for the rights of my clients and to defend them against unconstitutional abuses of power by the State.

Brent Horst, Board Certified Criminal Trial Attorney

Nashville Tennessee. Licensed in Tennessee and Florida

As a criminal defendant, you must be aware that the prosecution may entrap your friends and family to testify against you. To avoid this dilemma, exercise discretion when discussing your case with anyone other than your criminal defense lawyer. It’s probably best for you to talk about your case with your lawyer and nobody else. 

The police are constitutionally prohibited from conducting searches and seizures without a valid basis. However, a criminal defense attorney will tell you that what constitutes a valid basis can be as simple as the police having a reasonable suspicion that you are up to something criminal. Find out more about your search and seizure rights.

Criminal defendants convicted of certain crimes in Tennessee may face classification as a sexual offender. A skilled sex crimes attorney in Nashville can explain what circumstances would require an individual to register as a sex offender and explore any possibility of requesting removal.

Sex Offender Crimes

Sex related crimes carry the added consequence of labeling a defendant as a sex offender if convicted. As a sex crimes attorney in Nashville can counsel, these crimes are generally those involving some type of sexual act such as sexual assault, incest, rape, sex with a minor, sexual exploitation of a minor, human trafficking or child pornography. Both state and federal law can impose penalties for the underlying conduct.

Registry Requirements

When a person is convicted of one of the statutory sex crimes, he or she may be required to report under the Sexual Offender Registry. As a sex crimes attorney in Nashville can explain, this generally means that the convict must report to local law enforcement such information as their name and address. In most cases, once the sexual offender is listed in the registry, they remain their for life. This listing will of course show up in background checks and can negatively impact the individual’s chances of securing employment, certain benefits or even housing. Therefore, if you’re charged with a sex crime, it’s critical to speak to an attorney before pleading guilty to anything or appearing in court.

Requests for Removal

In some cases, an individual can request removal from the registry if certain qualifying conditions are met. Your attorney can explain more, but these circumstances are generally for those who were convicted as a juvenile or where there is a small age difference between the perpetrator and the victim if they were both minors.

Let a sex crimes lawyer in Nashville discuss your charges with you and help you understand whether you face risk of a sexual offender registry crime. Additionally, a skilled attorney can discuss your options for removal from the registry if you qualify. To make an appointment with Horst Law, call .

I have had it. I cannot standby any further and watch the spectacle unfolding in the NFL without adding my two cents. If you haven’t heard – Ray Rice who was a running back for the Baltimore Ravens was initially suspended by his team for two games after he was charged with domestic violence against his then fiancé and now wife. After a video of the assault was released showing a very violent attack he was then released from the Ravens and suspended indefinitely by the NFL. All well and good. I have no problem with any of that.

What I have a problem with are the pundits and politically correct exploiting the situation to push their own selfish interests and telling the NFL what they must now do and telling me what I must think. The commentary from sports casters and organizations like the National Organization for Women has been ridiculous. They are trying to make it appear that somehow the assault upon this young woman was the fault of the NFL and that the assault on every other woman from here to the end of time will be the fault of the NFL because they did not suspend Mr. Rice immediately.

What I have a problem with is the NFL’s caving to these ridiculous assertions and hiring a three member (all women) victim advocates panel to advise the league on domestic violence, because of course this panel will not only be able to stop domestic violence by NFL players but they will miraculously come up with the answer to solve domestic violence thru out our entire society. I hope at the same time they can apply their superior intellectual magical powers and come up with a solution to false allegations and accusers who make false allegations. Of course they will do no such thing because it is not justice they pursue but the advancement of their political agenda. More money for more programs for more projects for more victims whether it is shaking down the NFL or passing legislation for tax payer support of these endless programs and projects.

What I have a problem with is the refusal by these commentators and advocate groups to acknowledge that just as abuse does occur, false allegations of abuse are also made, and with more and more hysteria being drummed up by the talking heads and advocate groups an environment is created to cause more false allegations because then, as soon as any allegation is made no one wants to be the bad guy or to be politically incorrect and say – but wait a minute is the allegation true. My point is not that Ray Rice was falsely accused because the evidence is pretty clear that he is guilty, but simply the fact that the victim advocate industry is using Mr. Rice’s case to advance their own political agenda and not justice. If these groups were interested in justice you would hear more about the victim in this particular case, but you don’t hear anything about her from these groups because she actually did not want her husband prosecuted and that does not fit their agenda.

What I have a problem with is that this case is helping to create a witch hunt environment where a false allegation to extort money, or to gain an advantage in a divorce or a child custody case, or as an act of revenge by a jilted lover, or as a desperate act for attention from a delusional person, can be successfully levied against an innocent person. I know these types of false allegations occur because I have handled cases in each one of these situations where it was shown the allegation was false for these exact types of motives. Yet we don’t hear about the many cases of false allegations. When we do it is a very brief story and there are never any calls for panels, or commissions, or changes in the law. The false allegation cases are not made a national crisis by the chattering and political class because those cases do not drive the political agenda of the victim rights advocate industry, or the agenda of the politically correct crowd. Have no doubt many of these victim rights groups are more motivated about advancing their own cottage industry than actually helping victims. Case in point – all this whining and complaining just landed a very sweet gig in the most popular sports league in the world by three woman who likely don’t know squat about the sport they have been hired to monitor. I can guarantee that their new job with the NFL monitoring the NFL for domestic violence issues will do far more for them and their own careers than it ever will ever do for stopping and preventing domestic violence, because as the story mentions they have been “retained” which means they are being paid, and they are not donating their time. That tells you a lot about what is really going on here.

What I have a problem with are the calls for head to roll of the prosecutor who allowed Mr. Rice to have a diversionary sentence allowing Mr. Rice to avoid jail or a formal conviction. The individuals clamoring for this prosecutor to be punished know nothing about the criminal justice system. I was a prosecutor once. I prosecuted domestic violence cases. For the record –as if it needs to be said – I do not condone violence against a woman at any time or any place. However, these pundits have no idea how hard it is to obtain a conviction when the victim does not want the person prosecuted. Yes there was a video tape in this case and that would have helped a lot. However, a prosecutor should also consider whether a case should be pursued when the victim in the case has requested that there be no prosecution even if he thinks he can make the case without the victim. He must consider whether such a case deserve the limited resources the prosecutor possesses. He does not have an unlimited budget, or unlimited time. Before the victim rights groups jump all over me about the “cycle of violence” and how women cannot escape the offender and are afraid to follow thru with the prosecution – this is not true in every case. You cannot convince me that Mrs. Rice does not have the intellect, the resources, and then knowledge of how to step away from her husband if she so desired. Is not the prosecutor’s time better spent prosecuting cases where the victim wants justice? This is a judgment call that can only be made on a case by case basis and sometimes the wrong call will be made. The point is that these situations are rarely black and white, and for the chattering class and thought police to call for this prosecutor’s head without allowing for these considerations is simply wrong.

What I have a problem with are the individuals completely ignoring the desire of the Victim in this case. Mrs. Rice did not want her husband prosecuted. Is she not allowed to have a voice in the process? Does not the right of a woman to equal rights and to justice include the right to have her voice and desires considered in the criminal justice process when she is the victim? Oh, that’s right, I forgot. The only voices that are allowed by the chattering heads, and political thought police are the voices that agree with them. So Mrs. Rice I am sorry, but obviously the N.F.L., N.O.W., and just about every sport’s commentator on T.V. knows what is better for you than you do.

What I know from all of this is that my little rant will not change any of these things. But what I also know is that I am turning off the NFL, and ESPN. I watched football to enjoy the sport. If I wanted boring, hyperbolic, and mostly inaccurate political and social commentary I would watch CNN or MSNBC. I am pretty certain there are many people who feel the same way and I suspect this is why many female fans at last week’s Ravens games wore Ray Rice Jerseys. I suspect the wearing of Mr. Rice’s Jersey by these fans was not as much a show of support for Mr. Rice as it was a demonstration against the NFL for paying more attention to political issues than football. I suspect the declining ratings in the NFL is being caused by that same frustration.

Brent Horst, Attorney at Law, Nashville Tennessee

Licensed in Tennessee and Florida.

One of the most important questions faced by most criminal defendants is whether to accept a plea bargain. The process of negotiating a plea bargain is complex and may not go the way you expect. It is important to discuss your options with your lawyer so that you know exactly what is going on. Here are 9 important facts worth knowing about plea bargains.