Understanding the Sex Crime Charges Against Anti-Porner Donny Pauling

Some readers have asked about this, so let’s run through the sex crime charges that Christian anti-porn crusader Donny Pauling is currently facing.

Pauling, 41, a former low-end producer of soft and hardcore images, went on to preach fairly regularly about what he alleges are the detrimental impacts of pornography on girls and women, and families.

He was arrested Monday by the Sutter County Sheriff on three felony sex charges: Lewd Act on a Child, Oral Copulation, and Unlawful Intercourse (Statutory Rape).

The arrest was made after Sutter County sheriff’s deputies executed a search warrant at his Yuba City home, where some evidence was recovered, including multiple computers, according to Sutter County sheriff’s Lt. James Casner.

CBS Sacramento reports that the warrant was issued after a teenage girl, whom they indicate is a relative, came forward to police about the improper relationship, adding that Pauling had also posted photos of her online. According to the victim, Pauling had been having sexual contact with the her for the last three years in Sutter and Shasta counties.

Pauling, represented by a public defender, was arraigned on Dec 3 in Sutter County Superior Court, and pleaded not guilty to three felony charges. Judge Susan E. Green set Pauling’s bail at $500,000, and told him that if he posts bail, he must surrender his passport.

However, the original charges against Pauling were modified. Here are the new charges:

Here’s what happened.

As Mark Kernes noted at AVN, Pauling was arrested under a Ramey Warrant.

According to California Criminal Defense Lawyer Blog, a Ramey warrant “is obtained by a police agency by going directly to a judge and bypassing the district attorney.”

William Weinberg adds for the site, “So why would a police agency choose to get a Ramey Warrant instead of just the traditional arrest warrant? Well for one reason, it is faster. The police agency may not want to wait for the District Attorney’s Office to review the paperwork, which they have submitted. So, they bypass this and go straight to the source. However, most commonly, this is done when a police officer feels that he may not have enough evidence for the district attorney to actually file the charges. He doesn’t want to take the chance that the district attorney will reject the case. So, if he can get a judge to issue a Ramey Warrant, he can then arrest the person and question them with the hope of obtaining enough information and sufficient evidence to present it to the District Attorney for filing. Basically, the officer’s hope is that, once they have the individual in their possession, they will get what they need to make their case and end up with the sufficient evidence needed to get the case filed.”

Essentially, what we see in this case is the District Attorney, whom one would expect to possesses greater expertise with the precise charges than the local Sheriffs, reformatting the criminal complaint against Pauling following the execution of a warrant.

Let’s run through the charges:

§ 288 (c) (1) — Lewd Act with a Child under 14

This section of the California Penal code states that a person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.

This code section broader than the sections under which Pauling was originally charged, § 288(a) and § 288a (c) (1), (it actually includes the elements of 288(a)) but, interestingly, carries shorter prison time.

For instance, § 288a (c) (1) states that “Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.” The code defines “oral copulation” as “the act of copulating the mouth of one person with the sexual organ or anus of another person.

The dropping of the Oral Copulation charge may mean that authorities have evidence of “lewd acts” beyond oral copulation (thus the charge of Unlawful Sex). It may also mean, of course, that the prosecutor may find oral copulation difficult to prove in court based on the evidence.

Pauling faces up to three years behind bars if convicted of this charge.

 

§ 261.5 (c) — Unlawful Sex with a Minor

§ 261.5  is California’s Statutory Rape law. Statutory rape is a crime regardless of whether the sex was consensual, or even initiated by the minor.

Pauling faces a statutory rape charge, listed as § 261.5 (c)  — Unlawful Sex with a Minor, in place of the original charge, § 261.5 — Unlawful Intercourse.

Here is how California law defines the offense:

§ 261.5 (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

We’ll get to Section 1170 in a moment… but as you can see, the California offense of statutory rape is known as “a wobbler”, which means that, depending on the circumstances, it may be charged as either a misdemeanor or a felony. In Pauling’s case, he was charged with a felony.

First, here is the full § 261.5

(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a “minor” is a person under the age of 18 years and an “adult” is a person who is at least 18 years of age.

(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.

(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

So, as you can see, in this instance, the prosecutor has more narrowly tailored the charge to fit the facts of this case, since the age difference between Pauling and the victim is more than three years.

Pauling faces up to 4 years in California state prison and up to $10,000 in fines if convicted of this charge.

Moreover, individuals charged with statutory rape may in California also face civil penalties (non-criminal fines that one can be forced to pay in addition to serving time and paying criminal fines.

The amount of civil penalties depends upon the age difference between the parties. In Pauling’s case,the fine would be $25,000, because the “victim” was under 16, and Pauling is over 21.

 

§ 1170(h) — No Local Prison

In 2011, a clutch of new criminal laws were passed in California, collectively known as the Realignment (note the ‘RLGNT’ in Pauling’s list of charges).

Amongst these laws was Penal Code section 1170(h) which mandates that certain felons sentenced to prison will serve their time in county jails as opposed to state prisons.

Pursuant to Penal Code § 1170(h)(3), if a defendant has a current or prior conviction for a strike offense (serious felony or violent felony), or is required to register as a sex-offender pursuant to Penal Code section 290, or is convicted of a crime with an enhancement under Penal Code section 186.11 (aka the “aggravated white collar enhancement”), then any prison time will be served in state prison.

In other words, if a prison sentence is the order of the court, then those with strike offenses, or sex offenders, must serve their time in state prison.

For purposes of this analysis, we will assume that Pauling has no prior “serious felony” convictions, and that this section has been invoked because, if convicted, he will have to register as a sex offender.

Here is the full text of  § 1170(h)

(h) (1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.

(2) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense.

(3) Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7 or a prior or current conviction for a violent felony described in subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison.

Fairly self-explanatory. If Pauling is convicted, he’ll go to a California state prison, rather than the county jail.

Pauling is due to appear in Sutter County Superior Court in Yuba City, Calif. on December 10 for a preliminary pre-trial conference.