California Criminal Defense Lawyer Blog

A very interesting federal case comes from the unlikeliest of places when it comes to de novo judicial review - Missoula, Montana. Yet Big Sky country is the situs of one of the more intriguing decisions regarding sex offenders to come from the district court level this year. In a potential precedent-setting case, US v. Waybright, No. CR 08-16-M-DWM (D. Montana June 11, 2008), a district court judge may have found a constitutional problem with the Adam Walsh Act.

The defendant, Bernard L. Waybright, had been convicted in May 2004 of a misdemeanor sex crime in a West Virginia state court. As part of his sentence, he was required to register with the federal Sex Offender Registry (SORNA), 42 US § 16901 et seq., which keeps track of where offenders reside. He then traveled to Montana several times but failed to register with local law enforcement, which is a violation of another portion of SORNA, 18 USC § 2250(a). The statute reads:

Whoever-- (1) is required to register under the Sex Offender Registration and Notification Act; (2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and (3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both.

Waybright challenged the constitutionality of this statute in several ways, most of which failed, but the key successful claim he made was that the portion of SORNA that requires offenders to register and keep their registration current (42 US § 16913) was a violation of the Commerce Clause.

Waybright argues Congress exceeded its power under the Commerce Clause by enacting two specific provisions of SORNA—18 U.S.C. § 2250(a) and 42 U.S.C. § 16913. [...] Section 16913 imposes registration requirements on all sex offenders in the United States regardless of whether they travel in interstate commerce.[...] Waybright asserts, even if § 2250(a) is a valid exercise of Congress’ Commerce Clause power, he cannot be convicted under the statute because he should not have been required to register under § 16913 in the first place. According to Waybright, the registration requirements found at § 16913 also exceed Congress’ power under the Commerce Clause. Waybright contends § 16913 is unconstitutional because Congress lacks the power to force citizens who have been convicted of purely local offenses under state law to register as sex offenders.

District Judge Molloy quickly determined that the only way § 16913 could be appropriately upheld under the Commerce Clause would be under the Lopez (514 US 549) theory that there must be a nexus between the statute and regulation of "activities that substantially affect interstate commerce." Given that threshold, the US then argued that there was a substantial connection between the government's economic interest in regulating child pornography (as part of the Adam Walsh Act) could be undercut by not allowing registration of offenders. Molloy easily dismissed this argument:

Section 16913 has nothing to do with commerce or any sort of economic enterprise; it regulates purely local, non-economic activity. While certain sex offenses may be commercial or economic in nature (e.g., child pornography), sex offenders themselves are not necessarily engaged in commercial or economic activity. Even though the Adam Walsh Act regulates some sex offenses that are commercial (e.g., the distribution of child pornography), its regulation of sex offenders is not indispensable to the success of its other provisions. [...] But, any effect on interstate commerce from requiring sex offenders to register is too attenuated to survive scrutiny under the Commerce Clause.

Molloy then rejected an alternative argument made by the government based on the Necessary and Proper clause. Finding no other possible way for the government to justify this Congressional power, Molloy then stated:

Section 16913 is not a valid exercise of any of the congressional powers enumerated in the Constitution. As a consequence, Section 16913 is unconstitutional. To obtain a conviction under § 2250(a), the government must first prove Waybright was required to register under § 16913. Because §16913 is unconstitutional, the government cannot satisfy its burden of proof with respect to § 2250(a). Accordingly, the Indictment must be dismissed.

This is the first district court decision that has declared a portion of the Adam Walsh Act unconstitutional. The government, obviously, plans to appeal to the 9th Circuit Court of Appeals, but we find Molloy's argument to be compelling. Section 16913 has as much to do with interstate commerce as us registering with the local VFW.

One thing to watch for if the government ends up losing its appeal, however, is what Molloy alluded to in his footnote on the constitutionality of the provision. He basically gave Congress a roadmap by which to make the statute constitutional.

In declaring § 16913 unconstitutional, the Court expresses no opinion about the wisdom or necessity of creating comprehensive, national standards for the registration of sex offenders. Nor does the Court mean to suggest Congress could not have achieved the purposes of SORNA in a manner consistent with its enumerated powers. To the contrary, the Court acknowledges § 16913 could be made constitutional by limiting the registration requirement to sex offenders who travel in interstate commerce or by amending § 16913 to encourage the states to enact laws requiring all sex offenders to register.

So far, this case hasn't received much in the way of national legal coverage, but there are a few tidbits floating around:

KXMB.com - Molloy: Sex Offender Registry Rule Unconstitutional
Missoulian.com - Molloy: Sex Offender Registry Rule Unconstitutional
Sentencing Law and Policy - More on the Waybright Decision
US v. Waybright Decision

Posted by | Permalink | Email This Post

Posted In: Adam Walsh Act

Bookmark:

Today on Around the Square we take a look at some of hysteria-driven responses that are manifesting themselves in laws that go way beyond what we've seen before. We also found an amusing story involving a cop who believes that honesty is the only policy, and an interesting case from the Pacific northwest that tackles the issue of prosecutorial discretion.

This entry on Crime Scene Blog shows just how far some people would go with respect to the laws on sex crimes. Once again, we completely agree that sex offenders should be punished for their crimes, but the extreme sentences suggested in this petition borderlines on panicky hysteria fueled by "if it bleeds, it leads" headlines and news reports. According to this petition, a 19-year old who has sex with a minor deserves life imprisonment or capital punishment! (Crime Scene Blog, June 12, 2008)

In order to provide equal justice under the law, and to have punishment that is appropriate for the crime, we petition for a minimum of life in prison with no possibility of parole, and, or, Capital punishment for a first time offender. Included in “Jessica’s Law” is a provision that would require all released pedophiles, child abusers, past and present, to wear a GPS monitoring device to ensure that law enforcement can be informed of their whereabouts.

The Daily Kos informs us about a bill currently in Congress that would substantially expand the reach of CODIS, the federal database that catalogs the DNA profiles of criminals at the federal and state levels. One amendment to the bill would require all felons to provide DNA regardless of the crime committed, and another amendment would give states cash incentives to take DNA samples from all arrestees of violent and sex crimes, even at the misdemeanor level. (Daily Kos, June 12, 2008)

Schiff’s amendment would give states cash incentives to begin collecting DNA from anyone arrested for a violent or sex crime, including misdemeanor sex offenses. As the ACLU has argued time and again, innocent people do not belong in a criminal database. Currently, most states do not take DNA from people who have yet to be convicted of a crime, unless that DNA sample is required for an investigation, in which case you can easily get a warrant or court order to obtain it. Including arrestees would dramatically expand the state and federal DNA databases to include vast numbers of innocent people, and would necessarily exacerbate racial disparities that already exist in these databases.

Sex Offender Issues blog linked to a DOJ policy paper from last year that details some of the myriad problems that sex offenders face when attempting to re-enter society. The statistic that 10-20k offenders are released annually as municipalities are making it increasingly difficult for them to live and work there is a compelling one. We also found it interesting that sex offenders are significantly less likely to offend than other released criminals in the first three years out of prison. This flies in the face of the current mood surrounding this issue - see this article for an example of the misinformation floating around. (Center for Sex Offender Management, February 2007)

Facilitating successful reentry is always a challenging endeavor, but with sex offenders specifically, several unique dynamics and barriers make the transition even more difficult. For example, myths about sex offenders and victims, inflated recidivism rates, claims that sex offender treatment is ineffective, and highly publicized cases involving predatory offenders fuel negative public sentiment and exacerbate concerns by policymakers and the public alike about the return of sex offenders to local communities. Furthermore, the proliferation of legislation that specifically targets the sex offender population – including longer minimum mandatory sentences for certain sex crimes, expanded registration and community notification policies, and the creation of “sex offender free” zones that restrict residency, employment, or travel within prescribed areas in many communities – can inadvertently but significantly hamper reintegration efforts.

The next story is a bizarre case of where a campus police officer attempted to get a job with his local force, and felt compelled to be completely honest while taking the polygraph test. He was asked if he had ever had sexual contact with underage girls and whether he possessed child pornography, and amazingly, he answered yes to both. He must have really wanted the job! (Police Link, June 13, 2008)

U.S. Attorney Catherine Hanaway outlined the details Thursday, a day after Cook pleaded guilty in federal court in St. Louis of one count of possession of child pornography. Such a conviction typically results in a prison term of four or five years. She said Cook's candor during the polygraph was stunning. "By all accounts he pretty much just gave it up," Hanaway said. "It does not often happen that people just give it all up in the first conversation." Phelps County Prosecuting Attorney Courtney George speculated that Cook answered honestly to avoid failing the test, administered by a Rolla officer.

This is an interesting case from Washington state where the issue of whether a legislature through its lawmaking powers can prescribe what crime someone is charged with has arisen. A woman charged with several sex crimes is attacking the constitutionality of a law requiring one of her charges to be classified as 'predatory,' which carries a significantly harsher sentence. She is arguing that this mandate represents an unconstitutional usurpation of prosecutorial discretion. It will be interesting to see how this plays out. (Tacoma News-Tribune, June 15, 2008)

MacDonald argued, among other things, that lawmakers overstepped their authority by mandating that prosecutors must add the predatory allegation against all teachers charged with first-degree child molestation against a student. Case law establishes that prosecutors have broad discretion to decide which crimes should be filed in which cases, MacDonald argued in her pleadings. “While the Legislature has the power to create new crimes such as first-degree child molestation committed by a teacher against a student, the prosecutor, not the Legislature, has the discretion to determine when a defendant should be charged with such a crime,” she wrote.

Posted by | Permalink | Email This Post

Posted In: Sex Crimes

Bookmark:

We're now moving into the theater of the absurd, but apparently the legal definition of what constitutes child pornography has now been expanded to include something that any parent of a high school cheerleader probably already has in their possession - a videotape of underage girls doing cheer and/or dance routines for their school. Round em all up!

Unbelievably, a man in Sacramento, CA, has been charged with felony possession of child pornography for videotaping clothed cheerleaders at a high school competition in February. The tape focused on the buttocks and other parts of the cheerleaders. He was also charged with misdemeanor invasion of privacy. He recently pleaded no contest to the charges in court, and the felony charge will be dropped against him if he completes probation on the misdemeanor.

Gilbert Chan, a veteran business reporter, was caught by University of California, Davis, police on Feb. 3 while surreptitiously videotaping a youth cheerleading competition on campus, Deputy District Rob Gorman told a judge in Yolo Superior Court. Chan was not on duty at the time of the incident, and remains on administrative leave from the paper. Under an agreement with prosecutors, Chan pleaded no contest to a misdemeanor charge of invasion of privacy. Under a no-contest plea, a defendant does not admit guilt, but the effect is substantively the same. He also pleaded no contest to a felony charge of possession of child pornography. The tape focused on the buttocks and other parts of clothed cheerleaders. The cheerleaders were under 18.

As a society, have we lost our minds? How on earth is this child pornography???

Let's recap the facts here. The cheerleaders were fully clothed. They were performing at a public university in a public venue. Chan was undoubtedly videotaping the girls, but for what purpose? Perhaps he was making a documentary on the sexual exploitation of teens in the cheerleading industry. Perhaps he enjoys cheerleading as a hobby and simply wanted to memorialize some of the routines on tape. Charging him with child pornography in this situation completely borders upon the policing of thoughts. It's ok to sit in the stands and watch the routines but not to videotape them? How is this any different than looking at advertisements of juniors in swimsuits in a newspaper or a magazine? Is that child pornography too? Are cheerleading outfits by definition pornographic materials now?

According to the California statute, the felony charge (CA 311.11) requires possession of "obscene matter depicting sexual conduct of a person under 18." The question of what constitutes obscenity was fairly well established in Miller v. California, 413 US 15, where the Supreme Court gave the following guidelines:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Since when does an innocent cheerleading routine constitute sexual conduct?

We simply cannot believe this story, and frankly, we're even more confused that Chan didn't contest these charges with more gusto. Consider that as part of his probation he is not allowed to be anywhere that cheerleaders congregate, which means, let's hope that Chan isn't a sports fan or that he doesn't have athletes in his family who he might want to watch play sports, because he's not allowed to do that anymore.

More Coverage:

Associated Content - Should Gilbert Chan Have Pornographic Charges?
McClatchey Watch - Sacramento Bee Reporter Enters No Contest Plea to Possession of Child Pornography
Right Thinking From the Left Coast - Cheering for Sex Offenders

Posted by | Permalink | Email This Post

Posted In: Child Pornography

Bookmark:

Today in Around the Square we take a look at an article from Kentucky that gives some important information about the sexual abuse cycle that offenders face without treatment. We also consider several articles about the growing trend for local municipalities to restrict where sex offenders can go. It's getting to the point where, in some places, they can't go much of anywhere. And some are starting to fight back.

First, we consider an article about sex offenders located in Kentucky. The interesting part of the piece is where the author discusses the sexual abuse cycle. We wish there were more articles like this so that people would see that sex offenders often suffer from a treatable disease. The typical kneejerk response of "predator!" is missing here, and that's refreshing from a mainstream media article. (The Morehead News, June 10, 2008)

The sexual abuse cycle involves secrecy, denial and isolation and unfolds in the following way:

(1) Emotional pain
Low self-esteem
Focus on self
Low empathy

(2) Unhealthy fantasies
Masturbation
Pornography

(3) Dissatisfaction

(4) Thinking about acting out fantasies

(5) Distorted thinking
Excuses to offend
Alcohol and drug abuse

(6) Seemingly unimportant decisions
Plotting and planning the offense

(7) High risk situation

(8) Selecting and grooming the victim

(9) Offending

(10) Temporary Relief

(11) False Promises/The cover up

(12) Stop for a while

(13) Emotional pain returns

Another article from Easton, PA, discusses a proposed ordinance in that town that would limit the areas where a sex offender may live. Critics of such broad residency restrictions are pointing out that by forcing sex offenders further into rural areas, an unintended consequence that arises is that the offender is less likely to get the assistance he needs in the form of law enforcement and treatment resources that may actually contribute to recidivism. (The Express-Times, June 11, 2008)

Moyer, who is also a member of the National Alliance to End Sexual Violence, said she can empathize with a community looking to do whatever it can to protect its children. Probation officials certainly wouldn't want a recently paroled sex offender living next door to a day care, she said. But as residency restrictions become more prevalent, offenders will find themselves living in more rural areas with less law enforcement, fewer treatment resources and the isolation that increases the chances of recidivism, Moyer said. "You want to make their lives as manageable and accountable as possible," she said. Several victim advocates, including Moyer, recount stories of paroled sex offenders in Florida, which has a statewide residency prohibition, moving to a bridge underpass because of limited housing options. "What you most don't want to do is to have a recently released sex offender associating with other offenders," Moyer said. "It just seems to fly in the face of what we know about sex offenders."

Here's yet another example of the further isolation that convicted sex offenders are facing from our nation's lawmakers. They're extending their overbroad reach even into nursing home facilities. (KOCO.com, June 10, 2008)

Gov. Brad Henry signed first-in-the-nation legislation Tuesday that takes registered sex offenders requiring long-term care out of standard nursing homes to prevent assaults, rapes and murders by offenders who live in the same facilities as their victims. Flanked by more than a dozen supporters of the bill, Henry ceremoniously signed it into law after praising the efforts of elder rights advocate Wes Bledsoe to protect elderly nursing home residents from high-risk sex offenders convicted of such crimes as rape, crimes against nature and a variety of other offenses.

Some offenders have had enough. A John Doe in Westbrook, Maine, has decided to challenge the constitutionality of a town ordinance making it illegal for a sex offender to be within 2500 feet of any place where children may gather. (American Journal, June 12, 2008)

The crux of the argument against this regulation is whether it is “constitutionally permissible” to enforce a new law on sex offenders who committed their crimes before the law existed. “The question is, how do you apply these things retroactively?” Dale said. “They're saying you can't do it.” According to Dale, similar suits have been pursued over the past few years, and not just in Maine. “This is a phenomenon across the country,” he said.

Posted by | Permalink | Email This Post

Posted In: Sex Crimes

Bookmark:

There was a really interesting article on the Huffington Post this week (h/t GlennSacks.com) highlighting a case that involves child molestation, a platinum-record pop star, and explicit videos showing this star in various compromising positions. At first blush, you might think Michael Jackson has gotten himself into more hot water on his Neverland Ranch; but no, the pop star in question is none other than R. Kelly, who seems to have been fighting off this perception for years.

The reason it feels that way is largely because he has been - he was first accused of child pornography by Chicago police back in 2002, and it's taken the better part of six years for his case to finally make it to trial. The original 21 counts have been whittled down to the current 14, each of which is a class one felony in the state of Illinois, which, if convicted, requires a mandatory sentence of between 4-15 years. Strangely, though, outside of Chicago, such a high-profile and scandalous case doesn't seem to be attracting all that much attention. Bill Wyman of THP writes:

But substantive coverage has been almost nonexistent over the past seven years. Why? Well, there's the ick factor -- who wants to write about a case at the center of which is a video that shows a grown man not just having sex with but urinating into the face of a girl who police say is 13 or 14 years old? There's the racism factor, too; one suspects that if the accusations were about Kelly's having had sex with under-aged white girls, rather than black girls from Chicago's poor neighborhoods, Dan Abrams and Nancy Grace would be all over it.

Wyman is undoubtedly onto something with the racial component. Considering that all it takes is another missing white girl from middle America to enable the collective histrionics of the cable talking heads; one could easily foretell the outrage if the girls in question looked like Mindys and Alisons rather than Tashas and Aaliyahs. But the ick factor? In a hyper-sexualized culture where young girls wear Halloween costumes that their mothers wouldn't have even contemplated a generation ago, a culture where an entire industry has arisen around using a stripper pole as an exercise device, it seems unusual that the mainstream media isn't all over this trial. Just imagine the unprecedented levels of outrage that could be reached!

Given the surplus of prejudicial evidence against Kelly that the jury is seeing in this case, it's difficult to believe that Kelly is going to navigate his way out of this one.

[T]he defense has endured the ignominy of nearly a dozen people testifying they recognize Kelly and an under-aged girl on the tape. The room in which the tape was made was identified. So was a mole on Kelly's back. Just yesterday, a woman testified to personally knowing that Kelly was having sex with the girl who appears on the tape at the center of the case. You might say her perspective on the matter was unique: She'd had group sex with the two of them. Kelly filmed the two of them twice, she testified. She also said Kelly toted around a duffle bag, so he could keep his home-made sex tapes -- some of them with under-age girls -- with him at all times.

With that said, R. Kelly's defense attorney has implemented a creative defense to challenge the provenance of the sex tape at the center of the trial. The defense called Jim DeRogatis as a witness, the reporter for the Chicago Sun-Times who first broke the story in 2000. He subsequently refused to answer questions (citing Fifth Amendment protections) as to whether he made a copy of the alleged sex tape when he received it from an anonymous source in 2002. How interesting it is that the defense is effectively accusing DeRogatis of a crime involving child pornography while simultaneously alleging that R. Kelly is innocent!

Nobody knows how this lurid trial is going to end, but there's one thing we can remain sure about. R.Kelly's lewd and lascivious proclivities will no longer be trapped in the closet after this month.

Posted by | Permalink | Email This Post

Posted In: Child Pornography

Bookmark:

Today on Around the Square we take a look at just how difficult it can be for registered sex offenders to find housing, any housing, and how they sometimes have to deal with problems even for doing something legal like putting up cameras on their property. We also take a look at a story that questions the efficacy of all the public money put into tracking sex offenders - is the public really getting the bang for its buck? Finally we also examine what happens to the students at a high school where a popular athlete is accused of a sex crime. Enjoy.

A no-loitering ordinance seems like an easy proposition for many registered sex offenders who often struggle simply to find adequate housing. This story from Fargo, ND, exhibits just how difficult it can be for offenders to find a place to live. We might give up too after being denied 38 times. (WCCO - June 1, 2008)

North Dakota and Minnesota have programs to provide transitional housing for sex offenders after their release from prison. In Fargo, Ellric Giroux and Andy Perhus are living in a Fargo apartment after being turned down a combined 38 times when they tried to find place to live. Barb Breiland, the program manager for the North Dakota Sex Offender Specialist Unit, said the state leases the apartment as transitional housing. For $7 a day, including utilities, "it beats living on the street," said Giroux, who was homeless for a year in Minneapolis.

Keeping the theme, the St. Petersburg (FL) Times asks the same question, Where is a Sex Offender to Live? (St. Petersburg Times, May 15, 2008)

Nobody wants them. No matter the city, no matter the street, nobody wants a sex offender in the neighborhood. But the fact is, 9 of 10 people in Pinellas, Hillsborough and Pasco counties live within a half-mile of a sex offender. With more than 2,600 offenders in the three counties, they live virtually everywhere.

Joe Coffie, an admitted Level 2 sex offender in New York, has caused all kinds of hysteria over his legal decision to put security cameras on the outside of his house. (WWNY, May 30, 2008)

Coffie says that he installed the cameras for safety and security only and not to spy on his neighbors. He also claimed that there was drug activity on the street and he was within his legal rights to place the cameras on his home. The Watertown Police say that he is within his rights and that their hands are tied. However, there are families with children that live on Bronson Street and concerned residents want to know what Coffie is videotaping and if their children are at risk. Michael Cooke, a concerned parent and resident, says something has to be done. “If something doesn’t get done…something is going to happen to one of these kids. I’m might be my kids, it could be the ones across the street,” she said.

We so often hear of all these various tracking mechanisms and databases that the public wants law enforcement to use to keep tabs on registered sex offenders, but we rarely think about the real costs of such tools. This report from Wichita, Kansas, shows that there are significant and real costs associated with these often-overbroad measures that may not result in more effective policing. (Kansas.com, June 3, 2008)

It will cost Sedgwick County about $415,000 a year to make sure criminal offenders live where they say they live, money the county manager says could be better spent to put more deputies on patrol. On Wednesday, county commissioners will consider authorizing a new "offender registration unit" to comply with state and federal laws that require the sheriff's office to keep tabs on people convicted of a wide range of sex, drug and violent offenses. County Manager William Buchanan said the county will do what it must to comply, but he's not convinced the effort will do much more than make people feel safer. "If you're going to spend these kinds of dollars, I guess I'd rather see (law enforcement) people on the streets targeting these types of crimes," he said.

Finally for today, this story also out of St. Petersburg, Florida, exhibits how the cattiness and rumormongering in the high school environment can get completely out of whack when a sexual assault by a popular football player is involved. (St. Petersburg Times, June 1, 2008)

Last month, a 15-year-old girl at Dixie Hollins High accused an 18-year-old football player of sexually assaulting her on a school bus while two others stood lookout. Rumors flew through the halls of the school. Students spread the name of the girl, despite laws prohibiting authorities from releasing her identity. They circulated a petition saying she was promiscuous and a willing participant. Some even blamed her for ruining the lives of the football players, who are well known and liked by their peers.

Posted by | Permalink | Email This Post

Posted In: Sex Crimes

Bookmark:

An AP report Friday showed that ten states have taken action in the past few months to crack down on sexually abusive teachers in our nation's schools. This comes on the heels of a previous AP study that found 2570 educators had lost their teaching credentials or otherwise been sanctioned from 2001-05 because of sexual allegations involving students. The report goes on to state:

While the vast majority of America's roughly 3 million public school teachers are committed professionals, a disturbing number have engaged in sexual misconduct. When faced with evidence of abuse, administrators sometimes fail to let others know about it, and legal loopholes let some offenders stay in the classroom. Experts who track sexual abuse say the problem is even bigger than those numbers suggest. Underreporting is common, they say, because victims often are ostracized and accusations are difficult to prove. Governors, state education officials and lawmakers have led the push for new measures, which include tougher penalties for teachers who abuse students, punishment for administrators who fail to properly oversee their faculty, and an effort to train an entire state's corps of teachers to recognize potential abusers in their midst.

These measures include Maine legislation that will require school districts to share information on a teacher disciplined for any reason, including sexual abuse, as well as a Utah law that will permanently revoke the license from any educator guilty of sexual abuse. Several other loopholes have also been closed off or severely curtailed in various states:

1. Backroom deals. Florida's new ethics law for teachers bars school districts from entering into confidential agreements with teachers who get in trouble. Such deals crop up around the country, allowing schools to remove a problem teacher but letting that educator quietly move on to another district or state.

2. Failing to report. Kentucky's law raised the stakes for officials who fail to report allegations of abuse, bringing 90 days in jail for a first offense and up to five years in prison for repeat violations.

3. Problem teachers returning to the classroom. Colorado would require any teacher who lost a license for sexual misconduct to promise never to teach again. The measure awaits Gov. Bill Ritter's signature. Virginia closed a gap that made it possible for teachers who abuse students to be hired by another school district in the time between when they are fired and when the state Education Department is notified.

4. South Carolina looked beyond punishment, instead creating a statewide training program that aims to instruct 10,000 teachers, administrators, guidance counselors, coaches and school nurses on how to prevent, identify and report cases of abuse.

Now, don't get us wrong, we are 100% behind the notion that sexually abusive educators have absolutely no business working in our childrens' schools. If a teacher thinks that he/she should be dating (or worse) someone in their teens (or worse), then he/she should face the appropriate consequences, including job-related sanctions as well as possible criminal charges. These people do not belong in the educational system, no matter how well they can explain Chaucer or teach derivatives. But what bothers us is the last paragraph of the report:

The training will focus not only on stopping sexual predators but on preventing simply inappropriate relationships, said schools Superintendent Jim Rex. Sometimes young, naive teachers do improper things, with no ill will toward the student, and get into trouble, such as texting students' cell phones or giving them a ride home. "So much of what schools do is based on trust. Not only must kids trust their teachers, but parents have to trust those teachers too," Rex said. "And schools have to earn that trust each and every day."

We've all heard of doctors practicing defensive medicine - ordering up myriad tests to cover every base in an effort to avoid liability - but we're afraid that the educational climate is getting to a tipping point where teachers are practicing defensive mentoring. As we think back to our nascent years, we recall that our very best teachers were those who were indeed willing to cross an invisible barrier and give us that extra attention we sought or needed, the pat on the back when things weren't going well, or the ride home when our parents got stuck at work.

Granted, in our case the pat on the back never turned into a hand on the ass, but it is a shame that we're losing this teacher-student relationship that goes beyond the in-class pedagogy in the name of fighting sexual abuse. Clearly, the one-tenth of one percent of bad apple teachers are resulting in a significantly devalued education for the rest of our children.

Posted by | Permalink | Email This Post

Posted In: Sex Crimes

Bookmark:

Today marks the first installment of a new piece called Around the Square that we'll be posting periodically (hopefully a couple of times a week) that will capture some of the interesting stories out there percolating in the news feeds and blogosphere that may not rise up to the level of a full posting, but are still worth briefly writing about. We're calling it Around the Square because we often feel as if we're a lonely town crier screaming at the top of our lungs about the obvious and apparent injustices placed on those accused of sex crimes, while the restless and bloodthirsty mob is gathering nearby with pitchforks and torches in tow.

We start with a story from Hamilton, NJ, where a popular high school football coach seems to be getting railroaded by the local prosecutor for pulling a female student away from a 6-year old that she was harassing. He has been charged with criminal sexual contact for allegedly rubbing against the 18-year old student's buttocks while pulling her away. (The Trentonian, Trenton, NJ - June 1)

Carl Jordan, 39, has been charged with criminal contact following an incident in April when his groin allegedly rubbed against an 18-year-old female student’s buttocks. Jordan’s attorney, Robert Wills, said the U.S. Naval Academy grad pulled the female student away from a 6-year-old boy whom she was allegedly harassing. Saying Jordan “did nothing wrong,” DiStephano concluded his public statement by noting that the incident occurred out in the open and not “behind closed doors.” As DiStephano sat down, local residents clapped their hands in a round of approval.

Remember our post from Friday critiquing the KIDS Act bill currently in Congress? Apparently the great state of Tennessee has already decided to require sex offenders to submit their email addresses and IM screen names, effective July 1st. (Eyewitness News, Memphis, TN - May 28, 2008)

Starting July 1st, Tennessee sex offenders are required to report their e-mail addresses, user names, and screens names to Tennessee’s Sex Offender Registry. Lawmakers created the new requirement for sex offenders during this year’s legislative session in Nashville. Police say the requirement will make it easier for them to spot sex offenders trolling for prey online.

Did you know that Arizona is using GPS devices to track some sex offenders, and they have been doing so since 2006? We didn't either. But apparently they are, costing Arizona taxpayers $180 a month for the tracking devices. If a device enters an "exclusionary zone," a signal is immediately sent to the offender's probation officer. (GPS News Update & GPS Review - June 1, 2008)

In each case, the child molesters are told there are certain areas where they can't go, Sanders said. If they go into an "exclusionary zone," the ankle bracelet sounds an alarm and immediately notifies his probation officer.If the probation officer thinks it's necessary, he or she can immediately call the police, Sanders said.Exclusionary zones could include playgrounds, school yards and victims' neighborhoods.

Sex Offender Research blog is preaching to the choir with its recent posting of an academic article from the University of Manchester in the UK. It's key finding on sex offender reintegration into society? It's lacking.

The process of reintegration of offenders after release from prison, or during a community sentence, is a key aim of criminal justice policy. This article provides details from recent research that investigated the barriers and opportunities to employment for sex offenders. The authors describe the barriers that are faced by sex offenders and the anxieties that employers experience when employing sex offenders. The authors conclude that the approach taken by the State is less than reintegrative and serves to increase the barriers and reduce the opportunities for employment for sex offenders.

Posted by | Permalink | Email This Post

Posted In: Sex Crimes

Bookmark:

In yet another example of Congress favoring political expediency in an election year over common sense, the Senate last week passed a bill called the KIDS (Keeping the Internet Devoid of Sexual predators) Act. This bill purportedly will require convicted sex offenders to register their email addresses and IM screen names with a federal database for the express intent of keeping sex offenders away from social networking sites such as MySpace and Facebook.

From Politico:

Under the registration requirement approved by the Senate, social networking sites would have access to the government database of e-mail addresses and screen names and would be encouraged to ban those on it. It would be a violation of parole or probation to use different online identifiers. The National Center for Missing & Exploited Children (NCMEC) supports the bill, as does MySpace, Facebook, Microsoft and the American Family Association. One catch for Democrats: So too, of course, does the presumptive Republican presidential nominee, who issued a press release Wednesday calling on the House to pass it as soon as possible.

Put frankly, this bill is all kinds of stupid. Here are four reasons why:

First and foremost, the efficacy of such a mandate is just shy of impossible. A person, sex offender or otherwise, can easily and anonymously sign up for and utilize a different email address and/or IM screen name as often as he chooses. For example, Gmail, Yahoo, Hotmail and others offer unlimited access to new email addresses, limited only by one's imagination and patience.

Secondly, does the terrorist no-fly database ring a bell with these politicians? Maybe they should ask Senator Ted Kennedy or Nobel Prize winner Nelson Mandela about how well that bureaucratic data dump has worked. There are 44,000+ names on that list; how many hundreds of thousands of email addresses and IM names would end up on the KIDS Act list? And is it going to be publicly accessible? A one-character misspelling (e.g., Coolguy14 v. CooIguy14) could be the difference between a teenager on social networking sites versus a purported sex offender. The hassle that either would have to deal with is not acceptable.

Third, what does someone who was accused and convicted of sexual assualt within a marriage have to do with keeping social networking sites free from 'predators?' Or how does any sexual crime involving two adults have anything at all to do with access to those sites on the internet? If we can restrict a convicted rapist from discrete parts of the internet, why wouldn't we similarly be able to restrict him from certain parts of town? From a libertarian perspective, once a convicted felon has paid his debt to society in the form of imprisonment and/or other restrictions of liberty, he should be free to do as he pleases within the confines of the law. This is an unconscionable power-grab away from the liberty of sexual felons in the name of children's safety.

Finally, the public policy behind this bill is too broad in that it purports to target social networking sites such as MySpace and Facebook that have a large contingent of minors accessing it. What about other social networking sites not as heavily emphasized on minors such as Twitter, various news sites or sports message boards? Are sexual felons also banned from using those sites?

It should be clear by now, given all the holes in the bill as passed by the Senate, that the KIDS Act should be thrown into the trash and tried again. But it's unclear how likely that is in the current environment that supports further and further restriction of the rights of sexual felons. At least two Democrats in the House of Representatives (Rep. John Conyers - MI and Rep. Bobby Scott - VA) seem to understand the uselessness of the registration component, as they have spearheaded a version of the bill without that piece in the past. It's worth staying tuned to see how the House handles the bill this time around.

Posted by | Permalink | Email This Post

Posted In: Child Pornography

Bookmark:

Although this isn't a traditional sex crimes story, it once again highlights how the folks in charge of investigating and prosecuting these crimes often are causing as many problems as they are purportedly solving. Today's case of interest is actually a federal civil case filed in New York by Jane Doe, a 17-year old girl who claims that Harrison (NY) police officers violated her fundamental right to privacy by repeatedly viewing a videotape depicting her performing various sexual acts with her boyfriend. The police came upon this tape (in her presence, as she was detained) while searching her boyfriend's home upon his arrest for the sale and possession of marijuana.

From the Smoking Gun:

The girl claims that police watched the video in her presence "while laughing," and that they put a camcorder in her face and "mockingly" asked her questions about the explicit video as it played. She also alleges that a Harrison detective told her, "I should beat your ass for this. I hope your parents beat your ass." The teenager claims that the investigator also retrieved anal beads from a bedroom, put them in her face, and asked, "What do you do with these--put them in your mouth?" The girl charges that cops subsequently played the video "sufficiently close to the cell in which the boyfriend was incarcerated so that he could hear the audio component of the video," and that they laughed about the video and made "repeated references by name to his girlfriend as she was depicted on the video." She also contends that the Harrison officers "thereafter played the video for other members of the department to watch for their amusement, sexual gratification, and to further degrade Plaintiff."

Does Jane Doe have a meritorious claim here? Under the 14th Amendment and 42 USC § 1983, the right to privacy covers a substantial number of issues. The Supreme Court has noted that the right to privacy is "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). And the 10th Circuit has stated that an “individual's expectation of privacy for constitutional purposes is legitimate only if the information is ‘highly personal or intimate.’ Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995).

We can think of no more highly personal or intimate information than what Jane Doe showed on that videotape. There are some who may argue that she should not have made the tape in the first place, and that the police properly seized the tape using standard assumptions of probable cause with respect to the boyfriend. Both statements may be true, but if what Jane Doe alleges about the humiliation and public viewings of the video is true, the Men in Blue of Harrison PD in New York rewrote the definition of reasonableness to an extent far beyond what could have ever been contemplated. Let’s hope Jane Doe finds justice here.

More Coverage:
NY Daily News - Westchester Cops in Sex Tape Scandal
NY Post - Police Sex Tape Scandal
The Lower Hudson Journal News - Harrison Cop Denies Allegations in Sex Tape Suit

Posted by | Permalink | Email This Post

Posted In: Child Pornography

Bookmark:

Alex Phillips is a 17-year old high school student from La Crosse, Wisconsin. He may not be the brightest crayon in the box, but his story is one that once again calls into question the legislative sanity of some of the overreach of our laws regarding what constitutes 'child pornography.'

It turns out that Phillips at some point in the last year was friendly with a 16-year old girl called HLK (14 months his junior) who sent him two explicit photos of her completely naked in different positions. She took the photos with her cell phone camera and sent them to his email address. Phillips, apparently miffed that HLK had started seeing someone else recently, decided to post the photos (with lewd captions) to his MySpace account.

From the criminal complaint (h/t The Smoking Gun):

The [MySpace] page showed two nude images of a female. The first was full frontal nudity of a white, dark-haired female and the second was the buttocks, anus and vagina of a female. [...] [The victim] stated that the images were of her and that she had taken them with her cell phone several months ago and had sent them to Alex Phillips' email address. She stated she did not give him permission to transfer the images anywhere else.

When questioned by the police, Phillips initially refused to take the photos off of MySpace, claiming that he was "keeping them up" even if he could go to jail over this, but later relented. He stated that he put the photos online because he was venting and that he didn't mean to harm HLK but that he realized that he "probably should not have done this." Phillips has since been charged with two felonies: possession of child pornography and sexual exploitation of a child under 18 years of age; as well as misdemanor defamation.

Frankly, this is appalling and an absurd misuse of the intent of the laws against child pornography. There is no question that it was incredibly stupid for Phillips to post the explicit photos of HLK online, but the only criminal charge he should possibly face should be that of defamation for his lewd captions that went with the photos. Did the Wisconsin legislature really have a boyfriend/girlfriend spat in mind between teenagers when they drafted these child pornography laws? Is it unreasonable to believe that 16-18 year-olds who in many states can legally have sex with each other might also take photos of themselves while doing so; or in an attempt to titillate each other for what might come next? This is supposed to be child pornography?

Let's also keep in mind that HLK produced these photos herself and sent them of her own free will to Alex Phillips (aside: does this mean that HLK is guilty of the PROTECT Act in light of yesterday's Supreme Court ruling?). According to the Wisconsin legislature, Phillips was guilty of child pornography as soon as he opened her email attachment, and was guilty of sexual exploitation of a child as soon as he posted the photos online. Yet was there any consideration given by the state of Wisconsin that another "child" (legally defined) could be the one performing these acts?

Apparently not, because Phillips' name is already all over the national media and internet and will forever be linked with the scarlet letters of 'child pornography,' even if the charges do not stick. His future is already written, as colleges, possible employers, friends and romantic partners will have to take a leap of faith that he's just a kid who made a mistake by posting his ex-girlfriend's pictures online, instead of actually being a social pariah who deals in kiddie porn.

More Coverage:

The Smoking Gun - Teen Nabbed For Naked MySpace Photos
Gravy & Biscuits - Alex Phillips MySpace Photo Scandal
La Crosse Tribune - Teen Faces Child Porn Charges
Chicago Tribune - Alex Phillips, MySpace
Gawker - Child Porn: Teen Arrested on Child Porn Charges After Posting Photos of His Ex

Posted by | Permalink | Email This Post

Posted In: Child Pornography

Bookmark:

The Supreme Court released an opinion yesterday (U.S. v. Williams) 533 U.S. ____ (2008), that significantly expanded the reach that prosecutors will have in their arsenals against suspected purveyors of child pornography.

At issue was a 2003 Congressional law - the PROTECT Act - that made it a criminal act to offer, solicit or distribute sexually explicit images of children. A person can be convicted on two grounds under this law: 1) if he believes that the material offered actually depicts sexual images of children; or 2) if he intends to convince a potential recipient that it does.

The defendant, Michael Williams, challenged the constitutionality of the PROTECT Act, not based on his prior specific acts (which involved him pandering sexually explicit photos of his 5-year old daughter online) but based on the First Amendment protection against constitutional vagueness. Williams argued that although his acts were clearly illegal under the statute, there are other parts of the statute that are so vague and unclear that the entire law should be struck down as unconstitutional.

From SCOTUSblog:

As a result, to decide Williams’ case, the Court was required today to scan the legislation broadly and decide how it applies in the full range of its applications and whether it trenches upon First Amendment rights in too many of those applications. [...T]he major dispute between the majority and the dissent was not over whether the First Amendment protects what Williams did, but how the statute applies in other cases, especially in cases involving simulated child pornography.

The majority in a 7-2 decision effectively ruled that by requiring a subjective belief on the part of the defendant that he believes and intends others to believe the materials he offers are criminal in nature (sexual images of children), there is no room for a mistake on his part. As the Court stated, "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection."

The dissent called into question some harrowing exceptions where the legality of the transferral of potentially innocuous photographs such as a grandparent emailing to a relative a photo of a grandchild taking a bath, or the selling of movies that contain purported images of adolescent sex, could come under scrutiny by overzealous prosecutors. So long as the defendant had a subjective but mistaken belief that the images offered were obscene or tried to mistakenly convince others that they were, the defendant could be subject to prosecution even if the images were in fact not obscene.

This is a dangerous high court precendent toward the criminalization of thoughts, and moves us one step closer to the Big Brother mentality that so many of us fear is coming.

More coverage:
New York Times - Supreme Court Upholds Child Pornography Law
Washington Post - Justices Uphold Child Porn Law
LiveJournal - The Court Undermines the First Amendment
Windy Pundit - Don't Ask About Imaginary Child Porn

Posted by | Permalink | Email This Post | Comments (0)

Posted In: Child Pornography

Bookmark: