Sex Crimes

NJ Parole Board Finds Sex Offender Polygraph Testing Effective

The New Jersey Star-Ledger is reporting that the state parole board has released an internal study claiming that the use of polygraphs on paroled sex offenders has been effective in detecting and preventing parole violations. According to the article, almost all of the state’s 5,600 supervised sex offenders must submit to at least one polygraph test every year. You may read the actual report here. From the article:

The parole board started using the examinations two years ago, and an internal study being released today says they’ve been effective in detecting and preventing parole violations even though budget restrictions have prevented the tests from being widely implemented.

Out of 236 paroled sex offenders who took polygraph tests, 86 had their supervision plans changed afterward. That includes 34 offenders who received more stringent supervision, such as out-of-state traveling restrictions or electronic monitoring.

Only 400 tests have been conducted so far, parole board spokesman Neal Buccino said. The state has five polygraph machines, and 11 officers have completed nine weeks of training in Philadelphia. The training and equipment was funded by a $50,000 federal grant and $16,667 in state money.

During polygraph tests, the sex offender sits alone in a room with the officer. Sensors on the chair and straps across the chest and stomach detect fidgeting, and fingertip sensors monitor sweat. A band around the subject’s upper arm tracks blood pressure.

Group Seeks To Ban MA Sex Offenders From Homeless Shelters

The Boston Globe has an interesting article discussing a new push to ban sex offenders from homeless shelters. From the article:

As the state’s steep budget cuts have forced organizations that help the homeless to cut beds, staff, and programs, the advocates for the needy say banning sex offenders would allow shelters to save money on security, open up space for others, and make shelters safer.

The Massachusetts Housing and Shelter Alliance, which represents 90 organizations that provide services to the homeless, has urged state lawmakers to add shelters to an increasingly long list of residential bans for many sex offenders. They are already barred in some communities from living near schools, day-care centers, parks, playgrounds, libraries, or nursing homes.

While those who study sex offender recidivism rates say such residential restrictions are counterproductive, state lawmakers who support the proposed legislation argue that it also would fix a loophole in the law, which for five years has required the most dangerous sex offenders to post their names, addresses, and photos on a public website. They say too many sex offenders bypass the law by listing a homeless shelter as their address when they live elsewhere.

In a review yesterday of 162 Level 3 sex offenders - those with a high risk of committing sex crimes again - who list addresses in Boston on the state’s online registry, the Globe found that at least 74 percent reported they were living at homeless shelters.

It seems odd to fix a "loophole" that sex offenders are lying about their address by barring offenders from homeless shelters. It seems like the way to fix that problem is to verify offender addresses. Pushing homeless offenders out into the streets does nothing to prevent future sexual violence.

Female High School Teacher Gets 12 Years For Sex With 17 Year Old Aide

A female high school teacher in Tennessee was recently convicted of having sex with a 17 year old male teacher's aide and received a 12 year sentence. Volokh and Above the Law have more. From the Tennessean:

District Attorney Ray Whitley said Sandy Binkley "got what she had coming to her."

David Ridings, Binkley's attorney, said it was the most egregious abuse of justice in sentencing that he has ever seen. "We hoped that (the judge) would follow the law. He failed miserably at that," Ridings said.

Binkley's attorney had hoped the former teacher would be sentenced to no more than three years. He plans to appeal.

Binkley, 37, the former teacher, was convicted Sept. 29 in Sumner County on two counts of statutory rape by an authority figure.

The convictions stemmed from a sexual encounter that occurred on March 20, 2008, between Binkley and a 17-year-old boy in a locker room office at Portland High School.

Binkley claimed she was raped.

Almost a Sex Crime: Lawyers and Clients

Above the Law has a post about whether attorneys should be allowed to have sex with their clients. The post mentions that California and Texas are considering banning sex with clients in most situations. The proposed language is very similar to Rule 1.8(j) of the ABA Model Rules of Professional Conduct provides that a "lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced." The Illinois Supreme Court has adopted this rule effective January 1, 2010. From Above the Law:

The California State Bar Association is considering a change to the professional rules of conduct to “prohibit sex with clients unless they are spouses or the relations preceded the lawyer-client relationship,” according to The Recorder. The Texas Supreme Court is suggesting the same type of thing in the Lone Star state, according to the Texas Lawyer.

The American Bar Association generally frowns on lawyers getting into their clients’ briefs. The argument against taking discovery to the bedroom is that sexy time undermines an attorney’s ability to give objective advice and to keep his or her interest from limiting that of the client.

On the other hand, regulating bed behavior potentially violates a lawyer’s privacy and the right to freedom of association.

ATL readers, we turn the debate over to you. Is it okay for lawyers to be their clients’ master debaters and masturbators? Moving beyond the theoretical, how many of you have actually had to grapple with this? Take our polls and hear some stories, after the jump.

When we write about lawyer-client sex here at ATL, it’s usually of the problematic variety. See the story of Stanford grad James Tipler, who made his clients pay their legal fees with sexual favors. Or the story of 72-year-old personal injury attorney Allen Isaac who wanted a blow job as part of his retention fee. Or the story of Washington state divorce lawyer Lowell Halverson who was disciplined by the Washington Supreme Court for repeatedly having affairs with his emotionally distraught clients.

Is Carrie Prejean A Sex Offender?

Carrie Prejean has generated a lot of news lately. Recently, the Former Miss California sued Miss California producer K2 Productions for religious discrimination allegedly for firing her after she made public comments opposing same-sex marriage. It is now rumored that Prejean dropped the suit after K2 Productions found a private sex tape, allegedly filmed when she was 17. While the gossip sites are discussing how Prejean's one sex tape is actually eight sextapes, the law blogs are discussing the various legal questions, including whether Mr. Prejean could be prosecuted for child pornography offenses. Prof. Berman has three great posts on the topic. From Mom Logic: 

It appears that Carrie Prejean is the latest to fall from the almighty Conservative/Christian throne. With the year this young lady has had, why is she still in front of cameras? Well, she went from Miss California to "In my country, in my family, I think I believe that marriage should be between a man and a woman ..."

As indicated by Professor Douglas A. Berman, Carrie "could be technically subject to the five-year minimum [sentence] under 18 USC 2252(a)(2) for distributing material involving the sexual exploitation of minors," as a result of producing and distributing "child porn."

While authorities and legislators have shown that they are willing to possibly be a little more lenient with sexting (texting nude pictures), as the federal child porn statute currently stands, possession of and transmitting child porn is against the law, regardless of who is responsible.

This sex tape that Carrie Prejean made is comparable to cases that have already resulted in convictions of minors who have produced and manufactured child porn for boyfriends/girlfriends; and those convicted have become registered sex offenders.

In America, sadly, this will probably only help her book sales. There is no doubt that her conduct, if it is as alleged, meets the statutory elements. However, as with the various sexting cases, the story of Prejean illustrates how reliant we have become on prosecutorial discretion in such matters.

"Putting a Stop to Congressional Overreach"

Reason Magazine has an interesting article supporting the Respondent in the upcoming United States v. Comstock case before the U.S. Supreme Court. The article also mentions the Cato Institute's amicus brief, which we previously blogged about and which is available here. From the article:

Later this term, the U.S. Supreme Court will have a great opportunity to remind Clyburn and his colleagues of those limits when it hears oral arguments in the case of U.S. v. Comstock. At issue is the Adam Walsh Child Protection and Safety Act of 2006, which empowers federal officials to order the indefinite civil commitment of "sexually dangerous" persons who have finished serving a federal sentence, or who are currently in the custody of the attorney general because they were found mentally incompetent to stand trial. In other words, the government isn’t willing to let these people back on the streets.

In its brief to the Supreme Court, the government argues that Congress possesses this authority under the Constitution’s Necessary and Proper Clause, which grants Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States."

Yet as the text itself clearly specifies, any law passed under the Necessary and Proper Clause must also be tied to a specifically enumerated constitutional power, either one of the "foregoing powers" listed in Article I, Sec. 8, or one of the "other powers vested by this Constitution." As James Madison told the Virginia ratifying convention, the Necessary and Proper Clause "only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause."

So where among the "foregoing Powers, and all other Powers vested by this Constitution" did Congress happen to find an explicitly enumerated power to indefinitely detain "sexually dangerous" prisoners?

The answer is: Nowhere. The Constitution provides no such authority. Indeed, as a superb friend of the court brief filed in the case by Georgetown law professor Randy Barnett makes clear, "However well intentioned Congress may have been, it had no power to legislate for the purpose of protecting the public from dangerous persons.... The Necessary and Proper Clause is not an independent source of Congressional power."

MI Court: Man Doesn't Belong on Sex Offender List for Youthful Romance

The Michigan Court of Appeals ruled that a man convicted for a so-called "Romeo and Juliet" relationship does not belong on the state's sex offender list. You may read the decision here. From the Associated Press:

Robert Dipiazza had a consensual relationship when he was 18 with a nearly 15-year-old in 2004. A teacher contacted authorities because the age of consent is 16 in Michigan.

A third-degree attempted criminal sexual conduct charge was eventually erased from his record, but he still had to register as a sex offender. He says he had trouble finding jobs and became depressed.

The state appeals court on ordered a Muskegon County judge to strike his name from the registry, calling it cruel punishment. Dipiazza and his girlfriend were married in April and had a baby during the summer.

KY AG Asks SCOTUS To Stay Residency Decision

After the Kentucky Supreme Court denied a stay in a challenge to the retroactive application of the state's residency restrictions, the state Attorney General has filed a motion in the U.S. Supreme Court to stay an earlier decision. You may read the motion here. From a press release:

Attorney General Jack Conway today filed a motion with the United States Supreme Court asking it to stay the recent ruling by the Kentucky Supreme Court that lifts the residency restrictions for all registered sex offenders who committed their crimes before July 12, 2006 – meaning more than 5,500 sex offenders could live next to schools and daycares. 

General Conway and his Office of Criminal Appeals are asking the U.S. Supreme Court to stay the state ruling until it decides whether or not to review Kentucky’s case.  The Office of the Attorney General has until December 30, 2009 to file a certiorari motion with the U.S. Supreme Court. 

Attorney General Conway will file the certiorari motion because Kentucky’s law is similar to laws in several other states that have had conflicting rulings by state courts.  He also has the statutory obligation to defend laws passed by the Kentucky General Assembly.

“I understand there are constitutional questions regarding retroactivity, but there are also public safety implications for families in keeping sex offenders away from where children congregate.  Only the U.S. Supreme Court can weigh these issues and provide guidance to states,” said Attorney General Conway. 

Attorney General Conway’s Office of Criminal Appeals filed a motion on October 21, 2009 with the Kentucky Supreme Court requesting that it suspend implementation of the ruling until the U.S. Supreme Court determines whether or not it will review the Kentucky case.  The Kentucky Supreme Court denied the motion.

Given that SCOTUS showed no inclination to take prior cases at the federal or state level, I'd be surprised to see them intervene here. However, with Comstock and Carr on the docket this term, they could resolve the major disputes to the various sex offender laws all at once if they took the Kentucky case.

"As it Turns Out, There Are Limits on Congress’s Power"

Ilya Shapiro (of the Cato Institute) has an interesting post discussing the upcoming Supreme Court argument in United States v. Comstock. The Cato Institute has also filed a brief in support of the Respondent Comstock. You may read the brief here. From the post:

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.

Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

The government’s reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely “carries into execution” the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers.

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.

I think the government's brief tries to take the Necessary and Proper Clause to places it should not go. However, I still think the government is going to win despite itself as the Court will choose a different rationale (with some Necessary and Proper Clause helping out) and uphold the statute. It is nice to see Cato writing a brief in the case as not many organizations are willing to write on behalf of a sex offender.

KY High Court Denies Stay In Residency Restrictions Challenge

In October, the Kentucky Supreme Court ruled that a state law prohibiting sex offenders from living near schools, playgrounds, and day care centers could not be applied retroactively, to those convicted before the enactment of the law. On Monday, the Court rejected a request to stay the ruling. From The Courier-Journal:

Kentucky Attorney General Jack Conway asked that the ruling be stayed, but that request was rejected in a brief order from the court on Monday.

Allison Martin, a spokeswoman for Conway's office, said the office now will ask the U.S. Supreme Court for a stay to review the Kentucky high court's ruling. She said the office has until Dec. 30 to file its request with the nation's high court.

The Kentucky Department of Corrections released a statement saying that because Monday's ruling by the Kentucky Supreme Court is a final order, probation and parole officers are being notified that sex offenders who committed their crimes prior to July 12, 2006, are no longer subject to the residency restrictions of the 2006 law.

The 2006 law subjected all convicted sex offenders to residency restrictions, while a prior law applied restrictions to offenders who were on probation or parole. It also increased the minimum distance that offenders must live from schools and day care centers, and added playgrounds to the list.

11th Circuit Upholds SORNA (Again)

The Eleventh Circuit Court of Appeals today released an opinion in a case involving various challenges to SORNA, including under the Commerce and Necessary and Proper Clauses. The constitutional issues were previously decided by the Eleventh Circuit in United States v. Ambert, 561 F.3d 1202 (11th Cir. 2009), but were raised apparently for preservation purposes. In addition to upholding SORNA, the Court found that sex offenders are not exempt from its registration requirements, even when the jurisdiction in which he is required to register has not yet implemented SORNA. You may read the full opinion here.

Interestingly, the Court did discuss the defendant's claim that he had no duty to register under SORNA because he had no notice of the duty to register (relying on Lambert v. California, 355 U.S. 225 (1957)). The Court distinguished Lamberton the ground that the defendant here had "actual knowledge that he had a duty to register in Alabama." The defendant was admittedly given notice of his duty to register, but the notice was unclear as to whether he must register under state law or SORNA. The Court however noted that there were "sufficient circumstances to prompt [the defendant] to have inquired upon his duty to register." Thus, the Court concluded that “notice of a duty to register under state law is sufficient to satisfy the Due Process Clause.”

From WZTV:

A federal appeals court has upheld an aggressive federal program aimed at tracking and monitoring sex offenders.

The ruling by the 11th Circuit Court of Appeals on Thursday marks the first time an appeals court in the circuit has upheld the Adam Walsh Act, a 2006 law that aims to create a national sex offender database and creates stiff penalties for those who fail to register.

It stems from the case of William Eric Brown, who was appealing his 2008 conviction for failing to reregister as a sex offender after moving from North Carolina to Alabama. Brown had argued the new requirements were "impossible" to comply with because he never received notification about them.

The three-judge panel's ruling, however, concluded there was "no due process violation."

FL Policy Analyst: Residency Restrictions are Ineffective

A legislative policy analyst today told Florida legislators that sex offender residency restrictions do not work. The analyst cited studies from Minnesota, Colorado and Florida, which found no connection between where sex offenders lived and where they committed new crimes. From the Miami Herald:

Studies show that laws prohibiting sexual predators from living near schools and other places where children congregate do not prevent offenders from committing new crimes and may be counterproductive, a legislative policy analyst told a House panel Tuesday.

Marti Harkness, who specializes in criminal justice issues in the Office of Program Policy Analysis and Government Accountability, said better options would be to bar offenders from smaller zones near places where children gather and keeping tabs on them with electronic monitoring.

Florida prohibits certain sex offenders from living within 1,000 feet of schools, day care centers, parks and other places that attract children, but some local governments have expanded the ban to as much as 2,500 feet, most notably in South Florida.

Those limits made it so difficult for sexual predators to find affordable housing in Miami-Dade County that some offenders have been living under a bridge in view of tourists and others using the span, creating a backlash against the restrictions.

I'm guessing nothing will change in Florida.

CA Supreme Court Hears Challenge To Residency Restrictions

The California Supreme Court heard a challenge to the state's sex offender residency restriction law. The plaintiffs in the case are four sex offenders who were found living within 2,000 feet of place where children gather (such as a park, school, or day care center) and who were told that they must move within 45 days. The Contra Costa Times has more. A decision is expected within 90 days. From the San Jose Mercury News:

The state Supreme Court on Tuesday is considering whether the residency restriction contained in Proposition 83 is so broad and intrusive that it violates the constitutional rights of registered sex offenders. Under the law, critics say, many sex offenders cannot find a place to live in urban areas across the state and are effectively forced into homelessness.

Gov. Arnold Schwarzenegger, a strong backer of Proposition 83, is defending the law, along with the state Department of Corrections and Rehabilitation, which has largely been responsible for enforcement through its parole units. The administration's lawyer declined to comment but in court papers has defended the law's constitutionality.

Jessica's Law, however, has been openly questioned for its effectiveness, even in the law enforcement community, and also for its legality. More than 20 states have adopted similar provisions, with courts taking a mixed view of whether they pass legal muster. Most courts, including two federal courts in California, have found the laws cannot be applied retroactively to sex offenders who committed their crimes and were released from prison before the laws were passed.

Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts.

I think the California case could be important in the overall scheme of residency restriction law. While some courts have found problems with residency restrictions, most of the rulings have been quite limited (either by being based upon statutory grounds or constitutional issues that did not invalidate the entire statutes). California will certainly be the most high profile state that has had its highest court review such laws. If the court issues a definitive ruling against the restrictions, it might have a wider effect.

SCOTUS Schedules Oral Argument In Comstock For Jan. 2010

Thanks to SCOTUSblog, we see that the Supreme Court has scheduled the oral argument in a list of cases beginning in January 2010, including United State v. Comstock (resource page available here), which is scheduled for oral argument on January 12th. The Comstock case deals with the federal government's power to prolong the imprisonment of persons deemed "sexually dangerous" beyond their completed sentences. You may view the argument calendar here.

TVs For Sex Offender Program Now Going to MN Guard

Earlier, we told you about Minnesota's Moose Lake Sex Offenders Program, which lost 24 of its new 50-inch plasma TVs. Now, WKBT.com reports that some of those TVs will go to the Minnesota Guard. From the article:

Eight of the flat-screen TVs removed from a Minnesota sex offender treatment facility on Gov. Tim Pawlenty's orders will go to Minnesota National Guard facilities.

The state Department of Administration said Wednesday that Camp Ripley, near Brainerd, will get six of the 50-inch plasma televisions that prompted Pawlenty's ire last week. The Guard's Minneapolis and Duluth airbases will also each get one.

Pawlenty called for discipline for whoever authorized buying 26 TVs costing $1,500 each, plus $700 mounting brackets, for the Moose Lake sex offender facility. The Department of Human Services is investigating.

The governor previously announced that 14 TVs will wind up in state veterans homes.

Administration Department spokesman Jim Schwartz said the four remaining televisions will either be used for yet-to-be-determined public purposes or sold.

Halloween Sex Offender Roundup

Here is a (spooky?) collection of Halloween sex offender news stories from around the web:

From Sentencing Law & Policy, we learn that certain Alabama sex offenders are required to attend an educational meeting on Halloween night which will feature "updates on sex offender laws, the Adam Walsh Act and rehabilitation opportunities, as well as training for employment."

Law enforcement officials in Omaha, Nebraska report that they will be paying extra attention to sex offenders on Halloween night. Officials are encouraging parents to check the online registries to know who lives where.

Meanwhile in Missouri, registered sex offenders are required to stay at home from 5 to 10:30 pm on Halloween, absent "just cause" to leave. The ban remains in effect despite a 2009 study that found "no significant increases in sex crimes on or around Halloween after an examination of crime data looking at non-familial sex crimes from 1997 to 2005 against children 12 years old and younger."

Floridian sex offenders also cannot participate in trick or treating at their homes and must display a "No Candy Here" sign on their front doors.

In California, sex offenders who are not on parole or probation are allowed to put up Halloween decorations in their yard, despite objections from neighbors.

Student Post - The Need for More Civil Confinement of Sexual Predators in Illinois

Civil commitment of sexual predators in Illinois is a process by which an independent company, Affiliated Psychologists, evaluates inmates prior to release to determine the likelihood of recidivism of sexual predators.  They evaluate approximately 2000 inmates a year.  That means, in Illinois, 2000 rapists/child molesters/ pedophiles/etc. are scheduled to be released into our communities every year.  Only about 5% of those inmates receive recommendations for actual face-to-face interviews. 

Julius Anderson was referred for intense review.  He was initially deemed incompetent to stand trial, so he was confined to the Chester Mental Health Facility for a short period and finally, upon his release, tried and sentenced to four years in prison.  Upon his release in 1977, he returned to his past pattern of behavior.  He sexually assaulted yet another woman, was caught, tried, convicted and sent to prison.  He was again paroled.  He left Big Muddy River Correctional Facility on June 25, 2009.   On August 15, 2009, he raped a 25 year old woman and then another on September 1, 2009.  He is currently being held without bond, awaiting trial.

This story, unfortunately, is not unusual.  Rapists rape.  Julius Anderson should have been a prime candidate for civil confinement after serving his prison term.  He had received at least 99 infractions while in prison that ranged in seriousness from hitting a guard to stabbing another inmate.  Nevertheless, he was found to not have any mental defect that would warrant civil confinement, even over strenuous objections to his release by the States Attorney’s Office.  Apparently the evaluators could find no reason to have him committed to a mental health facility.  The experts decided that, after their careful evaluation of Julius Anderson, he was not a substantial risk of re-offending.  He certainly proved them wrong.  Didn’t he?  The real question, however, is why.  Why was the States Attorney’s Office able to recognize this person as a dangerous human being with a high probability of recidivism, but the psychologists that evaluated him did not.

Opponents of civil confinement, after a sex offender has served his/her prison sentence, argue that it is wrong not to release a person after their debt to society is paid.  I doubt that Julius Anderson’s victims felt he had settled his debt with them at the time of his release this past June.  Opponents argue that statistics demonstrating a high rate of recidivism for sexual predators are erroneous.  They cite to research to argue that sexual predators can be rehabilitated if counseling is started immediately upon incarceration.  I argue that it is almost impossible to measure rates of recidivism of a sexual predator.

Sex crimes are now, and historically have been grossly underreported.  As such, how can anyone determine if a released offender has re-offended?  The fact that he has not been rearrested is not documented proof that he has not re-offended.  Perhaps he has gotten better at getting away with his crime.  In reality, the only way to accurately determine of how many sex offenders do not re-offend, researchers would have to interview every person a released offender was in contact with from the time of release to the time of the offender’s death.  I have been unable to locate such a study. 

Although keeping sexual predators locked up may not be the politically correct solution, it is the safest.  There is much talk of educating these convicts and assimilating them back into society through various forms of therapy.  There are no guarantees that this approach will work for any portion of this particular criminal population and the risk of failure would produce far too great a consequence, as in the case of Julius Anderson.    

Student Post - Cook County Sherriff Tom Dart Accuses Craigslist of Promoting Prostitution

Craigslist is such a useful website. I have used it in the past to look for apartments, secure my first job before law school as a pre-school teacher, and find hard to get tickets to Cubs games. However, IL has now found another not so useful feature of craigslist. From CNN:

Cook County Sherriff Tom Dart wants the popular website to eliminate its “erotic services” section. Dart states that Craigslist serves as the “single largest source of prostitution in the nation”. Dart also stated “Missing children, runaways, abused women and women trafficked in from foreign countries are routinely forced to have sex with strangers because they're being pimped on craigslist." Craigslist e-mailed a response to CNN stating that “craigslist is an extremely unwise choice for those intent on committing crimes, since criminals inevitably leave an electronic trail to themselves that law enforcement officers will follow”. Craigslist entered into an agreement with 43 states to impose restrictions on its “erotic services” section. These restrictions include phone number verifications to make sure real phone numbers are being used in the ads, and also imposing a listing fee for posting in that section. Dart responded to the measures imposed by craigslist by saying it is “ dirty money” and that pimps use stolen credit cards or just post their ads in other free sections of craigslist.

On this issue I agree with Dart. Practically speaking, there is no good way to deter pimps, prostitutes, or individuals offering sexual services for that matter from posting ads on Craigslist. Although Craigslist makes a good argument that it is unwise for individuals seeking to promote prostitution to post on Craigslist because they are giving a trail to the authorities as to their whereabouts; this fear alone obviously does not deter them from posting as evidenced by the amount of posts still there. Imposing a requirement for individuals wishing to post in the “erotic services” section to pay a fee using a credit card does not seem to be a viable way to deter prostitution either. In defense of Craigslist I would also argue that it is not viable for them to try and regulate every single section of their website. Individuals who want to solicit sexual services will figure out how to post on different sections of their website.

Craigslist now has an “adult services” section in lieu of the “erotic services” section. The biggest difference being that all photos and text will be manually reviewed by craigslist before being posted.

New Resource Pages

You might notice off to the left that Sex Crimes now includes resource pages for two significant Supreme Court cases related to the AWA. As with the Kennedy v. Louisiana Resource Page, I hope to keep both the Thomas Carr v. United States and United States v. Comstock Resource Pages up to date with links to materials from around the web. And you can expect significant coverage of both cases when the oral arguments are made and when opinions are entered.

Separation of Church and Sex Offender?

Doug Berman at Sentencing Law & Policy has an interesting post discussing the religious rights of sex offenders. Berman also directs us to a post by Cornell Law Prof. Dorf who discusses the issue in a bit more depth. From Sentencing Law & Policy:

Over at Dorf on Law, Mike Dorf has this post with an extended discussion of the question in the title of his post: "Can Sex Offenders Be Barred From Church?"  Because I am not a First Amendment expert, I cannot take issue with the much of his constitutional analysis, but I was both struck and troubled troubled by Mike's apparent willingness to embrace the idea that a state always has a strong justification for seeking to keep any and all sex offenders away from any and all places in which children might be found.

Specifically, at the end of his post, Mike says this: "Is there a compelling interest in keeping registered sex offenders away from children?  Of course."  I am left wondering if "compelling interest" analysis is this easy.  Some (perhaps many) "registered sex offenders" have not harmed a child and likely pose no special threat to children.  Registered sex offenders include  folks whose only victim was an adult and who engaged in fully consentual sex acts (such as a female prison guard who had sex with one of her prisoners).  Do states so obviously have a "compelling interest" keeping these kinds of registered sex offenders away from all children in all settings?

More fundamentally, is Mike suggesting that any and all registered sex offenders could be categorically prohibited from ever going to a public sporting event or a political rally or a movie or even walking down the street because children might possibly be at the event or the rally or the movie or the street?  I fully understand the gut instinct that we want to protect children from even marginally risky people in inherently risky places, but I am troubled by any analysis that is so quick to assume that all registered sex offenders are always so risky that they can and should be treated as if they were radioactive.

There has been a pretty active discussion about this case on the Criminal Justice Professor listserv. My inclination is that this type of challenge has a fair chance of success if 1) the offender can show that the restrictions essentially make all churches off limits if Sunday School counts as a day care; or 2) a secondary constitutional right besides free exercise is implicated. There are similar cases emerging across the country and I'm interested to see how the courts treat these claims.