Sex Crimes

Vermont Given More Time to Comply With Adam Walsh Act

The federal government has provided Vermont, and several other states additional time to comply with provisions of the Adam Walsh Act. The Bennington Banner has more. From WCAX:

[The Act] requires Vermont expand its online sex offender registry, even though lawmakers passed legislation this session, expanding it to nearly 1,500 names. Federal law requires more names and more information. The original deadline was July.

But Senator Patrick Leahy argued Vermont, and many other states need more time to update the information, and the costs associated with it, just isn't in the budget for many states due to the recession.

No state is in compliance yet. No new deadline was set by the government.

Judge Kent Reports To Prison

Judge Samuel Kent entered a federal prison medical facility in Massachusetts beginning a 33-month sentence stemming from years of predatory sexual assaults on two federal courthouse employees.  From the Houston Chronicle:

Kent, the first federal judge to enter prison since 1991, has refused to immediately resign his post triggering rare House impeachment proceedings to remove him and cut off his $174,000 annual salary.

The House Judiciary Committee unanimously urged House action last week after graphic testimony about his sexual assaults from two victims, case manager Cathy McBroom, 50, and legal secretary Donna Wilkerson, 45.

Kent’s lawyer, Houston attorney Dick DeGuerin, told the Houston Chronicle on Monday that Congress was trying “to strip a United States district judge with eighteen years of honorable service of his hard-earned retirement and medical benefits because he's pled guilty to lying about his relationship with his long-time personal secretary.”

DeGuerin said lawmakers wanted to “publicly posture while spending more taxpayer money on the impeachment process than the cost of allowing Judge Kent his retirement and medical benefits.”

Terry W. Yates, who serves as Wilkerson’s attorney, said “while Sam Kent's imprisonment does bring some closure to Donna Wilkerson, it does not come with vindication, but instead, with a sense of sadness at the human tragedy that his life has become.”

H/T: Sentencing Law & Policy.

Justice Department's SMART Case Law Update #25

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #25:

Doe v. Department of Public Safety, 2009 Md. App. LEXIS 56 (May 12, 2009)

Doe challenged the conclusive presumption of dangerousness (and the attendant registration and notification requirements for a “sexually violent offender”) that flowed from a conviction for rape.  This presumption was permissible.  In addition, his privacy, due process, and equal protection challenges were rejected.
 
Wallace v. State, 2009 Ind. LEXIS 401 (April 30, 2009) (link)
 
Relying in part on the decision in Doe v. State, 189 P.3d 999 (Alaska 2008), the Indiana Supreme Court held that the state’s sex offender registration and notification scheme was punitive under the Mendoza-Martinez factors and, as such, application of its requirements to an offender convicted and sentenced prior to the initial passage of the law was unconstitutional.
 
Jensen v. State, 2009 Ind. LEXIS 400 (April 30, 2009) (link)
 
Where petitioner was convicted and sentenced in 2001, and the only changes to the sex
offender registration and notification scheme since that time could fairly be characterized as
‘civil and regulatory’ under the Mendoza-Martinez factors, retroactive application of those
amended provisions was not a violation of the Ex Post Facto clause.
 
Commonwealth v. McBride, 2009 Ky. LEXIS 52 (April 23, 2009)

McBride was convicted of a sex offense in Tennessee and registered as a sex offender
there.  He subsequently moved to Kentucky, and failed to register as a sex offender as required
by Kentucky law.  Even though he was not specifically notified of his registration obligations in
Kentucky, the Court held that failure to register was a strict liability offense, and that he had an
absolute duty to register as a sex offender once he became a resident of Kentucky.

SCOTUS Grants Cert in US v. Comstock

Just as Eugene Volokh predicted, this morning the U.S. Supreme Court granted certiorari in United States v. Comstock.  It really isn't a surprise at all given Roberts' unusual order in the case. The case (actually three cases) will test the constitutionality of a recent law which allows federal officials to order the indefinite confinement of individuals considered to be sexually dangerous. For more coverage, check out The Faculty Lounge, Sentencing Law & Policy, Volokh, Reuters, The Christian Science Monitor, The Associated Press, and Fox News. We have previously blogged about the Comstock decision here, here, here, and here. Baby permitting, I should have some more comments about the case this week.

House Impeaches Judge Kent

Former federal judge Samuel Kent was impeached in the House by a 389-0 vote. The Senate is expected to convene a trial in the next few weeks. You can view our earlier coverage of Judge Kent here and here. Sentencing Law & Policy, How Appealing, and the ABA Journal have more. You may view the actual impeachment resolution here. From the ABA Journal:

Not a single representative spoke on the imprisoned jurist's behalf, and the vote on the first of four articles of impeachment was 389-0, reports the Houston Chronicle. All four were swiftly approved in roll call votes that took only 30 minutes to complete.

The charges accuse the Texas-based judge of abusing his power by sexually assaulting two female court workers and lying about his conduct to authorities.

It is the first time since 1989 that a federal judge has been impeached. A speedy Senate trial is now expected, and could begin next month.

As detailed in earlier ABAJournal.com posts, the 59-year-old Kent pleaded guilty in February to obstruction of justice in a matter related to his admitted nonconsensual sexual conduct concerning the two court workers. He began serving his 33-month sentence on Monday, at a prison medical facility in Ayer, Mass.

“This is the first time a federal judge has been convicted of a felony, has reported to prison and has still not resigned from his office. This shows how deep Judge Kent’s audacity truly runs,” Goodlatte said.

Justice Department's SMART Case Law Update #24

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #24:

People v. Blair, 2009 N.Y.S.2d 890 (CCNY Albany, Feb. 18, 2009); People v. Oberlander, 2009 N.Y. Misc. LEXIS 325 (Rockland Cty., Jan. 22, 2009)
 
Citing the decision in G.H. v. Township of Galloway, 951 A.2d 221 (N.J. App. 2008), held local residency restrictions invalid because they are preempted by the comprehensive and detailed State-level regulatory scheme regarding the registration of sex offenders.
 
People v. Knox, 2009 N.Y. LEXIS 16 (Ct. App. Feb. 17, 2009)

Knox and her co-petitioners had all been convicted of non-parental kidnapping of a minor.  Their due process challenge to being listed on the New York Sex Offender Registry was rejected.
 
U.S. v. Rose, 2009 CCA LEXIS 56 (Feb. 12, 2009)
 
Because the court concluded that Rose’s counsel “affirmatively misrepresented” that he would not have to register as a sex offender, and he pled guilty at least in part because of that misrepresentation, it constitutes ineffective assistance of counsel, and the findings of guilt were set aside.
 
Burchette v. Sex Offender Screening and Risk Assessment Cmte., 2008 Ark. LEXIS 551 (Oct. 23, 2008)
 
Arkansas’ sex offender registry scheme calls for a risk assessment to determine what level of community notification is required for an offender.  Burchette wanted to have a hearing (where he could testify, in person) before that determination was made.  The court concluded that because Burchette was interviewed as part of the assessment process, and could submit a written statement to the appellate committee, there was no due process violation.

The decision in Rose should be noted by criminal defense attorneys as plea deals in sex offense cases often revolve around whether the defendant will be required to register as a sex offender. Under the AWA, avoiding registration is increasingly hard to accomplish since courts seem to be taking a non-categorical view of what constitutes a "sex offense" under SORNA.

House Judiciary Committee Recommends Impeaching Judge Kent

ABA Journal reports that a House Judiciary Committee has referred four articles of impeachment against U.S. District Judge Samuel Kent based on allegations of sexual misconduct. Earlier Kent coverage is available here. From the ABA Journal:

A House Judiciary Committee task force has taken a first step that could lead to the impeachment of U.S. District Judge Sam Kent based on accusations of sexual misconduct and false statements about his actions.

Kent has been sentenced to 33 months in prison following his guilty plea for obstruction of justice.

The panel referred four articles of impeachment against the Galveston, Texas, judge to the full House Judiciary Committee, according to the Houston Chronicle and the Galveston County Daily News. The Chronicle describes the vote as “a hurry-up bid” to stop Kent from collecting a judicial paycheck before he reports to prison on June 15.

Kent has submitted his resignation—but it won’t take effect until June 1, 2010, a move designed to allow him to continue to collect his $174,000 annual salary and health benefits in the meantime.

Kent had entered the guilty plea to obstruction as part of a plea bargain in which he admitted to nonconsensual sexual contact with two court employees. The first two articles of impeachment refer to the sexual misconduct and the second two refer to false statements made to federal appeals court investigators.

Carnival Against Sexual Violence 68

I'm behind on a few events around the Web. To start, you can find the Carnival Against Sexual Violence 68 here and this is the legal section:

In Drug rape doesn't happen... oh wait posted at The Feminist Housewife, we get a discussion of the danger that comes from refusing to believe reports of drug-facilitated rape can be accurate.

In That Horrible Taxi Rapist Guy posted at Cruella-blog, we get a discussion about the conviction of cabdriver John Worboys and how this crime can impact those who may never know if they were a victim of this type of rapist.

In Burglary is Not a Non-Violent Crime, #2: A Lesson on DNA and Recidivism posted at Crime Victims Media Report, we get a discussion of what happens when certain crimes are dismissed or under-prosecuted simply because they are deemed non-violent.

In Speechless posted at The Curvature, we get a discussion of the rationalizing statements made by Josef Fritzl when he pleaded guilty to only some of the charges against him.

In Thanks for your input, Rudolf posted at Fuck Politeness, we get a discussion of justifying comments made by the attorney representing Josef Fritzl.

In Rape Not Necessarily a Crime in London - Until Last Year posted at Change Happens, we get a discussion about the improper classification of reports to the police by women who believed they might have been raped while unconscious as no crime.

In It's not "sex," it's rape posted at Feministing, we get a discussion of a case where an 18 year-old man was given only 6 months in jail for raping two women.

In Dismissive attitudes towards rape victims persist in the Met posted at The F-Word Blog, we get a discussion of rape complaints that were repeatedly filed as ‘Crime Related Incidents (CRIs)’ rather than as alleged criminal offences in six Metropolitan boroughs.

In Two wrongs = suspended sentence for rape posted at In a strange land, we get a discussion of a judge who treated an underage girl being "severely drunk" as a mitigating factor when it came to reducing the sentences of two men convicted of having underage sex with her.

In Thoughts on Castration for Sex Offenders posted at The Curvature, we get a discussion about debates raging in Europe over whether is ethical and/or smart to castrate sex offenders as a form of punishment or rehabilitation.

"Restorative Justice and Child Sex Offences: The Theory and the Practice"

Sentencing Law & Policy notes the availability of this interesting new article from the British Journal of Criminology.  You can read the article on SSRN here. From the abstract:

Restorative justice advocates have made a number of claims about the effectiveness of restorative justice in relation to sexual assault crimes, such as its ability to defuse power relations between the parties and heal the harm.  This article examines whether or not restorative justice is one of the ways forward in the difficult area of prosecuting child sex offences by re-analysing some of the data reported in Daly (2006) and comparing restorative justice with other reforms to the sexual assault trial.  It concludes that there is insufficient evidence to support the view that there are inherent benefits in the restorative justice process that provide victims of sexual assault with a superior form of justice.

La. Gov. Scraps Civil Commitment Program

Louisiana Gov. Bobby Jindal, the man who in March proposed chemical castration for sex offenders, has now scrapped a proposed post-prison civil commitment program as too expensive. From the Daily Reveille:

Lauren Mendes, a spokeswoman for the Department of Health and Hospitals, said the proposal was dead for the current legislative session.

"It is a concept that DHH and the governor's office do support and will revisit when it's more financially viable for Louisiana," she said.

Rep. Fred Mills' bill would have provided treatment for certain sex offenders after their release from prison. Mills said the program would require about $12 million over five years — for surveillance equipment, medication and psychiatric evaluations — an expensive price tag in a year of budget cuts.

Jindal is backing several bills this year to crack down on sex offenders, but Mills' was the most ambitious. The others are changes to existing law, such as lengthening certain prison terms for sex crimes.

"We know that Rep. Mills has worked hard on this bill and we support his work to find a more cost-effective way to pursue this legislation, especially as we face multiple-year budget challenges," said Kyle Plotkin, a spokesman for the governor's office.

Mills said initial estimates for the civil commitment program — $26,000 annually per sex offender — turned out to be low compared to a similar program in Texas. Most sex offenders in the program would also require the treatments for life, Mills said, compounding the future costs.

Mills told the House Appropriations Committee that he agreed with the governor's office and DHH that the bill is too costly.

As the California experience with lifetime real-time GPS monitoring has illustrated, the economic woes of the country might slow the rate at which different governments adopt more restrictions on sex offenders.

H/T: Sentencing Law & Policy.

Philly Mob Attacks "Person of Interest"

A mob in Philadelphia attacked a person of interest in connection with the alleged rape of an 11 year old girl after the police union offered a reward of $10,000 for bringing him in. The beating was captured on surveillance video at a local store. The man has not been charged. TalkLeft has more. From the article:

In connection with the alleged rape of an 11 year old girl, the police announced they were looking for a particular person of interest (not a suspect). Then the police union put out a reward of $10k for bringing him in by 5 PM.

Then, about an hour before the deadline, a mob grabbed the guy and beat him into critical condition (caught on surveillance video at a local bodega), such that a patrol unit had to rescue him from the mob. Then the head of the police union complimented the neighborhood for "really stepping up". And the mayor didn't even think to condemn this.

And the neighborhood gathered around the video at the bodega to cheer a replay of the mob beating.

The praise by the police union is more than a little worrisome. 

North Carolina Man Uses Craigslist To Have Wife Raped

People use Craigslist for all sorts of things, but one North Carolina man is accused of arranging the rape of his wife raped through the website. From CNN:

Police responded to the home at about 2:45 a.m. after receiving a 911 call indicating a male armed with a knife appeared in the couple's bedroom and sexually assaulted the man's wife, authorities said.

The man was present at the time of the assault, and two young children were in the home, but were unharmed and unaware of the incident, the police statement said.

"During the investigation, investigators interviewed the victim and her husband," the statement said. "Investigators became suspicious when they noticed there was no sign of forced entry to the home. Investigators also developed information that led them to note specific inconsistencies in the initial statement provided by [the man]."

But on Tuesday, police found that the man "had responded to at least two personal ads on Craigslist.com in an effort to arrange for someone to come to his home and have sex with his wife using some type of scare tactic."

While this fact pattern is extremely disturbing, it is not unprecedented. The story seems like a more modern version of a case that lots of students study in Criminal Law to understand derivative liabity between principals and accessories under the common law: Regina v. Cogan and Leak.

H/T: abyss2hope.

Judge Kent Resigns, Congress Prepares For His Impeachment

Disgraced federal judge Samuel Kent has informed President Obama that he will resign in June 2010.  Judge Kent, who is set to report to prison on June 15, admitted forcing sex acts upon his former secretary and case manager and was sentenced to 33 months in prison.  Sentencing Law & Policy notes that the House Judiciary Committee has placed a lot of interesting material online detailing the judge's misconduct. From the New York Times:

A convicted federal judge told the president Tuesday he would resign from the bench in June 2010, nearly a year after he enters prison for lying about sexually abusing two assistants.

U.S. District Judge Samuel Kent would draw a full salary of $174,000 a year and benefits until the resignation takes effect, said his lawyer, Dick DeGuerin. Kent decided on the delay so his wife, who has a brain tumor and other serious medical problems, could retain health benefits, DeGuerin said.

Kent, 59, is resigning to try and avoid the ''spectacle'' of an impeachment process by Congress, DeGuerin said. The House Judiciary Committee has scheduled a hearing for Wednesday, and both women he victimized are scheduled to speak.

''Judge Kent's own actions continue to prove that he is unworthy of public service,'' said U.S. Rep. Lamar Smith, R-San Antonio, the ranking Republican on the committee. ''This is an outrageous abuse of authority and defies the very principles of justice Judge Kent swore to uphold.''

According to the Administrative Office of the U.S. Courts, there is no procedure to reject a federal judge's resignation notice. The only way a federal judge can be removed is through impeachment.

Meanwhile, Congress is preparing to move forward with impeachment proceedings. Above the Law and Jonathan Turley have more.

Michigan Official Caught Having Sex on Public Sidewalk

According to police, a Michigan official was caught having sex with a woman (who was not his wife) on a public sidewalk. His defense? he claims he was urinating and not having sex. He has been sentenced to two years probation. From WLNS:

A married Oakland County official who police say was caught having sex with another woman on a sidewalk in the Detroit suburb of Novi has been sentenced to two years' probation.

District Judge Dennis Powers on Wednesday also ordered 56-year-old Kim Capello to perform 50 hours of community service and undergo intensive outpatient substance-abuse counseling.

Capello pleaded guilty to indecent exposure. The misdemeanor charge may be dismissed if he successfully completes his sentence.

Police say officers on April 18 found an unclothed man and woman apparently having sex against a wall.

The least surprising detail of the story was that "[t]he couple said they'd been drinking."

H/T: Sentencing Law & Policy.

"Ruling lets sex offenders volunteer in churches"

A federal judge in Georgia granted an injunction to a state law which would prohibit sex offenders from volunteering at church. You can read the order here. The Atlanta Journal-Constitution has more. From the Gainesville Times:

A federal judge this week granted a preliminary injunction that overturns a provision of Georgia’s sex offender law. The provision imposed by state lawmakers prohibited registered sex offenders from volunteering in churches.

The Southern Center for Human Rights challenged the constitutionality of the restriction, saying it criminalized protected religious activity. The center has a pending lawsuit against Gov. Sonny Perdue which also challenges a restriction that would prevent sex offenders from living within 1,000 feet of a school bus stop. That restriction is also on hold, pending the outcome of the court case.

U.S. District Judge Clarence Cooper wrote in a ruling that church activity was recognized by state correction officials as a benefit for convicted criminals that helps reduce recidivism.

"Allowing plaintiffs to continue to participate in their faith communities will further public safety by providing support, stability and a grounded sense of right and wrong," Cooper wrote.

Cooper found the law banning sex offenders from volunteering in churches to be unconstitutionally vague, according to Sarah Geraghty, an attorney with the Southern Center of Human Rights.

"It was the only way to rule consistent with the Constitution," Geraghty said. " Certain people on the registry should not work with children in a church setting or elsewhere, but criminalizing the practice of religion does more harm than good, and that’s what this statute did," Geraghty said.

Geraghty said the law would make participating in Bible study a crime for sex offenders punishable by 10 to 30 years in prison.

The attorney said the ruling marks the sixth time that a provision of Georgia’s sex offender law was overturned, either by injunction or other means.

H/T: Sentencing Law & Policy.

NV Law Would Restrict Offenders From Living Within 1,000 Feet of Victims

Nevada lawmakers are considering a bill that would restrict sex offenders from living within 1,000 of their victims. From San Jose Mercury News:

Nevada lawmakers debated a bill Tuesday that would provide additional protections to victims of sex offenders, by prohibiting the offenders from moving within 1,000 feet of the victims.

Assemblyman Lynn Stewart, R-Henderson, who introduced AB325, told the Assembly Corrections, Parole and Probation Committee that as the law is written now, offenders could move across the street or next door to their victims.

Committee members also were told by a young mother, who was raped by her babysitter's boyfriend when she was four years old, that her attacker years later moved next door to her grandmother, where the victim used to live.

"I'm living this whole thing all over again when I go to my grandmother's house," she said. "I no longer want to go over there. I have to face him looking at me, laughing at me."

Lawmakers were told that in some instances, sex offenders have a difficult time finding a place to live because entire towns are off-limits. One offender moved to a rural area to comply with the rules, but when housing developments sprung up around him, he had to move away, Stewart said.

Missouri Senate Votes to Apply Registry Law Retroactively

The Missouri Senate has voted to apply its sex offender registry law retroactively. From The Columbia Daily Tribune:

The [Missouri] Supreme Court has ruled that the registry law does not apply to those people because the law took effect in 1995 and the state Constitution prohibits laws from being applied retrospectively.

Senators gave initial approval to a proposed constitutional change that would carve out an exemption for the registry law. The change would also retrospectively apply a prohibition on sex offenders living near schools and a requirement of felons to submit DNA samples.

The proposal still needs another vote before moving to the House. If passed by that chamber, it would appear on the ballot.

New Study About Online Child Predators

A new study from the University of New Hampshire's Crimes Against Children Research Center (available here) reports a tremendous increase in online child predator arrests from sting operations, despite an overall decline in sex crimes against minors. From Ars Technica:

Even as sex crimes against minors decline, a new report from the University of New Hampshire's Crimes Against Children Research Center released this week found an massive increase in the number of online child predators arrested in undercover sting operations. Despite this, the survey rejects the idea that the Internet is an especially perilous place for minors, and finds that while the nature of online sex crimes against minors changed little between 2000 and 2006, the profile of the offenders has been shifting—and both differ markedly from the popular conception.

Extrapolating from a nationwide survey of law enforcement agencies, the authors estimate that 2006 saw 615 arrests of online child predators in cases involving actual minors as victims (up 21 percent from 2000), and 3,100 arrests in cases where the "child" was actually an undercover law enforcement officer (a whopping 381 percent increase over 2000). During the same time period, the proportion of minors aged 12-17 on the Internet rose from 73 to 93 percent. Those numbers, the authors believe, don't represent an actual increase in the national pervert population, but rather reflect the broader trend over the same period of interactions moving online, combined with more vigorous police sting efforts.

In the vast majority of cases, it's worth noting, the child victims were teens who knowingly went to meet their older interlocutors intending to have sex, which may explain why stings so vastly outnumber actual-victim arrests. Though the victims are too young to legally consent to sex with an adult, relatively few cases involve physical coercion, which makes it likely that many—indeed, quite possibly a majority—don't come to the attention of law enforcement.

Social networking sites, the subject of much angst over online predators, were more or less unknown in 2000, but by 2006 accounted for 33 percent of the initial contacts between (actual) minors and adults in search of illicit sex. While online chat was still the most common medium for indecent proposals, it saw a corresponding drop in popularity—from 80 percent to 40 percent of initial contacts.

Alabama Judge Accused of Sexually Abusing, Paddling Inmates

As I try to catch up on the stories that occurred during my blogging break, some of the entries might be a little dated (starting with this one).

A former Alabama judge has been arrested and accused of "sexually abusing and paddling inmates and a defendant who appeared multiple times in his own courtroom." You can read the indictment here. From the ABA Journal:

The charges against former Mobile County Circuit Judge Herman Thomas include kidnapping, sex abuse, extortion and multiple ethics violations. However, a lawyer for the ex-judge says Thomas himself is being victimized by a racist justice system, CNN reports.

"Did you ever think of the fact that this is the only black circuit judge we've ever had in Mobile County and that the right-wing Republicans have gotten rid of him?" said attorney Robert Clark who described the case as a "high-tech lynching" at a Friday news conference. "This is racism at its very finest."

Thomas' law license was suspended yesterday, reports the Press-Register, which has published multiple articles on the case.

If convicted on the most serious charge, kidnapping, CNN reports, Thomas would face a potential prison term of between 10 and 99 years, according to Mobile County District Attorney John Tyson Jr.

Tyson describes the racism allegations as "absolute nonsense," reports the Press Register in an article Friday on the charges against Thomas. Both the judge and the alleged victims are African-American.

Both CNN and the Press-Register say Thomas is accused of checking inmates out of jail in order to force them into sexual activity, at least some of which allegedly occurred in a room near his courthouse chambers, the newspaper reports.

Iowa Gov. Signs New Sex Offender Residency Restriction

Iowa Gov. Chet Culver has signed new legislation prohibiting sex offenders from living within 2,000 feet from places where children gather. The new restriction is limited to certain sex offenders based of the severity of their crime. From the Chicago Tribune:

Flanked by police and prosecutors, Gov. Chet Culver has signed into law an overhaul of Iowa's sex offender laws that prohibits released offenders from setting foot on places where children gather.

The measure signed Thursday by Culver retains a ban on sex offenders living within 2,000 feet of places like schools, libraries and day care centers, but it limits that restriction to those who have committed the most severe crimes against children.

In addition, the measure puts in place a ban on offenders entering those facilities without permission, and it establishes a 300-foot "no loiter" zone around such sites. The Corrections Department will have the authority to decide which offenders can be required to wear electronic monitoring devices letting officials track their movements.

The measure was a carefully crafted compromise that was bargained throughout this year's legislative session.

"There's no place in Iowa for those who abuse our children," said Culver. "This has been in the works for years."