Sex Crimes

TX Law Bypasses Statute of Limitations For Old Sex Assualt Cases

The Wall Street Journal has an article about a new Texas law which allows prosecutors and parole boards to link DNA evidence to suspects in sex assault cases, despite the fact that the statute of limitations has expired and the suspect was never tried. From the article:

Supporters of the law, the first of its kind in the country, hope it means that suspects in those old cases will face more-vigorous prosecutions and sterner parole boards should they find themselves in trouble with the law again. Opponents say the law could rob suspects of due-process rights.

The new Texas law was conceived and championed by a small group of rape survivors who had joined a Dallas Police Department support group launched as part of the city's cold-case project. Reopening old cases also can reopen emotional wounds, and though the women were grateful the police were trying to identify their attackers, for many that wasn't enough.

The law has its critics. The American Civil Liberties Union is concerned that it could punish suspects without the benefit of due process. After objections from the ACLU, the proposed law was revised to allow only law-enforcement agencies to access DNA information linking someone to an old sexual assault. The law also allows suspects to petition for removal of the information from their files if they believe it has been wrongly included.

The ACLU still has concerns about how the information could be used. "This is something we will definitely be monitoring to make sure there aren't negative unintended consequences," said Rebecca Bernhardt, policy director of the Texas ACLU.

Georgia Sex Offender Challenges Online Registration Requirement

Sex offender banishment seems to be catching up with the information age. A Georgia sex offender has brought a constitutional challenge in federal court against a new state law that forces sex offenders to register their passwords, screen names, and e-mail addresses with law enforcement officials. Last year, a federal judge in Utah struck down a similar requirement. Recently, that same judge vacated her decision after the Utah legislature amended the statute to address the judge's concerns. From the Atlanta Journal-Constitution:

A federal judge on Tuesday began weighing arguments for and against a new Georgia law that requires sex offenders to hand over Internet passwords, screen names and e-mail addresses to law enforcement officials in the name of public safety.

Attorneys for convicted sex offender Terrence White urged U.S. District Judge Bill Duffey to block the law because it infringes on White's constitutional rights.

State attorneys countered that the 2009 law gives authorities a much-needed tool to make sure registered sex offenders don't strike again.

Duffey did not rule immediately, but he said the case centers on a "fundamental issue in our culture."

"Children do have to be protected, but that also has to be balanced with constitutional protections," he said. "And I never take those lightly."

The case hinges on a state statute that took effect in January, bringing Georgia in line with a 2006 federal law requiring authorities to track Internet addresses of sex offenders.

It also made Georgia one of the first states to take the extra step of forcing its 16,000 offenders to turn in their passwords as well.

Girl Held Captive Since 1991, Had Two Kids with Captor

CNN has a tragic story of a young girl who was kidnapped and had two children with her alleged kidnapper in a secret backyard shed. The accused man is also a registered sex offender. From CNN:

The 18-year mystery of what happened to Jaycee Dugard ended this week when a sex offender admitted to corrections authorities that he abducted her.

Jaycee was abducted from South Lake Tahoe in June 1991, said Fred Kollar, undersheriff of El Dorado County. The case began to unfold when the sex offender, Phillip Garrido, 58, was stopped and questioned by campus police at the University of California at Berkeley.

With him were two children and a woman identified only as Alissa, who DNA tests later revealed was Dugard, now 29. The children were later determined to be Garrido's and Dugard's, Kollar said.

During questioning by a parole officer, Garrido admitted to having abducted Dugard and said the two children were his, said Scott Kernan, undersecretary for the California Department of Corrections and Rehabilitation. VideoWatch police talk about why they arrested Garrido »

Garrido and and his wife, Nancy, were taken into custody and held at the jail in Concord, California. An officer at the jail said the two had been booked and were ordered held on $1 million bail. They are now being held in El Dorado County, according to public records.

Knowledge as Power by Wayne Logan

Wayne Logan, who regular readers know has authored many of the most important articles about sex offender laws, has a new book coming out titled "Knowledge as Power: Criminal Registration and Community Notification Laws in America." This is from the Stanford University Press description:

Societies have long sought security by identifying potentially dangerous individuals in their midst. America is surely no exception. Knowledge as Power traces the evolution of a modern technique that has come to enjoy nationwide popularity—criminal registration laws. Registration, which originated in the 1930s as a means of monitoring gangsters, went largely unused for decades before experiencing a dramatic resurgence in the 1990s. Since then it has been complemented by community notification laws which, like the "Wanted" posters of the Frontier West, publicly disclose registrants' identifying information, involving entire communities in the criminal monitoring process. 

Knowledge as Power provides the first in-depth history and analysis of criminal registration and community notification laws, examining the potent forces driving their rapid nationwide proliferation in the 1990s through today, as well as exploring how the laws have affected the nation's law, society, and governance. In doing so, the book provides compelling insights into the manifold ways in which registration and notification reflect and influence life in modern America.

I'm eagerly awaiting my copy and I hope to post more about it once I have had a chance to read it.

9th Circuit Rejects Challenge to SORNA

In U.S. v. George, the 9th Circuit rejected the constitutional challenges to a SORNA prosecution. You can download the opinion here. The Commerce Clause analysis by the court was particularly disappointing:

SORNA was enacted to keep track of sex offenders through interstate movement. Such offenders are required to “register, and keep registration current, in each jurisdiction” where the offender lives, works, or goes to school. 42 U.S.C. § 16913(a). As stated by the Eighth Circuit, “[t]his language indicates Congress wanted registration to track the movement of sex offenders through different jurisdictions.” United States v. Howell, 552 F.3d 709, 716 (8th Cir. 2009). “Under § 2250, Congress limited the enforcement of the registration requirement to only those sex offenders who were either convicted of a federal sex offense or who move in interstate commerce.” Id. (citing 18 U.S.C. § 2250(a)(2)). The requirements of § 16913 are reasonably aimed at “regulating persons or things in interstate commerce and the use of the channels of interstate commerce.” Id. at 717 (quoting United States v. May, 535 F.3d 912, 921 (8th Cir. 2008)) (quotation marks omitted). Congress had the power under its broad commerce clause authority to enact the SORNA.

Other than a minor issue of whether George had pleaded guilty to (A) or (B), the above excerpt is the entirety of the court's reasoning on the Commerce Clause issue. It relies entirely on the 8th Circuit reasoning with no discussion of the counterarguments. Since I read the briefs in the case (which were quite good), the court really did a disservice to the defense in not even addressing the finer distinctions in the Commerce Clause analysis. It looks like a Circuit split might never develop in regards to SORNA. Certainly if the Court upholds the civil commitment portions of the AWA in Comstock, then no Commerce Clause challenge to SORNA will likely ever succeed.

Sentencing Law & Policy's coverage of the opinion is here.

Economist Article & Podcast About Sex Offender Laws

The Economist, which recently ran a great article, America's Unjust Sex Laws, now has an interesting podcast interview with Sarah Geraghty, a human rights lawyer in Georgia. In the podcast, Geraghty argues that America's sex-offender laws punish too many too harshly. Geraghty has been at the forefront of lots of the important sex offender litigation in Georgia and she is definitely worth listening to on the subject.

Welcome (Back)!

To all the JMLS students who began classes today, welcome or welcome back (as the case may be). If you happen to be in my Criminal Law class this semester, feel free to read along. Reading about the cases and issues here will certainly help you in your Criminal Law studies. If you are in my Sex Crimes class, then you should definitely read along as you will be posting here at some point during the semester.

Indiana Supreme Court Declines To Hear Ordinance Challenge

The Chicago Tribune is reporting that the Indiana Supreme Court has declined to review an appellate court decision which upheld an ordinance banning registered sex offenders from parks in the suburb of Plainfield. From the Tribune:

The court declined to hear the case by a 4-1 vote, letting stand without comment a state Court of Appeals ruling upholding the 2002 ordinance.

The American Civil Liberties Union of Indiana had sought a ruling to clarify the court's stand on such local ordinances. The court has generally declined to strike down laws restricting the activities of sex offenders but has found constitutional problems with enforcement in certain cases.

Plainfield town attorney Mel Daniel said officials were pleased with the decision released on Thursday.

ACLU attorney Ken Falk said the group might now drop a lawsuit over a similar ordinance in Greenwood. 

Death Penalty for Repeat Sex Offenders?

After the Supreme Court held in Kennedy v. Louisiana that "a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional," you may have thought that this debate would be over. Recently however, an Oklahoma lawmaker says he wants to make the death penalty an option for repeat sex offenders.

[Rep. Rex Duncan's] legislation would set the penalty for a first-time sex offender at life without parole. Prosecutors would be able to seek the death penalty for a second conviction.

A similar bill passed in Oklahoma in 2006, but was shot down by the Supreme Court a year later. Duncan says his bill would be much more specific than that bill and thinks it would be upheld by the Supreme Court.

Sex abuse expert Sharon Doty agrees, but not when it comes to the death penalty. She believes life without parole would be a harsher punishment.

"They think their behavior is normal and appropriate," Doty says. "So, when that's what you're impacting something like the death penalty, I don't think is really going to be a deterrent."

She says the real answer is prevention -- educating children and adults to know what to look for.

"There is no cure for that," Doty says. "The only cure we have for this is prevention. So, we have to prevent either before they act or when they're convicted when they need to put them away and leave them there."

H/T: Sentencing Law & Policy.

Legal Educator Blog Census

My colleague, Colin Miller, at EvidenceProf, undertook the enormous task of compiling a list of all blogs authored by legal educators. His census is divided into two parts that you can find here and here.