Sex Crimes

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.

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.

KY Supreme Court Strikes Down Retroactive Application of Residency Restrictions

The Kentucky Supreme Court in Kentucky v. Baker, (opinion available here) has found the retroactive application of the sex offender residency restriction to be unconstitutional. From the Lexington Herald-Leader:

A state law limiting where registered sex offenders may live cannot apply to those who committed offenses before July 12, 2006, the day the law was implemented, the Kentucky Supreme Court ruled Thursday.

The law prohibits sex offenders from living within 1,000 feet of playgrounds, day-care centers and schools, and the law changed how the distance is measured.

The court, in a 5-2 decision, said the law is punitive and violates the ex post facto clause, or retroactive law, in the U.S. Constitution, which prohibits states from passing laws that increase punishment for old crimes. The restrictions will still apply to anyone convicted after July 12, 2006.

As of Thursday morning, there were 280 sex offenders in Fayette County, and six were not in compliance, according to the Fayette County Sheriff's Office. Sheriff Kathy Witt said some addresses are visited every day. Those who are incompliant are usually not living at the addresses listed for the individuals.

H/T: Sentencing Law & Policy.

SCOTUS Stays out of Catholic Sex Abuse Disclosure Case (for now)

On Monday, the U.S. Supreme Court denied a request by the Roman Catholic Diocese of Bridgeport to delay the court-ordered release of thousands of legal documents from priest sex-abuse lawsuits. The New York Times has more. From the WSJ.com Law Blog:

In a one-line opinion, the court on Monday rejected a request by the Roman Catholic Diocese of Bridgeport to delay the release of thousands of legal documents from lawsuits filed against priests accused of child sex abuse.

The diocese still has another request before the court, asking the justices to hear arguments that release of the records would violate the First Amendment rights accorded to religious groups. But, writes the NYT, such a hearing appears unlikely after the court’s ruling on Monday.

A spokesman for the Bridgeport Diocese said in a statement: “We are disappointed that the U.S. Supreme Court decided not to extend the stay. For more than a decade, the Catholic Church in Bridgeport has addressed the issue of clergy sexual abuse compassionately and comprehensively. For now, however, the serious threat to the First Amendment rights of all churches and the rightful privacy of all litigants remain in jeopardy because of the decision of the Connecticut Supreme Court. This, indeed, is regrettable.”

The NYT story explains that the records were obtained by plaintiffs in 23 lawsuits filed against the diocese and seven of its priests in the 1990s. They were sealed in 2001 after the diocese reached settlements with the plaintiffs, former altar boys and youth group members who said they were molested by priests in the 1960s, ’70s and early ’80s.

In 2002, The NYT filed suit, seeking the release of the records. In June, the Connecticut Supreme Court upheld lower court rulings, ordering the documents released.

SCOTUS Grants Cert. In Carr v. United States

This week, the U.S. Supreme Court granted certiorari in Carr v. United States (previously blogged about here and here), which raises several constitutional challenges to the Sex Offender Registration and Notification Act (SORNA). You may view the full order list here. From SCOTUSblog:

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

• Opinion below (7^th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Kansas Court Assuages Justice Scalia's Fears in his Lawrence Parade of Horribles

In 2003, Justice Scalia wrote a dissent in Lawrence v. Texas where he predicted that the decision would be used to strike down state laws against (amongst other things) bestiality. Recently, a helpful reader directed us to a new Kansas Appellate decision assuaging Scalia's fears by upholding a state law criminalizing bestiality in State v. Coman, 214 P.3d 1198 (Kan. App. 2009). In Coman, the defendant appealed his conviction for having sex with his girlfriend's Rottweiler, arguing that (1) the criminal sodomy statute is unconstitutional and (2) he should not be required to register as a sex offender. The opinion is available here.  New York Law School Professor Arthur S. Leonard has more coverage of this story over at his blog. From the opinion:

Joshua B. Coman appeals his conviction for criminal sodomy under K.S.A. 21-3505(a)(1) and the district court's order that he register as a sex offender, arguing that his conviction does not require registration under the Kansas Offender Registration Act (KORA) and that K.S.A. 21-3505(a)(1) is unconstitutional in criminalizing sex between a human and an animal. We reject Coman's arguments and affirm his conviction and registration order.

Upon entering her garage to access the freezer, the complaining witness reported seeing her ex-boyfriend Coman lying on the floor of the garage with his pants and underwear down around his ankles, his shirt pulled up, and her female Rottweiler lying beside him. When she turned on the light, Coman moved his hips away from the dog and quickly pulled his pants up. Coman then said he loved the dog, Yodi, and he told the witness, “I don't expect you to understand, but I had to see her one more time.”

When police arrived, a pat-down revealed Coman's penis remained erect and he had a bottle of personal lubricant in his left front pocket. Coman denied having intercourse with the dog, but he admitted that he tongue-kissed her and digitally penetrated her. A search of Coman's cell phone revealed several photos of dogs and one video clip of a man engaging in sexual intercourse with a canine.

Coman was charged with one count of criminal sodomy under K.S.A. 21-3505(a)(1), with sexual motivation requiring registration under K.S.A. 22-4902(c)(14). He pled guilty to this offense and was sentenced to 6 months in the county jail, to run consecutive to a Reno County sentence for similar conduct. He was also ordered to receive psychiatric treatment and to register as a sex offender under KORA.

Of course, a cynic might think that Justice Scalia never actually feared that bestiality laws were in jeopardy after the opinion in Lawrence was issued. And others of us are still wondering what laws against masturbation to which Justice Scalia was referring. 

Is SORNA Going to the Supreme Court?

SCOTUSblog's recent Petitions to Watch post, which lists cases that might be heard by the U.S. Supreme Court, includes a case raising constitutional issues with SORNA. The case, which we previously blogged about, is from the Seventh Circuit with an opinion by Judge Posner. You may view the opinion here and the petition for writ of certiorari here. From the "reasons for granting the petition" section:

The Court should settle whether Congress meant SORNA to apply retroactively to persons whose underlying offense and interstate travel both predated enactment of the statute. The Seventh Circuit’s holding on this point conflicts with decisions of other courts of appeals (as the court below acknowledged) and of numerous district courts. And that holding is wrong: It departs from the plain statutory text; misstates the congressional purpose; and disregards the presumptions against retroactivity, and in favor of lenity and the avoidance of constitutional questions, that have been consistently applied by this Court. Review of the decision below accordingly is warranted.

Because the Seventh Circuit decided the question of statutory interpretation as it did, it was required to resolve the important constitutional question whether retroactive application of SORNA’s criminal penalties violates the Ex Post Fact Clause. Its decision on that question also warrants review. The district courts are deeply divided on the question--although the government has managed to suppress creation of a conflict in the courts of appeals by failing to appeal in those cases where it has been unsuccessful. Particularly in light of substantial flaws in the Seventh Circuit’s constitutional analysis, this Court’s guidance on the issue is essential.

While I do think that the USSC should chime in as to SORNA's constitutionality, I'm not sure the Justices will be interested in hearing these particular issues. The Ex Post Facto issue related to travel before the enactment of the AWA will disappear over time and only affects a small number of defendants. Still, the petition bears watching.

Ohio Sex Battery Not A 'Crime of Violence'?

Professor Jonathan Adler over at the Volokh Conspiracy has a post discussing the Sixth Circuit's decision in United States v. Wynn, where a divided panel found that a defendant's guilty plea to “sexual battery” under Ohio law was a not “crime of violence” for career offender purposes. You may read the Sixth Circuit's decision here. From a post entitled Is “Sexual Battery” A “Crime of Violence”?:

The question would seem to answer itself. Isn't "sexual battery," almost by definition, a violent act? That was my initial reaction when I read the opening of United States v. Wynn, a decision handed down by the U.S. Court of Appeals for the Sixth Circuit. Yet as it turns out, the question is not so simple, at least not given the relevant statutes and case law, and it divided the Sixth Circuit panel.

Antonio Wynn pleaded guilty to possession of cocaine with intent to distribute. Wynn had previously been convicted of assaulting a peace officer and pleaded guilty to “sexual battery” under Ohio Rev. Code § 2907.03. The district court concluded both constituted “crimes of violence for purposes of the federal sentencing guidelines, resulting in a longer sentence, but on appeal two judges on the Sixth Circuit were not so sure.

The reason for the uncertainty was that the relevant Ohio statute defines “sexual battery” to include actions that do not necessarily involve a threat or use of force as an element of the offense. For this reason, Judge Moore (who wrote for the majority) and Judge Gibbons were not sure that Wynn’s guilty plea necessarily constituted a prior conviction of a “crime of violence” because the plea had not specified the subsection of the statute that covered his alleged offense. Given the expansiveness of the relevant Ohio statute, the fact of conviction and the statutory definition of the offense alone were not enough to establish what Wynn had been convicted of an action with the requisite level of “violent and aggressive” conduct under United States v. Begay. Further, the majority concluded, the district court could not rely upon the factual recitation of Wynn’s offense in the presentence investigation report – which indicated that Wynn’s conduct had been violent.

Judge Friedman, sitting by designation from the Federal Circuit, dissented, concluding it was proper for the district court to rely upon the factual recitation of Wynn’s prior offense. Wynn had failed to challenge any of the factual allegations contained in the presentence investigation report and, Judge Friedman concluded, the relevant facts “leave no doubt that the generic state crime to which he pleaded guilty was categorically a crime of violence.” Further, Judge Friedman argued, the district court could “take judicial notice of publicly available Ohio judicial records that show unequivocally that the state sexual battery offense of which Wynn was convicted was a ‘crime of violence.’”

VA Supreme Court Lets School Boards Ban Sex Offender From School Property

The Virginia Supreme Court has ruled that school districts have final say in whether sex offenders are allowed on public school property. You may read the decision here. From the Charlottesville Daily Progress:

The opinion, which was written by Justice Barbara Milano Keenan, reverses a decision from the Charlottesville Circuit Court allowing a sex offender to come onto Charlottesville public school property under certain conditions.

Stacy Haney, a Richmond-based lawyer who represents the city’s School Board, said school supervision is vested in local school boards under the state’s Constitution. Haney said the Supreme Court’s opinion would be far-reaching.

Under state code, sexually violent offenders are prohibited from entering public or private school or daycare center property unless they attend the school, vote there or have a court order.
Doe was released from incarceration in 2000 and completed his supervised probation uneventfully. He filed a petition seeking permission to go onto school grounds to pick up his stepson and attend activities involving the child. Circuit Judge Edward L. Hogshire granted the request over the School Board’s objections, Haney said, imposing conditions to limit Doe’s on-campus time and requiring him to give the principal notice before coming to school activities.

“As long as Doe did what the order said, he could come onto property and the School Board couldn’t prohibit it,” Haney said. “What this opinion says is that while the trial court can enter an order lifting the statutory ban on sex offenders going onto the school’s property, the School Board retains the ability to say who can and can’t come onto school property.”

H/T: Sentencing Law & Policy.

Seventh Circuit Skeptical of Indiana Law Restricting Adult Businesses

The Seventh Circuit, via Chief Judge Easterbrook, has issued an interesting opinion in Annex Books v. City of Indianapolis, a challenge to an Indianapolis ordinance that restricts when "adult entertainment business" may operate. The Appellate Court ruled that the city needs some compelling purpose to curtail the adult business. You may read the opinion here. You may also listen to the oral argument before the three judge panel, held five years ago today, here. From the Indianapolis Star:

Adult businesses selling books, movies and sex paraphernalia in Indianapolis will be able to open on Sundays -- and 24 hours a day -- unless the city can prove there is some compelling reason why it is singling out that particular day and particular hours.

A federal appeals court ruling issued Thursday casts serious doubts on the future of key parts of a 2003 city ordinance that more strictly regulates "adult entertainment businesses" in Indianapolis.
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Unless the city can prevail on appeal or in a new evidentiary hearing, adult businesses not only could operate anytime, they also could provide booths or stalls with doors, where patrons can privately view movies on the premises.

"It is a pretty significant defeat for the city," said Richard Kammen, an attorney representing the four adult businesses that sued the city.