Sex Crimes

Another "Sex Offender" in Virginia

Radley Balko at the Agitator has a story from my home state of Virginia about an unusual sex offender. This was Balko's colorful take on the incident and conviction:

Erick Williamson, the Springfield, Virginia man arrested earlier this year for being naked in his own home was convicted of indecent exposure on Friday. The judge sentenced him to 180 days in jail, but suspended the sentence.

I’m still not sure how the conviction holds up, given that the two alleged witnesses had to actually look into Williamson’s house to see Little Erick and the Williamson Twins. So you now have to make sure no one can see into your home in order to be naked in it? How vigilant must you be?

While Balko doesn't give a lot of credit to the stories of the witnesses, under any version of the facts, this hardly seems like a person that should be subject to the federal and state restrictions on sex offenders. However, while the judge in the case couldn't have excused the defendant from registration obligations, he exhibited the sex offender hysteria that would have made it unlikely that he would have done so if given the option:

Williamson denied standing naked in his doorway or front window and said he had no intent to expose himself to anyone. But [Judge] O’Flaherty wasn’t buying it and likened Williamson to bank robber John Dillinger, who also “thought he was doing nothing wrong when he walked into banks and shot them up.”

That's right - the defendant was like John Dillinger.

Amicus Curiae Brief in Carr v. United States

Together, Doug Berman, Wayne Logan, and I authored an amicus brief on behalf of law professors in the case of Carr v. United States. Wherease the petitioner's brief primarily focused on the statutory interpretation issues in the case, our brief was solely concerned with the Ex Post Facto Clause claim. You can find the brief here.

"Jessica’s Law too vague to enforce?"

Thanks to CrimProf Blog, we see this interesting article from the San Diego Union-Tribune pointing out various problems with Jessica's Law implementation. From the article:

Jessica’s Law, which was approved by California voters in November 2006, toughened sanctions against sex offenders and bars them from living within 2,000 feet of a school or park. In San Diego County, 1,266 of 1,731 offenders whose addresses are made public by the state live in those restricted zones, according to an analysis by the Watchdog Institute, a nonprofit investigative journalism unit based at San Diego State University.

That finding surprises virtually no one in law enforcement. They say the law is vague and has holes, making it nearly impossible to enforce.

For example, the law doesn’t specify whether residence restrictions apply to all convicted sex offenders or only to those who were convicted or paroled after it passed. There are no penalties for violating the restrictions.

Four registered sex offenders, two of whom live in San Diego County, have challenged the residency restrictions, and their case is before the California Supreme Court.

The four men were paroled after Jessica’s Law passed, but their most recent crimes were not sex offenses. Parole officers told them they had to move from restricted areas near schools or parks or be sent back to prison.

I'm not sure I understand the use of the word "vague" here. It certainly isn't in the legal sense. The lack of specific language for retroactivity has been the norm with sex offender laws and that is just a matter of statutory interpretation and constitutional analysis. However, I think the other criticisms of the law in the article are worth noting.

Oral Argument Dates Approaching In Carr, Comstock

SCOTUSblog reports that the Supreme Court has released its schedule for oral arguments this session. You may read the schedule here. Two important sex crimes cases are also coming up on the Court's calendar. United States v. Comstock will be heard on Tuesday, January 12, 2010. Meanwhile, Carr v. United States will be heard on Wednesday, February 24, 2010.

Polanski Wins Bail Request

Oscar-winning director Roman Polanski has been granted bail while he awaits a ruling on his extradition request by U.S. authorities for rape charges in California. Above the Law and WSJ.com Law Blog have more. From the Wall Street Journal:

A Swiss court agreed Wednesday to release Roman Polanksi on bail of 4.5 million Swiss francs ($4.5 million), persuaded that the large sum was enough to keep the Oscar-winning film director from fleeing the country while he awaits a ruling on whether he would be extradited to the U.S.

In granting Mr. Polanski's request, the Swiss Federal Criminal Court reversed a decision last month by the Swiss Justice Ministry to reject his offer to put up his ski chalet in the tony resort of Gstaad as a guarantee. At the time, the ministry said the lack of a cash guarantee might not keep Mr. Polanski from attempting to flee the country. The ministry now has 10 days to appeal the court's decision, but a spokesman said it would make a decision much sooner.

Swiss Justice Minister Eveline Widmer-Schlumpf said she saw "no reason" to appeal Mr. Polanski's release, the Associated Press and Swiss TV reported. The ministry had no further comment on the court's ruling. Mr. Polanski's lawyer in France had no immediate comment.

Mr. Polanski has been in a Swiss jail since police arrested him Sept. 25 upon his arrival in Zurich, where he was slated to receive an award at a film festival. He was arrested on a U.S. warrant issued in 1978 when he fled California after pleading guilty to having had sex with an underage girl. In late October, U.S. authorities filed a formal request for him to be extradited. The Swiss Justice Ministry is still processing that request, but is expected to make its decision within about a month, according a person familiar with the situation.

Nursing Homes And Sex Offenders

The Chicago Tribune has an interesting article about Illinois sex offenders in nursing homes. According to the article, most sex offenders who live in nursing homes are not listed on the registry. From the article:

Under Illinois law, families researching nursing homes are directed to search a state police Web site for critical information about sex offenders living in the facilities.

But only 59 of the 192 sex offenders in Illinois nursing homes -- or less than one in three -- were listed on that online state registry, a Tribune investigation found.

The shortfall is especially acute in Chicago, where fewer than one in five sex offenders in nursing homes were posted on the state police Web site, the Tribune found.

Part of the problem is a gap in the law: Although some sex offenders can remain dangerous for decades if unmonitored and untreated, many are no longer required to register with police if their convictions or final parole dates occurred more than 10 years ago.

In addition, state investigators have documented more than a dozen instances since 2007 in which nursing homes failed to notify local law enforcement that they housed a convicted sex offender, as required by law, or failed to implement care plans to monitor and treat sex offenders inside the facilities, the Tribune found.

In some cases those offenders allegedly went on to molest vulnerable residents and even staff, according to state public health reports.

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.

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.