Sex Crimes

Will the Kennedy Court Take Notice?

One of the trickier parts of the "evolving standards of decency" analysis in Kennedy v. Louisiana concerns what should be made of those states that have considered, but not adopted capital child rape statutes. If Orin Kerr is right that Missouri's hypothetical adoption of such a statute could inform court opinion, what should the court make of two states, Alabama and Missouri, failing to pass such statutes. First, here is the story from Alabama (via Capital Defense Weekly):

The Alabama Legislature finished its annual session at midnight on May 19, 2008. Among the bills dying at that hour was H.B. 456, sponsored by Rep. Jeremy Oden (R.-Vinemont). The bill would have made repeat offenses of first degree rape, sodomy, or sexual abuse a capital crime where the victim was under the age of 12. The bill was notable for knotty technical deficiencies (e.g., rape for pecuniary gain as an aggravator; victim under 12 as both the capital-eligible circumstance and an aggravator; no amendment of the weighing and other procedural sections), and was referred to the Judiciary Committee, from whence it never emerged.

And Capital Defense Weekly also has the story of the legislative failure in Missouri. The Missouri outcome presents an extra problem because the Justices seemed to take for granted that the signatories of the amicus brief by states would be inclined to pass laws similar to Louisiana. As a result, those amicus states would be added to the total of states that already have such laws. I was concerned because a state's  governor and some legislators do not have the power to pass such legislation alone. Also, there can be political motives for supporting such laws without actually passing them. What will the Court do with this new information? Will it figure in the analysis at all?

Around the Web

The New York Times reports that the judge in the Texas polygamous sect case has ordered all 416 children seized by authorities to be "held in protective custody by the state pending further investigation into whether they had been abused, or were at risk of abuse in their community."  The judge has also DNA testing for all the children.

Sentencing Law and Policy reports that a number of states have received federal grants this week "to assist with sex offender tracking."  The States include: Alabama, Iowa, and North Dakota.

Ars Technica reports that the Department of Justice has asked the Senate to increase its budget to monitor for child pornography.  The Department is seeking to monitor "not only P2P networks, but web sites and chat rooms." 

The AP is reporting that a New York DJ has been "accused of sharing an instructional video showing how to sexually abuse children."  Police say one of the videos shows "a 4-year-old girl having sex with a man and the other gives advice and examples on how to sexually abuse minors."  The man has been charged with possessing and promoting child pornography.  If convicted, he faces up to seven years in prison.

How Appealing reports that the Ninth Circuit has upheld the search of a man's laptop without reasonable suspicion by customs officers and LAX airport.  Prosecutor's allege that the man's laptop contained child pornography.  You may read the opinion here.

Around the Web

An Alabama sex offender has been jailed after getting caught taking a 14-year-old girl to a dance at her middle school.  The man had been previously convicted for first-degree sodomy on an 8-year-old.

A helpful reader sent this article about a new University of New Hampshire study which found that "the threat of online predators trolling the Internet and social Web sites seeking to stalk, kidnap and rape young children has been greatly overstated."  According to the study, most Internet sex offenders are not adults targeting young children by posing as fellow youths, but rather young adults who target teens and seduce victims into sexual relationships that lead to non-forcible statutory rape.

Sentencing Law and Policy has a post discussing an article in the St. Louis Post-Dispatch, which examines how technology is used in sex offender tracking.

A South Carolina middle school teacher has been sentenced to six years in prison for having sexual encounters with five teenage boys.  The woman was originally sentenced to 15 years in prison.

In the wake of Ohio's new Adam Walsh Act-complaint law, a federal judge has suspended "community notification for sex offenders who were reclassified into tier three and convicted prior to Jan. 1."  The court order also allows for sex offenders to petition their reclassification.  The order is subject to change as the lawsuit is still pending in federal court.

More Ex Post Facto Problems for the AWA

Sex Offender Research caught this case that I missed.  Here's the news summary:

A New Orleans man got out of jail today after a federal judge in Mobile dismissed charges that he violated a new federal sex offender registration law.

Chief U.S. District Judge Ginny Granade became the second judge to rule that a defendant could not be prosecuted under the Sex Offender Registration and Notification Act because a key element of the offense occurred before the law took effect....

The two rulings in Mobile take opposite positions from those in Florida in which federal judges have allowed prosecutions under the Sex Offender Registration and Notification Act, leaving it to the Atlanta-based 11th U.S. Circuit Court of Appeals to resolve.

I couldn't find a copy of the opinion on the web to link to (for whatever reason, that district court doesn't seem to have posted an opinion online in almost 3 years).  If someone has the opinion, feel free to send it my way and I will post it.  I'm curious what the 11th Circuit will do, but I suspect they will come out in favor of retroactive application.

Update:  Thanks to a very helpful reader, I know have the opinion.  You can grab it here.

A Victory for Sex Toys

While those in Alabama are still denied their sex toys, citizens of Texas can rejoice the continued legality of dildos:

A federal appeals court has struck down a seldom-enforced Texas law making it a crime to promote or sell sex toys.

The 5th U.S. Circuit Court of Appeals, ruling in a case originally filed in federal court in Austin, found that the ban in the Texas penal code on selling or promoting obscene devices violates the right to privacy under the 14th Amendment of the U.S. Constitution.

“Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution,” said the opinion in the case considered by a three-judge panel of the New Orleans-based court.

You can find the ruling here.  Volokh Conspiracy's coverage is here.  How Appealing's is here.  And a little bit by Feminist Law Professors is here.  And, as Eugene Volokh points out, we have a circuit split (something that can often result in a cert grant).  I can't image the Court taking the case to resolve the split, but stranger things have happened.

Around the Web

A school district in suburban Alabama is implementing a security program that involves checking visitor's driver's licenses against sex offender databases.  School officials have not said what they will do if they get a positive match.

A lakeside town in Texas is considering an ordinance that would restrict not only where registered sex offenders live but also where they can go. According to this article, about sixty-eight percent of the land in town would be restricted to registered sex offenders.

An Indiana father received a letter from his children's school informing him that, as a convicted sex offender, he was banned from school property. The letter also stated that if he wanted to pick up his two children or to attend a meeting he would have to be escorted. The problem is that he is not a sex offender.

The Psychology and Crime News Blog has an interesting article about a new study published last week discussing the "complex cycle of violent crime among young people that challenges pre-conceived ideas that young people are simply either victims or offenders."

Still No Sex Toys in Alabama

Alabamans can rest easy knowing their stores are free of all sex toys.  The Supreme Court has denied cert. to review the 11th Circuit's judgment allowing the ban on sex toy sales to stand:

The U.S. Supreme Court declined Monday to hear a challenge to Alabama's ban on the sale of sex toys, ending a nine-year legal battle and sending a warning to store owners to clean off their shelves.

An adult-store owner had asked the justices to throw out the law as an unconstitutional intrusion into the privacy of the bedroom. But the Supreme Court declined to hear the appeal, leaving intact a lower court ruling that upheld the law.

Sherri Williams, owner of Pleasures stores in Huntsville and Decatur, said she was disappointed, but plans to sue again on First Amendment free speech grounds.

"My motto has been they are going to have to pry this vibrator from my cold, dead hand. I refuse to give up," she said.

Alabama's anti-obscenity law, enacted in 1998, bans the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs for anything of pecuniary value."

The law does not ban the possession of sex toys, and it doesn't regulate other items, including condoms or virility drugs. Residents may legally purchase sex toys out of state for use in Alabama, or they may buy sexual devices in Alabama that have a "bona fide medical" purpose.

Feminist Law Professors has a nice roundup and some pointed words about the decision. A Stitch in Haste has also been following the story.  It's hard to believe in this day and age that these sorts of laws still get political support.

Scottsboro and Duke

The WSJ Opinion Journal has a piece comparing the situation with Duke Lacrosse and the famous trials of the "Scottsboro Boys":

The two cases offer a remarkable insight into how very, very far this country has come in race relations, and alas, in some ways how little. For race is central to why both cases became notorious. In Scottsboro, Ala., of course, the accusers were white and the accused was black. In Durham, N.C., it was the other way around....

Here is where the real difference between the Scottsboro boys and the Duke boys kicked in: not race but money. The Scottsboro boys were destitute and spent years in jail, while the Duke boys were all from families who could afford first-class legal talent. Their lawyers quickly began blowing hole after hole in the case and releasing the facts to the media until it was obvious that a miscarriage of justice had occurred. The three Duke boys were guilty only of being white and affluent....

The country has come a long, long way in regard to race relations since 1931. But we have not yet reached the promised land where race is irrelevant. Far too many people are still being judged according to the color of their skin, not the content of their character, let alone the evidence.

Frankly, I'm just amazed that this analogy is even being made.  The differences between the two cases far overwhelm the alleged similarities outlined in the WSJ editorial.

The Scottsboro Boys were tried.  The Duke Boys were not.
The Scottsboro Boys were sentenced to death.  Death was never even the remotest possibility for the Duke Boys.
The Scottsboro Boys appealed their convictions to the Alabama Supreme Court and the United States Supreme Court.
The Scottsboro Boys were tried a second time after winning their appeal with the US Supreme Court.  Despite a recantation by one of the victims and no real evidence, in separate trials, the Scottsboro boys were again convicted.
The Scottsboro Boys again had their appeals denied by the Alabama Supreme Court. 
The Scottsboro Boys won their appeals at the US Supreme Court for the second time.
One of the Scottsboro boys, Haywood Patterson, was tried a total of four times. 
The Scottsboro Boys were retried and again convicted.
And the Alabama Supreme Court upheld all of the convictions and sentences.
The Scottsboro Boys served decades in prison (none were actually executed despite a death sentence) and Patterson actually escaped from prison before being paroled.

The injustices suffered by the Scottsboro Boys are among the worst in American history.  The comparisons to the Duke case are ridiculous.  The Duke Boys suffered an injustice.  However, not all injustices are equal.  The WSJ's identification of one similarity between the cases (that race mattered) while ignoring the enormous differences between the cases is inflammatory analogy drawing at its worst.

HT: The Right Coast

Scarlet License Plates Catching On

At Sentencing Law & Policy, Professor Berman points to a USA Today article about more states following the lead of Ohio in setting up special sex offender license plates:

Lawmakers in three states are pushing bills to require convicted sex offenders to display special license plates on their cars.

Proponents in Wisconsin, Ohio and Alabama say the sex offender plates would be another tool to keep the public safe. Critics say the plates would lead to a false sense of security and unintended consequences.

"For too long child sex predators have been watching our children," said state Rep. Joel Kleefisch, a Wisconsin Republican. "It's time we have an opportunity to watch them back."

Wisconsin's bill, authored by Kleefisch, would require people convicted of the most serious assaults involving children to use a chartreuse-green plate. The license plate in Ohio would be fluorescent green, and the Alabama bill would leave it up to the state Department of Revenue to design the plate.

Alabama's Sex Toy Legislation

I'm a little late covering this case, but for those of you who haven't read, a federal appellate court upheld the Alabama's ban on the sale of sex toys.  Here is a news report on the case:

Alabama’s ban on the sale of sex toys is a feel-good law that borders on triviality. The time and money the state has spent defending it over the last nine years could have been better directed to addressing the many real problems that we face.

A three-judge panel of the 11th U.S. Circuit Court of Appeals, in a unanimous decision announced last week, ruled that Alabama’s sex toy sales ban is constitutional because “the state’s interest in preserving and promoting public morality provides a rational basis for the challenged statue."

To decide otherwise, said Alabama Solicitor General Kevin Newsom, would have invalidated the state’s legal prohibitions on incest, polygamy and prostitution.

Rational basis is a VERY lenient standard to meet, so the decision isn't terribly surprising.  Meanwhile, the public in Alabama isn't too happy with the law (according to an online poll which is probably not a representative sample):

A state law against selling sex toys is unpopular with readers who answered a Daily online poll.

“Do you agree with Alabama’s ban on the sale of sex toys?” the two-day, unscientific poll asked at www.decaturdaily.com. People could vote from anywhere.

Of 191 respondents, 174 (91.1 percent) answered no. Seventeen answered yes.

For the especially curious, the decision is available here.

HT: How Appealing