Sex Crimes

AZ Lawyer: Adam Walsh Act Unconstitutional

According to an attorney representing a retired police officer facing child pornography charges, the federal Adam Walsh Act is unconstitutional both on its face and as applied to his client. Specifically, the lawyer is challenging a provision of the new law that requires his client to wear an electronic monitoring basis. From the Arizona Daily Star:

Michael Piccarreta contends the Adam Walsh Child Protection and Safety Act is unconstitutional as a whole and as it applies to his client, Jefferson Sutton Stahl, because it prevents individual judges from determining whether electronic monitoring is needed.

Stahl, 62, was indicted in January on three counts of possession of child pornography and one count of receipt of child pornography.

His is alleged to have purchased four DVDs containing child pornography in June, one year after retiring from the Tucson Police Department following a 32-year career.

Court records indicate Stahl began communicating online in June 2008 with an undercover U.S. Postal Inspector operating an Internet forum described as "a special group for daddys who love young little munchkins!"

Piccarreta told U.S. Magistrate Judge Thomas Ferraro deciding whether a defendant requires electronic monitoring should be up to the judge, not up to legislation.

"I feel it's inappropriate for Congress to limit judicial power," he said.

Electronic monitoring is an essential part of the pretrial release process for people accused of sex crimes, Assistant U.S. Attorney Carin Duryee said.

Arizona Moving Closer Towards AWA Compliance

The State of Arizona is moving closer towards Adam Walsh Act compliance.  A state senate panel has approved new legislation to ensure that the state doesn't lose federal funds. From the Arizona Capitol Times:

A Senate panel has approved legislation that would put the state in compliance with a federal law intended to crack down on sex offenders and would ensure Arizona doesn't lose millions of dollars in federal funding.

The bill, S1049, aims to create a separate fingerprint clearance card for and adoptive parents, as well as several other Department of Economic Security employees and contract providers who serve the state's most vulnerable residents.

Sen. Linda Gray, a Republican from Glendale, said the measure is needed to comply with the federal Adam Walsh Child Protection and Safety Act of 2006.

The Adam Walsh Act is aimed at protecting the public, children in particular, from violent sex offenders through a more comprehensive and nationalized system for registration of sex offenders. And it calls on states to conform to various sex-offender registration standards.

Failure by a state to comply with the federal requirements would result in a 10-percent reduction to Byrne law enforcement assistance grants, which states use to pay for drug task forces, anti-gang units, police overtime and other activities.

Gray, chairwoman of the Public Safety and Human Services Committee, said Arizona risks losing $130 million in federal funding if the state fails to reconcile state law with federal law by June 30.

Around the Web

A Wisconsin appellate court has ruled that "[p]olice who videotaped a man having sex with his comatose wife in her nursing home room violated his constitutional rights."  The man visited his wife, a stroke victim, at a nursing Home in Wisconsin.  According to the article, "[t]he ruling means prosecutors cannot introduce the videotapes as evidence in their case against [the man], who is charged with felony sexual assault for having intercourse with his wife without her consent at least three times in 2005."

An Arizona sex offender "who posed as a 12-year-old boy to enroll in Arizona schools has pleaded guilty to seven criminal charges ... and will go to prison for more than 70 years, a prosecutor said."  The man, who was 30, wore heavy pancake makeup to pose as a 7th grader named Casey.   The New York Times, Arizona Republic and Associated Press have more.

How Appealing reports that the Second Circuit Court of Appeals has affirmed an entry of summary judgment "against minor females who filed a federal civil rights action alleging they were sexually abused by the then-Mayor of Waterbury, Connecticut."  How Appealing notes that the case involves former Waterbury Mayor Philip Giordano, "who was previously convicted in federal court on seventeen of the eighteen criminal counts against him, including two counts charging him with acting under color of law to deprive these plaintiffs of their constitutional rights to be free from unwanted sexual abuse."  You may view the ruling here.

A Nebraska judge is being asked to decide "whether to return pornography to a convicted sex offender who says the state has no right to keep it."  The man is currently serving a probation sentence after being convicted in a case in which he was accused of propositioning two teenage boys.  The man has made a legal motion to have his computer and equipment returned to him, as they are no longer needed for evidence.

A federal judge in Nevada has issued a permanent injunction that "bars the state of Nevada from applying two new sex offender laws retroactively."  U.S. District Judge James Mahan noted that the laws, as applied to several sex offenders represented by the ACLU of Nevada, are unconstitutional. Judge Mahan however declined to rule on whether the new laws may be applied to those convicted of sex offenses in the future. SL&P has more.

Around the Web

The Volokh Conspiracy has a post discussing a new California bill which "would impose a tax on the sale of, or the storage, use, or other consumption of, tangible personal property that is adult material, as defined, in this state at a rate of 25%."  Eugene Volokh thinks that the tax would likely be unconstitutional, as "the law targets not just unprotected and illegal obscenity, but also constitutionally protected pornography."

Tennessee sex offenders will soon be "required to register any e-mail address, user name or instant message screen name, along with their given name, place of residence and any crime for which they’ve been charged."  Tennessee Governor Phil Bredesen signed legislation requiring that information after the bill passed unanimously in both the House and Senate.  The new law becomes effective July 1.

The Arizona Daily Star has an article discussing the use of GPS ankle bracelets for tracking registered sex offenders.  According to the article, probation officers are able to download data whenever they want to check where a defendant has been and whether they're keeping to their pre-approved schedules.  Also,  officers can "sit at a computer screen to watch a probationer move from place to place in real-time."

The New Hampshire Civil Liberties Union is "renewing its effort against ordinances that limit where sexual offenders can live."  The NHCLU has filed motions in state district court arguing that a city ordinance which bans registered sex offenders from living within 2,500 feet of a school or day-care center violates the state constitution.

Blog Against Sexual Violence Day 3 - My Post

As advertised earlier, Abyss2hope hope is again hosting "Blog Against Sexual Violence Day" here.   There are a lot of interesting perspectives from persons around the web, including a lot of persons who have been victims/survivors of sexual violence.

I write today from the perspective of a detached scholar who looks at sexual violence issues from a legal and cultural perspective.  One of the oddities for me contributing to such an event as this is that many might feel some of my views are more in line with defendants who perpetrate sex crimes.  However, I've done my fair share of advocating on behalf of rape victim rights as well.  Ultimately, for me, as I've recently noted, I'm focused on finding this best possible sex crime policy.  In some cases this means adopting changes that favor victims and the prosecutors.  Sometimes, it will mean supporting policies that favor defendants and past offenders.  The end goal is still a marked reduction in sexual violence by designing policies that do more than satisfy short-term political interests.

To this end, I offer a few suggestions that every jurisdiction should consider in fighting sexual violence:

First, any policy that is borne entirely in the wake of a front-page news story about a sex crime is unlikely to be well-designed.  Because of that, there will often be substantial collateral effects that make such policies problematic for a variety of reasons.  So, take some time and if the law is a good idea, it will still be a good idea one year later when the media attention has died down.  Adopting a law in the midst of public outcry may be politically expedient, but it is usually a long-term disaster.

Second, create sex crime policies that make sense in relation to other statutes on the books. It is all too common for a state to drastically increase penalties for sex crimes in one state for a particular sex crime in a way that creates bizarre effects.  In Arizona, persons who possess child pornography will be sentenced much more harshly than those who actually produced the child pornography because of the 10-year per image consecutive sentence policy.  This has also been a problem with the six states adopting capital child rape statutes.  Such policies make the punishment for murder and child rape the same so that child rapists have an incentive to kill their victims to eliminate the only witness while not risking a higher level of punishment.

Third, "sex offenders" are a very diverse population. Everything from flashers, child molesters, adult rapists, beastiality practitioners, prostitutes, statutory rapists, public masturbaters, child pornographers, to peddlers of obscene pornography.  Each of these groups presents different problems and challenges.  Policies which treat "sex offenders" as a monolithic group are bound to be fundamentally flawed because such policies treat very different populations in a similar manner.

Around the Web

Sentencing Law and Policy notes that the Utah-based Deseret Morning News has published a four-part series on sex offenders.  The articles look at the prevalence of sex abuse within the state, the differences between adult and juvenile sex offenders, how the victims of sexual abuse cope, how sex offenders are being monitored.  The reporters spent three months and interviewed a total of 85 people.

The Las Vegas Sun has an interesting article discussing the various difficulties involving interpreting Nevada’s juvenile sex offender laws.  As the article puts it, "one thing about the controversial legislation quickly became clear: Nothing is clear at all."  Especially problematic is a rule that juvenile sex offenders "couldn’t live within 1,000 feet or be within 500 feet of any structure designed for use primarily by children."

A controversial Kansas program that holds sex offenders past their prison sentence indefinitely is producing friction among state legislators.  From the article: "the program provides treatment for convicted sex offenders who have completed their prison sentences and have been civilly committed under the law because they have been deemed a continuing threat to the community."  The law was challenged up to the U.S. Supreme Court, which voted 5-4 to uphold the constitutionality of the program.

Arizona is "scrambling to comply" with the federal Adam Walsh Act which will allow anyone to "view sex offenders living in their area by simply logging online."  One Arizona county Sheriff's Office claims that Arizona actually exceeds the federal requirements.

Around the Web

The Massachusetts Supreme Judicial Court has ruled that the Sex Offender Registry Board must change its registration form so sex offenders can clearly identify themselves as homeless.  The current registration form does not "designate a place where homeless sex offenders can list a shelter as their residence without being penalized."  You can read the decision here.

The Boston Herald has an interesting editorial about the sex offender classification process.

The Arizona Supreme Court ruled that misdemeanor defendants are entitled to jury trials if they could be required to register as sex offenders if convicted. 

CrimProf Blog has an interesting post discussing the protocols needed in online child exploitation cases.  The author of the article notes that “whenever a juvenile …creates the images of sexually explicit activities and then distributes them, they have now produced child pornography and they have now distributed it.”

A Tennessee man was found guilty in Texas of failing to register as a sex offender, becoming the first case under the Adam Walsh Act to go to trial in the Southern District of Texas.  The man failed to register as a sex offender after moving.

Around the Web

Capital Defense Weekly reports that in Iran, two sisters accused of adultery will be stoned to death.  The conviction is "based on video of the two women merely in the presence of men who were not their husbands or otherwise related to him."

Law enforcement officials in the Sacramento, California area have launched a program that sends out live e-mail alerts regarding sex offender's whereabouts.

California's Jessica's Law inadvertently contributed to a sex offender being released on parole last year. An appellate court ruled that a district court correctly dismissed prosecutor's attempt to have the man declared a sexually violent predator and commit him to a state mental hospital indefinitely because the man was in "unlawful custody" when the petition was filed.

Vigilantes in Evansville, Indiana set a man's property on fire and wrote "GET OUT PERV" on his garage door.  However, they had the wrong address. Police say the fire and writings were likely intended for a man who lived nearby.

How Appealing reports that the Ninth Circuit has issued its ruling that a former police officer’s First Amendment rights were not violated when he was fired for running a sexually explicit Web site.

Around the Web

In the spirit of Halloween, AFP has an article about some high tech ideas being marketed to parents to keep their kids safe from sex offenders.  CNN has a very detailed article about the how individual states are dealing with sex offenders on Halloween night.

A Public Defender blog posted an article which asks "when is rape robbery?" in situations dealing with prostitution.

Sentencing Law and Policy has an article up about an Arizona case in which a man, who pleaded guilty to having consensual sex with two teenage girls when he was 18 and 20, is now subject to lifetime electronic monitoring.

The Tacoma News Tribune has an editorial discussing some of the problems with sex offender tracking when its management depends on local police departments.

More Oddities in Arizona

As is often the case, the unstoppable Professor Berman beat me to the punch on this strange story:

Mesa jurors found a defendant guilty on nine counts of child pornography charges, setting him up for a potential 90-year sentence under Arizona's tough dangerous crimes against children law.

But the Maricopa County Attorney's office urged a Superior Court judge to drop five counts, leading to a 40-year sentence on Oct. 5 against Todd Robert Laughlin, 46, who was convicted of possessing three movies and six computer images depicting children performing sex acts.

A motion filed by prosecutor Ronald M. DeBrigida Jr. noted that jurors found Laughlin guilty of all nine counts Aug. 21, but asked Judge Helene Abrams to dismiss five counts, saying that it was "in the interests of justice" but offering no further explanation....

"Upon further review of the facts in this case, I concluded that the mandatory 90-year sentence facing the defendant was disproportionate to the offenses he was convicted of," Thomas' statement said. "As a result, our office exercised its prosecutorial discretion in dismissing five of the criminal counts, so that the mandatory sentence now will be 40 years in prison."

The conduct of the prosecutor is pretty odd after a jury verdict.  Arizona has very harsh child pornography laws, but it is unusual to see a prosecutor exercise discretion to drop counts after a defendant has been convicted of those counts.   The outcome here as well as the well-publicized Berger case show that the Arizona legislature might want to rethink its mandatory minimums for child pornography.