Sex Crimes

Justice Department's SMART Case Law Update #24

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #24:

People v. Blair, 2009 N.Y.S.2d 890 (CCNY Albany, Feb. 18, 2009); People v. Oberlander, 2009 N.Y. Misc. LEXIS 325 (Rockland Cty., Jan. 22, 2009)
 
Citing the decision in G.H. v. Township of Galloway, 951 A.2d 221 (N.J. App. 2008), held local residency restrictions invalid because they are preempted by the comprehensive and detailed State-level regulatory scheme regarding the registration of sex offenders.
 
People v. Knox, 2009 N.Y. LEXIS 16 (Ct. App. Feb. 17, 2009)

Knox and her co-petitioners had all been convicted of non-parental kidnapping of a minor.  Their due process challenge to being listed on the New York Sex Offender Registry was rejected.
 
U.S. v. Rose, 2009 CCA LEXIS 56 (Feb. 12, 2009)
 
Because the court concluded that Rose’s counsel “affirmatively misrepresented” that he would not have to register as a sex offender, and he pled guilty at least in part because of that misrepresentation, it constitutes ineffective assistance of counsel, and the findings of guilt were set aside.
 
Burchette v. Sex Offender Screening and Risk Assessment Cmte., 2008 Ark. LEXIS 551 (Oct. 23, 2008)
 
Arkansas’ sex offender registry scheme calls for a risk assessment to determine what level of community notification is required for an offender.  Burchette wanted to have a hearing (where he could testify, in person) before that determination was made.  The court concluded that because Burchette was interviewed as part of the assessment process, and could submit a written statement to the appellate committee, there was no due process violation.

The decision in Rose should be noted by criminal defense attorneys as plea deals in sex offense cases often revolve around whether the defendant will be required to register as a sex offender. Under the AWA, avoiding registration is increasingly hard to accomplish since courts seem to be taking a non-categorical view of what constitutes a "sex offense" under SORNA.

Guilt by Marriage?

SexOffenderResearch points to this odd story where a sex offender's wife has had her application for a liquor license notated with a reference to her husband's criminal history. From a local news account:

An application a Fort Smith woman has made to the state liquor licensing board for a private club permit will have a notation added to it that her husband is a convicted sex offender, authorities said Thursday. 

Jennifer Spence has applied for a private club and retail beer-on-premises permit for a business identified as JAT in the 900 block of North A Street, J.C. Rider, a local agent with the state Alcoholic Beverage Control, confirmed Thursday.

Spence's husband is Johnny Wayne Spence, 43, of Fort Smith, a Level 4 sex offender, which state law describes as a sexually violent predator. Fort Smith police released information Tuesday about Johnny Spence after his status elevated from a Level 3 to a Level 4 sex offender.

I wonder if this part of a growing trend to punish third parties for having business or personal relations with sex offenders.

Child Porn Sentences

Sentencing Law & Policy (which seems to be having some RSS feed problems for me) has a post discussing the oddities and uncertainties with child pornography sentencing in federal courts:

Regular readers may recall some of my recent posts discussing my observations of an extraordinary amount of variation in charging, bargaining and sentencing realities in federal child porn downloading cases.  Two more notable examples came across my desk just today:

In US v. Toothman, No. 07-3729 (8th Cir. Oct. 3, 2008) (available here), a panel rejects an Arkansas defendant's appeal of his within-guidline sentence of more than eight years imprisonment following his plea of guilty to one count of knowing receipt of child pornography.  The defendant complained on appeal about the district court's failure to give him any break for his extraordinary physical impairment and extreme susceptibility to abuse in prison, but the circuit court decided the sentence was reasonableness.

Meanwhile, in the neighboring state of Tennessee, another child porn defendant got a significant break from the guidelines, due in part to the luck of timing according to this local artice headlined "Student gets sentence cut in half; Prior defendant’s record worse, so judge shows mercy."

An Unusual Ruling in Arkansas about Testimony by Children

This decision in Seely v. State sets up a potentially problematic rule in a child molestation case.  From the decision:

Appellant John Seely appeals his conviction for the rape of his then three-year-old daughter, as found by a jury in Pulaski County Circuit Court. Appellant posits a single argument for reversal: that the trial court erred in admitting hearsay evidence of his daughter through the testimony of her mother and a social worker. He contends that this violated his right secured by the Sixth Amendment to confront witnesses against him. We agree that the testimony of the social worker included inadmissible hearsay evidence in violation of the Confrontation Clause of the Sixth Amendment. We further conclude that this error was not harmless beyond a reasonable doubt. Therefore, we reverse and remand. Before trial, defense counsel moved to have a competency hearing to determine if the child, JB, would testify at trial. When that hearing was conducted, JB was four years old. The trial judge found her not to be competent to testify.

The result of this ruling seems to be that a 3-year old's statements about her sexual abuse can't be admitted directly (because she is incompetent to testify under law) or indirectly through the social worker (because such statements are hearsay). However, some statements were admissible via the mother since the mother did not make testimonial statements.  This decision deals with very tough issues, but I'm not sure the court has adopted a good rule for these sorts of cases.

Oops

Arkansas made a little legislative mistake (via Althouse):

A law passed this year allows Arkansans of any age -- even infants -- to marry if their parents agree, and the governor may have to call a special session to fix the mistake, lawmakers said Friday.

The legislation was intended to establish 18 as the minimum age to marry but also allow pregnant teenagers to marry with parental consent, bill sponsor Rep. Will Bond said. An extraneous "not" in the bill, however, allows anyone who is not pregnant to marry at any age if the parents allow it.

"It's clearly not the intent to allow 10-year-olds or 11-year-olds to get married," Bond said. "The legislation was screwed up."

The bill reads: "In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage."

A code revision commission -- which fixes typographical and technical errors in laws -- had tried to correct the mistake, but a group of legislators said Friday the commission went beyond its powers.

"You're either pregnant or you're not pregnant," Sen. Dave Bisbee said. "Rarely will that be a typographical error."

The Arkansas Legislative Council asked the independent commission to reverse its correction. Several lawmakers said a special session may be necessary.

"We need a special session to fix this," Sen. Sue Madison said. "I am concerned about pedophiles coming to Arkansas to find parents who are willing to sign a very young child's consent."

I'd like to think Madison's fear is unrealistic, but I guess it is better to be safe than sorry.

Arkansas Bill Contains a Different Kind of Residency Restriction

Arkansas' House passed a residency restriction bill that I think I could actually support:

By a 93-to-zero vote, the House passed a bill stopping sex offenders from knowingly living within two thousand feet of their victims and from contacting their victims to harass them. The proposal by Representative Dawn Creekmore, a Democrat from East End, also expands the number of sex offenders who would required to be listed on a public Web site. The bill now heads to the Senate.

This sort of residency restriction is narrowly tailored and acts like a de facto restraining order.  It's an interesting idea and a much more rationale method of restricting residency without actually banishing offenders.

HT: Crime & Consequences