Sex Crimes

SCOTUSblog Recap of Comstock

As usual, SCOTUSblog has an excellent recap of the Comstock opinions written by Stanford Law Student Eric Hansford. From the post:

The respondents in this case are federal prisoners who were about to be released when the government instituted civil commitment proceedings against them under Section 4248.  When the respondents challenged (among other things) the constitutionality of the government’s actions, the district court held (again, among other things) that the statute exceeded Congress’s powers under Article I of the Constitution, and the Fourth Circuit affirmed on this ground.

The Supreme Court granted certiorari, and yesterday it reversed.  In the majority’s view, “five considerations, taken together,” compel the conclusion that Article I’s Necessary and Proper Clause grants Congress authority sufficient to enact Section 4248.

Justice Kennedy concurred in the judgment.  In a separate opinion, he emphasized that the Necessary and Proper Clause has limits, and he sought to distance himself from what he regarded as some of the Court’s broadest language.  In particular, he underscored that the “rational relationship” test at issue here is much more demanding than the “rational basis” test used in due process cases.

Justice Alito also concurred in the judgment.  In his view, there is a “substantial link” between Section 4248 and Congress’s enumerated powers, thereby rendering the statute a necessary and proper means of implementing federal criminal law statutes authorized by Congress’s other enumerated powers.

Girl Held Captive Since 1991, Had Two Kids with Captor

CNN has a tragic story of a young girl who was kidnapped and had two children with her alleged kidnapper in a secret backyard shed. The accused man is also a registered sex offender. From CNN:

The 18-year mystery of what happened to Jaycee Dugard ended this week when a sex offender admitted to corrections authorities that he abducted her.

Jaycee was abducted from South Lake Tahoe in June 1991, said Fred Kollar, undersheriff of El Dorado County. The case began to unfold when the sex offender, Phillip Garrido, 58, was stopped and questioned by campus police at the University of California at Berkeley.

With him were two children and a woman identified only as Alissa, who DNA tests later revealed was Dugard, now 29. The children were later determined to be Garrido's and Dugard's, Kollar said.

During questioning by a parole officer, Garrido admitted to having abducted Dugard and said the two children were his, said Scott Kernan, undersecretary for the California Department of Corrections and Rehabilitation. VideoWatch police talk about why they arrested Garrido »

Garrido and and his wife, Nancy, were taken into custody and held at the jail in Concord, California. An officer at the jail said the two had been booked and were ordered held on $1 million bail. They are now being held in El Dorado County, according to public records.

New Study About Online Child Predators

A new study from the University of New Hampshire's Crimes Against Children Research Center (available here) reports a tremendous increase in online child predator arrests from sting operations, despite an overall decline in sex crimes against minors. From Ars Technica:

Even as sex crimes against minors decline, a new report from the University of New Hampshire's Crimes Against Children Research Center released this week found an massive increase in the number of online child predators arrested in undercover sting operations. Despite this, the survey rejects the idea that the Internet is an especially perilous place for minors, and finds that while the nature of online sex crimes against minors changed little between 2000 and 2006, the profile of the offenders has been shifting—and both differ markedly from the popular conception.

Extrapolating from a nationwide survey of law enforcement agencies, the authors estimate that 2006 saw 615 arrests of online child predators in cases involving actual minors as victims (up 21 percent from 2000), and 3,100 arrests in cases where the "child" was actually an undercover law enforcement officer (a whopping 381 percent increase over 2000). During the same time period, the proportion of minors aged 12-17 on the Internet rose from 73 to 93 percent. Those numbers, the authors believe, don't represent an actual increase in the national pervert population, but rather reflect the broader trend over the same period of interactions moving online, combined with more vigorous police sting efforts.

In the vast majority of cases, it's worth noting, the child victims were teens who knowingly went to meet their older interlocutors intending to have sex, which may explain why stings so vastly outnumber actual-victim arrests. Though the victims are too young to legally consent to sex with an adult, relatively few cases involve physical coercion, which makes it likely that many—indeed, quite possibly a majority—don't come to the attention of law enforcement.

Social networking sites, the subject of much angst over online predators, were more or less unknown in 2000, but by 2006 accounted for 33 percent of the initial contacts between (actual) minors and adults in search of illicit sex. While online chat was still the most common medium for indecent proposals, it saw a corresponding drop in popularity—from 80 percent to 40 percent of initial contacts.

Maine Supreme Court to Consider Retroactivity of Sex Offender Registry

Although many states have had no problem applying their respective sex offender registry laws retroactively, the Maine Supreme Judicial Court is hearing argument on the issue. From the Associated Press:

The issue of whether Maine's online sex offender registry can be applied retroactively rests with the state supreme court.

The Supreme Judicial Court heard appeals Tuesday in two separate cases involving convicted sexual offenders who declined to register as required by a change in state law. Judges sided with the men and ruled that the amended law is unconstitutional, which prompted appeals by the state.

A state prosecutor defended the law, saying it provides an effective tool for protecting potential victims from predators. But the lawyer for one of the offenders says the law makes a mockery of civil rights protections and brands individuals as dangerous when in fact they are not.

Around the Web

Sentencing Law and Policy has a post discussing a new article on SSRN entitled: Banishment of Sex Offenders: Individual Liberties, National Rights and the Dormant Commerce Clause, Environmental Justice, and Alternatives.  You can view the article here.

The Denver Post has an interesting article discussing the problems involved with "implementing some of the requirements of the [Adam Walsh Act] — such as making the names and addresses of juvenile sex offenders available on the Internet."  Specifically, the article mentions that Colorado state officials have "met for more than a year to decide whether to comply with the Adam Walsh Act by July or lose $240,000 in federal funding," which the article states "may be worth losing the money since it could cost more to fulfill the law's requirements."

The Iowa Supreme Court has ruled that a sex offender "was not discriminated against when he was charged with violating a residency rule that he claimed was not in effect when he bought his house."  The man, who was convicted in 1997 as a sex offender, bought a home within 2,000 feet of a school in 2005.  He was later charged for violating the residency restrictions, but he argued that "there was a federal court injunction in effect when he purchased the house."  You may view the decision here. HT: How Appealing.

Around the Web

The Greensboro News Record has an editorial discussing a sex offender registry loophole in North Carolina law.  The op-ed discusses a case where a woman, "convicted in 1995 of taking indecent liberties with a child, registered her address as required. For several weeks, however, she spent most nights at her parents’ home in another town, returning during the day to check her mail and do household chores." The authorities charged her with violating the registration requirements and she was convicted.  The North Carolina appeals court "overturned the conviction, ruling the state did not provide enough evidence to show she had moved her actual residence." I have no idea what the so-called "loophole" is, but like the word "technicality" it is often used by media to describe an outcome they don't like.

Many blogs have noted this announcement from Concurring Opinions, which states that "Concurring Opinions, like A.I.G. and Fannie Mae/Freddie Mac before it, is now too big too fail. We expect that should our blogging rate slow, or the general market conditions to lead to a run on our host, the Feds will step in ensure market stability." Clearly, Sex Crimes must find a merger partner so that it can similarly protected by the Feds. Maybe we should contact Goldman to find an appropriate match in these troubled economic times.

FoxNews has an editorial which calls on Congress "to fully fund the sex offender registry and notification system they created two years ago under the Adam Walsh Act...."  The op-ed also asserts that Congress has "fallen short in providing money for federal law enforcers to carry out their responsibilities under the Adam Walsh Act, such as hunting down, arresting and prosecuting unregistered sex offenders."

Around the Web

EvidenceProf Blog notes that in United States v. Jospeh (2nd Cir. 2008), a Defendant "appealed from his conviction for using his computer to send messages on the Internet to entice an individual he believed to be an underaged girl to engage in unlawful criminal sexual activity, in violation of 18 U.S.C. § 2422(b)."  At trial, it was proven that the Defendant entered a chat room "called 'I Love Older Men,' where he initiated a conversation with an individual ... who purported to be a 13-year-old girl," but was in fact a 55-year-old woman who "spends 20 to 50 hours a week surfing the Internet for those she believes to be sexual predators and reporting her findings to the authorities."  The defense theory was that the Defendant believed the supposed-teen "was also a sexually experienced adult engaged in role-playing," and the Defendant "sought to bolster his claim through the testimony of his expert witness ... who would have testified about role-playing in the context of sexually explicit conversations on the internet." The Second Circuit found that the expert witness was qualified under Federal Rule of Evidence 702. You may view the opinion here.

EvidenceProf Blog also has coverage of a recent opinion from the Mississippi Court of Appeals, which, according to Miller, "improperly read[] an exception out of the rape shield rule and [found] that evidence of prior sexual relations between the defendant and the alleged victim [is] never admissible." You may view the opinion here. 

Feminist Law Professors has a post which notes that "[a] new report by the Poppy Project has found that there are over 921 brothels in London being advertised in newspapers with a 'large and growing' number of young women who are trafficked as sex slaves."  According to the BBC, "[b]rothels in the city offer sex for as little as £15, and some are charging £10 extra for unprotected intercourse."

California Lawyer Magazine has an article detailing "the nation's largest and most expensive hospital for housing and treating men who have been declared to be sexually violent predators ..."  The hospital, which opened in August 2005 at a cost of $388 million... has been called everything from a state-of-the-art treatment center to a sex gulag."  Although each of the patients has "served a full sentence in state prison for committing one or more serious sexual offenses, ... instead of being released, they [are] denied freedom under a [law which allows the state to] commit [sex offenders] to a state psychiatric facility.   The limit of institutionalization was originally  two years, with the possibility of renewal. But with the new so-called Jessica's Law, the length of civil commitment is now "indeterminate."

A Massachusetts Appeals Court judge on has thrown "out the conviction of a homeless sex offender ... for failing to notify authorities that he moved to a new residence."  The man, considered to be at a high-risk of re-offending, "registered his permanent address as 'the streets of Greenfield' to comply with the state's sex offender registration laws... [and was later] found guilty of breaking the law when police found he stayed several nights at a friend's apartment in Montague and did not tell authorities ahead of time."

Around the Web

The Las Vegas Review-Journal is running an interesting editorial entitled Upholding our rights: Even sex offenders are entitled to protections of Constitution.  The editorial argues that despite being "an unsympathetic lot, ... if the government is allowed to trample and shred the constitutional rights of [sex offenders], how long before authorities decide to take away yours?"

Yesterday's episode of The Oprah Winfrey Show was "dedicated to a Senate bill targeting child predators."  During the show, which detailed the "extent and pervasiveness of child pornography trafficking in America," Ms. Winfrey asked viewers to contact their senators about U.S. Senate Bill 1738. Winfrey previously testified before the U.S. Senate Judiciary Committee in support of a national database of convicted child abusers in the early 1990s.  The Chicago Sun-Times has more.

CrimProf Blog reports that the state of Utah reported-rape rate, which is already higher than the national average, "drastically underestimates the actual incidence of rape," according to a new report.  Nearly 13 percent of women surveyed said they had been "forcibly raped in their lifetimes," while an additional 16 percent were "sexually assaulted in other ways, such as child molestation, drug-facilitated rape and attempted rape."  The survey further indicates that less than 12 percent of those incidents were reported to police.  The Salt Lake Tribune has more.

U.S. District Judge Roger Vinson has issued a gag order in the criminal trial of U.S. District Judge Samuel Kent, who recently pled not guilty to charges that he fondled a former case manager. According to the article, Judge Vinson "found it necessary to gag the attorneys and courthouse personnel on his own, without a request from prosecutors or Kent, [in order] 'to preserve a fair trial by an impartial jury by shielding jurors and potential jurors from prejudicial statements.'"  Judge Kent is the first federal judge to be charged with federal sex crimes.

Around the Web

An attorney for Sen. Larry Craig (R-ID) has asked the Minnesota Court of Appeals to allow Sen. Craig to "withdraw his guilty plea to disorderly conduct after his arrest in a sex-sting operation at an airport men’s room last year." Sen. Craig did not attend the hearing.  The Minneapolis Star Tribune has more.

TalkLeft has an interesting post discussing a convicted sex offender in Connecticut who had technical issues with his GPS device while on supervision.  The post notes that, "[f]or about 15 minutes on September 3, the device did not indicate that Pollitt was at his sister's home. That was all it took for Rell to demand that Pollitt be returned to prison immediately -- no investigation, no hearing, just lock him up. The governor's press release, demanding immediate incarceration for the 'apparent' violation, all but accuses Pollitt's family of lying when they said he didn't leave the premises."  The GPS device apparently failed.  Governor Rell's press release may be viewed here.

Legislative hearings concerning Vermont's criminal justice system will "likely result in a recommendation for stiffer mandatory minimum sentences for the most egregious sex offenders," according to the chairman of a key senate committee.  Sen. Dick Sears, head of the Senate Judiciary Committee, said that longer sentences for "habitual" offenders offer state prosecutors an opportunity to apply more severe charges in appropriate cases.  Sen. Sears stated that, "I think the committee will be looking at strengthening laws, in terms of lengths of sentences, as well as a bigger focus on prevention programs."

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.