Sex Crimes

Swiss Delay Polanski Extradition

Switzerland has decided not to extradite Roman Polanski until a California court first resolves whether the fugitive film director can be sentenced in absentia. TalkLeft has more. From the UK Press Association:

Justice Ministry spokesman Folco Galli said that a judgment on sending Polanski back to Los Angeles was still pending, but provided the clearest timeline to date for when Swiss authorities may close their examination.

If it grants Polanski's request to be sentenced in absentia, it could mean that the 76-year-old director avoids a forced return to the US. The Swiss will not extradite him unless he is given a sentence longer than six months.

But rejection from the California court might mean that time has run out for Polanski, who fled the US in 1978 after admitting to having sex with a 13-year-old girl. The Swiss arrested him on September 26 as he arrived in Zurich to receive a lifetime achievement award from a film festival, and imprisoned him for over two months before moving him to house arrest at his chalet in the luxury resort of Gstaad.

Polanski's extradition is a complicated and diplomatically sensitive decision for the Swiss, as it deals with a three-decade-old case with accusations of wrongdoing by a Los Angeles judge, a confused sentencing procedure and the director's own flight from justice. There is also Polanski's status as a cultural icon in France and Poland, where he holds dual citizenship, and his history as a Holocaust survivor whose first wife was brutally murdered by crazed followers of cult leader Charles Manson in California.

CA Bill Would Ban Sex Offenders From Social Networking Sites

A California legislator has recently introduced a bill that would ban sex offenders within the state from utilizing social networking sites (such as MySpace and Facebook). But some have already questioned the constitutionality of such a proposal. From the San Francisco Chronicle:

Sex offenders in California would be barred from using social networking Web sites such as Facebook and MySpace under a proposed law aimed at making the Internet safer for children as more and more of them flock to the Web.

Citing horrific cases in which children were sexually assaulted by men they met online, Assemblywoman Norma Torres, D-Pomona (Los Angeles County) introduced the bill last month, which would make it a crime for Californian's 63,000 registered sex offenders to use any social networking site. The proposed law defines those as a Web site "designed with the intent of allowing users to build networks or connect with other people and that provides means for users to connect over the Internet."

Assembly Bill 2208 is similar to legislation passed last year in Illinois, but doesn't go quite as far as a New York state law that additionally requires sex offenders to register their e-mail addresses and online aliases with state authorities, who can then turn over the names to the companies that run the social networking sites. After the New York law passed, 3,500 sex offenders were purged from MySpace and Facebook by the Internet companies.

The number of users on social networking sites has doubled since 2007, Torres said, and many of those users are children. She noted that just last month, a 33-year-old man lured a 12-year-old girl to a hotel in Anaheim, where she was sexually assaulted.

Student Post - You Can Run, but You Can't Hide

The New York Times recently published an article rehashing the story of Roman Polanski, who was detained in Switzerland for deportation. Polanski now faces punishment for a 32-year-old conviction on one count of having unlawful sex with a minor—that was once viewed as a “lapse in judgment” by an otherwise clean individual. In 1977, at the age of 13, Samantha Geimer was drugged and raped by Polanski. Mr. Polanski fled the United States when the possibility of jail time and deportation was indicated by Judge Laurence J. Rittenband.

The most interesting part of this seemingly “normal” case of unlawful sex with a minor is the astoundingly relaxed manner in which sex crimes were viewed in the 1977 era. A report prepared by Polanski’s probation officers characterized the rape as an exercise of bad judgment and suggested that Polanski receive probation rather than actual punishment. This “slap on the wrist” recommendation was perpetuated by the laissez-faire view of sex crimes in this era, in addition to the victimization of Polanski. From the New York Times article:

[His probation officer’s report] described his birth to a Polish national father, Riszard Polanski, and a Russian national mother, Bula Katz, and told how his Jewish family was confined behind barbed wire in a Krakow ghetto during the German occupation.

In 1941, the report noted, Mr. Polanski’s mother was taken to Auschwitz, not to return. Later it said, “the defendant’s father cut the wires permitting the defendant to escape” the ghetto, to spend the war with Polish families.

Recapping the defendant’s background, the report said Mr. Polanski was blocked from attending advanced art school after the war “because of his Jewish origins,” lost his religious faith, and twice suffered a fractured skull, once as the result of an assault in Poland, once after a car accident. It noted a first marriage in Poland, and a second to the actress Sharon Tate, who, it said, “was killed by members of the Manson gang in Los Angeles in the well-documented case in 1968.”

I am sure these devastating life events endured by Polanski were riveting to his probation officer and certain Hollywood VIP’s who put effort into securing Polanski’s good character, but they are not by any stretch of the imagination justification for rape. In fact, as there is no justification for rape, Polanski’s broken past is completely irrelevant in defending his actions toward Geimer. It is alarming when rapists are victimized in this manner. Through the eyes of Polanski’s former probation officer, the emphasis is placed on the trials and tribulations of the rapist, rather than what the victim has endured for the past 32 years. Furthermore, cultural differences, the alleged provocation by the 13-year-old victim, and the speculative unlikelihood that Polanski would commit a subsequent offense are absolutely no reason that this monster should have been gifted with the lesser punishment of probation—not in that era, and certainly not in this era. Luckily, current trends are working towards stricter punishments for sex offenders, although modern day law enforcement and judiciaries constantly struggle with policing the parole of sex offenders.

CA Appeals Court Rejects Polanski Request for Dismissal

Recently, Roman Polanski, the award-winning filmmaker, suffered a legal setback when a panel of the California Court of Appeals rejected his request to re-open his 1977 child rape case. The appellate court ruled that the lower court judge did not abuse his discretion when he refused to consider Mr. Polanski's request for dismissal request based upon his fugitive status. But the court also urged the LA DA's office to investigate alleged judicial and prosecutorial misconduct. The WSJ Law Blog, TalkLeft, and the NY Times have more. You may read the full 70-page opinion here. From the opinion:

In another chapter of what surely must be one of the longest-running sagas in California criminal justice history, Roman Polanski, a fugitive since 1978, asked the trial court to exercise its discretionary authority to dismiss the criminal prosecution against him that has been pending since 1977. The trial court declined to consider Polanski‟s request until Polanski submitted to the court‟s jurisdiction by returning to the United States and appearing in court. Polanski asks this court to compel the trial court to dismiss the action or, at least, to conduct an evidentiary hearing on Polanski's request. We conclude that the trial court did not abuse its discretion in applying the fugitive disentitlement doctrine and refusing to consider dismissing the action. In so doing, we do not disregard the extremely serious allegations of judicial and prosecutorial misconduct that have been brought forward, but urge the parties to take steps to investigate and to respond to the claims. 

 * * *

Although there is no basis for extraordinary relief here—Polanski retains remedies in the ordinary course of the law, and the trial court did not abuse its discretion in relying on the disentitlement doctrine to deny Polanski the opportunity to seek relief—we remain deeply concerned that these allegations of misconduct have not been addressed by a court equipped to take evidence and make factual determinations as to the events in 1977 and 1978. Fundamental fairness and justice in our criminal justice system are far more important than the conviction and sentence of any one individual. “[F]or my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.” Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting).

Polanski's allegations urgently require full exploration and then, if indicated, curative action for the abuses alleged here. Time continues to pass, and the delay in addressing this matter has already removed one participant from the ranks of available witnesses for an evidentiary hearing on the judicial and prosecutorial misdeeds that have been alleged here. The passage of more time before this case‟s final resolution will further hamper the search for truth and the delivery of any appropriate relief, and it will also prolong the agony that the lack of finality in this matter continues to cause Samantha Geimer. We exhort all participants in this extended drama to place the integrity of the criminal justice system above the desire to punish any one individual, whether for his offense or for his flight. As Justice Murphy wrote in dissent in Eisler v. United States, 338 U.S. 189, 194-95 (1949), “Our country takes pride in requiring of its institutions the examination and correction of alleged injustice whenever it occurs. We should not permit an affront of this sort to distract us from the performance of our constitutional duties.” We encourage all participating parties to do their utmost to ensure that this matter now draws to a close in a manner that fully addresses the issues of due process and fundamental fairness raised by the events of long ago.

"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.

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.

Almost a Sex Crime: Lawyers and Clients

Above the Law has a post about whether attorneys should be allowed to have sex with their clients. The post mentions that California and Texas are considering banning sex with clients in most situations. The proposed language is very similar to Rule 1.8(j) of the ABA Model Rules of Professional Conduct provides that a "lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced." The Illinois Supreme Court has adopted this rule effective January 1, 2010. From Above the Law:

The California State Bar Association is considering a change to the professional rules of conduct to “prohibit sex with clients unless they are spouses or the relations preceded the lawyer-client relationship,” according to The Recorder. The Texas Supreme Court is suggesting the same type of thing in the Lone Star state, according to the Texas Lawyer.

The American Bar Association generally frowns on lawyers getting into their clients’ briefs. The argument against taking discovery to the bedroom is that sexy time undermines an attorney’s ability to give objective advice and to keep his or her interest from limiting that of the client.

On the other hand, regulating bed behavior potentially violates a lawyer’s privacy and the right to freedom of association.

ATL readers, we turn the debate over to you. Is it okay for lawyers to be their clients’ master debaters and masturbators? Moving beyond the theoretical, how many of you have actually had to grapple with this? Take our polls and hear some stories, after the jump.

When we write about lawyer-client sex here at ATL, it’s usually of the problematic variety. See the story of Stanford grad James Tipler, who made his clients pay their legal fees with sexual favors. Or the story of 72-year-old personal injury attorney Allen Isaac who wanted a blow job as part of his retention fee. Or the story of Washington state divorce lawyer Lowell Halverson who was disciplined by the Washington Supreme Court for repeatedly having affairs with his emotionally distraught clients.

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.

CA Supreme Court Hears Challenge To Residency Restrictions

The California Supreme Court heard a challenge to the state's sex offender residency restriction law. The plaintiffs in the case are four sex offenders who were found living within 2,000 feet of place where children gather (such as a park, school, or day care center) and who were told that they must move within 45 days. The Contra Costa Times has more. A decision is expected within 90 days. From the San Jose Mercury News:

The state Supreme Court on Tuesday is considering whether the residency restriction contained in Proposition 83 is so broad and intrusive that it violates the constitutional rights of registered sex offenders. Under the law, critics say, many sex offenders cannot find a place to live in urban areas across the state and are effectively forced into homelessness.

Gov. Arnold Schwarzenegger, a strong backer of Proposition 83, is defending the law, along with the state Department of Corrections and Rehabilitation, which has largely been responsible for enforcement through its parole units. The administration's lawyer declined to comment but in court papers has defended the law's constitutionality.

Jessica's Law, however, has been openly questioned for its effectiveness, even in the law enforcement community, and also for its legality. More than 20 states have adopted similar provisions, with courts taking a mixed view of whether they pass legal muster. Most courts, including two federal courts in California, have found the laws cannot be applied retroactively to sex offenders who committed their crimes and were released from prison before the laws were passed.

Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts.

I think the California case could be important in the overall scheme of residency restriction law. While some courts have found problems with residency restrictions, most of the rulings have been quite limited (either by being based upon statutory grounds or constitutional issues that did not invalidate the entire statutes). California will certainly be the most high profile state that has had its highest court review such laws. If the court issues a definitive ruling against the restrictions, it might have a wider effect.

Halloween Sex Offender Roundup

Here is a (spooky?) collection of Halloween sex offender news stories from around the web:

From Sentencing Law & Policy, we learn that certain Alabama sex offenders are required to attend an educational meeting on Halloween night which will feature "updates on sex offender laws, the Adam Walsh Act and rehabilitation opportunities, as well as training for employment."

Law enforcement officials in Omaha, Nebraska report that they will be paying extra attention to sex offenders on Halloween night. Officials are encouraging parents to check the online registries to know who lives where.

Meanwhile in Missouri, registered sex offenders are required to stay at home from 5 to 10:30 pm on Halloween, absent "just cause" to leave. The ban remains in effect despite a 2009 study that found "no significant increases in sex crimes on or around Halloween after an examination of crime data looking at non-familial sex crimes from 1997 to 2005 against children 12 years old and younger."

Floridian sex offenders also cannot participate in trick or treating at their homes and must display a "No Candy Here" sign on their front doors.

In California, sex offenders who are not on parole or probation are allowed to put up Halloween decorations in their yard, despite objections from neighbors.