Sex Crimes

Roethlisberger Accused of Sexual Assault

The Associated Press is reporting that a Georgia college student has accused Pittsburgh Steelers quarterback Ben Roethlisberger of sexual assault. The student alleges that she was assaulted at a nightclub in Milledgeville, Georgia. From the New York Times:

A 20-year-old college student accused Pittsburgh Steelers quarterback Ben Roethlisberger of sexually assaulting her at a nightclub early Friday during a night on the town near where he owns a lake home. The police said the alleged assault occurred in Milledgeville, about 85 miles southeast of Atlanta. Roethlisberger owns a home about 30 miles to the north on Oconee Lake.

Deputy Police Chief Richard Malone said the 28-year-old Roethlisberger, a two-time Super Bowl champion, had been with three other people who were mingling with another group that included the reported victim. Malone said the woman and her party contacted a nearby police officer after the alleged assault.

“He’s been identified as being at the scene and there are allegations naming him as the perpetrator,” Malone said.

Roethlisberger and the woman have been interviewed, and the woman was taken to a hospital, where she was treated and released, Malone said. The police said that Roethlisberger and his lawyer were cooperating with investigators. He was not in custody and has not been charged with a crime.

As a Steelers fan, this is particularly ugly news.

Georgia Sex Offender Challenges Online Registration Requirement

Sex offender banishment seems to be catching up with the information age. A Georgia sex offender has brought a constitutional challenge in federal court against a new state law that forces sex offenders to register their passwords, screen names, and e-mail addresses with law enforcement officials. Last year, a federal judge in Utah struck down a similar requirement. Recently, that same judge vacated her decision after the Utah legislature amended the statute to address the judge's concerns. From the Atlanta Journal-Constitution:

A federal judge on Tuesday began weighing arguments for and against a new Georgia law that requires sex offenders to hand over Internet passwords, screen names and e-mail addresses to law enforcement officials in the name of public safety.

Attorneys for convicted sex offender Terrence White urged U.S. District Judge Bill Duffey to block the law because it infringes on White's constitutional rights.

State attorneys countered that the 2009 law gives authorities a much-needed tool to make sure registered sex offenders don't strike again.

Duffey did not rule immediately, but he said the case centers on a "fundamental issue in our culture."

"Children do have to be protected, but that also has to be balanced with constitutional protections," he said. "And I never take those lightly."

The case hinges on a state statute that took effect in January, bringing Georgia in line with a 2006 federal law requiring authorities to track Internet addresses of sex offenders.

It also made Georgia one of the first states to take the extra step of forcing its 16,000 offenders to turn in their passwords as well.

Another Free Exercise of Religion Issue for a Sex Offender

These days, sex offenders can't even go to church in some areas. Not long ago the State of Georgia enacted a law prohibiting sex offenders from volunteering at church. Now a North Carolina sex offender is fighting for the right to attend church, albeit one that also maintains a day-care center. From UPI:

James Nichols, 31, told The (Raleigh, N.C.) News & Observer he was surprised by his arrest in March. Sheriff's deputies learned he was attending Moncure Baptist Church in Chatham County while they were investigating an alleged sexual assault in the parking lot -- one not involving Nichols.

"Anyone in this world has a right to practice their religion, and whether they've made any mistake in their life, they should have the right," Nichols said.

The American Civil Liberties Union is supporting Nichols, while psychologists and social workers who deal with sex offenders are lobbying the General Assembly to modify the state law.

State Sen. David Hoyle, who pushed for the tough law, sees no need for change.

"As far as I'm concerned, they've lost all their rights -- to go to church ... to go to McDonald's to get a cheeseburger ...," the Gastonia Democrat said. "They have made that choice. They have imposed that on themselves. I didn't."

The Georgia law was temporarily enjoined and I think the Free Exercise claim stands a good chance of success. It will be interesting to see if courts split in these cases.

"Ruling lets sex offenders volunteer in churches"

A federal judge in Georgia granted an injunction to a state law which would prohibit sex offenders from volunteering at church. You can read the order here. The Atlanta Journal-Constitution has more. From the Gainesville Times:

A federal judge this week granted a preliminary injunction that overturns a provision of Georgia’s sex offender law. The provision imposed by state lawmakers prohibited registered sex offenders from volunteering in churches.

The Southern Center for Human Rights challenged the constitutionality of the restriction, saying it criminalized protected religious activity. The center has a pending lawsuit against Gov. Sonny Perdue which also challenges a restriction that would prevent sex offenders from living within 1,000 feet of a school bus stop. That restriction is also on hold, pending the outcome of the court case.

U.S. District Judge Clarence Cooper wrote in a ruling that church activity was recognized by state correction officials as a benefit for convicted criminals that helps reduce recidivism.

"Allowing plaintiffs to continue to participate in their faith communities will further public safety by providing support, stability and a grounded sense of right and wrong," Cooper wrote.

Cooper found the law banning sex offenders from volunteering in churches to be unconstitutionally vague, according to Sarah Geraghty, an attorney with the Southern Center of Human Rights.

"It was the only way to rule consistent with the Constitution," Geraghty said. " Certain people on the registry should not work with children in a church setting or elsewhere, but criminalizing the practice of religion does more harm than good, and that’s what this statute did," Geraghty said.

Geraghty said the law would make participating in Bible study a crime for sex offenders punishable by 10 to 30 years in prison.

The attorney said the ruling marks the sixth time that a provision of Georgia’s sex offender law was overturned, either by injunction or other means.

H/T: Sentencing Law & Policy.

Student Post - Georgia Sex Offender Law Over-Inclusive

When the average person thinks of a sex offender or pedophile they conjure up thoughts of some middle aged man lurking in the shadows, waiting for just the right moment to rape and kill any child in their path.  To an extent, this was my understanding of sex offenders as well.  I had never felt that the sex offender registries were overbearing or harmful.  Even when the laws of a state restricted offenders from certain areas I was ok with it.  I have no sympathy for the sex offender.  Then, I learned how Georgia defines a sex offender.  Sources from the Harvard Law Review all the way to the Akron Law Review have called Georgia’s Sex Offender laws things like “harsh”, “cruel and unusual”, and “archaic”.  But why?  

While most of the articles and cases concerning Georgia’s statute are regarding an attempt by Georgia to virtually “exile” all sex offenders from its state, I don’t care about that part.  Although I am sure their neighboring states have had enough of Georgia, think Castro with criminals in the late 70’s and 80’s and how happy the USA was about that; my problem is how Georgia classifies a sex offender.  To me the answer to why Georgia is acting in a cruel way is that the Georgia’s law is so over inclusive that non-sex offenders are being labeled as sex offenders for crimes having nothing to do with sexual activity or conduct.  Under O.C.G.A. § 42-1-12 (A)(9) any person who commits a crime of kidnapping or false imprisonment of a minor, even if there was no sex or sexuality involved, is a sex offender.

For instance, under Georgia Law, if a person were to rob a bank, and make all of the customers lie face down while they stole money from the registers; and even one of the customers placed on the ground was a minor – that person would no longer be a bank robber but a sex offender.   

In an article by Bill Rankin in the Atlanta Journal-Constitution published on March 15, 2009, this insane policy was reviewed.  Mr. Rankin told the stories of a number of people who were placed on the sex offender registry for crimes that did not involve any sexual activity towards a minor.   Mr. Rankin told the story of Darnelle Harvey.  In 1990 Darnelle and his accomplice robbed a Dairy Queen.  At the time Darnelle committed his crime he was 17 years old.  When they approached the store a 16 year-old boy was the first person they came in contact with and they made him lie down on the floor at gunpoint while the Dairy Queen was robbed.  Darnelle plead guilty and was sentenced to 7 years.  Now, after serving his sentence Darnelle is labeled a sex offender and must comply with the laws concerning living and working which apply to pedophiles and child pornographers. As Darnelle said, “I’m no saint, I know that.  What I did was bad, stupid, and I spent years in prison regretting it every day.  But I’m not a sex offender.” 

According to the Atlanta Journal there are 180 people on the sex offender registry for kidnapping or false imprisonment.  Of those 180 only 33 of those persons actually committed a sex crime as part of the kidnapping or imprisonment.  For example, Donnie Lee Boone and two accomplices robbed a restaurant in Augusta.  During the robbery the men moved four employees of the restaurant to another part of the restaurant.  One of the employees was 17 years-old.  They were convicted of kidnapping.  However, this in-and-of-itself is not the problem I have.  Many jurisdictions will pile on the convictions (conspiracy etc.) in order to get a longer sentence or to sway a jury or judge.  However, under 42-1-12 Donnie was now a sex offender.  After he served 12 years in prison, he was granted parole, however the parole board did not release him because his mother’s home, where he would be living upon his release, was within 1,000 feet of a city park.  Thus, he was forced to remain in jail for 2 years longer, for a non-existent sex crime.  

This issue is a new one, which has many lawmakers and judges up in arms in Georgia.  In fact the Georgia Senate recently passed legislation which would change the law so that only kidnappers who had some sexual aspect to their crime would be included.  This amendment is now before the House and has not passed yet.  The kidnapping and false imprisonment portions of the law have been challenged in Fulton County, Georgia recently.  According to the Atlanta Journal, Judge Jerry Baxter reacted in the following way when he was informed that the accused before him was a registered sex offender who has committed no sex crime: “Doesn’t it sound screwy what’s going on here?”

I am by no means suggesting that the law should ease up on sexual predators and sex offenders, but as the good judge pointed out, when you have people being labeled as sex offenders when they have committed no sex offence, I must agree, there is something screwy going on in Georgia.

When a Robber is a Sex Offender

The Atlanta Journal-Constitution has an interesting article discussing Georigia's sex offender law.  The article notes that many registered "sex offenders" were convicted of non-sexual crimes, such as robbery.  Ohio apparently has similar troubles. From the article:

Child molesters, rapists and other sex criminals often remain dangerous even after they’ve served their time, and Georgia’s sex offender registry is designed to keep a leash on them.

The law, one of the nation’s toughest, tracks most offenders until they die, dictating where they can live and work.

But the law has a peculiar twist: There are a growing number of registered sex offenders in Georgia who did not commit a sex offense. The law applies to anyone convicted of kidnapping or false imprisonment of a minor, regardless if a sexual act was committed.

At 17, Darnelle Harvey took part in the robbery of a Dairy Queen in Chamblee. Brandishing a gun, he ordered a 16-year-old to lie down as the holdup progressed. This got him a false imprisonment conviction, and because the victim was under 18, Harvey became a sex offender.

Now 36, he acknowledges his mistakes.

“I’m no saint, I know that,” Harvey said recently. “What I did was bad, stupid, and I spent years in prison regretting it every day. But I’m not a sex offender.”

Some legislators agree.

The law was drawn so broadly that it has triggered another: the law of unintended consequences, Sen. Seth Harp (R-Midland) said.

“We’re trying to clarify it,” he said. “We need to concentrate solely on those who really are sex offenders so we know where they are to keep them away from children.”

Georgia Possibly Revamping its Sex Offender Laws

The Georgia Senate has passed a bill which will loosen up some of the state's tough restrictions.  From the Atlanta Journal-Constitution:

The state Senate voted Tuesday to change parts of the sex-offender registry law, said to be one of the most restrictive in the nation.

Senate Bill 157 aims to address a court ruling handed down last year by the Georgia Supreme Court, which found unconstitutional the law’s restrictions against registered sex offenders who are homeless and cannot provide an address. The bill would require a homeless offender to provide the Sheriff’s Office, in lieu of an address, the places where he or she sleeps, eats and works and other places the offender frequents, and report in weekly to the Sheriff’s Office.

SB 157, which passed 52-2, also allows a judge to release an offender from residency restrictions if the offender no longer poses a substantial risk of being a sexual predator and the person lives in a nursing home, a hospice facility, is permanently disabled or seriously ill and incapacitated.

Given that Georgia does have some of the harshest (if not most harsh) laws in the country, it would have been nice if they did more than simply cure the homeless sex offender problem (which was essentially court mandated) and include an infirmity provision.

No Homes for Sex Offenders

The New York Times has covered this story a couple of times. Now, the Wall Street Journal has an article of its own that is quite good. From the article:

Laws cracking down on sex offenders enjoy broad public support across the U.S. All states require offenders to report to law enforcement, but Georgia's statute is considered to be among the toughest such laws in the U.S. for its living restrictions and sentences. The law has set off messy conflicts between politicians and others who argue sexual criminals should be aggressively tracked and isolated and those who say lawbreakers -- especially juveniles and nonviolent offenders -- deserve a second chance.

Among the most vocal critics of the laws are police. Some sheriffs say the crackdown on sex offenders forces them to divert substantial resources from investigating active criminals to monitoring and tracking offenders who aren't threatening. Enforcing the additional restrictions from the 2006 law cost sheriffs' offices about $5 million in 2007, says the Georgia Sheriffs' Association.

Some states also object to a recent federal law requiring states to impose strict standards for registering sex offenders, arguing it's too costly and no more effective than their own state laws.

"Oh, my God, it's overwhelming," says Capt. Ronald Applin, who works in the Fulton County sheriff's warrant-service division that tracks down anyone deemed too close to children for comfort. Monitoring more than 1,500 sex offenders in the state's most-populous county requires four deputies full time, he says.

Police opposition and economic factors are very strong forces which could turn the tide against residency restrictions in the states that have already adopted such measures.

House Republicans File Amicus Brief Concerning AWA Mandatory Minimums

In response to a federal judge's ruling that a 30 year mandatory minimum prison sentence was cruel and unusual under the Eighth Amendment, a group of House Republicans have filed an amicus brief in the Eleventh Circuit arguing that the ruling threatens their authority to dictate the appropriate punishment. You can read the amicus brief here. From Congressional Quarterly's Legal Beat blog:

A group of House Republicans filed a brief Wednesday challenging a federal District Court's ruling that a 30-year mandatory minimum prison sentence was a cruel and unusual punishment for a man convicted of crossing state lines to have sex with a minor.

That automatic mandatory minimum prison sentence was included in the Adam Walsh Act passed by Congress to combat child sex abuse. But in September 2008, Judge Beverly B. Martin of the Northern District of Georgia ruled that penalty was unconstitutional as applied to Kelly Farley, a 39-year-old Texas man convicted of making plans to molest a 10-year-old girl.

In the brief filed with the U.S. Court of Appeals for the 11th Circuit, the GOP lawmakers say they "are particularly concerned with the lack of respect and improper deference afforded to Congress by the district court in the case" and suggest the lower court's ruling "threatens to abridge Congress' authority to impose punishment that it deems appropriate to the corresponding offense."

The brief was signed by seven Republicans on the House Judiciary Committee as well as Mike Pence, a former committee member who is now the chairman of the Republican Conference, and Eric Cantor, the Minority Whip.

This was not the first provision of the Adam Walsh Act that's been knocked down by a federal judge. Last year, a District Court judge in Florida ruled the federally-mandated sex offender registry database was an unconstitutional violation of the Commerce Clause.

Whether or not you agree with the district court decision, I don't understand the argument by the Republicans. The Eighth Amendment constrains their ability to dictate certain punishments. If the court found that Congress' sentencing statute ran afoul of the Eighth Amendment, there is no obligation to defer to Congressional decision-making.

Life Sentence For Failure To Register Cruel and Unusual in Georgia

The Georgia Supreme Court has ruled that a mandatory life sentence given to a sex offender two twice failing to register was unconstitutional.  The Court ruled that the sentence violated the Eighth Amendment's prohibition on cruel and unusual punishment. You can view the opinion here. From The Atlanta Journal-Constitution:

The Georgia Supreme Court on Tuesday struck down as unconstitutional a mandatory life sentence given to a Bulloch County sex offender convicted of failing to register for a second time.

In a 6-1 decision, written by Justice Robert Benham, the court said the life sentence given to Cedric Bradshaw violates the Eighth Amendment’s guarantee against cruel and unusual punishment.

“We conclude the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional,” Benham wrote.

Georgia’s sex-offender law is the only one in the country that mandates a life sentence for an offender who fails to register at the local sheriff’s office a second time.

After turning 19, Bradshaw pleaded guilty to enticing a child for indecent purposes. In November 2001, he was sentenced to serve up to eight months in a detention center and five years’ probation.

But before reporting to the detention center, Bradshaw was charged with statutory rape for having sex with a 15-year-old girl. He pleaded guilty and was sentenced to five years in prison.

After his release, Bradshaw gave an invalid address on the local sex-offender registry — his first offense. He was sentenced to time served, six months in jail.

He then registered again as a sex offender, giving a correct address and moving in with his sister. But he was forced to move because her home was too close to a recreation center. He then registered again, moving in with his aunt, but had to move once more because her home was within 1,000 feet of a church.

Bradshaw then registered a family friend’s home but gave an incorrect address and never moved in. Last December, he was convicted and given the mandatory life sentence.

“The Supreme Court did exactly the right thing,” Bradshaw’s lawyer, Robert Persse, the circuit public defender in Statesboro, said. “The state’s penalty provision was excessive and clearly disproportionate to the offense in question.”

The court’s decision upheld Bradshaw’s conviction for failing to register a second time and sent his case back to the trial court for re-sentencing.

Chief Justice Leah Ward Sears, in a concurring opinion, said life sentences “should be reserved for society’s most serious criminal offenders … Bradshaw’s failure to register as a sex offender, when his underlying crime only landed him in jail for five years, is not the kind of crime a civilized society ought to require him to pay for with his life.”

Justice George Carley issued the lone dissent, calling the majority’s decision a “monumental abuse of this court’s authority to determine the constitutionality of legislation.”

I think the majority is exactly right on this one. While Cruel and Unusual Punishment challenges are rarely successful in non-death cases (they are even rarely successful in death cases), failing to comply with an administrative regulation for registration twice cannot morally support a life sentence. If the legislatures of the country believe that sex offenders are so dangerous that a lifetime of incarceration is justified, they are free to increase the penalties for the underlying sex crimes (i.e. rape). However, insofar as registration is considered a non-punitive measure (thus justifying retroactive application), then failure to meet that regularatory burden cannot result in serious jail time if proportionality is to have any meaning.