Sex Crimes

Iowa Town's Total Sex Offender Ban May Be in Jeopardy

A helpful reader informs us that a small town in Iowa (Dyersville to be precise) has decided against repealing an ordinance that bans all sex offenders from residing within the city limits. The ordinance however, is in tension with the state's own residency restrictions which prohibit sex offenders from living within 2,000 feet of schools, libraries, and daycare centers. Thus, it appears that the town's ordinance is in a state of limbo. From The Telegraph Herald:

The Dyersville City Council decided not to act Monday on a repeal of an ordinance passed in 2005 that bans all sex offenders from residing within city limits.

Council member Molly Evers, a longtime opponent of the ordinance, cited a recent change in Iowa Code that takes away power from municipalities to adopt ordinances on residency of sex offenders.

[Under Iowa law], "any motion, resolution or ordinance adopted by a political subdivision of the state is void and unenforceable."

Four days after the council meeting, Evers expressed her displeasure with the decision not to move forward. "Dyersville should do the right thing now and bring its ordinance in accord with state law," Evers wrote in an e-mail to the TH. "Unfortunately, though, some people cannot admit it when they are wrong.

City Attorney Marc Casey contacted the Iowa Attorney General's office for "informal" advice before forming his opinion, according to Iowa Attorney General spokesman Bob Brammer.

"In our view, a local ordinance in this realm likely would be preempted by the specific language in the statute," Brammer said. "We encourage any city to consider and research if there are potential liabilities if the city enforces an ordinance that has been preempted or voided by state law."

Heavens said he's not concerned about litigation against the city. "Somebody would have to show they were harmed that they can't live in the city limits of Dyersville," Heavens said. "We have never had (sex offenders) come here and ask us to live here."

Meanwhile, a 19 year old Dyersville man has been charged with the sexual abuse of two 13 year old girls.  If he is convicted, it will be interesting whether the town will enforce the residency restriction on a current resident. 

Iowa Gov. Signs New Sex Offender Residency Restriction

Iowa Gov. Chet Culver has signed new legislation prohibiting sex offenders from living within 2,000 feet from places where children gather. The new restriction is limited to certain sex offenders based of the severity of their crime. From the Chicago Tribune:

Flanked by police and prosecutors, Gov. Chet Culver has signed into law an overhaul of Iowa's sex offender laws that prohibits released offenders from setting foot on places where children gather.

The measure signed Thursday by Culver retains a ban on sex offenders living within 2,000 feet of places like schools, libraries and day care centers, but it limits that restriction to those who have committed the most severe crimes against children.

In addition, the measure puts in place a ban on offenders entering those facilities without permission, and it establishes a 300-foot "no loiter" zone around such sites. The Corrections Department will have the authority to decide which offenders can be required to wear electronic monitoring devices letting officials track their movements.

The measure was a carefully crafted compromise that was bargained throughout this year's legislative session.

"There's no place in Iowa for those who abuse our children," said Culver. "This has been in the works for years."

Judge Kent Pleads Guilty, Resigns

In an astonishing turn, Judge Kent has pled guilty to obstruction of justice today and retired from the bench, thereby avoiding trial on the other issues. From the Houston Chronicle:

U.S. District Judge Samuel Kent pleaded guilty to one count of obstruction of justice today and retired from the bench, avoiding a trial on that charge and five others accusing him of sexually abusing two female employees.

Kent was scheduled to see a jury selected this morning for his trial on all six felony counts.

Few federal judges ever go to trial, but his would have been the first in which a federal judge was accused of sexual charges.

“Judge Kent believes that this settlement is in the best interest of all involved,” his attorney, Dick DeGuerin, said after this morning’s hearing.

“A trial would have been long, embarrassing and difficult for all involved,” DeGuerin added. He said Kent has retired from the bench.

Kent faces up to 20 years in prison on the obstruction charge. Prosecutors have suggested he be sentenced to three years in prison, but the judge is not bound by that recommendation.

Iowa Seeks to Comply With AWA, May Scrap Residency Restrictions

Legislators in Iowa are looking to change the state's sex offender law in order to bring the state in compliance with the federal Adam Walsh Act. Some lawmakers are proposing removing the state's harsh residency restrictions. From Radio Iowa:

Iowa lawmakers are considering extensive changes to the state's sex offender laws to get the state into compliance with federal rules. As part of the re-write, some lawmakers want to scrap the restriction on where sex offenders live and instead, limit where they can go during the day.

Iowa has until July of 2010 to comply, or face losing $450,000 a year in drug and crime fighting grants. Ross Loder, the Department of Public Safety's legislative liason, says there are other compelling reasons why Iowa should conform with the National Sex Offender Registry.

Loder says, "We potentially could face a situation where Iowa's much more attractive to sex offenders who want to remain outside of a integrated national system. In fact, we know today, sex offenders do in fact jurisdiction shop." Iowa's registry only includes the offender's address and physical description.

If the state joins the national registry, offenders will also be required to report their place of employment, the kind of car they drive, and, if they're a student, where they go to school. It does not include a residency requirement. In 2002, Iowa lawmakers voted to bar convicted sex offenders from living within 2,000 feet of a school or daycare.

Bremer County Sheriff Dewey Hildebrandt was once a staunch supporter of the restriction but now fears it's forcing offenders into hiding.

Sheriff Hildebrandt says, "The current law, even in our particular county, has pushed people unable to find residency within communities out in our county parks where it's a campground and, for Pete sake, children go to those campgrounds with their parents and pushing sex offenders into campgrounds to me is not an ideal solution."

Hildebrandt supports replacing the residency requirement with an anti-loitering provision. Legislation at the statehouse would prohibit an offender from hanging out within 300-feet of a school, daycare, park or swimming pool. Registered sex offenders could only attend school functions if given permission by school officials.

Representative Clel Baudler, a Republican from Greenfield, has been advocating for this change for three years, but says lawmakers have previously lacked the political courage to scrap the 2,000 foot rule.

Baudler says: "Absolutely, their fear of the postcards during the campaign, you know the radio ads, 'You're soft on sex offenders,' 'You attack our kids.' This bill, if we can get it done, will be smarter and tougher on the perpetrators that are on the sex offender registry." While Baudler has the support of the state sheriffs and county attorneys associations, not everyone is ready to abandon Iowa's 2000-foot rule.

Boone Community Schools superintendent Theron Schutte likes the idea of an anti-loitering law, but says it should be in addition to the residency requirement. "Anything that would put the school district or its occupants, whether it be students or staff, in a greater position of potential danger would be a bad move. From that standpoint, I think just opening the door to people on sex offender registry living wherever they want to around a school, I think that would be a bad move," Schutte says.

That view is why Senator Keith Krieman, a Democrat from Bloomfield, is searching for some middle ground. Krieman says it may be time to tweak the 2000-foot law so that it doesn't apply in every case. He cites young offenders still living with parents or those who public safety has deemed a low risk to re-offend. Kreiman says even small changes will be politically charged -- and more easily adopted in a non-election year.

Kreiman says, "I think the entire bill will need bi-partisan support and I think it's more likely to happen this year than next because of those political concerns, and the fact that we are told by the federal government that we need to comply with the Adam Walsh bill."

While Iowa doesn't have to change its 2,000-foot rule to comply with federal law, everyone involved says any rewrite of the state sex offender registry should include a debate of the residency requirement. It's a discussion that law enforcement has been having for years but one that legislative leaders have tried to avoid. 

Eighth Circuit Issues New SORNA Opinion

I was a bit disappointed with the Eighth Circuit's opinion in United States v. May because it didn't address in depth the legitimate constitutional arguments against SORNA prosecutions. To some degree the court's opinion in United States v. Howell cures the deficiencies of May. The focus of the Howell opinion was almost entirely the Commerce Clause arguments. Ultimately, the Eighth Circuit found in favor of the government, but the opinion is a more sophisticated discussion of the issues involved than has been offered in prior federal appellate court opinions. At the outset, the Howell court was bound by the May opinion which prevented a finding that 2250 (the crime of failing to register) was an unlawful exercise of federal jurisdiction: 

Thomas and Howell first contend § 2250 does not have a sufficient nexus to interstate commerce to be authorized by the commerce clause. This court has previously held § 2250 is constitutional under the commerce clause. See United States v. May, 535 F.3d 912, 921–22 (8th Cir. 2008). Thus, we adhere to that holding. See United States v. Wilson, 315 F.3d 972, 973–74 (2003) (“this Court’s precedent . . . prohibits any three-judge panel of the Court from overruling a previous panel opinion”).

As a result, the Howell court only considered whether 16913 (the registration requirements) were not supported by Commerce Clause jurisdiction (which I think is a tougher argument for the defense):

A narrow discussion which only analyzes § 16913 under the three categories of Lopez casts doubt on the constitutionality of § 16913. Lopez, 514 U.S. at 558–59. On its face, § 16913 does not have a jurisdictional “hook” to fit under the first two prongs of Lopez, and there is little evidence in this record to show intrastate sex offender registration substantially affects interstate commerce.

I think that is exactly right and I'm happy to see the court accepted that basic proposition. Where the court turned next is interesting: 

However, an analysis of § 16913 under the broad authority granted to Congress through both the commerce clause and the enabling necessary and proper clause reveals the statute is constitutionally authorized. To reach this conclusion, we first address whether SORNA is furthering a legitimate end under the commerce clause.... We believe Congress enacted SORNA to track the interstate movement of sex offenders. The language of § 16913 evidences Congress’s focus on monitoring this interstate movement of sex offenders by emphasizing the movement of sex offenders from jurisdiction to jurisdiction. The statute requires sex offenders to “register, and keep the registration current, in each jurisdiction” where the offender lives, works, or goes to school. 42 U.S.C. § 16913(a) (emphasis added). Subsection (c) focuses on the movement of sex offenders by requiring the offenders to update registration “in at least 1 jurisdiction” within three days of a change identified in subsection (a). 42 U.S.C. § 16913(c). Finally, the statute is concerned with interjurisdictional reporting of sex offender movement by requiring the jurisdiction where the offender updates his or her registration to notify “all other jurisdictions” where the offender must register. Id. This language indicates Congress wanted registration to track the movement of sex offenders through different jurisdictions.

The last statement is definitely true, but it is also important to recognize that SORNA does much more. The national registry component of the AWA (which is surely constitutional) serves the entire function of tracking the interstate movement of sex offenders. 16913 and 2250 regulate intrastate and interstate conduct. If a sex offender is a day laborer, he or she must change registration information every day even if he or she never crosses a state line. An intrastate move similarly triggers re-registration requirements. Even if an offender stays within a state and never changes jobs, periodic reporting requirements are still in place. If an offender grows a beard, he must also report to change his registry information because of the change in appearance. The scope of SORNA goes far beyond wholly intrastate activities. However, the Eighth Circuit saw the requirements of SORNA very differently: 

Under § 2250, Congress limited the enforcement of the registration requirement to only those sex offenders who were either convicted of a federal sex offense or who move in interstate commerce. 18 U.S.C. § 2250(a)(2). With this limitation, a resident of Iowa who has been convicted of a state sex offense and who does not leave Iowa would never be subject to federal sanctions if he fails to register. The Iowa resident could only be punished under Iowa law for failure to register. A wholly intrastate offender would never be reached by federal enforcement power. This limitation demonstrates Congress’s intention to punish only interstate offenders.

I'm not sure I understand the basis of this portion of the decision. There have been several defendants across the country whose travel was unrelated to the SORNA prosecution. In many cases the interstate travel was before the passage of the act. I outlined the facts of just one troublesome case in my recent article on the subject which should be out soon.

Ultimately, I think the Eighth Circuit has pushed the ball forward in discussing the Commerce Clause status of SORNA. However, I think the court has read into the statute an interstate commerce connection that goes beyond the text of the statute. Too many cases across the country illustrate that prosecutors consider any prior interstate travel wholly unrelated to a failure to register as a sufficient basis for federal jurisdiction. I think the Eighth Circuit should consider an en banc review of some of the SORNA cases in order to resolve the status of 2250(a) and 16913 once and for all. These cases are only going to become more common and soon the Eight Circuit will encounter a lot of fact patterns which illustrate the asserted broader scope of SORNA.

Although Judge Melloy was not the author of the opinion, he did join in it, so I should mention that I clerked for him.

Sex Between Teacher and 18 Year Old Student Legal In Washington State

A unanimous all-female panel on the Washington Court of Appeals found that a state law banning teachers from having sex with minors does not apply to 18-year-olds. You may view the opinion here. Cradle-robbing teachers in Iowa however, should be warned; sex with 18-year-old students in the Hawkeye state is apparently illegal. From the Seattle Times:

State law does not ban teachers from having sex with 18-year-old students, according to a unanimous ruling by a panel of appellate judges.

The state Court of Appeals ruling came in a case involving Matthew Hirschfelder, a former choir teacher at Hoquiam High School who was charged with first-degree sexual misconduct with a minor in 2006 after an 18-year-old member of the choir told police she had been involved in a months-long sexual relationship with him.

Hirschfelder, who was 33 at the time, denies any relationship occurred.

Hirschfelder asked a judge in Grays Harbor County Superior Court to dismiss the case, arguing that the girl was not a minor because she was 18. The judge refused to dismiss the charge but urged the state Court of Appeals to address the issue because the state's sexual-misconduct statute seemed contradictory.

In an opinion issued Tuesday, a three-member panel of the appeals court agreed that the statute was unconstitutionally vague, and sent the case back to the Superior Court to be dismissed.

Hirschfelder argued that, even if the facts as alleged in his case were all true, no crime was committed. He argued that the statute on sexual abuse of a minor does not define the term "minor," and that both common law and other Washington statutes define that term as a person under the age of 18.

The appeals judges agreed, pointing out that the law was grouped with other statutes prohibiting the sexual exploitation of children, where the term "minor" is defined as someone under 18.

In my Criminal Law class, I always raise the possibility of strict liability being applied in sex crimes other than statutory rape based upon age. Among the scenarios we discuss are doctor/patient, guard/prisoner, and teacher/student. This case certainly throws a wrinkle into that discussion. 

H/T: How Appealing.

Some Sex Crime Sentences

Sentencing Law & Policy has three posts about three recent sex crimes sentences. In Another notable child porn sentencing decision, Berman points to a notable Judge Pratt opinion in a child pornography case. In An honest (and honorable?) gendered sentencing outcome in adult-teen sex case, there is a story of a woman that was given a lighter sentence in New Hampshire for sexual assault of a boy because of the boy's "raging hormones." And in Is there a law student sentencing discount for federal child porn charges?, an apparent sentencing break was given to a law student. Shouldn't the legally trained be held to a higher standard?

Berman finishes the last post with a concern that I strongly concur with: "As I have stressed in a number of prior posts, anyone seriously concerned about federal sentencing disparities should look very closely at federal child porn cases.  And, critically, this look must focus closely on the operation of prosecutorial discretion, which often seems to have an even bigger impact in these cases than judicial discretion."

Connecticut, Iowa Newspapers Calling For Sex Offender Law Reform

One Connecticut newspaper is calling for the state's sex offender registry law to be fixed. A Public Defender has more. From The Hartford Courant:

Connecticut's sex offender registry law needs to be updated. The state Department of Public Safety announced recently that 74 convicted sex offenders will be coming off the registry before the end of this year because their 10-year online registry period will expire. This is one of several examples of problems with the current system that must be solved.

First, many true sex offenders are avoiding the registry altogether by "charge bargaining" in our courts. Current law requires sex offender registration only for convictions under certain specific statutes, such as first-degree sexual assault. Skilled defense attorneys know this and will agree to have their clients plead guilty and even accept a prison sentence in exchange for a prosecutor's agreement to have them plead to charges that do not require registration....

Second, there is far too little information about registered sex offenders on the current registry. Many other states provide important details on offenders, including whether the victims were male or female, adult or child, known to the offender or strangers, and some details of the crime.....

Third, there should be an explanation of risk level for individual offenders in our registry. All sex offenders are subjected to extensive risk assessment by the state Department of Correction, the Office of Adult Probation and the Parole Board, and citizens have a right to know this.

Fourth, there are so many names on Connecticut's registry that the significance of the information has been diluted. More than 5,100 names appear on the registry today. When it began 10 years ago, citizens assumed that every person listed was a dangerous sex offender and probably a pedophile. In reality, that is not the case....

Finally, the length of time an individual offender remains on the registry should be decided case by case based on risk. Ten years is much too short of a time for high-risk offenders. A minimum period should be established, and 10 years seems to be appropriate. That period then could be extended based on the offender's risk.....

Meanwhile, the most significant Iowa newspaper is proposing that the state repeal its ill-conceived 2,000 foot law. From The Des Moines Register:

The Iowa Legislature will have the opportunity next session to repair an ill-conceived and ineffective state law. Though the price of scuttling this bad law will be adopting another bad one, it is a trade-off lawmakers should exercise, though with extreme reluctance.

The existing Iowa law makes it a crime for convicted sex offenders to live within 2,000 feet of any facility where children congregate, including schools and child-care centers. In many cases, this means men and women convicted of sex crimes are limited to living under bridges, along riverbanks or remote areas of the county. The law absurdly does not prohibit offenders from hanging out at any of those facilities, however.

The legion of critics of this law has grown to include law-enforcement officials, county prosecutors and even crime-victim advocates, who say the law has numerous unintended consequences, including discouraging reports of sex offenses and driving offenders underground....

The next step will be to work on Congress to rewrite the federal registry rules. Some who commit sex crimes may be incurable predators, and they deserve special treatment. The law treats all sex offenders alike, however, and as a result no one is any safer, law-enforcement resources are wasted and lives are unnecessarily ruined.

Iowa has learned that lesson. Now, Congress should get the message.

Iowa May Scrap Residency Restrictions

Iowa lawmakers who are faced with a deadline to enact Adam Walsh Act-compliant laws might use the opportunity to eliminate the state's 2,000 foot residency restriction.  From the Chicago Tribune:

As Iowa faces a deadline to update its sex offender law to match a stricter federal one, state lawmakers may use the opportunity to get rid of a controversial 2,000-foot rule restricting where offenders can live.

Under the federal law, sex offenders would have to stay on an online public registry at least five years longer, reveal more personal information about where they work and go to school, and face more supervision from law enforcement.

If Iowa doesn't comply with the federal provisions by the July deadline, the state could lose up to $450,000 for law enforcement activities.

For some Iowa lawmakers, the federal law is providing an opportunity to toss out the state's 2,000-foot state rule that bans sex offenders from living near child care centers and schools.

"Scrap what we have because it's not working," said Rep. Clel Baudler, R-Greenfield, a former state trooper.

The proposed legislation would replace that residency restriction with "exclusion zones," which would limit where sex offenders may be present or loiter and require written permission to visit school grounds and child care centers.

Baudler and others say that while the federal law does not require Iowa to repeal its 2,000-foot rule, it would provide lawmakers some cover if they want to do so.

"If they're afraid of political ramifications, I can assure them that anything we move forward with is better than what we have now," Baudler said.

Iowa was one of the first states to implement its residency restriction law (because its litigation finished with relative speed). It also adopted one of the largest exclusion zones of 2,000 feet. It would be a very significant signal nationwide if Iowa decided to abandon its residency restriction program. It might even turn the tide against such laws in other states.

Iowa Supreme Court Upholds Law Barring Single Parents From Living With Sex Offenders

In a divided opinion, the Iowa Supreme Court upheld a law barring single parents from living with convicted sex offenders. You can read the opinion here. From Chicago Tribune:

The Iowa Supreme Court, in a split opinion Friday, upheld a law that bars single parents from living with convicted sex offenders.

The case involves a Coralville woman who was found guilty of child endangerment and sentenced to one year probation. The woman, Holly Mitchell, lived with a convicted sex offender and let her children stay with the man while she was at work.

Mitchell's mother and sister also stayed with her two children, so they were not alone with her boyfriend, records show.

Mitchell appealed her conviction, claiming the state's law is unconstitutional because it treats people who are not married and living with a sex offender differently than people who are married and living with a sex offender.

The Iowa law was amended in 2005 to include living with a sex offender.

Mitchell claimed the law violates the equal protection clauses of the U.S. and Iowa constitutions. She claimed there is no rational reason to treat people who aren't married and living with a sex offender differently than those who are married.

In her appeal, Mitchell argued that her equal protection rights were violated because the Iowa Legislature decided to distinguish between married and unmarried people, subjecting only unmarried people to criminal charges for engaging in the same behavior as married people.

She didn't argue against the need to protect children, only that there is no rational reason to differentiate between married and unmarried people. Mitchell also argued that the risk to a child is not greater living in a home where an unmarried parent lives with a sex offender than it would be if a married parent lived with a sex offender.

The Supreme Court rejected Mitchell's equal protection argument, saying that sex offenders who are married to a parent have "greater financial obligations and other obligations toward the family, so that the sex offender feels he or she has a stake in the well-being of the children."

"It is realistically conceivable that unmarried cohabitating sex offenders do not have the same stake in the children's ... well-being, and therefore post a greater threat to the children," the court said.

Justices Daryl Hecht and David Wiggins offered a dissenting opinion that the law violated the Iowa Constitution.

In the opinion, written by Wiggins, the justices said the law does not define cohabitation and that defining risk to a child based on that classification is "arbitrary and irrational." 

The case was unusual because the legal issues really had nothing to do with sex offenders and recidivism. Instead, the focus was on the Equal Protection analysis as to whether there was a rational basis for treated married persons differently than unmarried persons. So, while the outcome was not terribly surprising, I'm not sure the case has a lot of legal importance beyond the specific holding of the court. As the opinion notes, error was not preserved for the due process claim. I think that challenge would likely have more success in the future (since interfering with intimate relations between persons is likely to limit a fundamental liberty interest).