Sex Crimes

New 'Sexting' Scholarship

John A. Humbach (of Pace University School of Law) has posted a new article on SSRN entitled: 'Sexting,' the First Amendment and Prosecuting Teens. From the abstract:

'Sexting' and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having illegally received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions, and the statutory penalties are severe. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur when governmental policies and initiatives built on past truths and values collide with new and unanticipated social phenomena.

The focus of anti-pornography enforcement in recent years has been the child pornography laws. The landmark cases of New York v. Ferber and Osborne v. Ohio have established and defined a categorical exclusion that denies First Amendment protection to sexually explicit visual depictions of minors. Even though Ferber and Osborne may not strictly speaking require a conclusion that sexting and other autopornography are unprotected speech, at least some lower courts and prosecutors appear to regard them that way.

By contrast, the language and reasoning of the more recent case of Ashcroft v. Free Speech Coalition gives strong reason to believe that the scope of the categorical exclusion for child pornography should be closely aligned with the governmental objectives that Ferber and Osborne relied on - which would mean constitutional protection for teen sexting and autopornography that occur on the teens’ own initiative. Ashcroft strongly implies, though does not quite say, that the categorical exclusion should be limited to materials that are produced by means of criminal child abuse and exploitation. Also, current standards of strict scrutiny for content-based regulations, if applied, would probably prevent (on the present state of the studies and research) self-produced teen materials from being subsumed into the Ferber categorical exclusion. How this issue will be decided, however, remains to be seen.

H/T: Legal Theory Blog.

47 IQ, 100 Years in Prison

A teen with a 47 IQ was sentenced to 100 years in prison after pleading guilty in a sex abuse case involving his six-year old neighbor. From MSNBC

Aaron Hart, 18, of Paris, was arrested and charged after a neighbor found him fondling her stepson in September. The teen pleaded guilty to five counts, including aggravated sexual assault and indecency by contact, and a jury decided his punishment.

Lamar County Judge Eric Clifford decided to stack the sentences against Hart after jurors settled on two five-year terms and three 30-year terms, The Dallas Morning News reported Wednesday.

 

The judge said neither he nor jurors liked the idea of prison for Hart but they felt there was no other option.

Hart has an IQ of 47 and was diagnosed as mentally disabled as a child. He never learned to read or write and speaks unsteadily.

Despite being a target of bullies, he was courteous, well-behaved and earned money by doing chores for neighbors, supporters said. His parents say he'd never acted out sexually.

Jurors said they sent the judge notes during deliberations in February, asking about alternatives to prison, but didn't get a clear answer. They believed the judge would order concurrent sentences, jurors said.

District Attorney Gary Young said he sympathized with Hart's situation but stands by his decision to prosecute on five counts. Prosecutors commonly pursue several charges for a single incident to see which the jury will support.

Young said a diversion program was not an option since the law doesn't allow that for serious felonies.

Newspaper Article Examines Juvenile Sex Offender Registration in Texas

The Houston Chronicle is running an interesting article discussing Texas' problem with juvenile sex offenders.  Children as young as ten years old can be registered as sex offenders, a label which can last a decade. From the article:

Samantha Portwood is marking the days on her calendar until Sept. 30. That's the day her 24-year-old son's name and picture is expected to be removed from the state's sex offender registry.

For the past decade, her son Dale has lived under public scrutiny for a crime he committed when he was 12. He inappropriately touched a 7-year-old girl at his baby sitter's house and was charged with aggravated sexual assault. After completing two years of therapy and probation, he had to register as a sex offender, which shocked his parents.

Her son isn't alone. About 3,600 people on the state's registry were added as juveniles, according to the Texas Department of Public Safety, which administers the registry. Eleven were 10 years old when they registered.

The registry has 26 juveniles who are currently 13 to 16 years old, according to state records. Of the more than 340 juvenile registrants who live in Harris County, three are currently 16 years old, records show.

Many people are not aware that juveniles can be registered as sex offenders in Texas. State legislators made registration mandatory for adults and juveniles when they established the sex offender registry in 1991. Texas does not have a minimum age for juvenile registration, but the minimum age for prosecution is 10.

9th Circuit Holds that SORNA Prosecution Violates Ex Post Facto Clause (for Juveniles)

Thanks to Sentencing Law & Policy, we see that the Ninth Circuit Court of Appeals has ruled that SORNA's retroactive registration requirement violates the Ex Post Facto clause when applied to juvenile offenders. You may read the unanimous panel opinion here. Eugene Volokh has more. From the opinion:

We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional.

I'm still baffled why judges aren't distinguishing the decision in Smith v. Doe from a SORNA prosecution in a more straight-forward manner. As I have argued repeatedly, the Smith court made clear that it was only considering a civil suit against being listed on the registry and NOT the criminal penalties associated with failing to register: 

A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense. Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion.

If even Judge Reinhardt, the author of the Ninth Circuit opinion, is unwilling to distinguish Smith on such grounds, I'm beginning to wonder if any Circuit will. However, there is reason for why Judge Reinhardt did not endorse what is, in my opinion, the easier and better argument for distinguishing Smith. From Footnote 16 of the opinion:

United States v. George, ___ F.3d ___, 2009 WL 2591677 (9th Cir.), addressed an ex post facto challenge to SORNA’s criminal provisions from a defendant who was convicted of a sex offense prior to SORNA and then convicted under SORNA for failure to register. Smith v. Doe had already established that under SORNA adults may be constitutionally required to register as sex offenders based on pre-SORNA convictions, 538 U.S. 84 (2003), and George did not consider the separate issue of whether juvenile offenders may be constitutionally required to register based on pre-SORNA adjudication.

Because another panel of the 9th Circuit had already decided a typical 2250(a) prosecution involving an adult offender, the only possible grounds for Judge Reinhardt to distinguish the cases was based upon the defendant's status as a juvenile (which I think is a suspect distinction). However, if the 9th Circuit hears the case en banc, that panel would be free to distinguish Smith on the grounds above and overrule the George panel opinion. I'm doubtful that will happen, but I hope it will so that some sense is finally added to the discussion of the Ex Post Facto Clause.

Prosecutor Declines to Bring "Sexting" Charges

A Michigan prosecutor has decided not to charge several high school students who distributed nude cell phone pictures of a 14-year old girl. From Fox News:

Prosecutor David Morse told reporters Monday that Pinckney High School and parents handled the matter appropriately. Morse says no purpose would be served by putting the teens on the state sex offender registry.

The sheriff's department in October confiscated a dozen mobile phones after the girl took a photo showing her genitals and sent it to friends. Authorities say about 200 people wound up getting the pictures.

About 20 students were disciplined.

This entire area of law depends upon the discretion of prosecutors. Legislatures really need to be more proactive to cure the problem so that it is not left to individual prosecutors.

"Restorative Justice and Child Sex Offences: The Theory and the Practice"

Sentencing Law & Policy notes the availability of this interesting new article from the British Journal of Criminology.  You can read the article on SSRN here. From the abstract:

Restorative justice advocates have made a number of claims about the effectiveness of restorative justice in relation to sexual assault crimes, such as its ability to defuse power relations between the parties and heal the harm.  This article examines whether or not restorative justice is one of the ways forward in the difficult area of prosecuting child sex offences by re-analysing some of the data reported in Daly (2006) and comparing restorative justice with other reforms to the sexual assault trial.  It concludes that there is insufficient evidence to support the view that there are inherent benefits in the restorative justice process that provide victims of sexual assault with a superior form of justice.

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.

ACLU Sues DA Who Threatened Teen Girls with Child Porn Charges

Fresh off their victory over sex offender registry restrictions in the Pittsburgh-area, the ACLU of Pennsylvania has filed a complaint in federal court against a Wyoming County district attorney who threatened three high school girls with child porn charges arising from semi-nude cell phone pictures of themselves. You can read the complaint here.  For more coverage, check out Ars Technica and the Wall Street Journal Law Blog.

The American Civil Liberties Union of Pennsylvania filed a lawsuit today against the Wyoming County district attorney for threatening three high school girls with child pornography charges over digital photos in which they appear topless or in their underwear. The district attorney has demanded that in order to avoid the charges, the girls be placed on probation, participate in a five-week re-education program and be subject to random drug testing. The photos were among several discovered by Tunkhannock School District officials on students' cell phones.

"Sexting," the practice of sending nude or semi-nude photos of oneself via cell phones or posting them on the Internet, has become increasingly widespread among teenagers. A recent survey found that approximately 20% of all teenagers have sent or posted nude or semi-nude pictures of themselves.

At issue in this case are two photos depicting three teenage girls. One shows Marissa Miller and Grace Kelly from the waist up wearing white bras. The other depicts Nancy Doe (a pseudonym used to protect the girl's real identity) standing outside a shower with a bath towel wrapped around her body beneath her breasts. Neither of the two photos depicts sexual activity or reveals anything below the waist.

The district attorney has asserted that the girls were accomplices to the production of child pornography because they allowed themselves to be photographed. The district attorney has not, however, threatened to charge the individuals who distributed the photos.

I'm curious to see if any of the court challenges to these prosecutions have any success. Ultimately, I think the solution might have to come from the legislatures. Different types of child pornography crimes need to be categorized to reflect those differences. Regardless, prosecutors should make better use of their discretion in such cases.

Principal Resigns After Cursing at Father of Sex Crime Victim

A principal in the Chicago suburbs has resigned after he "accidentally e-mailed the father of an alleged sex crime victim a message referring to the father with an epithet." From the Chicago Tribune:

In an emailed apology distributed by the district, Mark Metzger said he will continue to serve on the board but will not head the body and will recuse himself from further discussions of the case, in which an 11-year-old boy from Gregory Middle School in Naperville alleged that two of his schoolmates tied him up and sexually abused him in a residence last fall.

The boy's father has clashed with the district, which refused to remove the suspects from the school, even after the victim alleged he was assaulted at school and photos of the alleged sex crime were distributed around campus. The family of one boy later transferred him to neighboring Naperville School District 203.

The 11- and 12-year-old boys have been charged in Will County with criminal sexual assault, criminal sexual battery and misdemeanor battery. The 11-year-old was charged with misdemeanor battery in the second incident.

On Friday, Metzger accidentally included the father in an email intended for other board members. It referred to the father with an expletive, drawing the condemnation of the Indian Prairie Parent Council. In Tuesday's apology, Metzger described the e-mail as "inappropriate," adding, "It is an action that I deeply regret and one that unfortunately takes the time and attention away from finding a solution for the families that have been affected by the middle school issue."

Alabama Legislator Wants Death Penalty for Child Rapists

Although the Supreme Court held in Kennedy v. Louisiana that the Eighth Amendment prohibits the death penalty for commiting the crime of raping a child, one Alabama legislator apparently wants to press the issue (or is oblivious to the Court's holding). State Rep. Steve Hurst has proposed a new law allowing judges to sentence persons older than 21 to death for the rape of a child 6 years old or younger. Sentencing Law & Policy has more. From NBC13.com:

Pedophiles who rape young children could face the death penalty in Alabama…if one state lawmaker gets his way.

State Representative Steve Hurst of Munford in Talladega County is proposing a new law that would allow a judge to use capital punishment if someone older than 21 is convicted of raping a child 6 years old or younger.

The death penalty is a punishment that -  so far - has been reserved only for murderers. 

Should child molesters now be included?

With the growing number of child sex predators, Hurst says capital punishment is an appropriate sentence for adult rapists older than 21 who violate children 6 years old or younger.

“You take a child who’s completely helpless. They have no way to defend themselves. And someone does something of this nature to them, you have literally destroyed that child for the rest of their life,“ says Hurst.

But sex psychologist Dr. Keith Abrams warns he doesn’t think the strategy will work.

“We’ve had capital punishment for decades, and we still have murder,“ says Abrams.

Abrams says instead of focusing on deterrents, we should focus on prevention, for both potential victims and abusers.

In Abrams opinion, any adult who could rape a young child is past the point of being concerned about the repercussions.

“When people commit those kinds of crimes, they get to a place mentally where they’re not thinking about deterrents,“ explains Abrams.

The Jefferson County Sheriff’s Department says there are now more than 1000 registered sex offenders living in the county…and at least one third will re-offend.

Introducing capital punishment for some might not be a fix all, but Hurst says, it’s at least a start.

“You’ve got to keep knocking at the door, or you can’t never get in.“

Hurst is still waiting to schedule this bill’s first hearing before the Alabama Legislature.

I think the legislators of Alabama just enjoy being outliers when it comes to sex crimes legislation. This is the only state with a ban on sex toy distribution. And it's rape statute is the oddest in the U.S.