Sex Crimes

Council of State Governments Opposed To Registering Juvenile Offenders

Recently, the Council of State Governments has adopted a resolution stating its opposition to SORNA, as it applies to juveniles.  You can read the resolution here. From the Resolution:

WHEREAS, the Sex Offender Registration and Notification Act (SORNA) requires that juvenile sex offenders age 14 years and older be included on both state and national public sex offender registries;

WHEREAS, under SORNA, sex offender registries may publish the addresses of a juvenile offender's home, school or work, a photograph and description of the juvenile, and license plate number;

WHEREAS, these provisions of SORNA contradicts the rehabilitative intent and confidentiality that has been inherent in the juvenile justice system;

WHEREAS, SORNA ignores important developmental differences between juveniles and adults, namely that juvenile sex offenders are at a much lower risk to reoffend than adult sex offenders;

WHEREAS, SORNA further ignores evidence that a youth's brain is still developing until their early twenties, meaning juveniles are not fixed in their sexual offending behavior and may respond well to treatment;

WHEREAS, juveniles have fewer numbers of victims than adult offenders, and on average, engage in less serious and less aggressive behaviors;

WHEREAS, juvenile sex offenders do not pose the same public safety threat as adult sex offenders;

BE IT THEREFORE RESOLVED, that The Council of State Governments strongly opposes SORNA's application to juvenile sex offenders and urges Congress to revise the law to more accurately address the needs of juvenile offenders.

"Sex registry stigma too much for young"

While the Tennessee legislature debates whether to include juveniles on the state's sex offender registry, one newspaper is ran an editorial discussing the flaws of such a proposal. From The Tennessean:

Tennessee's top law-enforcement officials want juveniles convicted of sex crimes to be named on the state's public sex-offender registries, a notion that is likely to have broad popular support.

But the repercussions of such a plan, which must be approved by the legislature and the governor, may far outweigh the benefits.

The Tennessee Bureau of Investigation will ask lawmakers to introduce the bill as part of a move toward state compliance with the Adam Walsh Act, named for the famous case of a young boy slain in 1981.

A portion of Tennessee's federal law enforcement funding will depend on whether the state decides to add offenders under age 18 to the sex offender database.

It is unfortunate that money should enter into a painful decision such as this, because there certainly are valid points on both sides of the argument. Dangling the prospect of federal dollars during a recession only obscures a discussion that should be held on actual merits of the plan.

It is easy to see why many want the offenders made public. Young offenders might be able to blend in with a crowd of kids, where an adult offender could not.

But being able to shun the offender does not make the offender's will to commit abuse go away. To do that, the offenders need court-ordered counseling and treatment programs — especially when the sex offenders are not yet of an age when brains and emotions are developed enough to make mature decisions. Virtually all young sex offenders were themselves abused, and their criminal behavior is a result of that experience.

For treatment to work, those youths need some expectation that they will not be forever branded and outcast.

Convicted individuals, whether guilty of sexual or other offenses, will go on committing crimes if they have no one to turn to. They will be sent to prison and, when the system cannot hold them any longer, they will get out and repeat the cycle.

Throwing kids, even those who have done terrible things, into the center of a fearful public with a letter on their forehead is little better than locking them into a cell with adult criminals. And hoping they will simply go away and trouble no one ever again is unrealistic and dangerous.

The TBI hopes not only to get the bill passed, but to gain a one-year extension on the April deadline for federal funding. Their energies might be better spent working with the juvenile justice system to see that underage sex offenders get counseling as quickly as possible, and that their progress is well-monitored by trained professionals.

The state's sex-crime laws are intended to protect innocent people from harm; stigmatizing troubled young people when there is a chance to turn them around only exposes other innocent people to further crimes later.

It is hoped that "protect'' is the key concept here, and not "punish." If retribution is the overriding motivation, the cycle of abuse is likely to continue.

Life Without Parole For Rape at 13 Cruel and Unusual?

A man who was convicted of rape at age 13 (he is now 33) and sentenced to life without parole is petitioning the Supreme Court to consider whether his sentence is a violation of the Eighth Amendment's prohibition on cruel and unusual punishment. Sentencing Law & Policy has more. You may read his petition for a writ of certiorari here. From the New York Times:

In 1989, someone raped a 72-year-old woman in Pensacola, Fla. Joe Sullivan was 13 at the time, and he admitted that he and two older friends had burglarized the woman’s home earlier that day. But he denied that he had returned to commit the rape.

The victim testified that her assailant was “a colored boy” who “had kinky hair and he was quite black and he was small.” She said she “did not see him full in the face” and so would not recognize him by sight. But she recalled her attacker saying something like, “If you can’t identify me, I may not have to kill you.”

At his trial, Mr. Sullivan was made to say those words several times.

“It’s been six months,” the woman said on the witness stand. “It’s hard, but it does sound similar.”

The trial lasted a day and ended in conviction. Then Judge Nicholas Geeker, of the circuit court in Escambia County, sentenced Mr. Sullivan to life without the possibility of parole.

“I’m going to send him away for as long as I can,” Judge Geeker said.

Mr. Sullivan is 33 now, and his lawyers have asked the United States Supreme Court to consider the question of whether the Eighth Amendment’s ban on cruel and unusual punishment extends to sentencing someone who was barely a teenager to die in prison for a crime that did not involve a killing.

People can argue about whether the punishment in Mr. Sullivan’s case is cruel. There is no question that it is unusual.

According to court papers and a report from the Equal Justice Initiative, which now represents Mr. Sullivan, only eight people in the world are serving sentences of life without parole for crimes they committed when they were 13. All are in the United States.

And there are only two people in that group whose crimes did not involve a killing. Both are in Florida, and both are black.

Joe Sullivan is one; Ian Manuel, who is in prison for a 1990 robbery and attempted murder, is the other.

About 1,000 people under 15 are arrested on rape charges every year, according to Justice Department data. But none of them have been sentenced to life without parole since Mr. Sullivan was. Indeed, no 13-year-old has been sentenced to life without parole for any crime that did not involve a killing in more than 15 years.

Florida’s attorney general, Bill McCollum, waived his right to file a response to Mr. Sullivan’s petition to the Supreme Court, a sign suggesting that he considers the case insubstantial if not frivolous. Sandi Copes, a spokeswoman for Mr. McCollum’s office, declined to discuss the case.

Last month, the court indicated that it found the case more interesting than Florida does, requesting a response from the state. That probably means that at least one justice considered the case significant or difficult. But it is nothing like a guarantee that the court will agree to hear it.

On the other hand, the question of whether life without parole for juveniles is constitutional is the logical next step following the court’s 2005 decision in Roper v. Simmons, which struck down the death penalty for crimes committed by 16- and 17-year-olds. Writing for the majority in that case, Justice Anthony M. Kennedy said that even older teenagers are different from adults. They are less mature, more impulsive, more susceptible to peer pressure and more likely to change for the better over time.

Last year, in Kennedy v. Louisiana, the court issued another ruling that helps frame Mr. Sullivan’s case. That decision said crimes against individuals that did not involve killing, including the rape of a child by an adult, may not be punished by death.

In 2007, after Mr. Sullivan had served almost two decades in prison, a Florida appeals court declined to have another look at his case. The Roper decision, the appeals court said, “established only one new constitutional right, the right for a juvenile not to be given the death penalty.”

Douglas A. Berman, an authority on sentencing law at Ohio State, said it was time for the Supreme Court and the legal system to widen its relentless focus on capital cases and to look at other severe sentences as well. Cases involving the death penalty receive careful review at multiple levels, he said. Life sentences can receive almost none.

Mr. Sullivan’s trial, for instance, lasted a day. He was represented by a lawyer who made no opening statement and whose closing argument occupies about three double-spaced pages of the trial transcript. The lawyer was later suspended, and the Florida Bar’s Web site says he is “not eligible to practice in Florida.”

There was biological evidence from the rape, but it was not presented at the trial. When Mr. Sullivan’s new lawyers recently sought to conduct DNA testing on it, they were told that the state had destroyed it in 1993.

“I absolutely believe he is innocent,” Bryan A. Stevenson, the executive director of the Equal Justice Initiative, said of Mr. Sullivan. Mr. Stevenson said he believed that one of the older youths who committed the burglary with Mr. Sullivan and who testified against him was probably the actual assailant.

But the point made by Mr. Sullivan’s brief to the Supreme Court is not that he is innocent. It is not even that he should be released after 20 years in prison. It is only that he should someday be allowed to make his case to the Florida Parole Commission.

“I don’t think it’s possible to say that a 13-year-old will never change and that life without parole is an appropriate punishment,” Mr. Stevenson said.

Aside from Mr. Sullivan’s case, it seems there is only one other appeals court decision about whether young teenagers may be locked away forever for rape. It was issued 40 years ago in Kentucky, and it involved two 14-year-olds. The court struck down the part of the sentences precluding the possibility of parole.

Juveniles “are not permitted to vote, to contract, to purchase alcoholic beverages or to marry without the consent of their parents,” the court said. “It seems inconsistent that one be denied the fruits of the tree of the law, yet subjected to all of its thorns.”

The End of COPA

COPA, the Online Child Protection and Safety Act, has finally met its end. The 3rd Circuit repeatedly struck down the statute and the United States Supreme Court has finally put the 1998 Act out of its misery. From SCOTUSBlog:

The Supreme Court on Wednesday refused the federal government’s request to salvage a ten-year-old law seeking to ban minors’ access to sexually explicit material on the World Wide  Web.  Acting on that law for the third time, the Justices simply declined to review a Third Circuit Court decision last July striking down the Child Online Protection Act of 1998.  The Justices’ action came without comment and with no noted dissents in Mukasey v. American Civil Liberties Union, et al. (08-565).

The attempts to regulate the Internet to protect children have continually overreached resulting in judicial decisions findings such laws unconstitutional. Jack Balkin added this to the story:

COPA tried to avoid the fate of the CDA by limiting itself to websites for commercial purposes. Nevertheless, the 3d circuit concluded that first party filters installed by parents were a less restrictive alternative to imposing criminal penalties on website operators if they did not actively prevent minors from viewing prohibited content.

The Third Circuit's decision is a good one. But the most important issue for me has not been the doctrinal question of whether filters are a less restrictive alternative under the first amendment but rather a question of network design. Who should bear the burden of filtering and blocking unwanted content in an digital environment and where should the filtering decisions be located? In my view it is much better to put the filtering decision with the end user, who can better tailor filtering to their needs. (In this case, the end user is the parent who decides on the conditions of the child's access)....

Generally speaking, the Internet should place filtering decisions and responsibilities on the end user, not the publisher of the content. There are exceptions to this basic rule, but sexually explicit speech is not one of them.

While I agree with Balkin, I wonder if Congress will eventually find a law that provides some limits that the courts find acceptable. Crime and Consequences and ACSBlog are also covering the story.

Washington Lawmakers Seek to Close Teacher-Student Sex "Loophole"

Lawmakers in Washington state have proposed a new law which criminalizes sexual relationships between school employees and students. The move comes as a result of a state Court of Appeals decision (previously discussed here) finding that a law banning teachers from having sex with minors did not apply to 18-year-old students. From the Seattle Times:

School employees who have sex with adult students could face prison time and mandatory sex-offender registration if state lawmakers pass a measure that would crack down on teacher-student relationships.

The proposed law came shortly after the state Court of Appeals ruled that a former Hoquiam High School choir teacher accused of having an intimate relationship with an 18-year-old choir member could not be charged with sexual misconduct because the state law criminalizing teacher-student sex is unconstitutionally vague.

Rep. Larry Haler, R-Richland, introduced a bill last week that would prohibit teachers, coaches and other employees at elementary, junior-high and high schools from having sex with students between the ages of 16 and 21, as long as the student is at least five years younger than the employee.

A similar bill also has been introduced in the Senate.

The current law makes it illegal for school employees to have sex with students younger than 18.

The age of consent for a sexual relationship in Washington state is 16 unless the person involved is mentally incapacitated or disabled.

Under the teachers' professional code of conduct, teachers who have sexual contact with students also face losing their teaching certificate.

House Majority Leader Rep. Lynn Kessler, D-Hoquiam, said she supports the bill.

"If you want to have a love fest, go somewhere else — don't do it in the schools," Kessler said. "The idea is just because you're 18 it's OK if teachers prey on young women who are going to school there — it's just insane."

The Washington Education Association also favors the legislation.

"If teachers have sexual conduct with students they should not be teaching," said Rich Wood, spokesman for the Washington Education Association, the state's largest teachers union. "We take a very firm stance on that."

Haler is rewriting minor portions of his bill and expects to refile it this week. If passed, a school-district employee who has sex with a student between the ages of 16 and 21 could be convicted of first-degree sexual misconduct, a felony, and face up to five years in prison and $10,000 fine.

In 2001, then-Gov. Gary Locke vetoed a bill that would have made it illegal for a school-district employee to have sex with a student as old as 21 because the law was too broad and could be used to prosecute a teenage employee.

Robert Martin Morgan Hill, the Olympia attorney who represented former Hoquiam High School teacher Matthew Hirschfelder before the appeals court, criticized lawmakers for wanting to criminalize what he calls consensual sex between adults.

Hirschfelder was charged with first-degree sexual misconduct with a minor in the 2006 case. He denied he had a sexual relationship with the 18-year-old student but argued that even if the allegations were true, no crime was committed.

Teens Send Nude Pics, Face Child Porn Charges

Ars Techinica has an article discussing a case in which two young girls sent nude pictures to two boys using their cell phones. The pictures were discovered when one of the kids was caught using a cell phone during school hours. The girls now face charges of manufacturing, disseminating or possessing child pornography while the boys face charges of possession. The article also notes a study (previously discussed here) claiming that 20% of teens have put nude photos of themselves online. From WPXI:

Three teenage girls who allegedly sent nude or semi-nude cell phone pictures of themselves, and three male classmates in a Greensburg Salem High School who received them, are charged with child pornography.

Police said the girls are 14 or 15, and the boys charged with receiving the photos are 16 or 17. None are being identified because most criminal cases in Pennsylvania juvenile courts are not public.

"It was a self portrait taken of a juvenile female taking pictures of her body, nude," said Capt. George Seranko of the Greensburg Police Department.

Police said school officials learned of the photos in October. That's when a student was seen using a cell phone during school hours, which violates school rules. The phone was seized, and the photos were found on it, police said. When police investigated, other phones with more pictures were seized.

"Taking nude pictures of yourself, nothing good can come out of it," said Seranko.

The Greensburg Salem School District issued a statement on Tuesday saying there was “no evidence of inappropriate activity on school grounds or during the school day other than the violation of the (school's) electronic devices policy.”

The school district said it only became aware of the arrest of the students on Monday and will continue to work cooperatively with police, as well as continue to enforce its electronic devices policy and educate students on the dangers of inappropriate use of electronic devices.

Police said the girls are being charged with manufacturing, disseminating or possessing child pornography while the boys face charges of possession.

"It's very dangerous," said Seranko. "Once it's on a cell phone, that cell phone can be put on the Internet where everyone in the world can get access to that juvenile picture. You don't realize what you are doing until it's already done."

It's time for policymakers to recognize these crimes are very different from actual child pornography distribution and stop treating them in the same way.

20% of Teens Put Nude Pictures Online?

I'm skeptical, but that's what a recent survey indicates. From Ars Technica:

What good would technology be if people weren't constantly using it to send naked pictures of themselves to each other? I would know, too—since the age of 12, my inbox has been filled with inappropriate photos of people whether I wanted to see them or not (in fact, there might be some in there right now). Like most tech trends, however, the oft-inadvisable act of sending nude photos to people on the Internet is being adopted en masse by young Internet users, with fairly large numbers of teenagers posting them online or—even worse—sending them to people they don't even know.

A survey of 1,280 teenagers (users age 13-19) and young adults (age 20-26) conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com has revealed that one out of five (20 percent) teens overall have posted nude photos or video of themselves on the Internet—that number goes up to a third when young adults are included. While 71 percent of teen girls and 67 percent of teen guys who have sent these photos say they've sent them to a boyfriend or girlfriend, 15 percent overall said they've sent nude photos to people they only "knew" online. For women, that percentage stays the same when they turn into young adults, although the percentage of young adult men goes up to 23 percent.

Even if the number is half of what the survey results indicated, that result raises substantial questions for our criminal justice system. It is quite likely that a large portion of such images could be considered child pornography because the images are of minors. That means the sender and recipient can be punished under federal or state law for distribution. With the harsh penalties and mandatory minimums for child pornography distribution, penalties could be quite high for teens. I'm not sure these acts by teens should be punished, but if they are to be, these cases scream for reform of sentencing law. The case of 16-year old sending a nude image of herself to a 16-year old boyfriend is far different than the 54-year old man who collects images of infants engaged in explicit sexual acts. However, our existing law treats those two cases in a similar matter. 

On What Authority?

Typically, registry listing of sex offenders is controlled entirely by legislatures. The statutory definitions list who is required to register and the penalty for not registering is also defined by a criminal statute. However, in some states, in certain circumstances, the decision to list an offender is delegated to an executive or judicial body. Grits for Breakfast has the story that raises an interesting legal issue about whether the TYC in Texas can force juveniles into the sex offender registry in some situations. From Grits: 

From the DA's letter, here's the exact issue at question: 

Specifically, your opinion is sought on whether section 87.85(g)(3) of the Texas Administrative Code, which authorizes TYC to require the registration of juvenile offenders who are discharged from TYC without successfully completing treatment, is in conflict with article 62.352(c) of the Texas Code of Criminal Procedure, which grants the juvenile court continuing jurisdiction on this issue. (Ed. note: links added) 

Interesting question. It seems like, from this non-attorney's perspective, that when the administrative code and an actual statute conflict, the greater weight is usually given to what the Legislature penned as opposed to agency-generated rules. But it's hard to predict how AG Greg Abbott will decide because there's no telling these days whether the opinion will be a political statement or a legal interpretation - we've seen his office issue both in recent times in the guise of AG opinions, and lately anything related to sex offenders inevitably takes on a highly politicized air. Making the matter more difficult, the TAC language in question specifically declares, "If the duty to register has been deferred and the youth is discharged from TYC without successfully completing treatment for sex offense, the PSW shall register the youth."

I'm not sure there is a generally applicable interpretive rule about which rule has higher authority. One of the commenters at Grits raises the possibility that there is no conflict at all:

No youth is placed on sex offender registration over the objections of the committing juvenile judge since the juvenile judge has continuing jurisdiction. A juvenile judge makes the initial registration determination and unless that judge issues another order the registration will occur or if it occurs the judge should be able to set TYC's registration action aside under continuing jurisdiction, which is the question Tarrant County should ask. Additionally they should be asking about how the federal law registering sex offenders affects juvenile offenders.

I don't know enough about Texas juvenile law to know if that is correct or not. However, the potential conflict raises an interesting legal point that could certainly come up in several juvenile cases where treatment is not completed. Regardless, I prefer the occassional conflict and confusion between judicial and administrative bodies to the one-size-fits-all approach of legislative action.

FBI Operation Frees Dozens of Child Prostitutes

A nationwide FBI operation has freed dozens of children from forced prostitution and has resulted in hundreds of arrests. From CNN:

Dozens of juveniles have been freed from forced prostitution by a nationwide operation that resulted in the arrests of hundreds of other people, the FBI announced Monday.

In the three-day operation, which began Thursday night, the FBI, along with local and state law enforcement agencies, took the 46 girls and one boy -- all of them U.S. citizens ages 13 to 17 -- into protective custody.

"Operation Cross Country II" involved efforts in 29 cities and resulted in the arrest of 73 pimps and 518 adult prostitutes, the FBI said.

Those arrested could face federal or state charges, depending on their alleged activities.

FBI Deputy Director John Pistole said some of the alleged sex traffickers were working in networks of six to 10 pimps.

"Sex trafficking of children remains one of our most violent and unconscionable crimes in this country," he told reporters.

Authorities said some of the alleged prostitutes were found at casinos and truck stops. Others were advertised on the Internet.

Ernie Allen, president of the National Center for Missing and Exploited Children, likened teen prostitution to "21st century slavery" and estimated that tens of thousands of teens may be involved. He said it is "happening on Main Street U.S.A. ... These people are moving kids city to city."

Information from last summer's first "Operation Cross Country" led agents to some of the targets identified in the latest initiative, the FBI said.

When authorities received a tip about a possible juvenile prostitute, an agent would set up a sting operation to determine the person's age; anyone under age 18 was taken into custody.

In all, the initiative has freed 576 child victims from forced prostitution, the FBI said.

Victims as Defendants

A few weeks ago, we mentioned a new bill signed into law by New York Gov. David Paterson which shields sexually exploited children from being charged with prostitution. A Stitch in Haste ties together the law with a different case we discussed the other day:

It’s a long-standing principle in the law that “predatory” crimes should not be applied to those whom the law is meant to protect. So, for example, minors usually (though not always) cannot be prosecuted for statutory rape. Due process demands (or ought demand) that someone cannot simultaneously be the perpetrator and the victim of the same crime.

[The new law] [m]akes perfect sense to me. I find it depressing (but not surprising) that the move was ever considered controversial and that it had so much trouble getting through New York’s dysfunctional state legislature.

I have three other hasty stitches:

1. Wouldn’t it be nice to see, as a stepping stone toward decriminalization, drug offenses treated the same way? Why should drug users (i.e., the victims) ever be prosecuted for buying drugs? Aren’t they “incompetent” (i.e., as addicts) much the same way that minors are deemed incompetent? Why not make the same offer: Get treatment, disclose your source, and face no criminal penalty?

2. Teens who engage in prostitution, especially those in New York City, overwhelmingly do so because they are runaways with no other means of survival. And a disproportionate fraction of those runaways are gays, either disowned by their families or fleeing hostile communities (e.g., this source claims 42% of New York’s homeless youth identify as gay or lesbian; this source says “more than 20%”). Any policy discussion regarding the plight of teen runaways should incorporate the causal impact of anti-gay bigotry on the problem. (See also my previous posts on the role of anti-gay bigotry on teen suicide and suicide-ideation rates.)

3. What does it say about contemporary criminal justice that I had to use the term “predatory” crimes in my opening sentence (i.e., as opposed to “victimless” crimes)? Should conduct that is not “predatory” ever be a crime in the first place?