Sex Crimes

Justice Department's SMART Case Law Update #29

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #29:

U.S. v. Moran, 573 F.3d 1132 (11th Cir. 2009)

Moran had been convicted of a state-level sex offense against a 4 year-old girl in 1994. He was convicted of being a felon in possession of a firearm, and properly ordered to register as a sex offender as a condition of supervised release.

U.S. v. Pendleton, 2009 U.S. Dist. LEXIS 85347 (D. Del. Sept. 18, 2009)

Pendleton was convicted of two sex offenses: one in New Jersey in 1992, and one in Germany in 2006. He was deported to the United States as a result of his conviction in Germany and transferred his probation supervision to the State of Delaware, where he listed a particular ‘mail drop’ address as his resident address. He did not live at that address. With an interesting discussion of the authority of the SORNA final guidelines, the court held that “where a defendant uses an address as a mail drop and repeatedly holds that address out as his legal address, the defendant ‘resides’ at that address for the purposes of 42 U.S.C. §16913(a).”

Ex Parte Harbin, 2009 Tex. Crim. App. LEXIS 1206 (Sept. 16, 2009)

Harbin was convicted of four sex offenses in California, in 1988, 1994, 1995 and 1996. The Texas court held his two convictions for annoying or molesting a child (1994 & 1996) do not require registration in Texas. His other two convictions (lewd and lascivious acts with a child and sexual battery) will require registration.

Kansas v. Coman, 2009 Kan. App. LEXIS 823 (Aug. 28, 2009) (previously discussed here)

Even though bestiality was not an offense specifically listed as requiring registration, it was properly captured under Kansas’ catch-all provision as a “sexually motivated” offense requiring registration.

People v. Luansing, 176 Cal. App. 4th 676 (Aug. 11, 2009)

Where Luansing was convicted of oral copulation with a minor, it was a denial of equal protection to mandate sex offender registration, based on the decision in People v. Hofsheier, 129 P.3d 29 (2006).

People v. Nichols, 176 Cal. App. 4th 428 (2009)

Nichols was required to register as a sex offender and failed to update his resident address information, absconded from parole supervision, and his whereabouts were unknown for 8 months. He was appropriately sentenced to a three-strikes sentence, and it did not violate the 8th Amendment of the U.S. Constitution.

Kansas Court Assuages Justice Scalia's Fears in his Lawrence Parade of Horribles

In 2003, Justice Scalia wrote a dissent in Lawrence v. Texas where he predicted that the decision would be used to strike down state laws against (amongst other things) bestiality. Recently, a helpful reader directed us to a new Kansas Appellate decision assuaging Scalia's fears by upholding a state law criminalizing bestiality in State v. Coman, 214 P.3d 1198 (Kan. App. 2009). In Coman, the defendant appealed his conviction for having sex with his girlfriend's Rottweiler, arguing that (1) the criminal sodomy statute is unconstitutional and (2) he should not be required to register as a sex offender. The opinion is available here.  New York Law School Professor Arthur S. Leonard has more coverage of this story over at his blog. From the opinion:

Joshua B. Coman appeals his conviction for criminal sodomy under K.S.A. 21-3505(a)(1) and the district court's order that he register as a sex offender, arguing that his conviction does not require registration under the Kansas Offender Registration Act (KORA) and that K.S.A. 21-3505(a)(1) is unconstitutional in criminalizing sex between a human and an animal. We reject Coman's arguments and affirm his conviction and registration order.

Upon entering her garage to access the freezer, the complaining witness reported seeing her ex-boyfriend Coman lying on the floor of the garage with his pants and underwear down around his ankles, his shirt pulled up, and her female Rottweiler lying beside him. When she turned on the light, Coman moved his hips away from the dog and quickly pulled his pants up. Coman then said he loved the dog, Yodi, and he told the witness, “I don't expect you to understand, but I had to see her one more time.”

When police arrived, a pat-down revealed Coman's penis remained erect and he had a bottle of personal lubricant in his left front pocket. Coman denied having intercourse with the dog, but he admitted that he tongue-kissed her and digitally penetrated her. A search of Coman's cell phone revealed several photos of dogs and one video clip of a man engaging in sexual intercourse with a canine.

Coman was charged with one count of criminal sodomy under K.S.A. 21-3505(a)(1), with sexual motivation requiring registration under K.S.A. 22-4902(c)(14). He pled guilty to this offense and was sentenced to 6 months in the county jail, to run consecutive to a Reno County sentence for similar conduct. He was also ordered to receive psychiatric treatment and to register as a sex offender under KORA.

Of course, a cynic might think that Justice Scalia never actually feared that bestiality laws were in jeopardy after the opinion in Lawrence was issued. And others of us are still wondering what laws against masturbation to which Justice Scalia was referring. 

Probation Sentence Possible under Kansas' Jessica's Law

A Public Defender reports on a case where a defendant could receive probation on remand under Kansas' Jessica's law if their crime was committed before July 1, 2008. Here is the ruling from the Kansas Supreme Court. From the post:

Sarah Morrison and I won in State v. Gracey, No. 99310 (Kan. Feb. 6, 2009), holding that Jessica's Law defendants are eligible for probation when their crime was committed before July 1, 2008. The court held, "[f]or defendants convicted of certain sexually motivated or sexually violent crimes committed before July 1, 2008, and sentenced pursuant to K.S.A. 21-4643(d), a departure sentence includes both durational and dispositional departures." The court reversed Gracey's sentence and remanded for resentencing consistent with the opinion.

The court also held that the 55-month sentence ordered at the original sentencing hearing was not illegal, even though the sentence was less than the presumptive range on the guidelines grid. So, for an off-grid Jessica's Law offense, the sentencing court can durationally depart to the KSG, and once on the grid, the court can depart below the presumptive grid box (as well as give probation if the offense was committed before July 1, 2008).

Around the Web

A three judge Nevada Supreme Court panel has ruled that a former sex offender who is serving time for a non-sexual offense does not need a psychological certification before getting parole.  Typically, before Nevada sex  offenders are released, a panel must certify they are not a serious danger to commit another sex-related offense.  The court ruled 2-1 in favor of the man who was first convicted of attempted sexual assault in 1996.  The decision is available here.

A federal judge in Minnesota has rebuked the U.S. Attorney's office for seeking civil commitment of a sex offender in 2006 "despite assessments by federal prison system authorities that he was not a candidate for civil commitment and would be manageable in a halfway house."   U.S. District Judge Paul Magnuson noted in his order that an attempt by the federal prosecutors to have the sex offender committed was "inexplicable" and their rationale for continuing to try to prevent his release "nothing short of remarkable."  The prosecutor had blocked the man's scheduled release in October 2006 by petitioning the court to have him declared a sexually dangerous person under the Adam Walsh Child Protection and Safety Act, which had been passed just three months earlier.  The article notes that Judge Magnuson's ruling was "the fifth nationally by district judges on the law; three ruled it valid, and two found it unconstitutional," and that "[a]n Appeals Court has yet to decide the issue."

CrimProf Blog has a post discussing the case in which a Kansan judge prohibited an alleged rape victim from uttering the words “rape” and "sexual assault" in front of a jury.  The article mentions a similar order in Missouri in a separate rape trial.  Despite the restriction, the jury found the defendant guilt of forcible rape and forcible sodomy.  We previously mentioned the Kansan judge's order when a federal appeals court dismissed the alleged victim's suit.  The article notes that the alleged victim's attorney plans to petition the U.S. Supreme Court. This is a really interesting trend (if it is actually a "trend"). I'm still disturbed by the idea that judges can't tell that the word "rape" is not simply a legal conclusion - it is the term victims regularly use to describe what happened. Other terms don't capture the experience in the same manner. And jurors are probably more confused by the victim's failure to use the word "rape." If judges are really concerned, I'm not sure why a simple jury instruction wouldn't suffice. 

As mentioned previously, the U.S. Court of Appeals for the Third Circuit has held that a district court judge was within his authority when he said probation officers were allowed to search a Pennsylvania man's workplace upon his release from prison on child pornography charges.  The searches could not be warrantless however, they must be conducted "at a reasonable time and in a reasonable manner based upon a reasonable suspicion of contraband or evidence of a violation of a condition of release."  The man argued that the warrantless search was not authorized by law.  The Court of Appeals noted that the man waived most of his appeal rights by pleading guilty and therefore must show that a “miscarriage of justice” would occur.  The Third Circuit found that no such miscarriage would occur. The unpublished opinion is available here.

There is a very good article on sex offender law challenges in the National Law Journal. I was interviewed for the piece and I think the author did a great job. Unfortunately, the article is behind a subscription wall. If you have a NLJ account, you can read the article here.

Around the Web

The Associate Press is reporting that a Kansas judge has ordered a convicted sex offender to post "signs around his house and a decal on his car proclaiming that he is a sex offender."  The signs in front of his house read "A Sex Offender Lives Here," while his vehicle has a large decal with bold yellow lettering reading "Sex Offender In This Car."  The man lives in a central Kansas town of only about 150 people.  The man is appealing the requirement.

The LA Times has an article about the Texas sex offender who is no longer running for mayor of Wilmer, Texas.  The man was arrested four years ago after showing up to have sex with what he thought was a 15-year-old girl.  He says that wide media coverage generated by his candidacy sparked death threats and increasingly hostile pressure on his friends and loved ones, forcing him to reconsider.

The South Carolina House of Representatives has approved a bill that would prohibit sex offenders from living within 1,000 feet of schools, day care centers, parks and public playgrounds.

St. Louis has passed a law recently that prohibits convicted sex offenders from opening a business that caters to children.  The law was sparked by complaints from residents about a convicted child molester moving his ceramic studio into their area.

Sentencing Law and Policy has a story about a 29-year old, married mother of three who was convicted of a misdemeanor sex offense seven years ago.  The article details her difficulties in complying with Iowa's  sex-offender residency law which bans sex offenders from living within 2,000 feet of a school or day care.  The woman argues that she can't find a home that complies. 

The Associated Press reports that the global patent director of Pfizer Inc. has been arrested and charged with child pornography.  The man stands accused of posing as a 28-year-old woman and, while chatting online, trading hundreds of images of children engaged in sex acts.  The man is a British citizen who is a permanent U.S. resident working in Pfizer’s legal division in Connecticut.

Around the Web

Sentencing Law and Policy notes that the Utah-based Deseret Morning News has published a four-part series on sex offenders.  The articles look at the prevalence of sex abuse within the state, the differences between adult and juvenile sex offenders, how the victims of sexual abuse cope, how sex offenders are being monitored.  The reporters spent three months and interviewed a total of 85 people.

The Las Vegas Sun has an interesting article discussing the various difficulties involving interpreting Nevada’s juvenile sex offender laws.  As the article puts it, "one thing about the controversial legislation quickly became clear: Nothing is clear at all."  Especially problematic is a rule that juvenile sex offenders "couldn’t live within 1,000 feet or be within 500 feet of any structure designed for use primarily by children."

A controversial Kansas program that holds sex offenders past their prison sentence indefinitely is producing friction among state legislators.  From the article: "the program provides treatment for convicted sex offenders who have completed their prison sentences and have been civilly committed under the law because they have been deemed a continuing threat to the community."  The law was challenged up to the U.S. Supreme Court, which voted 5-4 to uphold the constitutionality of the program.

Arizona is "scrambling to comply" with the federal Adam Walsh Act which will allow anyone to "view sex offenders living in their area by simply logging online."  One Arizona county Sheriff's Office claims that Arizona actually exceeds the federal requirements.

Around the Web

How Appealing reports that a divided three-judge Ninth Circuit panel has recently ruled that "[d]ouble jeopardy prevents a criminal defendant from being convicted for the federal offenses of receipt of child pornography and possession of child pornography when the conduct underlying both offenses is the same."  You may view the ruling here.

A Kansas man who pleaded guilty to having sex with a 4-year-old rottweiler was sentenced to six months in jail and ordered to register as a sex offender. The man's attorney argued that the state's sex offender registry law was designed to protect humans, not "livestock, domestic pets or anything else," but the judge was not convinced.

The Deseret News has an article discussing the efficacy of Utah's sex offender registry.  The article also discusses Utah's version of the Adam Walsh Act.  The new law extends the time parolees must be listed on the sex offender registry and "requires offenders to provide additional personal data to the state, including Internet names, passport information, professional licenses and secondary residences and vehicles."

Ohio's Chronicle-Telegram has an article discussing the continuing debate over the constitutionality of Ohio's new Adam Walsh-complaint law.  Defense attorneys representing convicted sex offenders have filed hundreds of objections to the new state law, which they argue unfairly applies new registration requirements retroactively.  Assistant County Prosecutor Robert Flanagan argues that the law wasn’t a criminal sanction and reflected only a minor change, saying “it’s like changing a name from Coke to Pepsi."

Rape Shield Laws at EvidenceProf

EvidenceProf Blog has had quite a few posts on rape shield laws that raise very difficult questions.  Here is another one:

The Court of Appeals of Kansas' recent opinion in State v. Jackson, 2008 WL 538948 (Kan.App. 2008), contains an interesting application of the rape shield rule. In Jackson, Darrell Jackson was a family friend who babysat for A.C., a girl who was between ten and twelve years old between 1999 and 2002.  According to A.C., during this time period, Jackson sexually assaulted her more than 50 times.  During this period of time,  A.C. was twice placed into the custody of the Kansas Department of Social and Rehabilitation Services (SRS).  At trial, the prosecution:

"emphasized-from opening statement to closing argument-that A.C.'s behavior had deteriorated in significant ways starting about the time of the alleged offenses by Jackson and continuing up until the time of trial. In opening statements, the prosecutor said that A.C.'s mother had noticed changes beginning in summer 1999; A.C. was 'acting out, a lot more argumentative, a lot more disagreeable, ... and really behaving badly.' Later in opening, the prosecutor said that after A.C. went into foster placement in 2002, her mother found out 'why [A.C.] has been acting up and behaving so badly between 1999 and her final entry into SRS custody, 2002'-that she had been abused by Jackson. A.C.'s mother testified as forecast in the opening statement, saying that A.C.'s behavior had changed from 1999 until early 2002, during which time she had been 'real hateful to people.'"

The prosecution also argued that A.C. was fearful of returning home from SRS custody because she feared being placed in close proximity to Jackson.

Meanwhile, Jackson attempted to introduce evidence of other sexual assaults reported by A.C. between 1999 and 2002. 

Go read the whole post for the rest of the story.  I think this is a very tricky case and shows that rape shield laws fail to contemplate a variety of scenarios.  I'm not sure that the court has clear guidance in that matter.  I think the court's decision to admit made sense, but the emphasis on the "sexual act" requirement seems a little odd.  This is another data point to support the proposition that our rape shield laws might need some fine-tuning.

Disparity in Sex Offender Sentencing

At the end of last week, Professor Berman at Sentencing Law & Policy starts a needed discussion about how widely sentences of sex offenders can vary from state to state.  The case that precipitated the post was in Kansas:

A Topeka man convicted of repeatedly raping and sodomizing a 14-year-old girl was sentenced to three years probation, rather than nearly 13 years in jail.

Orlando Paul Cisneros was released yesterday from the Shawnee County Jail after Judge Matthew Dowd sentenced him to three years of intensive supervised probation.

A jury had found Cisneros guilty of 17 charges, including aggravated indecent liberties, criminal sodomy and rape. Under sentencing guidelines, Dowd could have sentenced Cisneros to 13 years in jail.

The sentencing judge felt that the defendant had a good chance at rehabilitation and that severe depression was an important cause of the defendant's actions.  This led Berman to comment:

These rationales might sensibly support a prison sentence of less that 13 years, but I can't see how "a good chance of rehabilitation" justifies a probationary term.  The DA has vowed an appeal, and I would expect and hope that a Kansas appellate court will demand some prison time.

That last comment led to quite an extensive debate in the comments, a discussion that is very good compared to normal blog comment debates about sex offenders.  Ultimately, I think Berman has the best of the argument.  While some may see my posts here as "part of the sex offender's cheering section," I think the truth is very different.  Like Berman, I think the draconian sentences handed down because of federal sentencing guidelines should not be part of a just society.  However, I also feel that particularly in the context of rape prosecutions, convictions are too rare and sentences often too light.  There is nothing inconsistent with arguing that sex offenders generally have been subject to penalties that are often counterproductive because of their severity while also arguing that certain subpopulations of sex offenders are under-punished.

Changing Trend in Residency Restrictions

Talkleft has picked up on the same potential for change in the trend toward residency restrictions that I blogged about here and here.  Jeralyn writes:

The trend towards adopting laws restricting where sex offenders may live may be slowing down as more legal challenges are filed and cities and states are finding they are not the panacea once thought.

While it is nice to see a more informed debate about residency restrictions occurring in Kansas, it still remains to be seen if this is just a blip on the radar or a changing attitude toward residency restrictions.  After all, it is quite possible that even after all the issues are raised, Kansas still adopts a residency restriction statute.