Sex Crimes

Maine High Court Strikes Down Retroactive Application of Sex Offender Law

Sentencing Law & Policy has a post reporting that the Maine Supreme Judicial Court has found portions of Maine's sex offender registry law unconstitutional. The Court, in Maine v. Letalien, held that the law cannot be applied retroactively to certain sex offenders who were sentenced before the statute's effective date. A local press story has more. The 54-page opinion is available here. From the opinion:

The State of Maine appeals from a judgment dismissing a criminal complaint charging Eric S. Letalien with failure to comply with the Sex Offender Registration and Notification Act of 1999. The District Court concluded that the retroactive application of SORNA of 1999, as applied to Letalien, violates the prohibition against ex post facto laws contained in both the United States and Maine Constitutions.

The State asserts, among other things, that the trial court erred in conducting its ex post facto analysis of SORNA of 1999 on an as-applied basis and that a proper facial examination of SORNA of 1999 demonstrates that because the statute is civil in intent and effect, it may be applied retroactively without violating ex post facto principles. We agree that the determination of the constitutionality of the retroactive application of SORNA of 1999 depends on a facial examination of the statute, and not on an as-applied analysis as we previously suggested in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552 (2007).

We conclude that the statute imposes an ex post facto punishment as to offenders sentenced in the years before the effective date of SORNA of 1999 for whom registration was a required part of their sentence and who were subsequently made subject to the more burdensome requirements of SORNA of 1999 after its effective date of September 18, 1999. We therefore affirm the judgment.

Justice Department's SMART Case Law Update #26

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 #26:

Delaware v. Fletcher, 2009 Del. LEXIS 250 (May 27, 2009)

The two petitioners in this consolidated case had been ordered to register based on juvenile adjudications for sex offenses.  Each successfully completed their periods of probation, and asked for an expungement of their convictions, and a termination of their juvenile registration requirement.  The Court held that their convictions could be expunged even though they had been required to register as sex offenders, and that once those convictions were expunged, they were no longer required to maintain their sex offender registration.
 
Tobar v. Kentucky, 2009 Ky. LEXIS 81 (May 21, 2009)
 
Petitioner had properly registered as a sex offender through a series of moves, but failed to notify Kentucky when he left a shelter and became homeless.  He was properly convicted of failure to comply with his sex offender registration requirements.
 
Doe v. California Department of Justice, 173 Cal. App. 4th 1095 (May 7, 2009)
 
Petitioners had successfully had their names removed from California’s public sex offender registry website via a special statutory procedure in 2005.  In 2006, the law was changed to require that they be posted on that public web site.  Their civil suit claiming equitable estoppel and ex post facto violations was dismissed.
 
U.S. v. Pomani, 2009 U.S. Dist. 44503 (D. S.D. March 11, 2009)

Pomani was adjudicated delinquent in federal court of an offense which occurred on tribal lands, namely, an offense similar to abusive sexual conduct (per the opinion, 18 U.S.C. 2241(c)).  The court held that juveniles adjudicated of this offense are required to register by SORNA, failing to take in to account that SORNA’s Final guidelines removed the registration Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office U.S. Department of Justice/Office of Justice Programs requirement for juveniles adjudicated delinquent of 2241(c).  Having held that Pomani was required to register, the court affirmed his conviction.  
 
Miller v. McCormick, 605 F. Supp.2d 296 (D. Me. 2009)
 
Where petitioner had been admitted to the section 8 home ownership program, he could not be thereafter terminated because he was a lifetime registered sex offender.  There is a ban in place for admission to the program for such offenders, but should an offender somehow avoid the ban, they cannot be terminated.  

First Person Civilly Committed as Sexually Dangerous Person Under AWA

Thanks to a helpful reader, I see that a Maine sex offender became the first person in the nation to be civilly committed as a sexually dangerous person under the new Adam Walsh Act. The man was committed to the custody of the Bureau of Prisons after a ten-day hearing. From a U.S. Attorney's Office Press Release:

After a ten-day trial before Judge Patti B. Saris, Jeffrey Shields of Bath, Maine, was civilly committed to the custody of the Federal Bureau of Prisons as a sexually dangerous person. Shields is the first individual in the country to be civilly committed to federal custody as a sexually dangerous person.

In July 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No 109-248, 120 Stat. 587 (2006), to combat sexual violence and to protect children. The legislation created, for the first time, a federal civil commitment program for sexually dangerous persons. To commit an individual under its provisions, the Government must establish that an individual: (1) had engaged in child molestation or sexually violent conduct in the past; (2) suffers from a mental illness, abnormality or disorder; and (3) would, because of that illness, abnormality or disorder, have serious difficulty in refraining from future acts of child molestation or sexually violent conduct in the future.

Evidence presented during the trial proved that Shields had numerous prior sexual offenses against children. In May of 1988, Shields was convicted of making obscene phone calls to two boys in Wakulla County, Florida. In January of 1989, in Camden, Maine, Shields fondled the genitals of a thirteen-year-old boy after luring him to an abandoned building. In April of 1989, Shields committed an indecent assault on a nine-year-old boy in an elementary school bathroom in Florida. In July of 1989, Shields sexually assaulted a fourteen-year-old boy in the bathroom of a private school in Bath, Maine and in September of 1989, Shields sexually assaulted a six-year-old boy outside the same school. In March of 1998, in Portland, Maine, Shields engaged in unlawful sexual contact with a twelve year old boy. While on probation for his 1998 offense, Shields was arrested by the Portland Maine Police for possession of child pornography and Shields later pled guilty to federal child pornography charges.

At trial, three psychologists opined that Shields suffered from pedophilia, a recognized mental disorder. In finding Shields sexually dangerous, Judge Saris found that, as a result of his pedophilia, Shields would have serious difficulty in refraining from future acts of child molestation if released into the community.

"When the Adam Walsh Act was passed in 2006, it sought to strengthen federal laws to protect our children. The civil commitment of Jeffrey Shields is one step toward keeping our children safe from sexual predators," said U.S. Attorney Michael J. Sullivan.

Pursuant to the provisions of the Adam Walsh Act, upon finding that he is a sexually dangerous person, Shields is committed to the custody of the Attorney General.

The case was handled by Assistant U.S. Attorneys Mark Grady and Eve Piemonte-Stacey, of Sullivan's Civil Division.

Maine Supreme Court to Consider Retroactivity of Sex Offender Registry

Although many states have had no problem applying their respective sex offender registry laws retroactively, the Maine Supreme Judicial Court is hearing argument on the issue. From the Associated Press:

The issue of whether Maine's online sex offender registry can be applied retroactively rests with the state supreme court.

The Supreme Judicial Court heard appeals Tuesday in two separate cases involving convicted sexual offenders who declined to register as required by a change in state law. Judges sided with the men and ruled that the amended law is unconstitutional, which prompted appeals by the state.

A state prosecutor defended the law, saying it provides an effective tool for protecting potential victims from predators. But the lawyer for one of the offenders says the law makes a mockery of civil rights protections and brands individuals as dangerous when in fact they are not.

Maine Committee Studies How To Manage Sex Offenders

The Kennebec Journal is running an article discussing a committee of Maine legislators tasked with the problem of how the state should manage sex offenders.  From the article:

Victims of sex crimes and the offenders often live in the same home, where the crimes also occur.  That was part of the message brought by Kurt Bumby, senior manager of the Center for Sex Offender Management, to a committee of legislators wrestling with the problem of how to manage sex offenders and increase public safety.

"Being grabbed in an alleyway sometimes happens, but those are the exceptions," Bumby said. "Strangers tend to be the exception."

The Committee on Criminal Justice & Public Safety met Monday at the Department of Public Safety offices in Augusta for a briefing on the Sex Offender Registration and Notification Act.

In the second of three informational meetings, the panel heard from Bumby as well as from officials in four other states where policymakers have grappled with similar issues.

"We either reinvent the wheel or take a day and bring in the experts," Sen. Bill Diamond, D-Windham, said. "This should enhance the effectiveness of what we're trying to do."

Sen. Earle McCormick, R-West Gardiner, said he was looking for information on how the state's sex offender registry can be more effectively administered.

"If we have a three-tier system, how do we figure who are the high risks?" McCormick asked.

Bumby told committee members that sex offenses are a small percentage of all crimes committed, but get a disproportionate amount of publicity.

He said research shows that those more likely to reoffend are those who rape adult women and those who victimize boys outside the family.

"Depending on whom they target, recidivism rates vary,"  Bumby said. "Sex offenders are not all alike."

It sounds like Maine is asking a lot of the right questions. It will be interesting to see the process yields sane policy results.

Around the Web

The Associated Press reports that the Maine Senate approved a new bill which changes state's sex offender registry.  The bill will allow those who offended from 1982 to 1992 and have not re-offended or have a prior history of offenses to be removed from the registry.  Moreover, it also "changes the definition of lifetime registrant so it applies prospectively from 2005."

An Illinois teen who challenged the state sex offender law has had his name removed from the state's public registry under a provision that allows local judges to determine if the youth is still a threat to the public. The teenager was 13 when he pleaded guilty in 2002 to grabbing a girl's breasts in a prank.

The director of the Nevada Corrections Department told the Prison Board that state efforts to tighten the reins on sex offenders is having “significant unintended consequences.”  The director said he plans to request an emergency appropriation to comply with the law.

A Texas man has been sentenced to two life terms for sexually assaulting a girl two different times.  The 29 year old man is a repeat sex offender, and thus won't be eligible for parole until he is 64.  Texas law requires that someone who is convicted twice of assaulting a child spend a minimum of 35 years in prison without a chance of early parole.

The Louisiana Senate has approved a bill which will force those convicted of sex crimes against children to register with the state as sex offenders for life.  Louisiana law currently only requires such offenders to register for 15 years.  The bill is expected to be signed into law.

Really Interesting Rape Shield Law Case

It's nice having another blogger right across the hall from me.  Colin Miller at EvidenceProf Blog posted about a Maine case that really shows an unusual result in a rape shield case.  We spent a good part of the day discussing the details of the case and I think his post does a great job of showing why this case presents such unusual questions:

In 2006, Brandon Drewry was convicted of brutally raping and attacking a married woman in Portland, Maine, based in part on a seemingly incorrect evidentiary ruling.  The alleged victim called police on the morning of August 30, 2004 and said she met a stranger on Portland Street and went on a walk with him to smoke marijuana.  She told police, and later testified, that the stranger dragged her down an alley with tall weeds and broken glass, choked her, causing her to pass out twice, punched her, forced her to have oral sex, and penetrated her with his fingers, but did not rape her vaginally.  Relying upon the description that she gave them, police apprehended Drewry at a nearby shelter.  Police recovered a hooded jacket in Drewry's backpack, which the alleged victim said belonged to her; she also identified Drewry as her assailant.  The alleged victim admitted that she was a crack cocaine user, was receiving treatment for medical health issues, and was on the street looking for drugs when she was attacked.

DNA was later recovered from a semen sample taken from her vagina, and it did not match Drewry's DNA.  Pursuant to Maine's rape shield law, Maine Rule of Evidence 412, evidence of a victim's past sexual behavior is generally inadmissible at a trial because of the fear that the jury will deem her promiscuous and believe that she is making a false accusation.  Evidence of such past sexual behavior, however, is admissible "upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury."  Accordingly, the judge hearing Drewry's case allowed him to present evidence that the DNA collected from the alleged victim was not a match for his DNA.

The judge, however, refused to allow the jury to hear that the DNA also did not match the victim's husband's DNA (and that it did not match the DNA of another man she was allegedly sleeping with).  Instead, the trial judge accepted the prosecution's argument that the actual source of the semen was irrelevant because the victim never claimed she was sexually assaulted vaginally by Drewry.  Drewry is presently arguing his appeal before the Supreme Court of Maine.

Like Miller I was dumbfounded that the court chose to split the metaphorical baby and allow the semen evidence in for one purpose, but didn't allow the limited evidence of identity.  Ultimately, I think the proper decision would have been to exclude all the evidence.  This case is an unusual one because the alleged rape was oral, but there was other semen in her vagina.  Rape shield laws weren't really tailored for this eventuality.  I think without more than the semen, the defense should be barred from making any mention of the semen.  However, Miller offers some possibilities for when it might be admissible.  I just think the defense had to do a better job of laying a foundation for those possibilities.  Check out Miller's post for the rest of his opinion - I'll be interested to see how the Maine Supreme Court handles the case.

Presumption Against Staleness in Child Porn Searches

FourthAmendment.com had a post about an interesting case concerning staleness in searches in child porn investigations.  Here is excerpt:

There is no one-size-fits-all rule for determining staleness: "Factors to be considered in determining whether an affidavit is stale include the nature of the criminal activity under investigation and the nature of what is being sought." United States v. Reiner, 500 F.3d 10, 15 (1st Cir. 2007) (citation and internal quotation marks omitted); see also Dauphinee, 538 F.2d at 5 ("[N]o hard and fast rule can be formulated as to what constitutes excessive remoteness, because each case must be judged in its circumstantial context.").

As FourthAmendment notes, this result isn't really unusual in child porn cases.  However, since I hadn't blogged about this area of law before, I thought it was worth posting.

Around the Web

The Maine Sun Journal has some sex offender registry statistics for Maine and an interesting editorial discussing whether laws against sex offenders in Maine have gone too far.

A Maryland state judge sentenced a man convicted of rape and sexual abuse to 106 years in prison.

f/k/a is covering the yearly ritual of cracking down on sex offenders before Halloween.

From a helpful reader, here is another story about the problem of teachers having sexual relations with students.

Also from a reader, this Washington Post article covers a story about the possibility of a 4-year old sex offender.  I think the article is a tad alarmist as it conflates sexual harassment with being a sex offender (and sexual harassment is not a crime).  Still, the point of the article remains.

Maine Legislature Responding to Court Ruling

Last week, I blogged about the rather surprising decision by the Maine Supreme Court.  It looks like the legislature is taking appropriate measures to comply with the decision:

The Legislature's Criminal Justice Committee had planned to meet next month to discuss expanding Maine's law requiring sex offenders to provide officials with their home addresses.

Instead, members of the panel will consider scaling back the law to avoid violating the state's constitution.

The change follows the Maine Supreme Judicial Court's decision Tuesday to allow a constitutional challenge to the law. Two of the nine justices suggested in a concurring opinion that registration has become punishment in addition to serving as a public safety measure.

Resolution of the reinstated case could invalidate registration requirements for hundreds of offenders who committed their crimes between 1982 and 1992 and are covered by the registration law because it was made retroactive.

"We have been saying for years that being placed on the registry had a punitive effect, and the court's decision finally acknowledges that, at a certain point, that's what it has become," said Walter McKee, president of the Maine Association of Criminal Defense Lawyers and the Kennebec County Bar Association.

A principle of constitutional law is that the penalty for a person committing a crime cannot be made more severe after that person has already been convicted.

The legislative committee is scheduled to meet Oct. 23.

It will be interesting to see how Maine chooses to adapt its laws.  The state could revert to laws that have been upheld elsewhere (ie the original Alaska statute upheld in Smith v. Doe), abandon registration altogether, or try to find a compromise.  I expect the last option will be the outcome, but the debate should be interesting regardless of the result.