Sex Crimes

Justice Department's SMART Case Law Update #25

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 #25:

Doe v. Department of Public Safety, 2009 Md. App. LEXIS 56 (May 12, 2009)

Doe challenged the conclusive presumption of dangerousness (and the attendant registration and notification requirements for a “sexually violent offender”) that flowed from a conviction for rape.  This presumption was permissible.  In addition, his privacy, due process, and equal protection challenges were rejected.
 
Wallace v. State, 2009 Ind. LEXIS 401 (April 30, 2009) (link)
 
Relying in part on the decision in Doe v. State, 189 P.3d 999 (Alaska 2008), the Indiana Supreme Court held that the state’s sex offender registration and notification scheme was punitive under the Mendoza-Martinez factors and, as such, application of its requirements to an offender convicted and sentenced prior to the initial passage of the law was unconstitutional.
 
Jensen v. State, 2009 Ind. LEXIS 400 (April 30, 2009) (link)
 
Where petitioner was convicted and sentenced in 2001, and the only changes to the sex
offender registration and notification scheme since that time could fairly be characterized as
‘civil and regulatory’ under the Mendoza-Martinez factors, retroactive application of those
amended provisions was not a violation of the Ex Post Facto clause.
 
Commonwealth v. McBride, 2009 Ky. LEXIS 52 (April 23, 2009)

McBride was convicted of a sex offense in Tennessee and registered as a sex offender
there.  He subsequently moved to Kentucky, and failed to register as a sex offender as required
by Kentucky law.  Even though he was not specifically notified of his registration obligations in
Kentucky, the Court held that failure to register was a strict liability offense, and that he had an
absolute duty to register as a sex offender once he became a resident of Kentucky.

Closing Out the Halloween Crackdown Coverage

As I am done handing out candy for the night, I leave you all with Grits' post about the panic involved in the annual Halloween restrictions:

I'm glad to see this year more thoughtful critiques popping up of grandstanding by law enforcement and the annual, mostly fact-free media hype surrounding registered sex offenders and Halloween. (See prior, related Grits posts.) In Maryland, officials partially backed off their "scarlet pumpkin" strategy after becoming the butt of national jokes...

Laughing at stupid public policies is sometimes the best way to influence public opinion, so I'm glad to know the Saturday Night Live piece struck a nerve and many in the public apparently see through the hype. After all, trick or treaters are statistically much more likely to be hit by lightning than molested by a registered sex offender while soliciting candy....

The annual demagoguing over sex offenders at Halloween is a classic example of what security expert Bruce Schneier calls "security theater," hyping (and pretending to solve) a threat that in reality is extremely remote, even to the point of diverting resources from policing activities like DWI enforcement that would protect more people and save more lives. The approach is dumb, it's wrong, and it makes the public less safe.

Perhaps we'll look back sometime in the future and consider 2008 the year the media and the public began to re-think these thoughtless, hype-driven policies. I hope so.

I agree. And I'm hopeful that policymakers will start focusing on real solutions to sexual violence as opposed to politically expedient ones.

Halloween Sex Offender Restrictions Roundup

As Halloween approaches, law enforcement officials are advising parents to check state sex offender registries before letting their children go Trick-or-Treating.  Sex offenders in Missouri are challenging the further restrictions related to Halloween activities. Maryland sex offenders have received letters from the state's Probation and Parole Division telling them to stay inside on Halloween from 6 P.M. until the next morning, as well as putting 'No Candy' signs on their doors. Officials in Idaho, Kentucky, New York, and Texas have begun taking similar precautions.  The Washington Post has more.  From the Associated Press:

[Texan authorities] have arrested 24 sex-offense suspects during a two-day sweep, part of a national crackdown on sex offenders before Halloween.

The majority of arrests this week were of sex offenders who violated their registration requirements. The Lone Star Fugitive Task Force planned the roundup specifically for Halloween, officials said.

"There's a lot of kids that are going to be on the streets pretty soon," said Tom Smith, the supervisory deputy U.S. marshal, who headed the sweep.

Such sweeps are part of a nationwide law enforcement trend targeting sex-offense suspects or registered sex offenders on or before Halloween and more severely restricting their activities that night.

In Missouri, four sex offenders are suing over a new state law that requires them to avoid all Halloween-related contact with children, remain inside their homes and post a sign saying they have no candy to keep trick-or-treaters away. The ACLU of Eastern Missouri filed suit on the offenders' behalf in federal court Wednesday, arguing the provisions are too vague to enforce.

Maryland has an almost identical law and last week sent 1,200 violent and child sex-offenders a paper sign in the mail that read "No candy at this residence," which they must post on their front doors or possibly face a parole violation.

South Carolina has a 5 p.m. Halloween curfew for sex offenders on probation or parole. They cannot give out candy or have their outdoor lights on.

In New York, the Division of Parole requires registered sex offenders to stay home or in designated locations and makes spot checks to enforce the rule. Sex offenders also can't answer the door to trick-or-treaters, have Halloween candy in their possession or dress in costume.

Texas requires registered sex offenders to turn off their porch lights and prohibits them to have any exterior decorations between 5 p.m. and 5 a.m., with parole, probation and police officers checking to see if they comply.

Those opposed to the crackdowns say they unnecessarily scapegoat sex offenders who already are complying with the conditions of their parole.

Also, check out these two great posts by Grits for Breakfast about Halloween-time crackdowns.

It's That Time of Year Again

The Associated Press is reporting that Maryland sex offenders are required to place signs outside their doors reading 'No candy at this residence,' or face a possible parole violation. We discussed similar requirements last Halloween. From the Washington Post:

The signs began arriving last week in the mailboxes of the about 1,200 violent and child-sex offenders across Maryland. The signs were accompanied by a letter explaining they must stay at home, turn off outside lights and not answer the door on Halloween.

Maryland is also distributing pamphlets statewide to warn families to stay away from homes with the pumpkin signs.

"Halloween provides a rare opportunity for you to demonstrate to your neighbors that you are making a sincere effort to change the direction of your life," the letter to sex offenders reads.

"Because Halloween is a holiday in which large numbers of children interact with strangers, the concern among parents and other community members about sexual offenders in their neighborhoods is naturally intensified during this time of year," Patrick McGee, interim director of the state's Division of Parole and Probation, wrote in the Oct. 1 letter.

Maryland, which began the program in 2005, is among a number of states placing Halloween restrictions on sex offenders. Maryland's regulations are almost identical to those adopted in Missouri, where four convicted sex offenders and the American Civil Liberties Union are challenging the state law in federal court.

"We've had very good results," Wonda Adams, said a supervisor at the Parole and Probation Division and coordinator of the Halloween watch program.

"Our goal is public safety, and in keeping with that we need to make sure that the individuals under our supervision are provided with the enhanced supervision that we're committed to."

H/T: The Volokh Conspiracy.

Maryland Court of Appeals Reverses Maouloud Baby Decision

Right after I started this blog, the Maryland Court of Special Appeals issued an opinion in Maryland v. Maouloud Baby. The court held that a person couldn't withdraw consent from a sex act once that sex act had begun. The court used some really odd rationales for its opinion and I posted about the case on several occasions. Thankfully, the Maryland Court of Appeals reversed the intermediate court's decision and put Maryland in line with the rest of the country regarding withdrawal of consent.  Here is a portion of the decision:

While it certainly may be the case that the common law’s focus on penetration was somehow originally related to the “de-flowering” of virgins, a search of early English case law and scholarship reveals that by the time Maryland expressly adopted “the rules of the common law of England” in 1639,14 the English law of rape had evolved beyond the understanding of rape as merely a trespass upon a man’s property. Before Maryland adopted the English common law, penetration could no longer be said to represent the completion of the harm caused by rape, although it was still focused on as sufficient evidence for the required element of vaginal intercourse.... 

We conclude that post-penetration withdrawal of consent negates initial consent for the purposes of sexual offense crimes and, when coupled with the other elements, may constitute the crime of rape. We also hold, however, that the trial court erred in failing to sufficiently address the jury’s questions on post-penetration withdrawal of consent, and such error was not harmless beyond a reasonable doubt.

I actually assigned the Court of Special Appeals opinion to my Criminal Law class a couple of weeks ago to illustrate the differing approaches courts take in theorizing the meaning of "consent" in rape statutes. Next year, I will be teaching a Sex Crimes Seminar and I expect I'll include both the intermediate court and highest court opinions in the case. I'll pair those readings with the opinions from the same courts in State v. Rusk. As I told my class this semester, you can learn almost everything about how rape law can go awry just by studying those big Maryland cases.

HT: How Appealing

Around the Web

Prosecutors in Utah have charged a 15-year-old boy with a felony in a nude cell phone picture case.  He was charged with one felony count of dealing material harmful to a minor, and three misdemeanor lewdness counts.  We have previously reported the growing trend among teenagers who trade nude photos of themselves over cell phones.

Sentencing Law and Policy and Grits for Breakfast mention Grits's call for "more law blawggers need to weigh in on West Texas polygamy case."  The New York Times has more information on the hearings regarding the welfare of more than 400 children seized from the Texan compound.  According to the article, the hearing may be "one of the largest child custody proceedings in United States history." I've been swamped with Kennedy, so I'm a bit behind on the story. I also admit that I'm still waiting for the sex crime legal issues to emerge.  So far, I've been interested in Grits's criminal procedure issues, but I haven't seen any interesting substantive criminal law issues yet.  But I do hope to post more about the story next week.

Crime and Consequences reports that Kentucky will make it a felony to sexually abuse a child up to 16 years of age. "The law extends the victim's age to 18 if the abuser is an authority figure [and] allows victims to report the crime within five years of their 18th birthday." Crime and Consequences also reports that a California animal shelter supervisor has been convicted of sexually assaulting six female inmates assigned to the shelter as part of their sentence.

CNN reports that the California social services agency is trying to "shut down nine homes used for child day care and foster care after an audit found registered sex offenders living there," in violation of California law.  The revelation came after state auditors compared the addresses of the facilities with the state's database of registered sex offenders.

Around the Web

CNN is reporting that 14 Americans are in custody after an FBI crackdown on a well-organized suspected child pornography ring.  The group allegedly distributed more than 400,000 lewd pictures and movies.

The Nevada Appeal has an article discussing state legislative auditors who issued a report sharply critical of Parole and Probation, charging the division suffers major weaknesses in monitoring sex offenders.  The article specifically mentions "serious problems in getting and properly entering DNA samples" from sex offenders.

A Washington newspaper has published this editorial which calls for "mandatory arrest requirements when a police officer believes a child has been assaulted."  The editorial argues that "prosecutors and judges should not have the option whether to criminally charge a predator."

A Connecticut town is considering adopting an ordinance that would ban convicted sex offenders from places frequented by children such as parks, playgrounds, recreational areas and sports facilities.  According to the author of the proposal, "Creating a ... zone would provide a level of protection that doesn't exist today."

Sentencing Law and Policy reports that the death penalty in Maryland has cost taxpayers at least $186 million more in prosecuting and defending capital murder cases over twenty years than would have been spent without the threat of execution.  The economic costs of the death penalty are another reason to question the five states who applied capital punishment to child rape.

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.

Around the Web

A Minnesota man charged with sexually abusing and assaulting a teenage girl was sentenced to 16 years in prison.  A new complaint charged him with lying under oath while testifying at an earlier trial. A year earlier, a jury deliberated for 13 hours before a judge declared a hung jury.

A Louisiana high school teacher resigned after parents discovered he was a convicted sex offender. Law enforcement officials said they plan to pursue charges against the teacher for failing to register as a sex offender when he moved to Louisiana.

A man in Florida is facing 87 sexual offense charges in North Carolina, including "30 counts of statutory rape, 17 counts of incest with a child, 36 counts of indecent liberties, two counts of first-degree rape of a child and two counts of first-degree sex offense of a child."

In a split decision, a three-judge panel upheld a 65 year prison sentence for a Maryland man convicted last year of raping a 3-year-old girl in his apartment. The lone dissenting judge noted that the man's sentence was three times higher than state sentencing guidelines.

Dismissal for Lack of an Interpreter

First reported in this blog here, the judge who dismissed the sexual assault case because of a delay in finding an interpreter for the Liberian defendant is now facing some political flack. From the Washington Times:

A Maryland lawmaker is seeking to remove the judge who dismissed a Montgomery County case because of delays in securing an interpreter for the trial of a Liberian immigrant accused of raping and repeatedly molesting a 7-year-old girl.

"We have created an attitude that no matter how important and grievous a crime is, that a technicality takes precedence over the rights of the victim," said Delegate Patrick L. McDonough, Baltimore County Republican. "So any time a defendant comes into court and has a language problem, there's a good chance they could have their case dismissed."

More of the story here.