Sex Crimes

MA High Court Considers GPS Monitoring for Sex Offenders

Recently, the Massachusetts Supreme Judicial Court heard a case where a sex offender who objected to wearing a GPS-monitoring device during his probation term. From the Boston Herald:

Allowing sex offenders to roam free without GPS monitoring has district attorneys joining forces to appeal to have judges granted the authority to slap the fiends with ankle bracelets.

The state Supreme Judicial Court yesterday heard both sides of the controversy in a case about a convicted Middlesex County child rapist who objected to wearing a GPS-monitoring device during his 10-year probation term.After he finished jail and civil sentences last summer, the Probation Department requested GPS monitoring for Goodwin.

Superior Court Judge Kathe M. Tuttman, however, ruled she did not have the authority to impose the monitoring. In her ruling, Tuttman cited a 2009 SJC decision that decided a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively.

Goodwin’s attorney, Beth L. Eisenberg, also said Tuttman’s ruling found imposing GPS tracking amounted to impermissable punishment because he was in compliance with all the terms of his probation.

Since the summer, about 234 sex offenders have been allowed to remove their ankle bracelets as a result of the SJC ruling.

H/T: Sentencing Law & Policy.

Group Seeks To Ban MA Sex Offenders From Homeless Shelters

The Boston Globe has an interesting article discussing a new push to ban sex offenders from homeless shelters. From the article:

As the state’s steep budget cuts have forced organizations that help the homeless to cut beds, staff, and programs, the advocates for the needy say banning sex offenders would allow shelters to save money on security, open up space for others, and make shelters safer.

The Massachusetts Housing and Shelter Alliance, which represents 90 organizations that provide services to the homeless, has urged state lawmakers to add shelters to an increasingly long list of residential bans for many sex offenders. They are already barred in some communities from living near schools, day-care centers, parks, playgrounds, libraries, or nursing homes.

While those who study sex offender recidivism rates say such residential restrictions are counterproductive, state lawmakers who support the proposed legislation argue that it also would fix a loophole in the law, which for five years has required the most dangerous sex offenders to post their names, addresses, and photos on a public website. They say too many sex offenders bypass the law by listing a homeless shelter as their address when they live elsewhere.

In a review yesterday of 162 Level 3 sex offenders - those with a high risk of committing sex crimes again - who list addresses in Boston on the state’s online registry, the Globe found that at least 74 percent reported they were living at homeless shelters.

It seems odd to fix a "loophole" that sex offenders are lying about their address by barring offenders from homeless shelters. It seems like the way to fix that problem is to verify offender addresses. Pushing homeless offenders out into the streets does nothing to prevent future sexual violence.

Justice Department's SMART Case Law Update #27

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 #27:

Doe v. Keathley, 2009 Mo. LEXIS 131 (June 16, 2009)

Petitioners were all convicted of sex offenses prior to any sex offender registration requirement for said convictions.  The court held that 42 U.S.C. §16913(d) applies directly to these state-convicted petitioners (and at least one military-convicted offender) and directly imposes a registration requirement on them.  Because of this direct application of federal law, the court held that there are no State Constitutional concerns, and that the petitioners were required to register.  A previous decision from the Missouri Supreme Court, Doe v. Phillips, 194 S.W.3d 833 (Mo. 2006), had prohibited registration for anyone convicted for conduct prior to the enactment of Missouri’s sex offender registration scheme based on Missouri’s Constitution.
 
Doe v. Massachusetts, 2009 Mass. App. LEXIS 724 (June 5, 2009)
 
Doe was convicted of two sex offenses in 1984 and was incarcerated for a year.  In 2005 he was classified as a level two sex offender based exclusively on those two convictions.  The court held that he was entitled to a hearing as to his level of current dangerousness, so as to determine if he should be required to register as a sex offender.
 
State v. Germane, 2009 R.I. LEXIS 68 (June 2, 2009)
 
In rejecting Germane’s challenges (due process, separation of powers, and ex post facto) to the registration and notification law, the Rhode Island Supreme Court engaged in a lengthy and helpful discussion of the legal issues at hand, including how the state utilizes the STATIC-99.

State v. Durrett, 2009 Wash. App. LEXIS 1285 (June 1, 2009)

Durrett was a homeless sex offender who was required to report weekly to the sheriff’s office for registration purposes.  There were two separate weeks where he failed to register.  He could only be prosecuted for one count of failure to register, as they constituted only one unit of prosecution.
 
White v. Dexter, 2009 U.S. Dist. LEXIS 46360 (May 20, 2009)

Making some factual distinction between this petitioner in this case and the one in Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008) (holding an imposition of a “third-strike” sentence as cruel and unusual punishment for a failure to register conviction), the court denied White’s Habeas petition.

People v. Ranscht, 173 Cal. App. 4th 1369 (May 15, 2009)
 
Ranscht was convicted of one count of sexually penetrating a minor.  Because he was similarly situated to an offender convicted of unlawful sexual intercourse—the only distinguishing factor between the offenses being the nature of the intent which must be proven—it was a denial of equal protection to require him to register as a sex offender.  An ‘unlawful sexual intercourse’ conviction in California makes the requirement to register discretionary, rather than mandatory.
 
State v. Payan, 765 N.W.2d 192 (Neb. 2009)

Nebraska has a procedure by which a person can be deemed to have committed an “aggravated offense”, which requires lifetime registration.  That determination is one that is made by the trial court judge.  The court held that the Court’s determination is sufficient for making a determination regarding registration, as that is civil in nature.  However, relying on the Apprendi case (Apprendi v. N.J., 530 U.S. 466 (2000)), the court held that the determination regarding community notification was punitive in nature and required a jury determination that an offender, in fact, committed an “aggravated offense.”

Massachusetts Bill Would Ban Elder Porn

Eugene Volokh has a post discussing a proposed Massachusetts bill that prohibits the creation and distribution of any sexual "visual material" depicting anyone 60 years old or over or someone with a "a permanent or long-term physical or mental impairment." You can read the text of the bill here. From Volokh's post:

[T]he law (in Massachusetts) would make it a very serious crime — tantamount to child pornography — to make, and distribute "with lascivious intent," "any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity" involving anyone age 60 or over, or anyone who has "a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his or her own care or protection."

The law is not limited to people who are mentally handicapped and thus unable to consent, or who are photographed against their will by their caretakers (the justification discussed in this story). The operative provisions cover people over 60 and the disabled whether or not they are incompetent. One provision, relating to people's being "deemed incapable of consenting," would cover only "an elder or a person with a disability adjudicated as incompetent by a court of the commonwealth," but I don't see how this would stop liability under the other provisions, since consent is no defense under the other provisions in any event. (Plus if they just wanted to bar exploitation of the incompetent, why not simply say "anyone adjudicated as incompetent by a court of the commonwealth," with no limitation to elders or persons with disabilities?)

Likewise, the law is not limited to hard-core pornography that would constitute unprotected "obscenity." It would apply to any pictures of nudes, so long as the defendant is acting with lascivious intent." Hard to see how this would be constitutional, or why it would make much sense.

This bill is clearly unconstitutional. Does anyone have any idea why it is being proposed? Was there some odd elder porn incident in Massachusetts? It all sounds very strange.

Mass. District Court Finds Civil Commitment Law Unconstitutional

A helpful reader let me know that there was a new decision out of the District of Massachusetts finding the federal civil commitment scheme for sex offenders under the Adam Walsh Act was unconstitutional.  You can read the opinion here. From the opinion:

Congress lacked power to adopt the Act’s regime for the civil commitment of sexually dangerous persons either under the Commerce Clause directly or as its authority over interstate commerce is supplemented by the Necessary and Prope Clause. The civil commitment regime for sexually dangerous persons set forth in 18 U.S.C. §§ 4247, 4248 is void and unenforceable.  Accordingly, the respondent’s motion to dismiss the petition for commitment (dkt. no. 6) is GRANTED.  Unless some other valid basis permits Volungus’s continued incarceration beyond the expiration of his term of imprisonment, he is to be released forthwith.

The decision is notable because it creates a district court conflict in the 1st Circuit. However, the recent ruling is consistent with the 4th Circuit's opinion in Comstock (which I think had the better side of the argument).

Student Post - Romeo and Juliet: Sex Offenders?

What would we do with Romeo and Juliet? Some say that teenagers today are becoming sexually active at a younger age. Parents of sexually active teenagers face problems such as teen pregnancy, STDs, or, in some cases, their son or daughter facing criminal charges for statutory rape. Whoa, whoa, whoa, criminal charges? Yes, teenagers could face statutory rape charges for consensual sex with their teenage girlfriend or boyfriend, depending on the state law's age of consent. But is this "crime" what prosecutors should be spending their resources on? Perhaps yes, considering the substantial effects teen sex has on the individual and society. Perhaps no, considering teens have been having sex throughout history, and maybe these prosecutions are just an attempt to discourage premarital sex.

One concern is that the prosecution of teens, specifically boys, can be a form of discrimination. The Supreme Judicial Court in Massachusetts held that a 14 year old boy has a constitutional right to determine if the District Attorney discriminates against boys in the statutory rape prosecutions. Another concern is the lifelong effects of being labeled a sex offender (and having to register as a sex offender) for having "consensual" sex when the person (male teen) is so young when the "offense" occurred.

Whatever the motive for prosecuting teens for having sex with other teens, state legislators have considered reforming statutory rape laws. The Vermont legislature recently struck down a bill that would have relaxed the statutory rape law so that a 13 year old could have consented to having sex, so long as his/her partner's age is within 4 years. The current law allows a 15 year old to consent so long as his/her partner's age is within 3 years.

Teens face enough challenges without having to face the criminal justice system for hooking up with their lab partner. While the consequences of teen sex can be great, having a criminal record or being labeled a sex offender are not consequences that should be added. Preventing the problem of teen sex starts at home. Dealing with the consequences of teen sex also begins at home. But the ultimate consequence should not be handed down by the justice system.

Massachusetts Struggling to Comply with AWA

Thanks to a helpful reader, I see that the Boston Herald has an interesting article concerning the lack of adoption of the Adam Walsh Act by Massachusetts and other states.  From the article:

It’s the most sweeping sex offender tracking law in history - and it’s considered virtually illegal by the Bay State’s top court.

The Adam Walsh Child Protection and Safety Act - named for the brutally murdered 6-year-old boy whose father became a crusader against predators - was passed by Congress in 2006. More than two years later, there’s been little progress toward one of the law’s landmark provisions: establishing the first-ever national system to keep tabs on those who have committed sexual crimes.

So far, no state has been deemed compliant with that law.

To be sure, adopting the law is complex. It requires instituting a new, uniform federal system for classifying the creepy cons.

But the law would serve a serious purpose: putting states in contact to make it much more difficult for sex offenders to cross state lines and escape the system.

Gov. Deval Patrick’s Executive Office of Public Safety is working with Attorney General Martha Coakley’s office to find a way to institute the new rules in the Bay State. And while officials refused to comment publicly on their struggle to do so - no one wants to be seen as being soft on violent sex fiends - the powers that be privately acknowledge that the law is considered unconstitutional by the Supreme Judicial Court.

The SJC has ruled sex offenders have due process rights and are entitled to a hearing before they are classified by level. But Bay State officials believe that such rulings aren’t compatible with the Adam Walsh Act, which requires “immediate” classification and posting of information about offenders. Instead of the deliberative Sex Offender Registry Board taking into account past offenses and the age of the criminal, the federal law would lump offenders into one of the three tiers based solely upon their type of crime.

States have until July to prove they’re complying with the federal mandate, or they risk losing a portion of federal anti-crime funding. And for their part, Bay State officials insist they’re committed to complying with as much of the law as they can.

But victims’ rights advocates such as Laurie Myers don’t understand why it’s taking so long for the tracking system to get off the ground.

“It seems sex offenders always get the support from people who should be looking out for our interest,” said Myers, a member of the non-profit Community Voices. “Time and time again, sex offenders get breaks in this state. It seems like foot-dragging to me.”

States Stuggle With Adam Walsh Act Compliance

There has been a lot of Adam Walsh Act related news lately. The State of Wisconsin has requested an extension on the deadline to comply with the Walsh Act. From MSNBC:

The state of Wisconsin wants an extension on the deadline for changing its sex offender registry to conform to federal law.

Wisconsin Department of Corrections officials say they will likely have to add thousands of people to the list to comply with the Adam Walsh Child Protection and Safety Act.

The 2006 act requires the state to add juveniles to its online registry, add more details on offenders, and create classes of registrants who appear for different lengths of time. It sets a July 1 deadline for these changes.

No state is yet in compliance.

The director of Wisconsin's sex offender programs, Melissa Roberts, says the state will apply for a one-year extension so it has time to change its technology and get changes made to state law.

Meanwhile, Nevada legislators are considering whether the Walsh Act's supposed benefits are worth the costs. From the Las Vegas Sun:

The Adam Walsh Act was an instant controversy in Nevada. As soon as state lawmakers adopted the federal sex offender legislation in 2007, lawyers drew up lawsuits that have kept it tied up in court to this day.

But all the debate between advocates and attorneys over whether the Walsh Act is legal or logical now seems for naught. In this economy, the real question is not whether the Walsh Act is constitutional, but whether it’s too expensive. By many calculations, it is.

Sex offender management boards in California and Colorado have recommended their states reject the Adam Walsh Act — which changes the way states track and monitor sex offenders — in part because of the crippling cost. Other states, including Florida, Iowa, Virginia and Texas, are also doing the math and finding that the federal standard seems more expensive to adopt than to ignore, no matter the penalty.

And there are penalties. States have until July 27 to become compliant with Walsh sex offender regulations or risk losing federal finding. In Nevada, meeting the deadline could safeguard hundreds of thousands of dollars.

But carrying out the provisions of the Walsh Act could cost millions. In a state where the budget is beyond tight, we don’t know what the Walsh Act would cost. While states around us scramble do to the math, nobody in Nevada is crunching the numbers. So with the deadline for compliance looming, no one knows whether Nevada going to spend millions to save thousands.

Part of the reason Nevada doesn’t know how much Walsh will cost may lie in the state’s speedy adoption of the federal act. Nevada is one of eight states that passed Walsh regulations after Congress approved them in 2006. The vast remainder of states instead chose to evaluate the Walsh Act, considering its constitutionality first and then its cost.

Concerns now coming to light in these states were barely discussed in Nevada. Instead, issues with Walsh are being worked out in Nevada courts as a result of those lawsuits levied against the act.

Finally, Massachusetts may not be legally able to comply with the Walsh Act as the state's high court has ruled that sex offenders must be given hearing before they are classified by level. From the Boston Herald:

It’s the most sweeping sex offender tracking law in history - and it’s considered virtually illegal by the Bay State’s top court.

The Adam Walsh Child Protection and Safety Act - named for the brutally murdered 6-year-old boy whose father became a crusader against predators - was passed by Congress in 2006. More than two years later, there’s been little progress toward one of the law’s landmark provisions: establishing the first-ever national system to keep tabs on those who have committed sexual crimes.

So far, no state has been deemed compliant with that law.

To be sure, adopting the law is complex. It requires instituting a new, uniform federal system for classifying the creepy cons.

But the law would serve a serious purpose: putting states in contact to make it much more difficult for sex offenders to cross state lines and escape the system.

Gov. Deval Patrick ’s Executive Office of Public Safety is working with Attorney General Martha Coakley’s office to find a way to institute the new rules in the Bay State. And while officials refused to comment publicly on their struggle to do so - no one wants to be seen as being soft on violent sex fiends - the powers that be privately acknowledge that the law is considered unconstitutional by the Supreme Judicial Court.

The SJC has ruled sex offenders have due process rights and are entitled to a hearing before they are classified by level. But Bay State officials believe that such rulings aren’t compatible with the Adam Walsh Act, which requires “immediate” classification and posting of information about offenders. Instead of the deliberative Sex Offender Registry Board taking into account past offenses and the age of the criminal, the federal law would lump offenders into one of the three tiers based solely upon their type of crime.

States have until July to prove they’re complying with the federal mandate, or they risk losing a portion of federal anti-crime funding. And for their part, Bay State officials insist they’re committed to complying with as much of the law as they can.

But victims’ rights advocates such as Laurie Myers don’t understand why it’s taking so long for the tracking system to get off the ground.

“It seems sex offenders always get the support from people who should be looking out for our interest,” said Myers, a member of the non-profit Community Voices. “Time and time again, sex offenders get breaks in this state. It seems like foot-dragging to me.”

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.

Possible Gender Discrimination in Statutory Rape Charges

The Massachusetts Supreme Judicial Court has issued a ruling discussing why a 14 year old boy who was accused of statutory rape was charged, but not the three under-aged girls with whom he allegedly had sex. The opinion (available here) suggests that the prosecutor may have discriminated against the boy on the basis of his gender. From the Boston Globe.

A sharply divided Supreme Judicial Court said yesterday that a 14-year-old boy accused of statutory rape may have been a victim of gender discrimination because authorities charged him and not the three underage girls with whom he allegedly had sex.

The case, which originated in Plymouth County, involved a high school freshman football player who is accused of engaging in various sex acts from August to October 2007 with three girls. Two were 12, and the other was 11.

"None of the complainants reported being afraid of the boy's behavior," Chief Justice Margaret Marshall wrote for the majority. "Indeed, sexual behavior seemed to melt seamlessly into games of 'manhunt,' 'truth or dare,' and 'making out.' Some of it occurred with more than one complainant present."

The SJC issued its order in the case last fall and released the written opinion yesterday.

In its 3-to-2 ruling, the majority emphasized that statutory rape laws, which once exclusively protected girls, are now gender-neutral. The boy, the court said, has a constitutional right to see if Plymouth District Attorney Timothy J. Cruz's office discriminates against boys when prosecuting statutory rape cases.

The state's statutory rape laws say it is a crime for anyone of any gender under the age of 16 to have sex.

Of course, Massachusetts could have easily solved the problem by having a difference in age element as most states do.

H/T: How Appealing.