Sex Crimes

Some Sex Crime Sentences

Sentencing Law & Policy has three posts about three recent sex crimes sentences. In Another notable child porn sentencing decision, Berman points to a notable Judge Pratt opinion in a child pornography case. In An honest (and honorable?) gendered sentencing outcome in adult-teen sex case, there is a story of a woman that was given a lighter sentence in New Hampshire for sexual assault of a boy because of the boy's "raging hormones." And in Is there a law student sentencing discount for federal child porn charges?, an apparent sentencing break was given to a law student. Shouldn't the legally trained be held to a higher standard?

Berman finishes the last post with a concern that I strongly concur with: "As I have stressed in a number of prior posts, anyone seriously concerned about federal sentencing disparities should look very closely at federal child porn cases.  And, critically, this look must focus closely on the operation of prosecutorial discretion, which often seems to have an even bigger impact in these cases than judicial discretion."

Around the Web

EvidenceProf Blog notes that in United States v. Jospeh (2nd Cir. 2008), a Defendant "appealed from his conviction for using his computer to send messages on the Internet to entice an individual he believed to be an underaged girl to engage in unlawful criminal sexual activity, in violation of 18 U.S.C. § 2422(b)."  At trial, it was proven that the Defendant entered a chat room "called 'I Love Older Men,' where he initiated a conversation with an individual ... who purported to be a 13-year-old girl," but was in fact a 55-year-old woman who "spends 20 to 50 hours a week surfing the Internet for those she believes to be sexual predators and reporting her findings to the authorities."  The defense theory was that the Defendant believed the supposed-teen "was also a sexually experienced adult engaged in role-playing," and the Defendant "sought to bolster his claim through the testimony of his expert witness ... who would have testified about role-playing in the context of sexually explicit conversations on the internet." The Second Circuit found that the expert witness was qualified under Federal Rule of Evidence 702. You may view the opinion here.

EvidenceProf Blog also has coverage of a recent opinion from the Mississippi Court of Appeals, which, according to Miller, "improperly read[] an exception out of the rape shield rule and [found] that evidence of prior sexual relations between the defendant and the alleged victim [is] never admissible." You may view the opinion here. 

Feminist Law Professors has a post which notes that "[a] new report by the Poppy Project has found that there are over 921 brothels in London being advertised in newspapers with a 'large and growing' number of young women who are trafficked as sex slaves."  According to the BBC, "[b]rothels in the city offer sex for as little as £15, and some are charging £10 extra for unprotected intercourse."

California Lawyer Magazine has an article detailing "the nation's largest and most expensive hospital for housing and treating men who have been declared to be sexually violent predators ..."  The hospital, which opened in August 2005 at a cost of $388 million... has been called everything from a state-of-the-art treatment center to a sex gulag."  Although each of the patients has "served a full sentence in state prison for committing one or more serious sexual offenses, ... instead of being released, they [are] denied freedom under a [law which allows the state to] commit [sex offenders] to a state psychiatric facility.   The limit of institutionalization was originally  two years, with the possibility of renewal. But with the new so-called Jessica's Law, the length of civil commitment is now "indeterminate."

A Massachusetts Appeals Court judge on has thrown "out the conviction of a homeless sex offender ... for failing to notify authorities that he moved to a new residence."  The man, considered to be at a high-risk of re-offending, "registered his permanent address as 'the streets of Greenfield' to comply with the state's sex offender registration laws... [and was later] found guilty of breaking the law when police found he stayed several nights at a friend's apartment in Montague and did not tell authorities ahead of time."

Around the Web

The Seattle Post-Intelligencer reports that Washington residents now have the option of receiving e-mail notifications when sex offenders move nearby.  The move is "part of an overhaul of the state's sex offender registry, [which] includes real-time updates for newly registered offenders."  Estimates are that the Internet registry and notification system will be operating in two to three months.

There has been a lot of great blogging at SL&P lately about sex crimes. Unfortunately, with my current schedule, I just haven't had time to respond. I recommend you check out all of the posts for yourself.

Sentencing Law and Policy notes that, despite Justice Kennedy's opinion for the Court in Roper v. Simmons, "the Kennedy opinion says nary a word about international laws and views concerning the death penalty for non-homicide offenses."  From Roper: "at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of 'cruel and unusual punishments.'" Roper, slip op. at 21.  I think this is more of a case that there is no clear international trend, but the omission is notable.

Sentencing Law and Policy also has a post discussing "the upcoming sentencing of ex-diplomat Gons Gutierrez Nachman on federal child porn charges, [who] has already generated controversy [for] request[ing] to get married before his sentencing to his 21-year-old Brazilian fiancee in the same federal courtroom where he admitted having sex with three underage girls while posted overseas."  The AP has more.  Sentencing Law and Policy also has a related post from last month. The cultural defense seems like a complete loser argument in American courts.

Sentencing Law and Policy has yet another post discussing a new Kennedy-related argument in a post entitled: Dodging the Death Penalty Bullet for Child Rape. The post argues that Kennedy "managed to reach the correct result of saving the state and the country from a major, and almost certainly harmful, expansion in the use of capital punishment." I recommend reading both the post at Balkinization and at SL&P. Even though I largely agree with the opinion in Kennedy, I think Berman is largely right in his criticisms of the Balkinization post supporting the Kennedy opinion.

Jessica's Law in Massachusetts

I see that Kent Scheidegger at Crime & Consequences has a post about a seemingly shocking turn of events in the debate over Jessica's Law in Massachusetts:

The Massachusetts legislature is presently considering a version of "Jessica's Law," reports Dave Wedge for the Boston Herald. (Hat tip, James Taranto.) Incredibly, the House removed a provision for mandatory prison time for rape of a child before passing the bill. However controversial mandatory minimums may be in other contexts, it staggers the imagination to think that anyone, much less a majority of a house of a state legislature, thinks that probation can be appropriate for this crime.

The links are to this piece in the Boston Herald and this one in the WSJ. I followed the links and I think Kent got the story a bit wrong. From the Boston Herald piece:

Lunsford, whose daughter Jessica was raped and murdered in Florida by a repeat sex offender, will be in Massachusetts tomorrow to push lawmakers to pass Jessica’s Law, which would require a 20-year sentence for rape of a child under 12. The House passed a watered-down version of the bill last week but Lunsford and other victims’ rights activists will be pushing the Senate to include mandatory prison time in the final law.

The second sentence is a bit ambiguously worded (and probably the source of Kent's understandable confusion), but I'm pretty sure the only section of the bill that was removed is the 20-year mandatory minimum. Looking at the Massachusetts criminal code, the two provisions criminalizing child rape seem to already require some prison time be served. My reading is also consistent with the way that the WSJ reported the story. I agree with Kent that a probation sentence for child rape of a 12-year old or less victim is never warranted (and that some of the comments of a defense lawyer in opposition to the law are bizarre and horrible). However, a 20-year mandatory minimum doesn't strike me as obviously needed in all cases (particularly if the statute applies to accessories to the crime).

Update: Kent has updated the original post. After consulting with an expert in Massachusetts criminal law, the answer is that there are no mandatory minimums for certain crimes under the current scheme (you should check out his post for the details). I'm fine with no prison time in certain statutory rape cases (ie if the victim has subsequently married or continued a consensual relationship with the defendant and they have a family together). The lack of a clear requirement of prison time for one of the forcible rape of a child crimes is more problematic. If judges are actually issuing no prison time sentences, I agree some legislation might be required. However, unlike Kent, I'm not as troubled at giving discretion if it isn't being abused. Either way, thanks to Kent's legwork, we have a little more information about the structure of MA sex crime law.

Around the Web

CrimProf Blog directs us to an article on Law.com discussing "[a] steadily increasing number of courts across the United States are prohibiting witnesses and victims from uttering certain words in front of a jury, banning everything from the words 'rape' to 'victim' to 'crime scene.'"  According to the article, prosecutors and victims' rights advocates claim that "courts are going too far in trying to cleanse witness testimony, all to protect a defendant's right to a fair trial."  The ABA Journal has similar coverage.

ZDNet reports that Wisconsin Gov. Jim Doyle is "backing off of a bill he signed requiring lifetime GPS monitoring of child sex offenders." According to the article, Gov. Doyle  intends to use passive monitors that cost much less than the real-time devices and delay implementation of the law he promoted on the campaign trail to save money.  Even under the new plan, the program would cost over $11 million.  The Milwaukee Journal Sentinel has more.

South Carolina Gov. Mark Sanford has "signed a bill that makes it illegal for sex offenders to live within 1,000 feet of schools, day care centers and playgrounds."  Sex offenders who violate the new law could be charged with a misdemeanor on the first offense and face up to 30 days in jail and a $500 fine.

The town of Weymouth, Massachusetts is "joining a growing number of communities across the Commonwealth by banning Level 3 sex offenders - those deemed most likely to re-offend - from living within 1,500 feet of any school, park, daycare center, or recreational facility."  The move makes it nearly impossible for Level 3 sex offenders to actually live in town.  According to the article, "[w]ithout a state law restricting where sex offenders can or cannot live, municipalities are increasingly ... drawing up maps that hem sex offenders into tiny pockets of town or forbid them from visiting public places like libraries."

U.S. Attorney Bill Mercer (District of Montana) says his office will "withhold federal prosecution against offenders within the Missoula District," in light of a ruling (which we previously mentioned here and here) that found constitutional problems with the Adam Walsh Act.  The U.S. Attorney however did state that sex offenders whom fail to register in Montana will still be prosecuted, but not within Missoula District; his office will forward on prosecutions within the other districts.  Of note, the U.S. Attorney did note that he expects the Justice Department to appeal the decision to the 9th Circuit or defend the law as Constitutional in another court.

Sentencing Law and Policy reports that the New Hampshire Supreme Court has "upheld the state's practice of charging convicted sex offenders $34 a year to pay for the state's sex offender registry."  The appellant, who was convicted in 2000 of five counts of felonious sexual assault on a 15-year-old girl, challenged the twice-a-year $17 fee convicted sex offenders must pay each time they register their address and other particulars with their local police department. According to the article, "[t]he money covers the cost of registering sex offenders: $15 of it goes toward the costs of maintaining the statewide sex offender registry. The remaining $2 goes to the local police department for work registering offenders."  The Boston Globe has more.

An Ohio man, who police say was caught on tape having sex with a picnic table, will now spend six months behind bars.  The man has pleaded no contest to several misdemeanor charges.  County police report that a neighbor secretly taped the man "walking out onto his back deck in broad daylight, at times completely naked, standing at a round, metal table on its side and having sex with it."

Repressed Memory and Sex Abuse by Catholic Priests

Largely due to statutes of limitations on claims against Catholic priests in sex abuse cases, the use of repressed memory arguments have played a central role in making such lawsuits possible. At Prawfsblawg, Tim Lytton has an interesting post (related to his recent book) on the subject:

The Boston Globe recently reported that former priest Paul Shanley, currently serving a 12-15-year sentence for sexually abusing a boy in the 1980s, appeared in court last Thursday to argue for a new trial. In 2004, the Boston archdiocese settled a lawsuit arising out of allegations of sexual abuse by Shanley for $1.4 million. The following year he was convicted in a criminal case in which key testimony was based on recovered memories of the abuse.  The psycological theory of recovered memory asserts that memories of a traumatic event may be repressed and later recovered in therapy or as the result of some event that triggers the memory. The reliability of memories that were allegedly repressed at the time of abuse and recovered many years later is a source of ongoing professional and public controversy. Shanley's lawyer has called recovered memory "junk science" and is demanding a retrial.

Regardless of how the court ultimately rules on Shanley's request, one should careful not to overstate the role of recovered memory in the context of clergy sexual abuse allegations.

More on Massachusetts Rape by Fraud Statute

NPR has more on the Massachusetts proposal to make rape by fraud a felony:

Massachusetts is the latest state to consider putting a new crime on the books: rape by fraud. Currently, a sex act only qualifies as rape if physical force is used. We talk to a woman who was tricked into having sex with her boyfriend's brother — who pretended to be her boyfriend — and unable to convict him of rape because of this limited definition.

Under the new law, such forms of deception would be a crime. Some say the law goes too far, however, and could criminalize lies like, "Really, I'm divorced!"

HT: The Situationist

Difficulties with Enforcing City Residency Restrictions

A helpful reader sent me this article about some of the problems with enforcing residency restriction laws:

It's one thing to adopt a bylaw restricting where convicted sex offenders can live. It's another matter to enforce the new rules.

Southborough adopted such a bylaw at Town Meeting on April 17. If approved by the state attorney general's office, which has approved similar bylaws in Dedham, Marlborough, and West Boylston, registered sex offenders would be barred from residing in 90 percent of the town, according to a presentation delivered by Police Chief William Webber to Town Meeting members.

The bylaw bars registered offenders from living within 1,000 feet of schools, day-care centers, elderly housing, parks, and other facilities. Convicted offenders deemed likely to commit another sexual assault - those classified as Level 2 or 3 predators - would also be barred from living within 1,000 feet of places of worship.

The bylaw also prohibits registered sex offenders from loitering within 500 feet of school bus stops. A grandfather clause allows offenders living in Southborough prior to the bylaw's enactment to remain in their residences.

The question now is how rigorously the bylaw can be enforced. Based on Marlborough's experience with a similar law, the question remains unanswered. Marlborough police say they've invoked the city's ordinance only three times since it was adopted in May 2007. They stand by the law as an important tool to protect children and others from sexual predators, but admit it doesn't have much of a track record.

I expect for city-level residency restriction laws this trend will continue. Cities don't have enough resources to really enforce loitering and residency laws on a systemic level. Instead, prosecutions are likely to occur when the police stumble onto a violation. That usually occurs when an offender is being investigated for something else. At the state level, enforcement can occur at a higher level if the state is willing to allocate human and monetary resources.

A Poorly Drafted Sex Crime Law and "Rape by Fraud"

Eugene Volokh (who has been doing a lot of great blogging about sex crime issues lately) has the story of a law which would unintentionally criminalize adultery make adultery a felony in Massachusetts:

That's what would happen under a proposed statute that's being promoted by Massachusetts state representative Peter Koutoujian, and is being supported by District Attorneys Joseph D. Early Jr. and Gerard Leone.

I suspect that this isn't the goal of the drafters, but that's what the language would call for, when (as I'm pretty sure happens quite often) the cheater has sex afterwards with the regular lover without disclosing the cheating. Here's what the proposed law says:

    Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, 'fraud' or 'artifice' shall not be construed to mean a promise of future consideration.

The law was apparently proposed in response to some recent fraudulent-sex incidents, one in which a man had sex with his brother's near-sleeping girlfriend pretending to be his brother, and one in which a medical technician conducted an unnecessary pelvic exam (with his fingers, I think) after having pretended to the woman that it was necessary and that he was trained and licensed to perform such exams. But it goes much further than that: Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.

As noted, the law concerns a recent set of incidents that are normally classified as "rape by fraud." In a previous post, Volokh explained why the criminal law normally steers clear of regulating such conduct:

The "rape by fraud" issue noted below does raise some interesting conceptual questions, for instance "Why do we make it a crime to take property when consent is gotten through fraud, but not to get sex when consent is gotten through fraud"? But while I think the "why" is interesting and important, the bottom line strikes me as clear: There is likely to be much more injustice and suffering if the criminal law were to police a vast range of lies and concealments in sexual relationships than if the criminal law stayed out of this.

Whether "rape by fraud" or "rape by coercion" should be be punished by criminal law is a tough issue. "Rape by coercion" in its most notable form occurs in the context of quid pro quo sexual harassment (i.e. a boss says, "sleep with me or you be fired"). I think a lot of lay observers would suspect such actions are already criminally prosecuted. However, that is not true. "Rape by coercion" potentially creates a tort in some circumstances, but American policymakers have been loath to criminally punish lies in the bedroom.

Also, the relationship between "rape by fraud" and "rape by coercion" theories is problematic. It would be strange to punish "rape by fraud" and not "rape by coercion" in some instances. If that were the law, then a boss demanding sex for continued employment could not be criminally punished unless that boss subsequently fired the employee after having sex (turning coercion into fraud). If that boss actually allowed the employee to continue working, then, in this hypothetical world, the boss would escape prosecution. This result would mean that the coercive sex wasn't being punished. Rather, it would be the lie that was being punished.

If policymakers took seriously the commodity theories of rape law (supported by, among others, Donald Dripps, Richard Posner, and Robin West), then "rape by fraud" and "rape by coercion" would be criminalized. Under the commodity theories, sex is treated as a commodity and rape is considered "sex theft." While I have supported the idea that treating rape as "sex theft" helps to resolve some of the major problems with rape law, I share Volokh's trepidation for how "rape by fraud" and "rape by coercion" laws might work in practice.

Update: I changed the post due to the comment from lawdoc. I was imprecise (and therefore, incorrect) in my original post. Thanks.

Around the Web

Grits for Breakfast reports that Oklahoma authorities have "charged a western Oklahoma sheriff with coercing and bribing female inmates so he could use them in a sex-slave operation run out of his jail."  The Sheriff resigned just as state prosecutors filed 35 felony charges against him.  Grits mentions an earlier post involving the use of inmate labor "after two Texas Sheriffs departments were found to be using trusty labor for private businesses." 

Feminist Law Professors reports on an Australian news story where "ten men stood over the girl masturbating while each of them raped her in turn.”  This act was apparently inspired by a genre of pornography called “bukake."

EvidenceProf reports that prosecutors in Pennsylvania have withdrawn all charges against Penn State running back Austin Scott, who was charged with raping a fellow student.  The Commonwealth stated that, "[i]n light of the likely admission of evidence we believe is irrelevant, as officers of the court, it is our position that there is no reasonable likelihood the commonwealth can meet its burden of proof."  EvidenceProf has more coverage here.

Evidence Prof also reports that Dominic Jones, a former University of Minnesota football player, who is accused of sexually assaulting an intoxicated woman, has been found guilty of unwanted sexual contact with a physically helpless woman, but not guilty of rape.  EvidenceProf has previously written about the  trial.

Grits for Breakfast is reporting that prank calls from a Colorado woman may be linked to the raid of the Texas polygamist compound.  Some argue that the custody proceedings for the 400+ kids who have been removed from the compound are "presently descending into farce."  Grits calls for the judge in the case to "[i]dentify any individual cases that can be actually proven and send the rest of the group and their lawyers home with the thanks and apologies of the court."

A helpful reader lets us know that a proposed Massachusetts law which would block high-risk sex offenders from voting at polling sites in schools and libraries, has been endorsed by lawmakers on the Joint Committee on Election Laws.  The bill would force many sex offenders to vote by absentee ballot or not at all.  The ACLU has argued that the law would be unconstitutional.  The article mentions that the impetus of the proposal was "not prompted by any instance where a sex offender attacked a child at a polling place."