Sex Crimes

Yes, Criminal Adultery Statutes Still Exist

New Hampshire may finally eliminate their criminal adultery statute from the books:

The original punishments — including standing on the gallows for an hour with a noose around the neck — have been softened to a $1,200 fine, yet some lawmakers think it's time for the 200-year-old crime of adultery to come off New Hampshire's books.

Seven months after the state approved gay marriage, lawmakers will consider easing government further from the bedroom with a bill to repeal the law.

"We shouldn't be regulating people's sex lives and their love lives," state Rep. Timothy Horrigan said. "This is one area the state government should stay out of people's bedrooms."

Insert obvious Tiger Woods joke here.

New Study About Online Child Predators

A new study from the University of New Hampshire's Crimes Against Children Research Center (available here) reports a tremendous increase in online child predator arrests from sting operations, despite an overall decline in sex crimes against minors. From Ars Technica:

Even as sex crimes against minors decline, a new report from the University of New Hampshire's Crimes Against Children Research Center released this week found an massive increase in the number of online child predators arrested in undercover sting operations. Despite this, the survey rejects the idea that the Internet is an especially perilous place for minors, and finds that while the nature of online sex crimes against minors changed little between 2000 and 2006, the profile of the offenders has been shifting—and both differ markedly from the popular conception.

Extrapolating from a nationwide survey of law enforcement agencies, the authors estimate that 2006 saw 615 arrests of online child predators in cases involving actual minors as victims (up 21 percent from 2000), and 3,100 arrests in cases where the "child" was actually an undercover law enforcement officer (a whopping 381 percent increase over 2000). During the same time period, the proportion of minors aged 12-17 on the Internet rose from 73 to 93 percent. Those numbers, the authors believe, don't represent an actual increase in the national pervert population, but rather reflect the broader trend over the same period of interactions moving online, combined with more vigorous police sting efforts.

In the vast majority of cases, it's worth noting, the child victims were teens who knowingly went to meet their older interlocutors intending to have sex, which may explain why stings so vastly outnumber actual-victim arrests. Though the victims are too young to legally consent to sex with an adult, relatively few cases involve physical coercion, which makes it likely that many—indeed, quite possibly a majority—don't come to the attention of law enforcement.

Social networking sites, the subject of much angst over online predators, were more or less unknown in 2000, but by 2006 accounted for 33 percent of the initial contacts between (actual) minors and adults in search of illicit sex. While online chat was still the most common medium for indecent proposals, it saw a corresponding drop in popularity—from 80 percent to 40 percent of initial contacts.

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."

The Thin Line Between Pornography and Prostitution

While filming pornography might seem different than prostitution, the difference between the two can be illusory when money changes hands. Eugene Volokh explains in analyzing a recent New Hampshire case:

People sometimes ask -- if it's a crime to pay someone to have sex with your friend, or even to pay two people to have sex so you can watch, why aren't pornographers equally guilty? Well, occasionally this gets litigated, and there's a new opinion out on this from the New Hampshire Supreme Court, State v. Theriault.

New Hampshire Revised Statutes 645:2 provides, in relevant part,

I. A person is guilty of a misdemeanor if the person:
(f) Pays, agrees to pay, or offers to pay another person to engage in ... sexual penetration as defined in RSA 632-A:1, V, with the payor or with another person.

Robert Theriault approached a woman and her boyfriend, offering them $50/hour to let him videotape them having sex (while they used "temperature blankets," which puzzles me). The government didn't allege "that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video," because that wasn't required by the statute. Theriault was convicted.

The New Hampshire Supreme Court held that applying the statute this way is unconstitutional, because "the production of sexually explicit but non-obscene videos is constitutionally protected," and upholding the law in a case such as this one would interfere with producers' right to create such videos. The court heavily relied on People v. Freeman, a 1988 California Supreme Court decision that reached the same result, and disagreed with People v. Kovner, a 1978 New York trial court decision that reached the opposite result.

It's not clear to me how right the court's logic is. Generally speaking, the right to create constitutionally protected speech doesn't include the right to violate non-speech-related laws in the process -- for instance, I don't have the right to use illegal drugs in the course of my speech-producing scientific research, or to trespass on closed government property to shoot a video. There might be some modest protection offered by United States v. O'Brien (1968), but that really does offer very slight protection when the law involved doesn't mention speech, and is applied to speech entirely without regard to what the speech conveys.

As I am often asked this question by students, I generally agree with Eugene. The free speech involved is in the filming and production of the video. The crime of prostitution stems from the exchange of money for the sexual services therein. Simply because pornography is normally produced for money does not mean that payment system is also protected under the First Amendment. The reverse case illustrates the difficulty with the court's position. If a man hires a female prostitute and films the encounter, is he free from prosecution? My position obviously creates difficulties for the pornography industry, but insofar as prostitution laws do not have statutory exceptions for the pornography industry, I believe the New Hampshire court's argument is not particularly persuasive. 

New Hampshire Adopts Tiered Registry System

From a local news account:

Gov. John Lynch has signed a bill into law reworking the state's registration system for sex offenders, which categorizes the levels of their crimes into three different tiers.

The law, which made its way through the Legislature as House Bill 1640, takes effect on Jan. 1 and breaks offenders into three different categories.

Those in the lowest tier can petition the court to be removed from the list available to the public after five years if they have a clean record. Anyone convicted of crimes that place them in the upper tiers will be subject to more in-depth scrutiny and will have their records made more readily available to the public.

Response to the law — which passed the Legislature earlier this year and was all but assured to win Lynch's OK — has been mixed, although proponents say it is a step in the right direction.

The New Hampshire law differs from the federal AWA system because Tier I offenders have the ability to be de-listed after five years. For that reason, it might seem that New Hampshire has failed to fully comply with the AWA requirements. However, if the new AWA Guidelines have controlling authority, then the state may be in full compliance. Ultimately, I can't imagine the Attorney General's office will find that the state hasn't fully complied.

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."

Around the Web

In the R. Kelly trial today, the Chicago Sun-Times is reporting that "[t]he woman who had been scheduled to testify this week that she had a sexual threesome with R. Kelly and an underage girl will not testify today," but would perhaps testify Monday. The Sun-Times maintains its own blog discussing the trial here.

The Texas Supreme Court has ruled that the State of Texas "illegally removed more than 400 children from a ranch run by a religious sect that advocates polygamy and sent them to foster homes last month."  The State argued that the children were at risk living in the communal homes operated by the Fundamentalist Church of Jesus Christ of Latter-Day Saints, as the sect promotes polygamy and allegedly encourages marriages of underage teenage girls to much older men. The ruling consists of a majority opinion and an opinion concurring in part and dissenting in part.

New Hampshire lawmakers have introduced two bills dealing with sex offenders. The first bill expands the state's collection of DNA to sex offenders and other felons to closely match the federal Adam Walsh Act, while the second bill allows tougher sentences for child pornography manufacture, possession and distribution. The bill also raises the age at which a person can legally appear in a pornographic image to 18 from 16. Both bills are expected to pass. According to the state Department of Safety, New Hampshire is one of four states in the country that does not collect DNA samples from all felons.

A Georgia man is suing the state because he is a registered sex offender and is not allowed to work at his business, as it is located within 1,000 feet of a church. In 2003, the man pled guilty to one court of transporting obscene matter to a minor. In his lawsuit, the man argues that his business ("Chicken King") is not open at any time the church across the street is holding services.

Crime and Consequences reports that the Federalist Society has a new podcast available discussing the Supreme Court's recent decision in United States v. Williams (available here). The podcast features Elizabeth Harmer Dionne, a John M. Olin Fellow in Law at Harvard Law School who specializes in First Amendment issues.

Around the Web

The Volokh Conspiracy has a post discussing a new California bill which "would impose a tax on the sale of, or the storage, use, or other consumption of, tangible personal property that is adult material, as defined, in this state at a rate of 25%."  Eugene Volokh thinks that the tax would likely be unconstitutional, as "the law targets not just unprotected and illegal obscenity, but also constitutionally protected pornography."

Tennessee sex offenders will soon be "required to register any e-mail address, user name or instant message screen name, along with their given name, place of residence and any crime for which they’ve been charged."  Tennessee Governor Phil Bredesen signed legislation requiring that information after the bill passed unanimously in both the House and Senate.  The new law becomes effective July 1.

The Arizona Daily Star has an article discussing the use of GPS ankle bracelets for tracking registered sex offenders.  According to the article, probation officers are able to download data whenever they want to check where a defendant has been and whether they're keeping to their pre-approved schedules.  Also,  officers can "sit at a computer screen to watch a probationer move from place to place in real-time."

The New Hampshire Civil Liberties Union is "renewing its effort against ordinances that limit where sexual offenders can live."  The NHCLU has filed motions in state district court arguing that a city ordinance which bans registered sex offenders from living within 2,500 feet of a school or day-care center violates the state constitution.

Around the Web

An Indiana state court judge rejected a request by a convicted sex offender to be allowed to watch his son play baseball in a city park.  The man completed his sexual battery sentence in 1996 and no longer was required to register with the state’s registry of sex offenders.

Sentencing Law and Policy reports that California police officers are "seeking an explanation for why women's panties were discovered during a routine search of a male sex offender's home."  Police believe the man may have taken the underwear from homes for sale during open houses.

New Hampshire's Adam Walsh compliance bill has been sent to the State Senate where it is being discussed by the Judiciary Committee.  One lawmaker made an unsuccessful attempt to "exempt from the registry people younger than 21 who had consensual sex with a minor."  The lawmaker apparently made her bid after hearing stories from multiple men, now married with families, who engaged in consensual sex while under 21.

Ontario, Canda's highest court, though admitting that the province's sex offender registry infringes on the freedom of sex offenders, has upheld the registry because of public safety interests.  An Ontario man has "challenged the law requiring sex offenders to register with the province arguing it violated his constitutional rights after he was charged with failure to comply for not reporting an address change on time."

Is Bigfoot a Sex Offender?

From Virginia, we get this story which defies easy explanation:

A man who claims that he was molested by Bigfoot as a child was ordered to serve 20 years in prison yesterday for his own molestation-related activities.

Gene R. Morrill, 57, of New Ipswich, N.H., had previously pleaded guilty in Stafford Circuit Court to 20 charges stemming from his efforts to solicit 13-year-old boys over the Internet.

Defense attorney Terrence Patton cited Morrill's mental health issues in seeking leniency from Judge J. Howe Brown.

Morrill told an investigator preparing his pre-sentence report about being sexually assaulted by the legendary Bigfoot, a North American folklore character said to be between 7 and 10 feet tall, and covered in dark brown or dark reddish hair. Patton said Morrill really believes the assaulted happened.

If you actually go read the story, you see my nomination for worst mugshot of the year so far.