Sex Crimes

Roethlisberger Accused of Sexual Assault

The Associated Press is reporting that a Georgia college student has accused Pittsburgh Steelers quarterback Ben Roethlisberger of sexual assault. The student alleges that she was assaulted at a nightclub in Milledgeville, Georgia. From the New York Times:

A 20-year-old college student accused Pittsburgh Steelers quarterback Ben Roethlisberger of sexually assaulting her at a nightclub early Friday during a night on the town near where he owns a lake home. The police said the alleged assault occurred in Milledgeville, about 85 miles southeast of Atlanta. Roethlisberger owns a home about 30 miles to the north on Oconee Lake.

Deputy Police Chief Richard Malone said the 28-year-old Roethlisberger, a two-time Super Bowl champion, had been with three other people who were mingling with another group that included the reported victim. Malone said the woman and her party contacted a nearby police officer after the alleged assault.

“He’s been identified as being at the scene and there are allegations naming him as the perpetrator,” Malone said.

Roethlisberger and the woman have been interviewed, and the woman was taken to a hospital, where she was treated and released, Malone said. The police said that Roethlisberger and his lawyer were cooperating with investigators. He was not in custody and has not been charged with a crime.

As a Steelers fan, this is particularly ugly news.

Student Post - "Sexting" as Child Pornography: A Modern Prosecutorial Dilemma

“Sexting,” the portmanteau of “sex” and “texting,” describes the act of sending a sexually explicit message or photograph electronically, particularly between cell phones.  Sexting is an act that has grown commonplace among teens and young adults.  The prevalence of sexting was recently confirmed in 2008 by the National Campaign to Prevent Teen and Unplanned Pregnancy which conducted a nationwide survey.  The National Campaign polled 653 teens (ages 13-19) and 627 young adults (ages 20-26) finding that 20% of teens overall and 33% of young adults overall have “sent or posted nude or semi-nude pictures of themselves.”

The problem for these young people is that in most states, voluntarily possessing, controlling or transmitting nude images of persons under the age of 18 is considered to be child pornography, and a felony.  For example, in the Illinois Criminal Code, one way child pornography is committed is when a person:

disseminates, offers to disseminate, exhibits, or possesses with intent to disseminate any film, videotape, photograph, or other similar visual reproduction or depiction by computer of any child [under the age of 18]…whom the person knows or reasonably should know to be under the age of 18…[and the child is]: 
(i) actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person or animal; or… 
(iii) actually or by simulation engaged in any act of masturbation; or…
(iv) actually or by simulation portrayed as being the object of, or otherwise engaged in, any act of lewd fondling, touching, or caressing involving another person or animal; or…
(vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed or transparently clothed genitals, pubic area, buttocks, or if such person is female, a fully or partially developed breast of the child or other person…(720 ILCS 5§11-20.1(a)(2))

And so, over the past few years, “sexters” have begun to feel the stinging filo from the sword of justice as more and more teens and young adults are being charged with child pornography.  As of March 2009, Pennsylvania, Ohio, Michigan, Alabama, Wisconsin, Florida, New York, New Jersey, Connecticut, Texas, Utah and other states have filed criminal charges against teens for sexting. These cases are gaining more exposure from the media as many in the general public feel that sexting is more of a social/cultural problem and that state prosecutors are misusing their authority by zealously going after young offenders who unwittingly made a bad choice of judgment.  

In Florida, there is the case of 18-year-old Phillip Alpert.  Phillip had just turned 18 when he sent a naked picture of his 16-year-old girlfriend to many of her friends and family after an argument.  Phillip was charged and convicted of child pornography, was sentenced to five years probation and is required to register as a sex offender until the age of 43.  Additionally, Phillip was kicked out of college, cannot travel outside the country without making prior arrangements with his probation officer and is having trouble finding a job because he is a convicted felon.  Phillip admits that he made a poor, immature decision but does not feel that he should be punished for the rest of his life for this action.  Phillip’s attorney, Larry Walters stated, “Sexting…catches teens off guard because this is a fairly natural and normal thing for them to do.  [Sexting sounds] surprising to us as parents, but for teens it’s part of their culture.”  

Parents have begun to fight back against overzealous prosecutors.  In Pennsylvania, there is the case of 15-year-old Marissa Miller who, when she was 12-years-old, snapped pictures of herself and her friend in training bras during a sleepover.  Later, when the photos surfaced on a student’s cell phone, the district attorney contacted Marissa’s parents (and the parents of 19 other teens allegedly involved in this sexting incident) and offered them an ultimatum.  They could accept probation and attend 14 hours of a counseling program he devised or the teen would be charged with sexual abuse of a minor.  Seventeen of the students accepted the plea, but Marissa and two other girls instead sought the help of the ACLU.  The ACLU filed a suit in Federal District Court seeking an order prohibiting the district attorney from filing criminal charges against the three girls.  Witold Walczak, Legal Director for the ACLU of Pennsylvania, stated, “These are kids being irresponsible and careless, they are not criminals…child pornography is a terrible crime that involves abuse and exploitation of children, neither of which exists here.”  The District Court issued a TRO in late March 2009 and the outcome of the case is pending.

At the opposite end of the spectrum is the “sextortion” case involving a New Berlin, Wisconsin high school student named Anthony Stancl. Anthony allegedly posed as a flirtatious female on Facebook and would IM male students at his high school convincing them to send him naked pictures of themselves.  Anthony used those pictures to blackmail the students, threatening to expose the pictures publicly if they did not perform sexual favors for him, including having intercourse.  One male victim finally told his story to the police.  In Anthony’s computer was a collection “of more than 300 nude images and masturbation videos of the high school boys…who ranged in age from 13 to 18…thirty-nine sent pictures of themselves at least partially undressed.  Thirty-one of them sent pictures that police said were sexually explicit…Anthony threatened roughly half of the thirty-one with public exposure if they did not have sex with him…at least seven of them agreed to his demands.”  Anthony pled guilty to 12 felony counts and currently faces up to 293 years in prison.  The child pornography charge was an insignificant throw-in.  Ironically, the New Berlin school superintendant had been attempting to persuade AT&T to choose Anthony’s high school for a pilot program where every student at the school would receive an Apple iPhone loaded with educational applications.

The federal courts have given States the power and authority to regulate child pornography as they see fit, even in the face of right to privacy arguments and potential First Amendment freedom of speech violations.  In U.S. v. Pabon-Cruz, 255 F. Supp. 2d 200 (S.D.N.Y. 2003), the U.S. District Court from the Southern District of New York held that child pornography statutes are permitted to sweep more broadly than traditional obscenity laws, without infringing the First Amendment, because they aim not to suppress offensive speech or images, but to protect children against exploitation.  Thus, the onus will remain on the States to make changes to their child pornography statutes.  

Lawyers and judges are taught to look at the legislative intent behind the law.  It can clearly be stated that child pornography laws were not created to prevent teens from electronically sending nude pictures to each other.  States must work to prevent malicious prosecution of a child who makes a momentary error in judgment.  Sexting may have a momentary social effect on the victim, but the more dire consequence is the long-term criminal effect on the transgressor (and potentially the victim as well).  It will be quite interesting to see the outcome of the Miller/ACLU case.  Diversion programs such as the one instituted by the Pennsylvania prosecutor might be a viable temporary solution.  However, the more permanent solution must involve a unified movement among the states to amend child pornography laws.  The Colorado state legislature has been among the first states to take on this issue by introducing HB 09-1132 during the 2009 First Regular Legislative Session.  Though it does not mention sexting specifically, the bill works to curtail this fad. The bill states, 

a person may be convicted of disseminating indecent material to a child via a computer, telephone, or data network, or by means of an instant-messaging or text-messaging system, if he or she knew the "character and content" of her or his communication and if that communication is with a person she or he believes is a child. Internet luring of a child would also include doing so via data or telephone network, as well as instant or text messages. To be convicted of Internet luring, the actor must be more than four years older than the age of the victim or the age the actor believes the victim to be. (13 U.C. Davis J. Juv. L. & Pol’y 416-418).

The Colorado lawmakers introduced this language to specifically target predatory adults.  Colorado is being progressive and proactive in its approach.  However, I do not foresee a majority of states following suit any time soon.  Legislatures are notoriously slow and rarely act preemptively, thus, we may first need to see more sexting cases and more of a public outcry before any sort of movement to change child pornography laws can begin.  Additionally, no politician ever wants to appear soft on crime, especially sex crimes, thus it may be hard to convince any number of legislators to create and sponsor such bills. Change will come; but how many teenagers will be martyred first?

Student Post - Sexting the New Teen Craze - Legislatures Scramble to Keep up with Technology

With the popularity of shows like Gossip Girl and 90210 among teens, the practice of sexting will spread. Sexting involves sending provocative, sexually explicit, and typically nude photos to another person via cell phone text. There is a clash when it comes to teenage sexting. Considering the photos are of minors, those sending, possessing, and distributing can fall under child pornography laws. Child pornography laws that are designed to protect children from being exploited sexually are now being used to punish those same children for their youthful indiscretions. The consequences of a felony conviction for possession and distribution child pornography include a requirement to register as a sex offender. The law makers of states around the country are now scrambling to create laws that will balance out the desire to protect children from being sexually exploited and the desire to protect children from life changing consequences from the mistakes of youth.

State courts and prosecutors that have faced the dilemma of how to handle a teenage sexting situation have widely differed in their choices. In Florida, Phillip Alpert, 18, was charged and convicted with sending child pornography. He was sentenced to 5 years probation and required to register as a sex offender. 'Sexting' lands teen on sex offender list - CNN.com, Sexting laws a wake up call for all - Collegenews. Alpert sent photos of his ex-girlfriend to numerous people, including her family and school mates, as an act of revenge for their break-up.  While not condoning what he did, the question remains, does the punishment fit the crime. A 14 year old girl was arrested and charged with child pornography after posting photos of herself on a social network. The crime, if convicted, carries a sentence of up to 17 years in prison and required registration as a sex offender. http://www.netlingo.com/more/Girl_arrested.pdf. A judge in Pennsylvania issued a restraining order against state prosecutors from pursuing child pornography charges against three teenage girls who took photos of themselves at a slumber party.US judge rules for teen girls in sexting case | Reuters. While Ohio prosecutors have chosen a middle ground when it comes to charges against teenagers for sexting. Two teenage boys were convicted of contributing to the delinquency of a minor for sexting nude photos on the cell phones. Mason teens sentenced for 'sexting' | Cincinnati.com | The Cincinnati Enquirer

The issue received widespread main stream media attention in March of 2009 when an Ohio girl committed suicide after nude photos that she sent to her boyfriend were distributed to hundreds of students in her high school. The teen was teased and harassed by those students before ultimately committing suicide. Nude photo led to suicide | Cincinnati.com | The Cincinnati Enquirer. At the urging of her parents and other concerned citizens, the Ohio legislature began working to create new laws for sexting. Ohio has proposed a law that would make it a misdemeanor for any minor involved in sexting, removing the chance of a felony child pornography charge.'Sexting' bill introduced in Senate | Cincinnati.com | The Cincinnati Enquirer.

Vermont legislature passed a law that decriminalized sexting for teenagers. Vermont Teen Gets 3 Months For 'Sexting' - ABC News, Vermont Teen Going to the Slammer for 'Sexting'. The law creates an exception for teenagers between the ages of 13- 18 from felony child pornography charges with the sexting is consensual. This, however, do not prevent other charges from being brought against teens who engage in sexting. In early September, a Vermont teen was sentence to 90 days in prison for committing a prohibited act, a lewd and lascivious conduct in the state’s first sexting case. He was facing charges of sexual assault but the district attorney dropped those charges when the new law was enacted. Vt. teen sentenced to prison in 'sexting' case.

Illinois has also proposed new laws to cover sexting, however, it chose to head in the opposite direction. The Illinois legislature has proposed law to specifically make sexting a crime when it is done without the written consent of the parties involved or has been done with intent to harm a person’s reputation. Currently, Illinois law enforcement treats sexting under child pornography laws and consequences that come with those laws. The new proposed law focuses on community service and education for teens who engage in sexting. Fail: Illinois cracks down on sexting, applies law to all nude images, LiveLeak.com - IL - Teens say ‘sexting’ is going on all over - And they don’t think legislation will make a difference.

There have been many cries for a national law regulating sexting. The answer to the sexting issue is not clear. Even in states like Vermont, who chose to decriminalize sexting for teenagers, it does not mean that there cannot be charges brought for sexting. I understand the purpose behind child pornography laws, but I’m not convinced that teen sexting should fall into that category. Before this technology, there were teens exploring their sexuality through photos and Polaroid’s, so it is not a new concept. Parents were able to quietly handle these situations and mass distribution was a readily available option. But the technology is not going away and neither is teenage sexual exploration. The law needs to catch up with the technology. One thing is clear; the sexting trend is not going away. As said in the beginning, the popularity of shows like Gossip Girl, which focuses on teen communication of sex scandals through text and internet, and 90210, whose new season started with a teenage girl sending photos of her fri-enemy to the whole school , will lead to a spread in the popularity of teen sexting.

Gender Bias in Statutory Rape Cases

A helpful reader pointed me to an interesting article in the Daily Beast about gender bias in statutory rape cases:

After a 17-year-old boy had sex with his 14-year-old girlfriend, he was charged with a felony for statutory rape. When a 17-year-old girl in the same town commited the same crime, she was charged with far less. Was the boy the victim of gender bias?
Alan Jepsen was playing videogames at his home in Sheboygan, Wisconsin, when the cops came knocking on his door. He was handcuffed in front of his sister and thrown in jail. In the words of his attorney, Jeffrey Purnell, “This child, this 17-year-old high-school kid, had to spend a week in jail—they locked him up and they put him in jail with grown-ups.”
His crime: Having sex with his 14-year-old girlfriend. And, perhaps, being a boy.
The day after Alan's arrest, Sheboygan authorities arrested Norma Guthrie, also 17, for having sex with her 14-year-old boyfriend. Norma, however, did not have to spend a single day in jail. She was released immediately, on signature bond, while Alan was held on a $1,000 cash bond, which his family could not afford. Sheboygan County Assistant District Attorney Jim Haasch is handling both cases.
The disparity in the punishment of these 17-year-olds, both accused of having sex with the 14-year-olds they were dating, goes much deeper. Haasch charged Alan with a Class C felony, which, according to court records obtained by The Daily Beast, carries a maximum prison sentence of 40 years. Norma, on the other hand, was charged only with a misdemeanor, which carries a maximum sentence of nine months in jail.
It should be noted that the gender bias in sex crimes involving minors extends beyond the statutory rape cases. As the various prosecutions involving female teachers with minor male children have illustrated, women receive far less sentences than men in similarly situated positions.

There are, however, reasons to not be troubled by such differences (assuming they are generalizable beyond the particular facts above). Female victims have a risk that is not comparable to male victims: pregnancy. Consequently, it is not unreasonable to punish men (even minor ones) more harshly in heterosexual situations. I think the developmental reasons for differential treatment are more mixed, but some would argue that the harm to girls is greater. 

With that being said, a lot of these cases seem to indicate a level of bias that is problematic. Even if female victims suffer a much greater risk of harm, that does not mean that female defendants with male victims should be receiving slaps on the wrist.

Regardless of your perspective on these issues, it's nice to see greater coverage as society really needs to come to better terms with adolescent sexuality in the criminal law.

Student Post - Teacher Accused of Sexual Assault of Student

A preliminary hearing is scheduled for March 13, 2009 for Linda Pithyou, who has been charged with sexual assault. Linda was a teacher at Lawrence Hall Youth Services. She is accused of having sex with one of her male students from the alternative school for at-risk youths. Linda is among a large number of teachers accused of sexual assault of students. Although she has been dismissed from the school, the psychological damage has already been done. The psychological consequences that can follow from relationships such as these teacher-student affairs demand strict enforcement of the laws prohibiting such conduct. The risk factors involved were compounded by the at-risk status of this student.

Lawrence Hall is intended to provide additional support and services to youths affected by multiple risk factors for conduct and emotional problems. Psychologists have explained that children with similar experiences early in life may have different problems later in life. This distinction is between multifinality and equifinality. This results because there are many contributors to any psychological disorder, and children have different risk and resilience factors. Psychologists look to the resources and events within the individual, family and school/community. Lawrence Hall is intended to provide at-risk youth with “adults outside the family who take an interest in promoting the child’s welfare,” a characteristic that promotes resilience in the face of adversity. When a teacher abuses this relationship, however, the impact may be magnified given the lack of external resilience factors and frustration already experienced by the student.

Studies that show women typically receive lighter punishment than men in the circumstances point to a clear problem of incongruency between damage that is caused and the punishment received. Research does not show that victims of sexual assault by men fair worse than victims of women. As society continues its efforts to increase knowledge of the psychology and development of children, the law needs to evolve to consider these developments. The punishment Linda faces, if found guilty, needs to consider the many facets of damage she has caused.

The Airport Bathroom Scandal That Never Ends

Larry Craig continues to chug along long after his political future was declared dead and buried. And amazingly, his case has carried on. However, the Court of Appeals has ruled that the lower court did not abuse its discretion when it held that Craig cannot withdraw his guilty plea:

The Minnesota Court of Appeals on Tuesday rejected U.S. Sen. Larry Craig's effort to withdraw his guilty plea to a misdemeanor offense of disorderly conduct in connection with a sex-sting operation.

"Because we see no abuse of discretion in the denial and conclude that the statute is not overbroad, we affirm" a lower court's decision, the three-judge panel wrote in a 10-page ruling.

In a written statement, Craig said he was "extremely disappointed" by the action and was considering an appeal.

"I disagree with their conclusion and remain steadfast in my belief that nothing criminal or improper occurred at the Minneapolis airport," Craig said.

I have to think that this is probably the best outcome for Craig. If he were actually allowed to withdraw his plea, the actual details of the case would be played out again in his trial. By being stuck with the guilty plea, Craig is free to deny the charges against him while railing against the judiciary. Out of all possible options in the ugly mess he created, this might be as close to a win-win situation as possible for the Senator.

How Appealing, CrimProf, and TalkLeft are also covering the story.

Case of School Teacher with Pop-up Porn Resolved

Almost two years ago, I posted about the case of Julie Amero, the school teacher who had some pornography pop-up on her computer during class. TChris at TalkLeft recently posted about the resolution of the case:

You may remember the case of Julie Amero, the teacher who allegedly exposed her seventh grade students to p*rn*graphy on a classroom PC. Amero's defense (not ably presented at her trial) was that she accessed no p*rn and that the computer was infected with malware that caused the p*rn sites to pop up faster than she could close them. Amero was nonetheless convicted of impairing the morals of a child and risking injury to a minor.

Before she was sentenced, with the assistance of a new lawyer and a host of new evidence, Amero persuaded the judge to give her a new trial. The case has been languishing for some time. Last week, because she "wasn't in condition to endure another trial," Amero entered a guilty plea to a misdemeanor charge of disorderly conduct and agreed to give up her teaching license. She was fined $100.

Amero's decision to put an end to her ordeal is understandable but unfortunate given the evidence of her innocence....

The prosecution apparently refused to give up this dog of a case because of its newly minted argument: even if Amero didn't access the porn, she should have turned off the computer once she realized she couldn't control it. Maybe, but imposing criminal liability on a relatively computer-illiterate teacher because she didn't think quickly enough is reprehensible.

The result is a ruined life because the school system couldn't manage its IT competently and because prosecutors couldn't bring themselves to admit they made a mistake.

Like TChris, I'm unsatisfied with the outcome. It really makes little sense that the prosecution kept pushing this case. And to have a guilty plea of disorderly conduct and a $100 fine illustrates the absurdity to the matter. And, I wonder if a non-categorical approach to defining what is a sex offense under SORNA catches on in federal courts, will Amero be required to register as a sex offender?

Will Roman Get a Reprieve?

Jeralyn at TalkLeft recently had a post calling for a pardon for director Roman Polanski:

Director Roman Polanski, now age 75, has filed a new motion to have the sex assault charges against him dismissed. His motion alleges prosecutorial and judicial misconduct, revealed in a recent HBO documentary on the case. The statements were made by the deputy DA on the case and a judge. The victim in the case, then 13, now 43, has wanted the charges dropped for years, and still does....

My view (and not just based on the documentary): Drop the charges and let Roman come home.

I haven't seen the documentary and don't know too much about the case, so I can't say if Polanski is truly deserving. However, something always makes me a little queasy when the rich and powerful get a little more attention when it comes to executive pardons. For the pardon power to serve as a meaningful tool in providing justice, it should be applied fairly and without regard to the social status of the offenders. 

Where Adultery is Still a Crime

There is a major scandal breaking in South Korea because of an actress involved in criminal adultery. This article highlights the unusual history of South Korea's adultery laws:

South Korean prosecutors on Wednesday demanded a popular actress who tried to overturn the country's law that criminalizes adultery be thrown in jail for a year and a half for having an affair, local media reported.

South Korean enacted its adultery law more than 50 years ago to protect women who had few rights in the male-dominated society but critics say now it is a draconian measure no longer fit for a country with an advanced civil and family court system.

Actress Ok So-ri's case has created a sensation in South Korea after she admitted to an affair with a singer and called on the country's Constitutional Court to overturn the statute that can send a person to jail for up to two years for adultery.

"The accuser (her husband) wanted a severe sentence," prosecutors said in court as to why they are seeking 18 months in jail for Ok, Yonhap news agency reported. Prosecutors were not available for comment.

Where adultery laws are still on the books in the United States, they are historical relics from a different time in America. It is interesting that South Korea's laws are of more recent origin and were obstensibly designed to protect women. 

ABC Covers Problems of Kids as Child Porn Defendants

It's interesting to see a major media source noticing the increase in the cases of teenagers taking nude cell phone pictures and being prosecuted for serious charges:

Earlier this year, an Ohio boy reportedly made a sexual cell phone video of himself and sent it to female classmates, one of whom then forwarded the video to at least 30 other people. Similar incidents have been reported in Wyoming, New York and Pennsylvania.

"They don't understand the global nature and extent of the Internet, and how easy it is once you posted something, even if you think it's private, could become public very quickly," said John Grohol, a psychologist and publisher of PsychCentral.com.

Such incidents are a symptom of a culture where sexual imagery like the infamous photo of Britney Spears' exposed crotch or Vanity Fair's seminude photos of 15-year-old "Hannah Montana" star Miley Cyrus have become the norm, said Jean Kilbourne, author of "So Sexy, So Soon: The New Sexualized Childhood and What Parents Can Do to Protect Their Kids."

I think the article overstates the role of modern culture in sexualizing youth. I think the more likely explanation is simply the changes in technology. Kids have access to tools to record what previously occurred in private environments.

HT: Sentencing Law & Policy