Sex Crimes

Oregon Man Gets 6 Years For Attempted Sexual Abuse of a 12 Year Old

An Oregon man has received a 6 year prison sentence for attempted sexual abuse after sending sexual texts to a 12 year old girl.  Her mother saw the messages and notified police who then arrested the man where he was trying to meet the young girl.  From FoxNews:

A Gresham man has been sentenced to 6 years in prison for attempted rape after a mother discovered his inappropriate text messages on her 12-year-old daughter's cell phone.

Prosecutors said 29-year-old Patrick Lee Kenney also pleaded no contest to attempted sexual abuse and furnishing obscene material to a minor.

Kenney met the girl on the MySpace site.

The girl's mother accidentally saw the text messages and gave the phone to Klamath County sheriff's deputies, who continued the text chat with Kenney.

Detectives say they arrested Kenney at a park while he was trying to meet the victim.

Prosecutor David Groff said the case is a reminder about the dangers children face from Internet predators.

The key to the case is that he was arrested at the meeting place. If he had merely sent text messages, there wouldn't be sufficient evidence for an attempt conviction. However, unlike in other cases, the police waited to arrest the defendant until after he had taken the requisite attempt act.

Six Years For Heavy Petting Cruel and Unusual?

Sentencing Law and Policy has an interesting article discussing a case where an Oregon adult female counsel was convicted of unlawful heavy petting of her underage ward. The woman was sentenced to six-plus years in prison, which her attorney argues constitutes cruel and unusual punishment. From Oregon Live:

An attorney for a former employee of the Hillsboro Boy's and Girl's Club told the Oregon Supreme Court Tuesday that six-plus years in prison for touching her clothed breasts to the back of a 12-year-old boy's head amounted to cruel and unusual punishment.

A Washington County jury found Veronica Rodriguez, now 28, guilty of sex abuse in the first degree after Hillsboro investigators saw her breasts touch the boy's head while she ran her fingers through his hair at the club in 2005.

At sentencing, now-retired Judge Nancy Campbell said the circumstances only merited one year and four months in prison instead of the prescribed sentence of six years and three months required by 1994's voter-approved Measure 11.

Rodriguez and attorney Peter Garlan concede that Measure 11 is constitutional, but claim its application against Rodriguez violates Article 1, Section 16 — the proportionality clause of the Oregon Constitution.

Rodriguez's case is combined with another appeal from Linn County, where 36-year-old Darryl Buck was convicted of first-degree sex abuse for touching a 13-year-old girl's clothed buttocks several times during a fishing trip.  Garlan said the girl overreacted to Buck's using his hands to help her remain upright, and her "histrionics" had an effect on the jury.The judge agreed, and handed down a 17-month sentence, appropriate for the action, Garlan said.

The state's Court of Appeals rejected both judge's decisions, and said both defendants should serve another five years....

Department of Justice spokesperson Jake Weigler said Wednesday voters passed the measure to eliminate judges' discretion in a range of crimes. Clearly, Rodriguez and Buck fell within that range, he said. If Measure 11 is to be changed, it should be by the will of the voters or the legislature, he said.... 

Justice Robert D. Durham asked both attorneys if it was the role of the court to make an evaluation of offenders, when the law only mentions "the offense."  Should the court treat each offense as if it were a videotape of the act that turns on when the abuse begins and turns off when it ends? "Does that imply there should be no investigation into the actor?" Durham asked. And did that also imply there should be no consideration of whether a defendant lied on the stand, or lied to the police?

Sentencing Law and Policy has an interesting article discussing a case where an Oregon adult female counsel was convicted of unlawful heavy petting of her underage ward. The woman was sentenced to six-plus years in prison, which her attorney argues constitutes cruel and unusual punishment. From Oregon Live:

An attorney for a former employee of the Hillsboro Boy's and Girl's Club told the Oregon Supreme Court Tuesday that six-plus years in prison for touching her clothed breasts to the back of a 12-year-old boy's head amounted to cruel and unusual punishment.

A Washington County jury found Veronica Rodriguez, now 28, guilty of sex abuse in the first degree after Hillsboro investigators saw her breasts touch the boy's head while she ran her fingers through his hair at the club in 2005.

At sentencing, now-retired Judge Nancy Campbell said the circumstances only merited one year and four months in prison instead of the prescribed sentence of six years and three months required by 1994's voter-approved Measure 11.

Rodriguez and attorney Peter Garlan concede that Measure 11 is constitutional, but claim its application against Rodriguez violates Article 1, Section 16 — the proportionality clause of the Oregon Constitution.

Rodriguez's case is combined with another appeal from Linn County, where 36-year-old Darryl Buck was convicted of first-degree sex abuse for touching a 13-year-old girl's clothed buttocks several times during a fishing trip.  Garlan said the girl overreacted to Buck's using his hands to help her remain upright, and her "histrionics" had an effect on the jury.The judge agreed, and handed down a 17-month sentence, appropriate for the action, Garlan said.

The state's Court of Appeals rejected both judge's decisions, and said both defendants should serve another five years....

Department of Justice spokesperson Jake Weigler said Wednesday voters passed the measure to eliminate judges' discretion in a range of crimes. Clearly, Rodriguez and Buck fell within that range, he said. If Measure 11 is to be changed, it should be by the will of the voters or the legislature, he said.... 

Justice Robert D. Durham asked both attorneys if it was the role of the court to make an evaluation of offenders, when the law only mentions "the offense."  Should the court treat each offense as if it were a videotape of the act that turns on when the abuse begins and turns off when it ends? "Does that imply there should be no investigation into the actor?" Durham asked. And did that also imply there should be no consideration of whether a defendant lied on the stand, or lied to the police?

Around the Web

An Oregon man who was jailed for sex abuse, despite never actually being indicted, is now suing state authorities.  After the man was released, it was revealed that he was never actually indicted, something his lawyer, the prosecutor and the judge all missed.  The man now faces new related charges and is trying to stop the prosecution on  double jeopardy grounds and due process violations.  You may read more here.

Sentencing Law and Policy has an interesting post about the Sixth Circuit's denial of en banc rehearing in Doe v. Bredesen.  The case concerns a challenge to the application of Tennessee's new GPS sex-offender tracking rules, which the Sixth Circuit rejected 2-1. Jonathan Adler at Volokh Conspiracy also covered the case here. 

The Fort Worth Star-Telegram has an interesting editorial which questions whether Texas' adoption of the Adam Walsh Act will actually make Texas safer.  From the opinion: "There is no discounting the severity of some sex offenses, [b]ut keep in mind that someone who is twice arrested for urinating in public is deemed a Tier 1 sex offender in Texas."

A man who is a registered sex offender in Georgia is seeking to avoid having to register himself when he moves to Missouri.  The man argues that Missouri's sex offender registry should not include him because he pled guilty in 1993, whereas the Missouri registry did not go into affect until 1995.  The Missouri sex offender law previously included people convicted of sex crimes as early as 1979, but the Missouri Supreme Court disagreed in a 2006 ruling.  The man is now seeking clarification on the Supreme Court decision.

Around the Web

Massachusetts law enforcement officials are criticizing a so-called loophole in state law which allowed a convicted sex offender to move to a new city "without directly notifying local police."

A Texas sex offender who lives across from an elementary school has met with parent opposition, despite the fact that he was ordered by a judge to live at the house.

An Australian sex offender, who spent 16 years on the run, has been caught.   The man will undergo rehabilitation treatment.

A former Texas church youth leader will now be required to register as a sex offender.  The man, who pleaded guilty to sexual assault of a child and indecency with a child, was given ten years probation and must register as a sex offender.

A Police Department in Oregon is warning residents of a new scam involving the sale of a list of registered sex offenders.  The article notes that the database of registered sex offenders in Oregon is available online at no cost.

Substantial Sentence on Appeal in Oregon Case

I hope everyone had a happy holidays.  Normal posting will resume tomorrow.

At Sentencing Law & Policy, Doug Berman has posted about an appeal arguing that a sentence of 75 months was excessive for first-degree sexual abuse.  In Oregon v. Rodriguez, the actual conviction was based upon a single incident where the defendant held the victim's face head (edited after comment - thanks) into her breasts.  However, the court notes a long history on inappropriate conduct by the defendant:

Defendant met the victim's mother and siblings at the victim's basketball games. She developed a close relationship with the family, including the victim. She visited them at their home frequently--for a period, she went there nearly every day after work. She helped the victim with his homework and often ate with the family. She sometimes gave the victim a ride home from the club and drove him to school in the morning. All of defendant's contact with the victim outside of club-organized activities violated the club's rules.

Over time, defendant's relationship with the victim became exceptionally close. Their conduct at and outside the club raised concerns among other staff members and became the subject of rumors among other children at the club, who called the victim defendant's "boyfriend." Defendant and the victim frequently hugged each other, and defendant sometimes put her arm around the victim when they walked. Defendant occasionally allowed the victim to sit on her lap in her office. He kissed her on the cheek between 10 and 20 times. She sent e-mail messages to him in which she said, "I love you" and "love you lots." The victim sent similar messages to her, including one that said, "[S]ee you later Babe I love you for ever," and another that ended, "I LOVE YOU SO ................. MUCH." Defendant took the victim with her on several trips to Bend and Spokane, two of which were overnight trips. The two were frequently alone together in her car, at her apartment, and at his home. They were seen alone together in her office at the club with the door closed.

The trial court found that the required sentence (under a provision called Measure 11) was cruel and unusual and decided a 16 month sentence was appropriate.  However, the Oregon Court of Appeals said a sentence of 75 months was not constitutionally excessive and remanded the case.

My guess is that the case fits the rubric of a "relevant conduct" case even though that language isn't used here.  The victim was probably unwilling to testify (the event that was the basis for the charge was witnessed by a co-worker) because he still believed in his relationship with the defendant.  The appellate court by mentioning the emails and other details of the defendant's conduct seemed to think that a lot more serious illegal activity had occurred.  However, without the victim's testimony, there was not sufficient evidence to prosecute for that activity.  As a result, the court used its judgment to conclude that the 75 month sentence for relatively minor conducted didn't "shock[] the moral sense" based upon what the court thought had actually occurred.

I'm a bit troubled by the reasoning of the court because the charged conduct was so minimal.  However, with the many acquitted conduct and relevant conduct decisions around, I've probably become jaded to this sort of thing.  Nonetheless, like the crazy child pornography sentences in Arizona, I think these sentences are hard to justify under any theory that includes a notion of marginal deterrence.

Edit: Berman has added more thoughts here.

Reason Wins the Day in Oregon

The two middle-school boys who faced a lifetime label as sex offenders for slapping girls' buttocks have had charges against them dropped.  Corrections Sentencing had this to say:

Sense prevailing in OR. Those boys facing sex offender status for slapping girls’ butts in their middle school ended up having charges dropped after restitution and apologies. Which (sh)could have happened in the principal’s office. This all reminds me so much of the pre-school abuse hysteria of the 80s when so many other people were injured by “moral panic” and overzealous prosecutors. And this nation seems to be one of the world’s best at this stuff. Guess being the most highly educated pays off.

I generally agree with that statement, but I think a similar case would show a collateral effect of various sex offender restrictions.  If these boys had been 15 or 16, maybe they should have been prosecuted.  That would be up to the local prosecutor.  But in a world where sex offender restrictions exist, prosecutors can't charge teenagers with small-time sex offenses without resulting in a lifetime of penalties.  This means a sympathetic prosecutor could actually end up under-prosecuting juvenile sex crimes for fear of over-punishing offenders.