Sex Crimes

CA Bill Would Ban Sex Offenders From Social Networking Sites

A California legislator has recently introduced a bill that would ban sex offenders within the state from utilizing social networking sites (such as MySpace and Facebook). But some have already questioned the constitutionality of such a proposal. From the San Francisco Chronicle:

Sex offenders in California would be barred from using social networking Web sites such as Facebook and MySpace under a proposed law aimed at making the Internet safer for children as more and more of them flock to the Web.

Citing horrific cases in which children were sexually assaulted by men they met online, Assemblywoman Norma Torres, D-Pomona (Los Angeles County) introduced the bill last month, which would make it a crime for Californian's 63,000 registered sex offenders to use any social networking site. The proposed law defines those as a Web site "designed with the intent of allowing users to build networks or connect with other people and that provides means for users to connect over the Internet."

Assembly Bill 2208 is similar to legislation passed last year in Illinois, but doesn't go quite as far as a New York state law that additionally requires sex offenders to register their e-mail addresses and online aliases with state authorities, who can then turn over the names to the companies that run the social networking sites. After the New York law passed, 3,500 sex offenders were purged from MySpace and Facebook by the Internet companies.

The number of users on social networking sites has doubled since 2007, Torres said, and many of those users are children. She noted that just last month, a 33-year-old man lured a 12-year-old girl to a hotel in Anaheim, where she was sexually assaulted.

"Tuttle Bridge is vacated, but problem remains unsolved"

Longtime readers know all about the problems with the Julia Tuttle Causeway, where homeless sex offenders have lived under a concrete overpass partly as a result of severe residency restrictions. The Miami Herald is reporting that most sex offenders who have lived there have been moved out, and those that remain will be relocated elsewhere. The article also points out that this effort will not solve the problem of sex offender homelessness, but will merely place them further out of sight. From the article:

Under a clear and brisk sky, with traffic booming overhead, work crews took sledge hammers to the wooden shacks, shingled huts and flimsy tents along the bank of Miami's gleaming Intracoastal waterway.

Most of the homeless sex offenders who lived here have been moved out, and the few who remain are on a short waiting list for housing that falls within Miami-Dade County's revised sex-offender law.

"It's the end of the Julia Tuttle, but it's not the end of this kind of place,'' said Patrick, a registered sex offender who has lived under the rat-infested bridge for three years and did not give his last name. "There will be another Julia Tuttle, another place where people will put us so that we are out of sight and out of mind.''

In the past decade, more than two dozen states and hundreds of cities have responded to the public outcry over sex crimes against children by passing residency restrictions. In many cases, the laws have effectively banned sex offenders and predators from living within huge swaths of cities and towns -- separating them from their families and support systems -- and settling them far from transportation and job opportunities.

By rendering them homeless, experts say, the laws make it more difficult for them to re-enter society, harder for law enforcement to keep track of them and easier for them to fall into lawlessness.

In South Florida, the zones that were carved out over the past few years forced sex offenders to live at least 2,500 feet from almost anywhere where children congregate: schools, libraries, bus stops, playgrounds and parks.

Not all sex offenders are hard-core predators or child rapists. Some of them are referred to as having committed "Romeo and Juliet'' crimes, which involve intimate relations -- not always sex -- among young couples, one of whom is under the age of 16. However, by law, all the offenders are lumped into the same category, and end up being labeled sex offenders for the rest of their lives, whether they raped a child or urinated in a public place where children play.

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 - You Can Run, but You Can't Hide

The New York Times recently published an article rehashing the story of Roman Polanski, who was detained in Switzerland for deportation. Polanski now faces punishment for a 32-year-old conviction on one count of having unlawful sex with a minor—that was once viewed as a “lapse in judgment” by an otherwise clean individual. In 1977, at the age of 13, Samantha Geimer was drugged and raped by Polanski. Mr. Polanski fled the United States when the possibility of jail time and deportation was indicated by Judge Laurence J. Rittenband.

The most interesting part of this seemingly “normal” case of unlawful sex with a minor is the astoundingly relaxed manner in which sex crimes were viewed in the 1977 era. A report prepared by Polanski’s probation officers characterized the rape as an exercise of bad judgment and suggested that Polanski receive probation rather than actual punishment. This “slap on the wrist” recommendation was perpetuated by the laissez-faire view of sex crimes in this era, in addition to the victimization of Polanski. From the New York Times article:

[His probation officer’s report] described his birth to a Polish national father, Riszard Polanski, and a Russian national mother, Bula Katz, and told how his Jewish family was confined behind barbed wire in a Krakow ghetto during the German occupation.

In 1941, the report noted, Mr. Polanski’s mother was taken to Auschwitz, not to return. Later it said, “the defendant’s father cut the wires permitting the defendant to escape” the ghetto, to spend the war with Polish families.

Recapping the defendant’s background, the report said Mr. Polanski was blocked from attending advanced art school after the war “because of his Jewish origins,” lost his religious faith, and twice suffered a fractured skull, once as the result of an assault in Poland, once after a car accident. It noted a first marriage in Poland, and a second to the actress Sharon Tate, who, it said, “was killed by members of the Manson gang in Los Angeles in the well-documented case in 1968.”

I am sure these devastating life events endured by Polanski were riveting to his probation officer and certain Hollywood VIP’s who put effort into securing Polanski’s good character, but they are not by any stretch of the imagination justification for rape. In fact, as there is no justification for rape, Polanski’s broken past is completely irrelevant in defending his actions toward Geimer. It is alarming when rapists are victimized in this manner. Through the eyes of Polanski’s former probation officer, the emphasis is placed on the trials and tribulations of the rapist, rather than what the victim has endured for the past 32 years. Furthermore, cultural differences, the alleged provocation by the 13-year-old victim, and the speculative unlikelihood that Polanski would commit a subsequent offense are absolutely no reason that this monster should have been gifted with the lesser punishment of probation—not in that era, and certainly not in this era. Luckily, current trends are working towards stricter punishments for sex offenders, although modern day law enforcement and judiciaries constantly struggle with policing the parole of sex offenders.

NY Bill Would Prevent Sex Offenders From Managing Buildings

Sex offenders face many restrictions in their daily life, but now some New York legislators are hoping to add another one: prohibiting sex offenders from holding positions such as building manager or superintendent where they would have keys to many different apartments. The Epoch Times has more:

In light of the recent reports about William Barnarson, Assemblyman Kellner has introduced legislation to prevent this in New York, and Sen. Schumer plans to stop sex offenders, who often cross state lines to avoid detection, from holding keys to multifamily apartments across the country.

“Unfortunately it’s completely legal for a convicted sex offender to become the superintendant or a building manager in any multifamily apartment building in New York, and the jobs almost always provide the offender with keys to the renters’ apartments in the buildings. Given the large number of sexual offenders in New York—there are 6,000—this is an issue that has to be dealt with immediately.”

Barnason had served over 10 years in jail for sexually assaulting and raping girls as young as 5 years old, and while working as a superintendent of three multifamily apartment buildings, had propositioned female tenants for sexual favors in return for help with their rent.

Assemblyman Kellner added that sex offenders have been banned from other professions and building managers should be added to the list.

MN Sex Offender Allowed to Remain Working As a Chiropractor

While sex offenders in New York may soon be prohibited from managing apartment buildings, one Minnesota sex offender has been allowed to keep his license to practice as a chiropractor. From the Star-Tribune:

This month, more than six years after revoking [Dr. Scott Fredin]'s license for the felony convictions, the state Board of Chiropractic Examiners granted Fredin's request to get his license back. To protect Fredin's clients, the board said he cannot treat any female patients without someone else in the room. Fredin is working in Minneapolis, but he can't treat patients until regulators approve his new location.

Under state law, many professionals -- including dentists, psychologists and nurses -- can't be barred from practicing after a criminal conviction as long as they can show licensing boards they were rehabilitated.

Larry Spicer, executive director of the chiropractic board, said citizens often want regulators to take a firm stand when an "egregious case" occurs, but he said the board's hands are tied by law.

However, there are no second chances at the state Board of Medical Practice, which regulates 22,000 health-care providers, including physicians, midwives and acupuncturists. In 1995, the Legislature passed a law requiring the board to yank the medical license of anyone convicted of a felony-level sexual offense.

Regulators used that law in 2008 to revoke the license of a New Brighton psychiatrist after he pleaded guilty to having sex with a patient who had been hospitalized for depression. A Roseville doctor got the boot after pleading guilty to charges related to fondling a girl he was treating for asthma.

Oral Argument in Carr

The oral argument not particularly noteworthy in terms of argument advancement. I was surprised at several points where the justices didn't seem to know some basic points about the background of the case. Justice Breyer didn't know that every state had a sex offender registry even though that was the case when the Court decided Smith v. Doeyears ago. And everyone was focusing on the purposes of SORNA in a very basic sense. I think the most interesting exchange in the argument was when Justice Scalia was pressing the government:

JUSTICE SCALIA: I don't know where you get that from. I can understand how you can say, which is what Mr. Rothfeld says, that it has to follow the requirement to register. That's the way the statute reads: Whoever, one, is required to register, not whoever has committed an offense that -- that would later justify registration. It seems to me you are just making up the -- the prior act that -- that triggers the interstate travel requirement.
MR. GANNON: Well, I don't think that we are making it up, Justice Scalia.
JUSTICE SCALIA: Well, what text do you base it on? One says "is required to register," and the position of the Petitioner is: After you are required to register, you must travel in interstate commerce. And you say: No, it's after you commit the offense that you must travel on interstate. Where do you get that from?
MR. GANNON: Well, we get that from the facts, from the context here, from the anomaly that would be created, the structural anomaly about the differential treatment between Federal and State sex offenders.

I wished Justice Scalia had pushed the point one step further. Why exactly is it an anomaly for state and federal sex offenders to be treated in a different manner? If the only difference is based upon a different element which is jurisdictional in nature, a difference is not an anomaly - it is the essence of America's system of federalism. Of course, this is one of the problems with the Court only reviewing the statutory issue and Ex Post Facto claim (although the Ex Post Facto claim was barely mentioned in the argument). If the Court were also considering the Commerce Clause claim, the government would be in a pickle at the point of discussing the anomaly. However, Gannon was able to make an argument that seemed to quiet the Justices that he might not have otherwise been able to make.

Overall, I think Carr's side conceded an awful lot about the role of SORNA in our system. I understand why, since the claim they were focusing on was a statutory interpretation issue. However, the conflation of 2250(a) and the national registry really made the government's overall position easier to make. My prediction is a big loss for Carr on the statutory interpretation issue. Although I was an author of the Ex Post Facto brief, nothing from the hearing gave me any indication of how the Justices would approach that issue. I'm inclined to believe, though, that following the normal pattern the sex offender will lose and the Court will push the Ex Post Facto Clause a bit further to the side.

Carr Transcript is Available

You can download it here. I'll be teaching soon, but hope to read it after class and post a summary with commentary.

Sex Offender Day at SCOTUS

I took an unplanned hiatus from blogging to complete a couple of writing projects, but I will definitely be blogging today about the Supreme Court oral arguments (particularly about Carr). I will be interested to see where the Justices focus.

(Even) More Comstock Coverage

The Wall Street Journal is running an excellent editorial discussing United States v. Comstock and its implications for future Commerce Clause decisions. The Los Angeles Times and UPI are also running editorials about Comstock. From the WSJ op-ed:

Sex offenders are the least sympathetic of legal plaintiffs. Still, we were dismayed last week to see so many Supreme Court Justices during oral arguments apparently willing to let the federal government take over an area of law governing criminals that the Constitution grants to the states.

The question in U.S. v. Comstock is whether sex offenders who have already completed their federal criminal sentences may then see their incarceration extended through a process of "civil commitment" by the federal government. The law in question, the 2006 Adam Walsh Child Protection Act, allows the Attorney General to certify a person as a danger to the population and keep him in federal custody. The law tramples on the traditional power of states to protect public health and safety.

At oral argument, Solicitor General Elena Kagan argued that federal authority comes from its responsibility to maintain the criminal justice system, and that Congress may make all laws that are "necessary and proper" to execute its other Constitutionally vested powers. But civil commitment and criminal incarceration are different realms of enforcement: Those who have already served their legally prescribed sentences ought no longer be within reach of federal authorities.

The implications go well beyond sex offenders. To do as the Obama Administration asks would be to grant the federal government broad power in the criminal context. In the case of Graydon Comstock, who had been sentenced to three years in jail for purchasing child pornography, the Fourth Circuit Court of Appeals ruled that Congress lacked Constitutional authority to recommit him after he had done his federal time.

If the Supreme Court reverses the lower court's decision, it will sanction the notion that nearly any appealing idea may be justified as necessary and proper. In other countries, loose detention laws give wide latitude to authorities to lock up any number of people who "threaten the public safety," including political prisoners. Maybe next the feds could force everyone in America to buy health insurance.