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.

Sex Offender Drives Drunk To Register at Police Station

Drinking and driving is never a good idea, especially when you show up at a police station to register as a sex offender. From Philadelphia Inquirer:

A convicted child sex offender has been charged with drunken driving because he allegedly showed up intoxicated when he registered under Megan's Law at a western Pennsylvania state police barracks.

State police in Greensburg say 37-year-old Jerry Cignetti, of Bradenville, showed up drunk on Friday. Court records show he was convicted in Westmoreland County in 1998 for the indecent assault of a child under 13. He was paroled but had to register as a sex offender once his sentence was completed.

Police say he drove alone to the barracks and had a blood-alcohol content of 0.12 percent, well above the state's 0.08 percent limit for drivers. That's why he was charged with drunken driving.

PA Court: Homeless Sex Offenders Not Subject to Megan's Law

How Appealing reports that the Superior Court of Pennsylvania has ruled that homeless convicted sex offenders are not subject to Megan's Law registration requirements. You can read the Court's opinion here. From PennLive.com:

The state appellate court found that William H. Wilgus should not have been prosecuted for violating the requirements to register his address with state police because he could not find a home after being released from prison in 2007.

The court said Wilgus unsuccessfully tried to find housing at several shelters and lived in alleys around Second and Market streets near the Dauphin County courthouse. He was charged with failing to register, and Judge Scott A. Evans initially convicted him and sentenced him to county prison. The judge then reconsidered and found that, because Wilgus didn't have a residence, he could not be required to register an address with authorities.

The prosecution appealed, but the state court agreed with Evans. The court said the point of the law is to inform neighbors, which makes it clear that, as drafted, the law cannot apply to transients.

"If a homeless person, as in Wilgus' case, drifts from park bench to bus stop to alleyway on a daily basis, he will never acquire a fixed abode within a permanent neighborhood," Judge John M. Cleland wrote for the three-judge panel.

Philly Mob Attacks "Person of Interest"

A mob in Philadelphia attacked a person of interest in connection with the alleged rape of an 11 year old girl after the police union offered a reward of $10,000 for bringing him in. The beating was captured on surveillance video at a local store. The man has not been charged. TalkLeft has more. From the article:

In connection with the alleged rape of an 11 year old girl, the police announced they were looking for a particular person of interest (not a suspect). Then the police union put out a reward of $10k for bringing him in by 5 PM.

Then, about an hour before the deadline, a mob grabbed the guy and beat him into critical condition (caught on surveillance video at a local bodega), such that a patrol unit had to rescue him from the mob. Then the head of the police union complimented the neighborhood for "really stepping up". And the mayor didn't even think to condemn this.

And the neighborhood gathered around the video at the bodega to cheer a replay of the mob beating.

The praise by the police union is more than a little worrisome. 

'Sexting' Roundup

As previously noted, a Pennsylvania DA has threatened to bring child porn charges about three teen girls who had provocative pictures of themselves on their cell phones.  Their parent's later sued the DA (with the help of the local ACLU) and yesterday, a federal judge issued an order enjoining the DA from bringing child pornography charges against the girls. You can read the order here. The blogosphere is abuzz with the news: WSJ Law Blog, TalkLeft, Sentencing Law & Policy (1, 2), Ars Technica, How Appealing (1, 2, 3), Prawfsblawg (1, 2, 3, 4, 5), Concurring Opinions, Newark Star-Ledger, Reuters, Scranton Times-Tribune, and the Associated Press. From Reuters:

A U.S. judge on Monday barred a Pennsylvania prosecutor from filing child pornography charges against three teenage girls caught with sexually suggestive pictures of themselves on their cell phones.

U.S. District Judge James Munley said he was issuing a restraining order on Wyoming County District Attorney George Skumanick because his proposed action would violate freedom of speech and parental rights.

The ruling came after the American Civil Liberties Union sued Skumanick on behalf of the girls and their families.

"The court agrees with the plaintiffs that the public interest would be served by issuing a TRO (temporary restraining order) in this matter as the public interest is on the side of protecting constitutional rights," the judge said.

The case has attracted national attention and revolves around the growing practice among teens of "sexting," a play on the term texting, in which nude or semi-nude photos are sent on cell phones or posted on the Internet.

The pictures, found last fall by officials of Pennsylvania's Tunkhannock School District, showed two of the girls wearing bras, and another standing topless with a wrapped towel around her waist. No sexual activity was displayed.

Last month Skumanick told the girls and 17 other students that he would charge them with possessing or distributing child pornography, which is a felony, unless they agreed to probation and participated in a "re-education" program.

All but three agreed to his demands, setting the stage for the lawsuit.

Witold Walczack, legal director of the ACLU of Pennsylvania, welcomed the legal decision.

"This country needs to have a discussion about whether prosecuting minors as child pornographers for merely being impulsive and naive is the appropriate way to address the serious consequences that can result from sexting," he said.

I'm a bit astounded at the degree of coverage around the blogosphere about this case. Don't get me wrong - I think the attention is a positive development. However, this isn't the first child pornography prosecution for "sexting" and it won't be the last. I applaud the ACLU for bringing the issue to national attention. Ultimately, though, I continue to believe a long-term solution to this problem will require action by legislatures. They have to change the definition of "child pornography" to either legalize these situations or make them a separate, lesser crime.

ACLU Sues DA Who Threatened Teen Girls with Child Porn Charges

Fresh off their victory over sex offender registry restrictions in the Pittsburgh-area, the ACLU of Pennsylvania has filed a complaint in federal court against a Wyoming County district attorney who threatened three high school girls with child porn charges arising from semi-nude cell phone pictures of themselves. You can read the complaint here.  For more coverage, check out Ars Technica and the Wall Street Journal Law Blog.

The American Civil Liberties Union of Pennsylvania filed a lawsuit today against the Wyoming County district attorney for threatening three high school girls with child pornography charges over digital photos in which they appear topless or in their underwear. The district attorney has demanded that in order to avoid the charges, the girls be placed on probation, participate in a five-week re-education program and be subject to random drug testing. The photos were among several discovered by Tunkhannock School District officials on students' cell phones.

"Sexting," the practice of sending nude or semi-nude photos of oneself via cell phones or posting them on the Internet, has become increasingly widespread among teenagers. A recent survey found that approximately 20% of all teenagers have sent or posted nude or semi-nude pictures of themselves.

At issue in this case are two photos depicting three teenage girls. One shows Marissa Miller and Grace Kelly from the waist up wearing white bras. The other depicts Nancy Doe (a pseudonym used to protect the girl's real identity) standing outside a shower with a bath towel wrapped around her body beneath her breasts. Neither of the two photos depicts sexual activity or reveals anything below the waist.

The district attorney has asserted that the girls were accomplices to the production of child pornography because they allowed themselves to be photographed. The district attorney has not, however, threatened to charge the individuals who distributed the photos.

I'm curious to see if any of the court challenges to these prosecutions have any success. Ultimately, I think the solution might have to come from the legislatures. Different types of child pornography crimes need to be categorized to reflect those differences. Regardless, prosecutors should make better use of their discretion in such cases.

More On The Decision Striking Down A Pennsylvania County Residency Restriction

As noted yesterday, U.S. District Court Judge Gary L. Lancaster of the Western District of Pennsylvania struck down a Pittsburgh-area sex offender residency restriction.  The decision, available here is a significant victory for several sex offenders who challenged the Allegheny County ordinance. From the decision:

This is a civil rights action challenging an Allegheny County of Pennsylvania ordinance that restricts the residency of registered sex offenders. Plaintiffs, a group of convicted sex offenders whose residency has been affected by the ordinance, allege that the ordinance violates various constitutional guarantees, the Fair Housing Act, and state law. Plaintiffs seek an order enjoining enforcement of the ordinance, as well as costs and attorneys' fees.

The County agreed not to enforce the ordinance until this matter was resolved. Thereafter, the court consolidated resolution of plaintiffs' motion for a preliminary injunction with a ruling on the ultimate merits of the case. The court directed the parties to file cross motions for summary judgment on dispositive state law issues [doc. nos. 20, 21, 22, 23, 26, 27, and 29]. For the reasons set forth below, we find that the Allegheny County ordinance is preempted by state law and we grant plaintiffs' motion for summary judgment.

As with the New Jersey and New York holdings based upon preemption, the state legislature could always allow the counties to adopt residency restrictions and undo the effect of the decision.

Federal Judge Strikes Down Pennsylvania County Residency Restriction

A federal judge has struck down a Pittsburgh-area sex offender residency restriction. From the Pittsburgh Post-Gazette:

An Allegheny County ordinance limiting where sex offenders can live was politically popular, but a federal judge on Friday ruled it was illegal.

U.S. District Judge Gary L. Lancaster ruled in a summary judgment that the ordinance undermined state law, a victory for the American Civil Liberties Union, which filed suit last year on behalf of six sex offenders.

Judge Lancaster wrote in an opinion that banning convicted sex offenders registered with state police under Megan's Law from living within 2,500 feet of a child care facility, recreational facility, community center, public park or school eliminated most of the county.

Judge Lancaster wrote that the ordinance would force registered sex offenders to live only in outlying suburban areas, which would take them away from family support networks and job opportunities. That would make it more difficult for them to reintegrate into the community, the judge wrote, a goal of the state probation and parole systems.

Judge Lancaster added that in some cases, the state had paroled sex offenders from Allegheny County, but they couldn't be released from prison because they couldn't find housing that complied with the ordinance.

I couldn't find the opinion on the court's website. If anyone has it and can send it to me, I'd appreciate it.

Which Community Standard?

If a company is under indictment for the sale of obscenity in one state and the purchaser (an undercover agent) is in another state,"what community standards should be used to determine if a crime was committed?"  The situation exemplifies a major shortcoming in obscenity prosecutions in the Internet age. The case of Extreme Associates is set for trial on March 16, 2009 and it will be interesting to see the jury instructions in that case. From the Pittsburgh Post-Gazette:

That was a question faced recently by a federal court judge in the ongoing case of United States vs. Extreme Associates, a company based in North Hollywood that makes graphic pornography featuring scenes of rape, torture, murder and defecation.

The trial of Extreme Associates begins March 16 before U.S. District Judge Gary L. Lancaster -- more than five years after the original indictment was brought on charges that the owners of the company, Robert Zicari, and his wife, Janet Romano, transported obscene materials across state lines.

Jurors will be forced to answer three questions in their deliberations: Are the materials patently offensive? Do they appeal only to prurient interests? Do they have any serious artistic, literary, social or political value?

The first two questions must be answered through the lens of "contemporary community standards."

When the U.S. Supreme Court established current obscenity law in its 1973 decision in Miller vs. California, it did not go about defining those standards. Since then, with the pervasiveness of cable television and the advent of the Internet, some experts argue that contemporary community standards have very likely changed, and the law should reflect that.

The Extreme Associates trial could be the catalyst.

H. Louis Sirkin, a well-known obscenity lawyer who represents the defendants, argued to Judge Lancaster that the standards of cyberspace rather than community standards of Western Pennsylvania should be used to gauge his clients' conduct.

"We just think it's an outdated concept with the Internet," Mr. Sirkin said. "In 1973, there was a difference between New York and Jackson, Miss.

"The country is not as isolated as it once was."

Indeed, Jeffrey Rosen, a constitutional law professor at George Washington University in Washington, D.C., has written about studies that show the same levels of consumption for pornography in places as wide-ranging as Salt Lake City and Las Vegas.

When I think of what the community standards would be if we used cyberspace as the community, I can't help but think of an old Chappelle's Show skit which imaged the Internet in the real world. The skit is here (and it isn't pretty): 

Chappelle's Show

If the Internet Was a Real Place

Charlie Murphy Videos
Buy Chappelle's Show DVDs

Black Comedy
True Hollywood Story

H/T: How Appealing.

Teens Send Nude Pics, Face Child Porn Charges

Ars Techinica has an article discussing a case in which two young girls sent nude pictures to two boys using their cell phones. The pictures were discovered when one of the kids was caught using a cell phone during school hours. The girls now face charges of manufacturing, disseminating or possessing child pornography while the boys face charges of possession. The article also notes a study (previously discussed here) claiming that 20% of teens have put nude photos of themselves online. From WPXI:

Three teenage girls who allegedly sent nude or semi-nude cell phone pictures of themselves, and three male classmates in a Greensburg Salem High School who received them, are charged with child pornography.

Police said the girls are 14 or 15, and the boys charged with receiving the photos are 16 or 17. None are being identified because most criminal cases in Pennsylvania juvenile courts are not public.

"It was a self portrait taken of a juvenile female taking pictures of her body, nude," said Capt. George Seranko of the Greensburg Police Department.

Police said school officials learned of the photos in October. That's when a student was seen using a cell phone during school hours, which violates school rules. The phone was seized, and the photos were found on it, police said. When police investigated, other phones with more pictures were seized.

"Taking nude pictures of yourself, nothing good can come out of it," said Seranko.

The Greensburg Salem School District issued a statement on Tuesday saying there was “no evidence of inappropriate activity on school grounds or during the school day other than the violation of the (school's) electronic devices policy.”

The school district said it only became aware of the arrest of the students on Monday and will continue to work cooperatively with police, as well as continue to enforce its electronic devices policy and educate students on the dangers of inappropriate use of electronic devices.

Police said the girls are being charged with manufacturing, disseminating or possessing child pornography while the boys face charges of possession.

"It's very dangerous," said Seranko. "Once it's on a cell phone, that cell phone can be put on the Internet where everyone in the world can get access to that juvenile picture. You don't realize what you are doing until it's already done."

It's time for policymakers to recognize these crimes are very different from actual child pornography distribution and stop treating them in the same way.