Sex Crimes

Justice Department's SMART Case Law Update #27

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #27:

Doe v. Keathley, 2009 Mo. LEXIS 131 (June 16, 2009)

Petitioners were all convicted of sex offenses prior to any sex offender registration requirement for said convictions.  The court held that 42 U.S.C. §16913(d) applies directly to these state-convicted petitioners (and at least one military-convicted offender) and directly imposes a registration requirement on them.  Because of this direct application of federal law, the court held that there are no State Constitutional concerns, and that the petitioners were required to register.  A previous decision from the Missouri Supreme Court, Doe v. Phillips, 194 S.W.3d 833 (Mo. 2006), had prohibited registration for anyone convicted for conduct prior to the enactment of Missouri’s sex offender registration scheme based on Missouri’s Constitution.
 
Doe v. Massachusetts, 2009 Mass. App. LEXIS 724 (June 5, 2009)
 
Doe was convicted of two sex offenses in 1984 and was incarcerated for a year.  In 2005 he was classified as a level two sex offender based exclusively on those two convictions.  The court held that he was entitled to a hearing as to his level of current dangerousness, so as to determine if he should be required to register as a sex offender.
 
State v. Germane, 2009 R.I. LEXIS 68 (June 2, 2009)
 
In rejecting Germane’s challenges (due process, separation of powers, and ex post facto) to the registration and notification law, the Rhode Island Supreme Court engaged in a lengthy and helpful discussion of the legal issues at hand, including how the state utilizes the STATIC-99.

State v. Durrett, 2009 Wash. App. LEXIS 1285 (June 1, 2009)

Durrett was a homeless sex offender who was required to report weekly to the sheriff’s office for registration purposes.  There were two separate weeks where he failed to register.  He could only be prosecuted for one count of failure to register, as they constituted only one unit of prosecution.
 
White v. Dexter, 2009 U.S. Dist. LEXIS 46360 (May 20, 2009)

Making some factual distinction between this petitioner in this case and the one in Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008) (holding an imposition of a “third-strike” sentence as cruel and unusual punishment for a failure to register conviction), the court denied White’s Habeas petition.

People v. Ranscht, 173 Cal. App. 4th 1369 (May 15, 2009)
 
Ranscht was convicted of one count of sexually penetrating a minor.  Because he was similarly situated to an offender convicted of unlawful sexual intercourse—the only distinguishing factor between the offenses being the nature of the intent which must be proven—it was a denial of equal protection to require him to register as a sex offender.  An ‘unlawful sexual intercourse’ conviction in California makes the requirement to register discretionary, rather than mandatory.
 
State v. Payan, 765 N.W.2d 192 (Neb. 2009)

Nebraska has a procedure by which a person can be deemed to have committed an “aggravated offense”, which requires lifetime registration.  That determination is one that is made by the trial court judge.  The court held that the Court’s determination is sufficient for making a determination regarding registration, as that is civil in nature.  However, relying on the Apprendi case (Apprendi v. N.J., 530 U.S. 466 (2000)), the court held that the determination regarding community notification was punitive in nature and required a jury determination that an offender, in fact, committed an “aggravated offense.”

"Implementing sex offender registration law may prove impossible"

The Providence Journal has an article discussing the difficulties states are having implementing provisions of the Sex Offender Registration and Notification Act (SORNA). From the article:

In 2006, Congress enacted legislation to standardize the way states classify and register sex offenders and to make it easier for the public to learn about an offender’s presence in their communities.

Under the provisions of the federal Sex Offender Registration and Notification Act (SORNA), each state and all federally recognized Indian tribes are required to set up centralized computer banks to track people convicted of sex crimes — even many whose sentences were completed decades ago — and to post detailed information about each of them, along with a photograph, on a Web site that anyone can access.

The aim of the law — also known as the Adam Walsh Child Protection and Safety Act — is to reduce the number of sex crimes committed, especially on child victims, and to increase public safety through improved monitoring of sex offenders as they move from neighborhood to neighborhood and state to state. It establishes an easy way for the public to find out if there’s a sex offender living nearby or working or going to school with them or with members of their families.

Already a homeless convicted rapist has been given a 30-month federal sentence in U.S. District Court in Rhode Island for his failure to register as a sex offender when he moved from Massachusetts to Woonsocket in 2007, as required under SORNA.

But implementation of the law has proven to be a legal and economic nightmare. Some judges have ruled the act unconstitutional. Civil liberties groups, criminal defense attorneys and, surprisingly, even some law enforcement officials, are crying foul. Last week, a veteran sex crimes prosecutor in Louisiana told a subcommittee of the House Judiciary Committee in Washington that implementing the law might actually result in fewer convictions of criminals who prey on young children because it will be hard to get offenders to plead guilty if they know they will be required to register on a Web site as a sex offender for the rest of their lives.

About a dozen states have gone about revising laws, reclassifying offenders and setting up new computer systems to try to comply with the law. But to date, all of them have failed to convince the Department of Justice — which has set a July 27 deadline for compliance — that they have done enough to do what SORNA requires.

Cert. Denied For Woman Who Refused Settlement of Priest Sex Abuse

The U.S. Supreme Court denied certiorari for a case involving a Rhode Island woman, who turned down an offer from the Catholic Diocese of Providence to settle her lawsuit alleging sexual abuse because she wanted a trial. Her lawsuit was dismissed because she waited 13 years to sue (the statute of limitations was 3 years).  The Rhode Island Supreme Court later affirmed the decision. From The Providence Journal:

A Burrillville mother of four who was raped by a Roman Catholic priest was offered $400,000 from the Diocese of Providence to settle her lawsuit but turned down the money because she wanted a trial –– a trial where diocesan leaders would be forced to divulge what they knew about pedophile priests in parishes and how they dealt with complaints about them.

But Mary Ryan isn’t going to get any trial. Last week, the U.S. Supreme Court rejected her bid to force the Rhode Island court system to give her one.

Ryan, 47, said she knew the chances were slim that the court would hear her appeal, which she and her husband of 25 years, Thomas Ryan, had filed on their own, without legal representation. In 2006 –– the latest year for which statistical records are available –– there were 8,857 cases that the court was asked to review. It chose to hear just 78 of those cases.

But Ryan fought to the end. She spent months preparing a 40-page petition asking the U.S. Supreme Court to hear arguments in her case because she felt that the Rhode Island courts had erred in dismissing her lawsuit. She also alleged that her constitutional rights had been violated by the state court system.

In 1982, Ryan was raped in the bedroom of her Providence apartment by the now-deceased Monsignor Louis Ward Dunn, a priest whom she considered her surrogate father. He gave her away at her wedding and baptized her first child. Nonetheless, she decided to seek his prosecution and, in 1997, testified against Monsignor Dunn in a criminal trial. He was convicted of raping her. It was the first rape conviction of a priest in Rhode Island.

While she won justice in the criminal courts, her path through the civil-justice system has been less successful.

In 2002, Ryan was the only one of 38 victims who’d been abused by priests who would not participate in a $13.5-million settlement from the Diocese of Providence that was mediated through binding arbitration. When she balked because she wanted a trial, her lawyer decided he didn’t want to represent her anymore.

In 2003, Superior Court Judge Robert D. Krause dismissed Ryan’s lawsuit, saying she had waited too long to sue after being raped by Monsignor Dunn. This February, the Rhode Island Supreme Court rejected her appeal, agreeing with Krause. The court said Ryan and her husband had just 3 years to sue after the rape but had waited 13 years to do so.

H/T: How Appealing.

Around the Web

School districts across the country are implementing new sex offender policies under which parents, guardians or students will be allowed on school property only with prior permission or notification.  Sex offenders in Bismarck, North Dakota who are parents or guardians, will have to pick up or drop off their children at a location away from school property.

State legislators in Wisconsin are debating a bill that would require all sex offenders to notify the school before they attend any activity on school property. 

Federal prosecutors are seeking a life sentence for a Montana man with a long sexual assault history.  Prior to his most recent conviction, the man was convicted six times in state court for sex offenses against children.

A Seattle man became the first person convicted in western Washington for failing to register as a sex offender under the new Adam Walsh Act.  The man pleaded guilty in may and was sentenced to a five-year term in federal prison.

From Crime & Consequences, Russia is at the center of global child pornography trafficking.

A Connecticut judge refused a request by Attorney General Richard Blumenthal to place a serial rapist in a secure facility instead of with relatives in a residential neighborhood.  Corrections Sentencing is also covering the housing problem in Connecticut.

A former Massachusetts resident became the first person to be charged in Rhode Island under the new Adam Walsh Act.  The man was indicted by a federal grand jury for failing to register as a sex offender after moving to Rhode Island this year.

Around the Web

CrimProf has coverage of the Wilson prosecutor disseminating the video evidence for the case.

Grits for Breakfast cites a report about the costs of GPS monitoring for offenders.

Abyss2hope has followup on the Rhode Island case that I blogged about here.

A Stich in Haste posts about Senator Vitter's situation in regards to the ongoing prostitution scandal.

Odd Rape Charge in Rhode Island

Euguene Volokh has posted about an unusual case of a prosecutor pursuing a rape case based upon limited evidence primarily derived from repressed memories.  This is from a local media account:

A 48-year-old Narragansett man has been charged with raping someone 32 years ago when both he and the alleged victim were 16 years old, the attorney general's office said this week.

Harold Allen, of 30 Riverview Rd., was indicted last month on a charge of first-degree sexual assault, and he pleaded not guilty, court records show. Allen is accused of raping the girl in North Kingstown between April 1 and Oct. 31, 1975, the records show.

"The traumatized victim decided back then not to tell anybody what happened and repressed the memory of it until recently," said Michael J. Healey, a spokesman for Attorney General Patrick C. Lynch’s office. "The victim came forward and made a complaint to the North Kingstown Police Department on June 15, 2006."

No statute of limitations applies to charges of first-degree sexual assault ....

"If this incident happened today, it would be [handled in] Family Court," [Healey] said. "But Family Court never attained jurisdiction because no petition was filed against the defendant before his 21st birthday saying he had committed the crime before he was 18 years old. So you bring the charge in the court that would have had jurisdiction if the crime was committed by an adult. And that means the Superior Court." ...

[Allen's lawyer says that] "[Allen] says they never had intercourse -- willing, unwilling or otherwise."

Volokh's commented about the case:

Sounds like a pretty troubling prosecution -- one person's word against another's, with no physical or documentary evidence, about something that happened two-thirds of a lifetime ago. I'm no expert on memory, repressed or otherwise; and it may well be that there's some other evidence available here, hard as it is for me to imagine what it might be. Still, it seems to me highly unlikely that a jury could sensibly discover beyond a reasonable doubt what really happened between these two pepople 32 years ago.

I think there are a few possibilities that would make me less skeptical than Volokh.  It is a hard thing to know from a distance, but it could be that the victim was just a really credible witness and the alleged rapist wasn't.  That is a hard thing to know just from a media account.  More importantly, I think media accounts of rape cases are often quite poor (and in this case most of the comments about the quality of the case are by the defense attorney).  I would think post-Nifong, prosecutors would be pretty trigger-shy about pursuing borderline rape cases.  Before assuming no other evidence exists, I'm going to try to do a little more digging into the facts of the case.  I'll post later if I find anything.