Sex Crimes

Justice Department's SMART Case Law Update #26

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 #26:

Delaware v. Fletcher, 2009 Del. LEXIS 250 (May 27, 2009)

The two petitioners in this consolidated case had been ordered to register based on juvenile adjudications for sex offenses.  Each successfully completed their periods of probation, and asked for an expungement of their convictions, and a termination of their juvenile registration requirement.  The Court held that their convictions could be expunged even though they had been required to register as sex offenders, and that once those convictions were expunged, they were no longer required to maintain their sex offender registration.
 
Tobar v. Kentucky, 2009 Ky. LEXIS 81 (May 21, 2009)
 
Petitioner had properly registered as a sex offender through a series of moves, but failed to notify Kentucky when he left a shelter and became homeless.  He was properly convicted of failure to comply with his sex offender registration requirements.
 
Doe v. California Department of Justice, 173 Cal. App. 4th 1095 (May 7, 2009)
 
Petitioners had successfully had their names removed from California’s public sex offender registry website via a special statutory procedure in 2005.  In 2006, the law was changed to require that they be posted on that public web site.  Their civil suit claiming equitable estoppel and ex post facto violations was dismissed.
 
U.S. v. Pomani, 2009 U.S. Dist. 44503 (D. S.D. March 11, 2009)

Pomani was adjudicated delinquent in federal court of an offense which occurred on tribal lands, namely, an offense similar to abusive sexual conduct (per the opinion, 18 U.S.C. 2241(c)).  The court held that juveniles adjudicated of this offense are required to register by SORNA, failing to take in to account that SORNA’s Final guidelines removed the registration Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office U.S. Department of Justice/Office of Justice Programs requirement for juveniles adjudicated delinquent of 2241(c).  Having held that Pomani was required to register, the court affirmed his conviction.  
 
Miller v. McCormick, 605 F. Supp.2d 296 (D. Me. 2009)
 
Where petitioner had been admitted to the section 8 home ownership program, he could not be thereafter terminated because he was a lifetime registered sex offender.  There is a ban in place for admission to the program for such offenders, but should an offender somehow avoid the ban, they cannot be terminated.  

Character Evidence in Child Molestation Cases

Colin Miller at EvidenceProf has a post about a recent effort in South Dakota to allow the use of prior child molestation evidence in certain instances in criminal prosecutions:

South Dakota does not currently have a rule of evidence that allows for the admission of a criminal defendant's prior acts of child molestation when he is charged with child molestation.  But if an incoming lawmaker has his way, that will all soon change. 
Like its federal counterpart, Federal Rule of Evidence 404(b), SDCL 19-12-5 provides in relevant part that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."  In other words, evidence that a criminal defendant charged with child molestation had previously molested children would be inadmissible to prove that he had a propensity to molest children and that he likely acted in conformity with that propensity at the time of the alleged crime.  Or, to put it more simply, that evidence would be inadmissible to prove, "Once a child molester, always a child molester."
But, this actually isn't the case in trials conducted under the Federal Rules of Evidence because Federal Rule of Evidence 414 states that:
     "In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant."
As I have noted before, this Rule was "enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, despite the overwhelming majority of lawyers, judges, legal organizations, and law professors opposing the laws when it was submitted for public comments."
But while Congress added this Rule to the Federal Rules of Evidence, most states, including South Dakota, have not followed suit.  Recently elected South Dakota State Rep.-elect Lance Russell would like to change that.  He plans to introduce a bill that would let juries hear evidence of prior molestations in trials where the defendant is accused of child molestation.  According to Russell, "state juries need to have all the evidence in such cases - as federal juries already do."

Around the Web

How Appealing reports that the State of Texas is seeking a rehearing en banc of the Fifth Circuit ruling about the state's sex toy law.  You can read the petition here.

The New Hampshire House of Representatives will soon vote on a bill which would bring the state in compliance with the Adam Walsh Act.  The new bill, which would post a sex offender's place of employment or school on an Internet registry, would also keep the state from losing what was thought to be $200,000 in federal law enforcement grants.

A South Dakota man, who was recently convicted by a federal jury of firing a gun at a moving vehicle with a woman and three children inside, will be given an extended sentence due to the Adam Walsh Act.  Because an assault on children younger than 18 falls under the Adam Walsh Act, three of the assault convictions carry mandatory minimum sentences of 10 years in prison. The other charges carry mandatory minimums of 10 years to be served consecutively to any other periods of incarceration.

An Indiana sex offender has lost his suit challenging the state's residency restrictions.  Indiana state law prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth center. The man was forced to move because his home was near a church that offers youth programs.

A county in Florida is considering a new sex offender ordinance which will prohibit them from residing within 2,500 feet from anywhere kids congregate. Florida state law is 1,000 feet.  A city in Maine is considering a similar ordinance which also prohibits convicted sex offenders from residing within 2,500 feet of the property line of a school and within 1,000 feet of a day care center.

According to police in a Michigan town, a registered sex offender shot himself to death as officers tried to arrest him for several alleged crimes. 

Around the Web

ArsTechnica has an article discussing a new study in the official journal of the American Academy of Pediatrics, which found that social networking sites are actually safer for children than chat rooms and instant messaging.  The study (available here) also notes that most perpetrators are upfront about both their ages and desires.  This suggests that the attention given by many state Attorney Generals (previously discussed here and here) to social networking sites would be better used elsewhere.

CNN has more information about the community of Florida sex offenders who live under a bridge and are now being forced to leave.

Meanwhile, homeless sex offenders in South Dakota will be forced to register their "address," according a bill passed in the South Dakota House of Representatives.  The proposed law would require those people to register a location where they tend to be.

A Public Defender has an interesting story about residents in a New Hampshire town who "rejoiced after successfully getting a sex offender to leave their community."

Around the Web

Feminist Law Professors has a post with some frightening statistics about sexual assault within the military.

A county in South Carolina is joined the growing trend of jurisdictions that allows people to sign up for e-mail notifications every time a sex offender registers in the the county.

A Montana high school student is now facing expulsion after someone discovered that he is a convicted sex offender.

An Idaho man was arrested on suspicion of child pornography possession.  The man had been convicted of child sex abuse in Georgia roughly 20 years ago.

A South Dakota man who pleaded guilty to third-degree rape, criminal pedophilia and two counts of sexual contact with young boys was sentenced to 60 years in prison.

Around the Web

At Corrections Sentencing, there is an abstract post for this article: Sarah E. Ullman Ph.D., Comparing Gang and Individual Rapes in a Community Sample of Urban Women, Violence and Victims Volume:22 Issue:1 Dated:2007 Pages:43 to 51.

Abyss2hope compares and contrasts the mainstream blog debate about a South Dakota state representative in trouble for an alleged sex crime with the debate in Texas concerning the death penalty for child rape.

From a helpful reader, here is an article about the crackdown on sex offenders and the real effects the laws have in creating incentives to not report child molestation.

From Sentencing Law & Policy, we get a Ninth Circuit opinion rejecting an Eighth Amendment challenge to a sentence for possession of child pornography.

Here is an odd study showing that military veterans who are imprisoned are twice as likely to have been convicted for sex offenses. 

Corrections Sentencing points us to an article about the debate in Louisiana about where sex offenders should be during evacuation or emergency.

The Domino Effect

One concern with residency and/or loitering restrictions is that as one community adopts a statute, neighboring communities will follow suit to avoid becoming a haven for sex offenders.  The discussions currently going on in South Dakota and Iowa illustrate this pattern:

South Dakota typically welcomes people migrating from Iowa - but not in the case of sex offenders.

Iowa's sex offenders were moving in because South Dakota's law isn't as restrictive. But now, Iowa is considering changing its law to make it more like South Dakota's.
....
South Dakota lawmakers made one key difference when drafting last year's sex offender bill with 500-foot safe zones.

“One thing that South Dakota did that's really good is the fact that not only do we say you can't live in that area, but also that you can't loiter there. You got to have a good reason to be within that area,” Milstead said.

The Iowa Sheriff's Association is asking lawmakers like May to work on changing the sex offender bill this legislative session. May says the community safe zones like the ones in South Dakota could be a solution.