Sex Crimes

Should Tennessee Teens Be Included In Sex Offender Registry?

Tennessee state legislators are debating whether to include juvenile information (such as names and photographs) into the state sex offender registry. From the Jackson Sun:

State Rep. Debra Young Maggart, R-Hendersonville, introduced a bill last month that would require youths 14 or older to be placed onto a public registry for violent sexual offenses such as rape or attempted rape.

The bill, House Bill 2789, also states that when the offenders turned 18, they would continue to have a record as an adult and would be placed on the adult registry.

Some restrictions that apply to adult registered sexual offenders would not apply to the juveniles until they turned 18, according to the bill. For example, adult offenders whose victims were minors can't live, work or attend treatment programs within 1,000 feet of a school, child-care facility, or public park or recreation area.

Supporters of creating a juvenile sex offender registry tout it as a way to make the public aware of violent criminals. Critics of the proposal say many juvenile offenders can be reformed and the bill could harm their ability to live a normal life. An example they cite is potential problems with finding a job.

H/T: Sentencing Law & Policy.

Female High School Teacher Gets 12 Years For Sex With 17 Year Old Aide

A female high school teacher in Tennessee was recently convicted of having sex with a 17 year old male teacher's aide and received a 12 year sentence. Volokh and Above the Law have more. From the Tennessean:

District Attorney Ray Whitley said Sandy Binkley "got what she had coming to her."

David Ridings, Binkley's attorney, said it was the most egregious abuse of justice in sentencing that he has ever seen. "We hoped that (the judge) would follow the law. He failed miserably at that," Ridings said.

Binkley's attorney had hoped the former teacher would be sentenced to no more than three years. He plans to appeal.

Binkley, 37, the former teacher, was convicted Sept. 29 in Sumner County on two counts of statutory rape by an authority figure.

The convictions stemmed from a sexual encounter that occurred on March 20, 2008, between Binkley and a 17-year-old boy in a locker room office at Portland High School.

Binkley claimed she was raped.

Halloween Sex Offender Crackdown '10

The approach of Halloween brings with it lots of interesting sex offender issues, which we have frequently blogged about. Recently, the Tennessee Board of Probation and Parole has notified sex offenders on supervised release that they cannot participate in Halloween activities involving children. You may view the complete list of restrictions here. Officials in Albany, New York have done the same. From the article:

The Tennessee Board of Probation and Parole is notifying sex offenders that it supervises that they cannot take part in most Halloween and similar fall festival activities involving children, including trick-or-treating with their own children and allowing anyone in their households to pass out candy where they live.

The restrictions do not apply to sex offenders who are no longer under the supervision of the agency, which generally extends through their time on probation or parole. Thus they do not apply to those on the state's sex offender registry who are no longer under Board of Probation and Parole supervision, nor those who have met the criteria and been removed from the registry, the agency's communications director, Melissa McDonald, said today.

The restrictions are not new and have been enforced in recent years, although they have not been broadly publicized as the board is doing this year. "Our goal is to protect the safety of the public, especially children, throughout the Halloween season," the board's executive director, Bo Irvin, said in a press release issued today. "By reminding offenders of the restrictions upon them, and the consequences of non-compliance, we make the harvest season safer for Tennessee families."

Every state-supervised sex offender in Tennessee has received, through their probation or parole officer, a document detailing the restrictions and the consequences of non-compliance for their signature. Officers are also making announced and unannounced visits to verify that offenders are abiding by restrictions and the terms of their curfews.

The Halloween panic is always predictable, but I'm still waiting for any evidence that children are at greater risk on Halloween than any other day of the year. While kids are out and about, they are often among other children and/or supervised by adults. Further, the kids whereabouts are pretty well known to the parents (at least within a certain radius). If a child is victimized or disappears on Halloween, I'm sure the police will go right to the area sex offenders. That seems like a pretty good deterrent for crimes on that particular day.

Justice Department's SMART Case Law Update #23

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 #23:

Hansen v. Marr, 2009 U.S. Dist. LEXIS 5239 (D. Neb. January 26, 2009)

Petitioner filed a Habeas Petition, claiming that he was “in custody” for Habeas purposes because he was required to register as a sex offender.  The court disagreed, stating that “where sex offender registration statutes are remedial, rather than punitive, the registration requirements…do not satisfy the ‘in custody’ requirements” for a Habeas Petition.

Ward v. Tennessee, 2009 Tenn. Crim. App. LEXIS 43 (Jan. 14, 2009)

In this Habeas petition, the court found that the requirement to register as a sex offender is a collateral consequence of the underlying criminal conviction. The trial court did not commit plain error by failing to advise him of the requirement.

People v. Mosley, 168 Cal. App. 4th 512 (Nov. 19, 2008)

Mosley was convicted by a jury of assault, but acquitted at trial of committing a sex offense against a minor.  The trial court, based on its own fact-finding, ordered him to register as a sex offender, and thus submitting him to the residency restrictions in place in California.  The Court of Appeals held that the residency restriction is punitive (per Mendoza-Martinez) and, therefore, Apprendi requires a hearing where facts supporting the imposition of the residency requirement are proven beyond a reasonable doubt to a jury.

"Sex registry stigma too much for young"

While the Tennessee legislature debates whether to include juveniles on the state's sex offender registry, one newspaper is ran an editorial discussing the flaws of such a proposal. From The Tennessean:

Tennessee's top law-enforcement officials want juveniles convicted of sex crimes to be named on the state's public sex-offender registries, a notion that is likely to have broad popular support.

But the repercussions of such a plan, which must be approved by the legislature and the governor, may far outweigh the benefits.

The Tennessee Bureau of Investigation will ask lawmakers to introduce the bill as part of a move toward state compliance with the Adam Walsh Act, named for the famous case of a young boy slain in 1981.

A portion of Tennessee's federal law enforcement funding will depend on whether the state decides to add offenders under age 18 to the sex offender database.

It is unfortunate that money should enter into a painful decision such as this, because there certainly are valid points on both sides of the argument. Dangling the prospect of federal dollars during a recession only obscures a discussion that should be held on actual merits of the plan.

It is easy to see why many want the offenders made public. Young offenders might be able to blend in with a crowd of kids, where an adult offender could not.

But being able to shun the offender does not make the offender's will to commit abuse go away. To do that, the offenders need court-ordered counseling and treatment programs — especially when the sex offenders are not yet of an age when brains and emotions are developed enough to make mature decisions. Virtually all young sex offenders were themselves abused, and their criminal behavior is a result of that experience.

For treatment to work, those youths need some expectation that they will not be forever branded and outcast.

Convicted individuals, whether guilty of sexual or other offenses, will go on committing crimes if they have no one to turn to. They will be sent to prison and, when the system cannot hold them any longer, they will get out and repeat the cycle.

Throwing kids, even those who have done terrible things, into the center of a fearful public with a letter on their forehead is little better than locking them into a cell with adult criminals. And hoping they will simply go away and trouble no one ever again is unrealistic and dangerous.

The TBI hopes not only to get the bill passed, but to gain a one-year extension on the April deadline for federal funding. Their energies might be better spent working with the juvenile justice system to see that underage sex offenders get counseling as quickly as possible, and that their progress is well-monitored by trained professionals.

The state's sex-crime laws are intended to protect innocent people from harm; stigmatizing troubled young people when there is a chance to turn them around only exposes other innocent people to further crimes later.

It is hoped that "protect'' is the key concept here, and not "punish." If retribution is the overriding motivation, the cycle of abuse is likely to continue.

Sleepwalking as a Defense to Child Molestation Charges?

The Tennessee Supreme Court has ruled that a defendant in a child molestation case can use expert testimony to support sleepwalking as a defense. From a local news account:

The Tennessee Supreme Court has ruled that a Nashville firefighter is entitled to present medical testimony that a sleepwalking disorder caused him to commit child sex abuse.

Adrian Leroy Scott II is facing trial on charges of raping a female relative in 2006, but claims he was asleep during the assaults and unaware of what he was doing.

The state filed a pretrial motion in Davidson County Criminal Court that excluded sleep expert Dr. J. Brevard Haynes' testimony saying it was "was not sufficiently trustworthy."

Haynes had diagnosed Scott with sleep parasomnia involving sexual behavior.

The Tennessee Supreme Court ruling Friday makes Hayes' testimony admissible in court. The case has been referred the case back to the Davidson County Criminal Court.

You can read the actual opinion here. I'll probably show the fact pattern to my Criminal Law class next week as we are covering the voluntary act requirement. I always discuss sleepwalking as an example, but students sometimes doubt it ever really comes up. I never imagined it would be a defense in a child molestation case.

Tennessee Uses Sexual Servitude Statute for First Time

Two Tennessee men are being charged using a sexual servitude statute for the first time in the state's history.  As Ann Bartow appropriately noted, "I wonder how many times they didn’t think forced prostitution was 'serious enough' to do so." From WKRN:

Two Hispanic men are behind bars in Nashville after police said they held a young woman against her will and forced her into prostitution.

Arturo Perez and Jesus Garcia are charged with promoting prostitution and trafficking for sexual servitude after police said they would make the 22-year-old from Mexico City have sex with up to seven men a day.

To make her obey investigators said they would stab and cut the young woman with an ice pick and threaten to kill her family.

"It is serious enough that for the first time ever we're using the sexual servitude statute to charge these two individuals," Metro police spokesperson Don Aaron told News 2.  "It's quite despicable that a woman would be treated like this by an individual that has, obviously, no regard for her mental or physical well-being."

Perez and Garcia were arrested after police learned of the situation and sent a confidential informant to meet the men at a south Nashville motel.

"We learned this woman was not a willing participant, but being held against her will in a sexual servitude situation," Aaron said.

Metro police said Perez, Garcia and the young woman are in the country illegally.

They are scheduled to appear in court Tuesday.

Child Porn Sentences

Sentencing Law & Policy (which seems to be having some RSS feed problems for me) has a post discussing the oddities and uncertainties with child pornography sentencing in federal courts:

Regular readers may recall some of my recent posts discussing my observations of an extraordinary amount of variation in charging, bargaining and sentencing realities in federal child porn downloading cases.  Two more notable examples came across my desk just today:

In US v. Toothman, No. 07-3729 (8th Cir. Oct. 3, 2008) (available here), a panel rejects an Arkansas defendant's appeal of his within-guidline sentence of more than eight years imprisonment following his plea of guilty to one count of knowing receipt of child pornography.  The defendant complained on appeal about the district court's failure to give him any break for his extraordinary physical impairment and extreme susceptibility to abuse in prison, but the circuit court decided the sentence was reasonableness.

Meanwhile, in the neighboring state of Tennessee, another child porn defendant got a significant break from the guidelines, due in part to the luck of timing according to this local artice headlined "Student gets sentence cut in half; Prior defendant’s record worse, so judge shows mercy."

Four-Year Sentence for SORNA Violation

SL&P has the story of a defendant who was sentenced to four years imprisonment following a trial for failing to register under SORNA:

A Tennessee man convicted earlier this year for failing to register as a sex offender under the Adam Walsh Act has been sentenced to 51 months in federal prison without parole.

Tommy Edward LeTourneau, 47, appeared before U.S. District Judge Andrew S. Hanen Tuesday morning where his sentenced was handed down.

His sentencing also includes a lifetime supervised release for failing to register as a sex offender. It also mandates that he register as a sex offender, attend mental and sex offender counseling and have no contact with minors, plus other sex offender conditions, according to a U.S. Attorney's Office press released.

LeTourneau's case was the first of its kind to go to trial in the Southern District of Texas under the revised Sex Offender Registration and Notification Act.

LeTourneau previously made constitutional objections to SORNA, but after failing in those arguments went to trial. I will be surprised if many of these cases actually go to trial because there rarely is much of a defense. The four year sentence provides a data point as to what other defendants might receive although predicting sentences under SORNA so far has been hard to do with any reliability.

Around the Web

Feminist Law Professors has an interesting post discussing the plight of Afghani women, some of whom have been jailed for being victims of rape.  The article mentioned in the post notes that convictions for escaping from home and illegal sexual relations carry maximum penalties of 10 years and 20 years respectively.  According to the article, "[t]hese are two of the most common accusations facing female prisoners in Afghanistan." 

One editorial in a Tennessee newspaper argues that the state "needs to get with the program and add juveniles to its public sex offender registry."  Tennessee's lack of an Adam Walsh Act-complaint law has been mentioned before.  The editorial calls the notion that a young person's entire life should not be ruined because of mistakes made when he was young, "an antiquated idea." 

Sentencing Law and Policy has an interesting post discussing sentencing in a child pornography downloading cases.  The opinion, which comes out of the Eastern District of Wisconsin, provides "the court's reasons for giving a sentence of five years' imprisonment rather than a much higher sentence recommended by guidelines."  You may view the opinion here.

The Green Bay Press Gazette is reporting that "lawmakers and college administrators are trying to shut paroled sex offenders out of ... student neighborhoods near major U.S. universities."  Although registered sex offenders are banned from living close to schools and other places frequented by children in more than 23 states, that protection does not extend to the areas surrounding college campuses.