Sex Crimes

Justice Department's SMART Case Law Update #28

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 #28:

U.S. v. George, 2009 U.S. App. LEXIS 19051 (9th Cir. Aug. 25, 2009)

Where the defendant had been convicted of a federal crime requiring registration as a sex offender (sexual abuse of a minor on an Indian reservation), the fact that the state in which he resided (Washington) had not implemented SORNA did not prevent him from being convicted of a violation of 18 U.S.C. §2250. Also rejected George’s ex post facto violation (he had moved to Washington State prior to SORNA’s passage) on the grounds that failure to register is a continuing offense.

Doe v. Shurtleff, 2009 U.S. Dist. LEXIS 73955 (D. Utah Aug. 20, 2009)

This opinion vacates the injunction issued in Doe v. Shurtleff, 2008 U.S. Dist. LEXIS 73787 (D. Utah, Sept. 25, 2008), which was put in place because of First Amendment concerns surrounding the collection of internet identifiers from registered sex offenders. Because of legislative amendments that were made effective in May of 2009, those First Amendment concerns no longer exist, and the statute may be enforced as written. The opinion also addressed Fourth Amendment and Ex Post Facto challenges.

Magyar v. State, 2009 Miss. LEXIS 388 (Aug. 13, 2009)

As an issue of first impression, the Mississippi Supreme Court held that the requirement to register as a sex offender is a collateral consequence of a guilty plea, and failure to advise of that requirement is not grounds for reversal. The opinion has a detailed footnote with a list of all similar controlling state and territory cases coming to the same conclusion—approximately 30, in all.

State v. Reese, 2009 Kan. App. LEXIS 786 (July 31, 2009)

Reese had been convicted as a juvenile of an offense that would have enhanced his registration requirement; however, because there was an obvious difference in the system between juveniles and adults required to register, that prior juvenile adjudication could not serve to enhance his current registration requirement. The court paid particular attention to the fact that juvenile adjudications were not included in the statutory definition of ‘conviction’.

In re: C.P.W., 2009 Kan. LEXIS 399 (July 24, 2009)

The State is only required to prove that a defendant acted with general intent, rather than specific intent, to convict him of failure to register. Under Kansas’ statutes, it is not a strict liability crime.

State v. Howe, 2009 Wash. App. LEXIS 1763 (July 21, 2009)

Howe was convicted of “lewd acts upon a child” in violation of California Penal Code §288(a). The Washington Court of Appeals concluded that this California offense was not comparable to any Washington sex offense and, therefore, he did not have to register as a sex offender.

Doe v. Worsham, 2009 Mo. App. LEXIS 1026 (July 7, 2009)

Doe filed a civil suit to have his registration requirement dismissed because his conviction was in 1993 (from the state of Georgia), and the Missouri Supreme Court had previously held (in 2006) that retroactive application of its terms was unconstitutional. However, based on the Keathley case, the court held that “SORNA imposes an independent obligation requiring Doe to register as a sex offender in Missouri....[and that obligation] operates irrespective of state law and the constitutionality” of the State’s own registration system.

Commonwealth v. Wilgus, 975 A.2d 1183 (Pa. Super. 2009)

Because of the way in which Pennsylvania’s laws were written, a homeless and transient person did not have a ‘residence’ to register and, therefore, could not be convicted of failure to register.
The Department of Justice makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the contents of this update, and expressly disclaims liability for errors and omissions in the contents of this update. The information appearing in this update is for general informational purposes only and is not intended to provide legal advice to any individual or entity. We urge you to consult with your own legal advisor before taking any action based on information appearing in this update.

State v. Atcitty, 2009 N.M. App. LEXIS 112 (June 4, 2009)

The State of New Mexico had no authority to impose a duty to register on enrolled tribal members, living in Indian country, convicted of federal sex offenses. This was a case involving members of the Navajo Nation who had been charged with state-level failure to register offenses.

People v. Birkett, 909 N.E.2d 783 (Ill. 2009)

Where a juvenile court judge refused to order a juvenile adjudicated of a qualifying offense to register as a sex offender, a writ of Mandamus sought by the state was properly granted, compelling that order to be made.

Seven Indicted For Child Porn Found At Sex Offender Treatment Center

Seven residents at a Washington sex offender treatment center have been indicted on child pornography charges after allegedly obtaining the unlawful images at the center. From the Associated Press:

In unsealing the indictments Thursday, federal prosecutors said they didn't know how the defendants, who are prohibited from using the Internet, obtained the pornography, which allegedly was stored on their computers at the Special Commitment Center on McNeil Island. Among the possibilities: via the mail, or from a visitor or staff member.

"We cannot allow these sex offenders to be part of the market for horrific pictures of child sexual abuse," U.S. Attorney Jeffrey C. Sullivan said in a news release. "With these indictments we are putting the residents at the SCC, and anyone who is assisting them in obtaining child pornography, on notice that they will be prosecuted."

About 270 sex offenders live at the center, having been involuntarily committed for treatment after their prison terms because they are deemed too dangerous to release. If convicted, any of the defendants would face a mandatory minimum of 10 years in prison, and up to 20 years.

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.”

Sex Crime Allegations Lead to Suit against Law School

Al Brophy (at least I think it is him - I get confused with their author labels) at Faculty Lounge points to a really strange story about a former Gonzaga law student. From the news account:

A former Gonzaga law student is suing the University for breach of educational contract and violation of consumer protection....

According to the complaint, John Doe invited a female law student to his apartment for dinner and a movie in December 2005. The woman brought a bottle of wine, which they both drank....
As the night progressed, the two parties engaged in sexual activity, which the woman reportedly initiated. She suddenly became nauseous, so sexual activity stopped, and the woman slept on John Doe's couch that night. 

The lawsuit states that the next morning she could not recall what had happened the previous night. She went to an emergency room and according to the complaint told medical personnel she thought she had been drugged. A drug test came back negative, and the woman declined a rape kit. 

Later, the woman contacted the hospital asking to be tested for gamma-hydroxybutric acid (GHB), a common date rape drug. However, once tested, her levels came back within range of levels of GHB naturally occurring in the body.

The woman filed a complaint with the Spokane Police Department and Gonzaga University, but John Doe was cleared after submitting to and passing a polygraph examination. and Gonzaga University, but John Doe was cleared after submitting to and passing a polygraph examination.

The Dean of Student Services at Gonzaga then decided to hold a Discipline Board hearing in response to the woman's allegations. At this hearing, according to the complaint, Cepeda told the panel the woman's GHB levels were indicative of date rape drugs.

The lawsuit also claims Cepeda also allegedly implied that John Doe's initial hesitation to submit to a polygraph test was indicative of his guilt. Cepeda was unavailable for comment.
The Disciplinary Board reportedly determined that John Doe had drugged and raped the woman and decided he should be expelled from the law school as a result.

However, John Doe immediately appealed the decision to the Vice President for Student Life, who decided to reconvene the Disciplinary Board for a second hearing. At John Doe's request, the woman's claims of GHB were re-examined by the same panel, which subsequently threw them out of the case, Casey said. At this hearing, John Doe was cleared of the determination that he had drugged the woman, yet he was found guilty of sexual assault, according to the complaint.

The panel determined, "A reasonable person would have known that [she] was not competent to give consent to sexual activity because of the large amount of alcohol she consumed in a relatively short amount of time."

However, both the woman and John Doe affirm that "the amount of alcohol she had consumed was not unusual for her," according to the lawsuit.

I apologize for the long block quote, but the facts are so odd that I didn't think I could edit them further. If the allegations of the civil suit are correct, it looks like Cepeda could be in a bit of trouble. However, even if he mistated the lab results, the fact that the alleged victim was so intoxicated as to be unable to consent is going to be a tough fact for the civil plaintiff to overcome. The "she usually drinks that much" line might be a tough sell without some documented admissions by the alleged victim. Either way, this is surely an unwanted mess for the law school.

The Case of Tammy Gibson

Unlike most of the cases I blog about, the subject of this one, Tammy Gibson, is not a sex offender. Instead Gibson assaulted a sex offender with a baseball bat and has been sentenced to three months in prison. From the Seattle Post-Intelligencer:

A woman who beat a sex offender with a baseball bat last summer after she saw him chatting up her young daughter will spent the next three months in jail. And even after her conviction Friday on assault charges, Tammy Gibson says she still has no remorse for what she did.... 
On June 19th, Gibson, an area resident, went to Baldwin's house in the 1800 block of River Road and asked for him.
When Baldwin stepped outside, she claimed she was going to kill him because Baldwin had molested her children. Gibson then proceeded to hit Baldwin repeatedly with her bat, the document said, leaving him with an injured arm....
We talked to Gibson Friday, now back in jail a second time. Again, she didn't mix words if she regrets what she did.
"No, I'd do it again if not better," she said. "I don't care if it hurts me, I don't regret it. It got him away from my kids and all the other kids in the neighborhood."

Gibson is an odd case for such lenient treatment given her: 1) complete lack of remorse; 2) premeditation of her act; and 3) statement that she would do it again. In another situation, those three factors would be the basis for a defendant receiving the maximum allowable sentence, especially given that the plea deal allowed Gibson to be sentenced under a lesser offense. The leniency, of course, is best explained because of who the victim is. Doug Berman at Sentencing Law & Policy had these thoughts:

I am very sympathetic to the concerns of parents who are eager to protect their kids from serious threats (this is why, for example, I am a vocal advocate for tougher drunk-driving sentences and a big supporter of the work of groups like MADD).  But there is every reason to think that modern sex offender laws (including national registration and notification requirements) already do a pretty good job empowering parents to deal with real risks in responsible law-abiding ways. 

Simple Justice took an even stronger stance:

The Tammy Gibson case is perhaps the antithesis of jury nullification.  It is institutional nullification, where the officials who make the wheels of the system grind, the police, prosecutors and judges, are unable to muster the degree of anger toward Tammy Gibson to do more than go through the motions. A three month sentence for beating another person with a baseball bat is, under almost any other scenario, trivial.  Why should this be different....
Of course, William Baldwin did not harm Tammy Gibson's daughter.  William Baldwin was inside his home, doing nothing wrong, when Tammy Gibson chose to attack.  As much as Baldwin may be relegated to the human junk heap in the eyes of many, he was a human being entitled to exist without being the target of death of any person who felt entitled to pick up a bat and beat him to death.  Certainly, we can't have moms trying to murder people at will for perceived wrongs that never actually happened.  Certainly, people can't simply decided that sex offenders are perpetually fair game for harm....
This is a dangerous and unacceptable message.  Tammy Gibson feels no remorse.  Another parent may well accept three months in jail for the chance to beat a sex offender.  The message to parents, and to sex offenders, is clear.  Sex offenders are fair targets and moms who beat them, or worse, deserve our understanding and sympathy.  

I completely agree with the sentiments in that post. The notion of allowing the status of the victim to severely limit the sentence is a very dangerous precedent. I would not be as upset if the case had gone to trial and the jury had nullified by accepting a ridiculous self-defense argument. In such a case, I could accept that twelve citizens had failed in their duty. However, in this case, the problem is potentially more systemic. The prosecutors, probably believing that a conviction and high sentence would be difficulty to achieve, made a very generous offer. The judge, who was either sympathetic to the mother or worried about a public backlash, accepted a plea that might have been rejected with a different victim. And now, Gibson has the audacity to say she was right in her actions and her supporters are complaining that the sentence was too harsh. This story reminds me of the many Texas cases where murderers received probation sentences. In those cases and in Gibson's, cultural biases, particularly about victim status and sympathy toward defendants, distorted criminal justice.

When a GPS Bracelet isn't Enough

A helpful reader alerted me that some Washington lawmakers are pushing for a brave new world in sex offender punishment:

Lawmakers are considering a controversial bill that would outfit sex offenders with a surgically-implanted device that tracks their movement. 

The devices would replace the ankle bracelets that are currently used to track offenders. The bracelets have been criticized as a lacking device as offenders have successfully removed them in the past before disappearing off of the radar. 

"(The devices would) be a little more difficult to take off," said Rep. Maralyn Chase, D-Edmonds. 

Chase is among a handful of lawmakers are looking into radio chips that can be planted under the skin. Some of the designs are no larger than a grain of rice. 

The radio chips would allow police to track an offender from a sex offender using the same technology used at the Tacoma Narrows bridge toll. 

"Right now, we get a postcard at home every few weeks saying we have a sex offender moving into the neighborhood. But unless you know where they live and what they look like how are you going to have protection?" said Chase. 

The Department of Corrections admits even with the current devices, officers often lose signal. DOC officials also note that no tracking device can prevent crime. 

"It certainly is not prevention. It certainly is not 100-percent," said Anna Aylward with the state DOC.

The bill is currently in committee. 

If only such innovative minds could harness their efforts to find real, long-term solutions to the problems of sexual violence. Physical implants would really take monitoring of sex offenders to a whole new level. I didn't find it particuarly comforting that the article compared applying the devices to sex offenders, who are actual living human beings, to similar techonology being used for vehicles passing through tolls.

Washington Lawmakers Seek to Close Teacher-Student Sex "Loophole"

Lawmakers in Washington state have proposed a new law which criminalizes sexual relationships between school employees and students. The move comes as a result of a state Court of Appeals decision (previously discussed here) finding that a law banning teachers from having sex with minors did not apply to 18-year-old students. From the Seattle Times:

School employees who have sex with adult students could face prison time and mandatory sex-offender registration if state lawmakers pass a measure that would crack down on teacher-student relationships.

The proposed law came shortly after the state Court of Appeals ruled that a former Hoquiam High School choir teacher accused of having an intimate relationship with an 18-year-old choir member could not be charged with sexual misconduct because the state law criminalizing teacher-student sex is unconstitutionally vague.

Rep. Larry Haler, R-Richland, introduced a bill last week that would prohibit teachers, coaches and other employees at elementary, junior-high and high schools from having sex with students between the ages of 16 and 21, as long as the student is at least five years younger than the employee.

A similar bill also has been introduced in the Senate.

The current law makes it illegal for school employees to have sex with students younger than 18.

The age of consent for a sexual relationship in Washington state is 16 unless the person involved is mentally incapacitated or disabled.

Under the teachers' professional code of conduct, teachers who have sexual contact with students also face losing their teaching certificate.

House Majority Leader Rep. Lynn Kessler, D-Hoquiam, said she supports the bill.

"If you want to have a love fest, go somewhere else — don't do it in the schools," Kessler said. "The idea is just because you're 18 it's OK if teachers prey on young women who are going to school there — it's just insane."

The Washington Education Association also favors the legislation.

"If teachers have sexual conduct with students they should not be teaching," said Rich Wood, spokesman for the Washington Education Association, the state's largest teachers union. "We take a very firm stance on that."

Haler is rewriting minor portions of his bill and expects to refile it this week. If passed, a school-district employee who has sex with a student between the ages of 16 and 21 could be convicted of first-degree sexual misconduct, a felony, and face up to five years in prison and $10,000 fine.

In 2001, then-Gov. Gary Locke vetoed a bill that would have made it illegal for a school-district employee to have sex with a student as old as 21 because the law was too broad and could be used to prosecute a teenage employee.

Robert Martin Morgan Hill, the Olympia attorney who represented former Hoquiam High School teacher Matthew Hirschfelder before the appeals court, criticized lawmakers for wanting to criminalize what he calls consensual sex between adults.

Hirschfelder was charged with first-degree sexual misconduct with a minor in the 2006 case. He denied he had a sexual relationship with the 18-year-old student but argued that even if the allegations were true, no crime was committed.

Sex Between Teacher and 18 Year Old Student Legal In Washington State

A unanimous all-female panel on the Washington Court of Appeals found that a state law banning teachers from having sex with minors does not apply to 18-year-olds. You may view the opinion here. Cradle-robbing teachers in Iowa however, should be warned; sex with 18-year-old students in the Hawkeye state is apparently illegal. From the Seattle Times:

State law does not ban teachers from having sex with 18-year-old students, according to a unanimous ruling by a panel of appellate judges.

The state Court of Appeals ruling came in a case involving Matthew Hirschfelder, a former choir teacher at Hoquiam High School who was charged with first-degree sexual misconduct with a minor in 2006 after an 18-year-old member of the choir told police she had been involved in a months-long sexual relationship with him.

Hirschfelder, who was 33 at the time, denies any relationship occurred.

Hirschfelder asked a judge in Grays Harbor County Superior Court to dismiss the case, arguing that the girl was not a minor because she was 18. The judge refused to dismiss the charge but urged the state Court of Appeals to address the issue because the state's sexual-misconduct statute seemed contradictory.

In an opinion issued Tuesday, a three-member panel of the appeals court agreed that the statute was unconstitutionally vague, and sent the case back to the Superior Court to be dismissed.

Hirschfelder argued that, even if the facts as alleged in his case were all true, no crime was committed. He argued that the statute on sexual abuse of a minor does not define the term "minor," and that both common law and other Washington statutes define that term as a person under the age of 18.

The appeals judges agreed, pointing out that the law was grouped with other statutes prohibiting the sexual exploitation of children, where the term "minor" is defined as someone under 18.

In my Criminal Law class, I always raise the possibility of strict liability being applied in sex crimes other than statutory rape based upon age. Among the scenarios we discuss are doctor/patient, guard/prisoner, and teacher/student. This case certainly throws a wrinkle into that discussion. 

H/T: How Appealing.

Woman Beats 7'3" Sex Offender With Baseball Bat

A Washington woman pled guilty to assaulting a 7' 3" sex offender with an aluminum bat.  From Seattle Post-Intelligencer:

The Pierce County woman who used an aluminum baseball bat to attack a 7-foot-3 sex offender living in her trailer park has pleaded guilty to third-degree assault, according to The Associated Press.

After the June attack, she told television crews the man had been trying to talk to her young daughter and that she'd beat him again.

The man, William Baldwin, pleaded guilty on charges he failed to register as a sex offender.

Both lived in part of unincorporated Puyallup.

After Gibson was jailed, she became an Internet celebrity and people started a "Free Tammy" movement, attempting to raise her $15,000 bail.

Baldwin, who was 24 during the beating, is a Level 3 sex offender and considered a high risk to reoffend.

"This isn't a soccer mom in a minivan," Pierce County Sheriff's Office spokesman Detective Ed Troyer said at the time of the 5-foot-11 Gibson. "She has no less than a dozen arrests over the last few years, for assault, drugs, driving crimes – you name it.

"This is someone well versed in the criminal justice system, " Troyer said.

Our news partners at KOMO/4 spoke to both Baldwin and Gibson, who said she'd kill him if she had the chance. Here's the video from June 2008.

Attempted Rape and Self Defense

Eugene Volokh posts about an interesting case with an unsatisfactory resolution:

The trouble is that it's of course impossible to tell from the news accounts — at least the ones I've seen — whether this was self-defense, or even whether there's proof beyond a reasonable doubt that it wasn't self-defense (the rule in Washington and lots of other states). If the girl really "could not recall the incident," then it's hard to tell how much to credit her account that "[Pena] wouldn't let her go until they'd had sex." She also isn't likely to be the most credible witness: She apparently has a history of "convictions for assault, theft, malicious mischief and stealing a car," and while even convicted criminals have a right to defend themselves, jurors may naturally be skeptical of their claims (especially when some of the crimes, such as theft, are evidence of dishonesty).

Also, it's not completely clear what her (paraphrased) statement that "He wouldn't let her go until they'd had sex" means. If it means that he was essentially trying to rape her by physically restraining her, or credibly threatening her with violence, and that she killed him to prevent or interrupt the rape, then that would be self-defense (if her story is believed). But if it means that he did rape her, and then let her go, and she killed him because of what he had done to her, then that would indeed be voluntary manslaughter: An intentional homicide that wasn't justified by the need to defend against a crime (since the crime was over), but that is a lesser crime than murder because of the provocation created by the just-completed crime. It may well be that the facts are clearer than the somewhat ambiguous statement; but the press accounts I saw did not make those facts clear.

So this, I think, helps show the inevitable problems that will sometimes arise even with a law of self-defense that is at bottom fairly sound. The problem is often not in the law, but in figuring out the facts, and in predicting how a jury will react to the contested claim of facts (especially when the defendant was drunk, or when the defendant's criminal record makes the defendant a less than normally credible witness). And in such a situation, it's not uncommon for the defense and the prosecution to reach a plea agreement to avoid the inevitable uncertainties of trial.

I would add that the problem isn't unique to self-defense cases. Any time that a prostitute alleges rape, the accusations are viewed with suspicion. When someone with a criminal history of that length and substance reports a rape, it is doubtful that charges will be pressed. So, the application of a similar conclusion in a self-defense fact pattern is unsurprising.