Recently in Sex offenses Category

FedSoc Convention Videos

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Bill previously posted a link to the Criminal Law Practice Group's panel at the National Lawyer's Convention of the Federalist Society.  Another panel relevant to the topic of this blog was the Civil Rights Practice Group's panel on sexual assault on campus.  The speakers and video links for both panels follow the break.

The full schedule with links to all the videos is here.

Today the Ninth Circuit decided Doe v. Harris, No. 13-15263.  The opinion by Judge Bybee begins:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation ("CASE") Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide "[a] list of any and all Internet identifiers established or used by the person" and "[a] list of any and all Internet service providers used by the person." Id. § 290.015(a)(4)-(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider ("ISP"). Id. § 290.014(b). Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.

On the Success of Community Monitoring...

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This article speaks for itself.  It begins:

A New York man who cut off his ankle monitor before killing a woman and raping her 10-year-old daughter was sentenced Wednesday to 30 years in federal prison for possessing more than 11,000 images and 1,100 videos of child pornography.

U.S. Attorney Richard Hartunian said 30-year-old David Renz will begin the 30-year sentence after completion of whatever sentence he receives for his guilty plea in state court for the murder and rape. U.S. District Judge Norman Mordue went beyond the 19 to 24 years recommended by federal sentencing guidelines.

Good grief.  The only encouraging part is the next paragraph:

Sentencing on the state charges is scheduled for May, but it has been postponed several times while the U.S. Department of Justice decides whether to charge Renz on a federal carjacking statute that could carry the death penalty if he is convicted.

Campbell Brown, founder of the Parents' Transparency Project, has this op-ed in the WSJ (subscription):

When a Michigan middle-school teacher was denied $10,000 in severance pay last month, the local teachers union filed a grievance against the school board on his behalf. Given the union's mission to defend the rights of educators, this would appear to be routine. Not so fast: The teacher is a convicted sex offender.

Neal Erickson was sentenced in July to a 15- to 30-year jail term after acknowledging that he had sexual relations with a male student beginning when the boy was 14 years old. The school board denied him severance once he was charged. But the local chapter of the National Education Association thinks this criminal deserves his severance, which says a lot about the mindset of teachers unions, which are also trying to weaken a bipartisan bill in Washington that would help keep sexual predators out of schools.

The Real War Against Women

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"War Against Women" is a political catchphrase used by Democrats to attack Republicans for the latter's generally more conservative views on the availability of abortion, pay "equity", government financial assistance to families, and several other questions.

There was a time when the word "war" was thought to connote violence.  None of those issues involves that; they're about other things, from religion and religiously-influenced social values to views about the size and role of the welfare state.

There is one issue, however, that very much involves violence against women  --  rape.  As to that, there really is a war being waged against women, but it's not being waged by Republicans.  It's being waged by liberal judges who seem to view rape as no big deal.

That's the only explanation I can think of for the state judge who imposed a sentence of rehabilitation and counseling  --  and not a day in jail  --  for a defendant who raped the victim three times.  The story is here.  But I should probably add that it's a little misleading for me to characterize it as a "war against women." A "war against girls" is more like it:  The victim was 14 at the time of the first attack, and 18 at the time of the last two.

Can we look forward to Chairman Leahy's demanding strong, mandatory minimum sentencing laws to prevent such mind-bending travesties in federal jurisdiction? Uh, guess not.

Federalism and Sex Offenses

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The US Supreme Court today decided a case on the Sex Offender Registration and Notification Act (SORNA), a law passed by Congress in 2006.  The majority upholds SORNA as applied to the particular offender in a rather peculiar and fact-specific opinion.  The case is United States v. Kebodeaux, No. 12-418.

Psychotherapy for Sex Offenders

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R. Karl Hanson, one of the preeminent scholars in the field of the treatment of sex offenders, has a short review article in the April issue of Evidence-Based Mental Health, which abstracts the latest Cochrane review of the literature.   What does the Cochrane review say?  Here's the conclusion:

Currently RCT evidence does not support that psychological interventions reduce the risk of sexual offending.  High-quality RCTs with minimal bias and long-term follow-up in the community are required to identify interventions that can reduce sexual reoffending rates.

And Dr. Hanson's commentary:

The current review is likely to have little impact on practice.  Although their search was thorough and their analysis competent, there was not enough evidence to make strong conclusions.  Furthermore, the majority of the available RCTs did not examine sexual recidivism, but only intermediate outcomes (such as social anxiety), which may or may not be valid risk indicators.

So the data isn't all that great and we shouldn't throw the baby out with the bathwater.  That's fine, but what the Cochrane review said was that current evidence does not support the notion that psychological interventions reduce sexual reoffending.   We can believe in our heart of hearts that it should - and maybe it does and those studies just haven't been done yet - but as scientists we need to accurately report what the data shows.  Dr. Hanson was accurate in his commentary but all too often what scientists want to be true clouds what the data actually shows. 
Don Thompson reports for AP:

The number of paroled sex offenders who are fugitives in California is 15 percent higher today than before Gov. Jerry Brown's sweeping law enforcement realignment law took effect 17 months ago, according to figures released Wednesday by the state corrections department.

The increase amounts to 360 more sex offenders whose whereabouts were unknown and who were not reporting to their parole officers last year.

An Associated Press analysis of the Department of Corrections and Rehabilitation data shows that 2,706 paroled sex offenders dropped out of sight in the 15 months since the new law took effect in October 2011, compared to 2,346 in the 15 months before realignment. The numbers were obtained by the AP before their public release.

That's an average of 180 sex offender fugitives each month, up from 156 before realignment.
The current issue of Engage has this exchange on SORNA between John Malcolm (pro) and Andrew Harris and Jill Levenson (con).

Rape by False Pretenses

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Wednesday's decision by the California Court of Appeal in People v. Morales, B233796, has gotten a lot of attention.  Bob Egelko has this story in the SF Chronicle.  Under Penal Code §261(a), the crime of rape is committed when consent to intercourse is negated in a number of different ways, the most common being force.

The Morales case arises from an incident where the victim's boyfriend left the room, she fell asleep, Morales entered, he began having sex with her, possibly while she was still asleep, she continued consensually believing he was her boyfriend, and he knew that.  She says, and he denies, that he continued by force after she realized who he was and pushed him away.  The problem arises from some nineteenth century language still in the statute.

Non-Indian Defendants and Tribal Courts

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When a non-Indian defendant is accused of a crime on tribal land, in what court should that case be tried?

There is a provision in the Violence Against Women Act reauthorization bill for certain crimes to be prosecuted in tribal courts.  House Majority Leader Eric Cantor is against that.  Jonathan Capehart at the WaPo has this over-the-top post contending that Cantor's position is "trying to protect white men from prosecution." 

Basically, right now, if you are a non-Native American man who beats up, sexually assaults or even kills a Native American woman on tribal land, you'll get away with it. That's because tribal courts do not have jurisdiction to prosecute non-Indian defendants. In addition, federal and state law enforcement have limited resources and might be hours away from a reservation.
That's a pretty far-fetched accusation.  The statement about law enforcement is irrelevant, because the dispute is not about the investigation of the crime but the prosecution of it.  It is not at all unusual for a crime to be investigated by law enforcement officers of one jurisdiction and prosecuted in the courts of another.  It happens all the time in drug cases, for example, when local police bust the drug operation and the U.S. Attorney takes the prosecution to federal court.

Capehart cites the percentage of cases declined by federal prosecutors to support his claim that lack of tribal court jurisdiction means the perpetrator gets away with it.  But the report he cites notes that the most common reasons for the declinations are weak evidence, "witness problems," no federal offense, or "suspect to be prosecuted by other authorities."  The last category obviously does not mean he gets away with it, and the next-to-last often does not.  The others mean reasonable doubt of guilt.  Is Capehart suggesting we dispense with the reasonable doubt requirement?

If these cases are being insufficiently prosecuted, that is a problem that needs to be addressed.  But Capehart has not made the case that the problem exists, and expanding jurisdiction of tribal courts to non-Indians is not necessarily the optimum answer.  Capehart's hyperbolic attack on Cantor is unwarranted.

Sex Offender Recidivism

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From this week's NCJRS accessions list:  Daniel B. Freedman, Determining the Long-Term Risks of Recidivism and Registration Failures Among Sexual Offenders, Federal Probation Volume:76 Issue:1 Dated: June 2012 Pages:14-18:

Recidivism, defined as new convictions in this study, was 28.49 percent. This is within the range of 20 to 40 percent found in many other studies (Hanson and Bussiere, 1998; Hanson and Morton-Bourgon, 2005). The current study found that the sample (191 individuals registered as sexual offenders in North Carolina) were at high risk for recidivism for an extended period; however, the greatest risk is during the first several years of tracking. Age was negatively associated with recidivism, but previous convictions had a positive association with recidivism. Registration failures occurred at a rate of 21.51 percent, which doubled the observations from other research (Duwe and Donnay, 2010); (Levenson et al., 2010). Registration failure increased the likelihood of recidivism by 64 percent. The correlates and predictors of recidivism and registration failures are race (Black and White), age, previous convictions, and offender type (adult victims or child victims). All data came from the North Carolina Department of Corrections, North Carolina Sex Offender Registry, and a county sheriff's department. Bivariate analysis and multivariate statistics were used in the study. Study limitations are noted, and implications are drawn for future research. 2 tables, 1 figure, and 28 references.
Note the definition of recidivism as new convictions within the 9 year period.  While the author considers that to be a "balanced" approach, it significantly understates the actual reoffense rate.  A new conviction requires not only a new offense but getting caught and proof beyond a reasonable doubt.  The actual number of new offenses is higher, but we don't know how much higher.

What does "previous convictions had a positive association with recidivism" mean in plain English?  The more times he's done it before, the more likely he is to do it again.

Sex Offenders Are Not Loners

According to a new study, sex offenders who kill are not the typical loners many consider them to be.  Rather, they are quite deft at social interactions.

One of the largest studies of sexual killers ever undertaken in Canada has turned up some surprising findings about how socially normal they may actually appear.

Contrary to previous research, B.C. criminologist Eric Beauregard says his study's larger sample size shows sexually motivated killers aren't generally loners.

"Many of these guys were looking to have social activities with people and they were good at interacting with people," said Beauregard, who teaches at Simon Fraser University in Burnaby, B.C.

Beauregard says a significant number of sexual killers developed the social skills necessary to get close to their victims.

"So it's important to consider the fact that some of these guys are actually good with people and instead of using a blitz approach to get their victims, they can actually use a ruse or a con," he said.

The study, which was conducted with Melissa Martineau of the RCMP, looked at 350 solved and unsolved cases of sexual homicide dating back 62 years from across Canada, with the aim of helping police investigators investigating similar crimes.

Histrionic Personality Disorder

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Kevin Begos reports for AP:

The defense in Jerry Sandusky's child sexual abuse trial is suggesting that a personality disorder explains some of the charges the former Penn State assistant football coach, but one expert says that may be a stretch.
*                        *                        *

Sandusky's lawyers, who began presenting their defense Monday, plan to raise the disorder issue to suggest that his extensive correspondence with one of the alleged victims wasn't necessarily "grooming" boys to molest them but instead might be trying to "satisfy the needs of a psyche" with the disorder.

"The jury should not be misled into believing these statements and actions are likely grooming when they are just as likely or more likely histrionic in origin," wrote defense attorney Karl Rominger in the June 11 filing.

But Dr. Glen Gabbard, clinical professor of psychiatry at the Baylor College of Medicine in Houston, said histrionic personality disorder could in no way be seen as a reason or explanation for the abuse of children.

"That diagnosis, if he has it, would be completely irrelevant to anything having to do with criminal responsibility for acts of pedophilia," said Gabbard, an expert on personality disorders.

If I understand this correctly, the lawyers are not planning to use the "disorder" in the sense of diminishing criminal responsibility for the act.  That would be complete garbage, as Gabbard says.  They are claiming he didn't commit the act, and they are using the "disorder" to explain certain behavior that the jury might consider to be corroborating evidence.  That is still a stretch.  Of course, given the number of witnesses and the likelihood of a de facto life sentence upon conviction, stretches are probably all they have.

Meanwhile, back at the APA, histrionic personality disorder is being removed from the main text of the forthcoming edition of the "bible," the DSM-V, and relegated to the appendix of stuff for further study.

I previously noted that Jerry Sandusky's lawyer had moved to put on evidence about "histrionic personality disorder," a supposed form of mental illness in which the "victim" has  an overwhelming desire to be noticed, and often behaves inappropriately to get attention.

Today, the press reports that defense counsel "prevailed" on his motion.  Another such victory and Sandusky could wind up with the death penalty, notwithstanding that Pennsylvania law provides only for a prison term.  I mean, how much of this can the jury take?

I litigated cases for almost 20 years, and can say with certainty that the best thing defense counsel can do with this trial is get it over with.  Notwithstanding the Casey Anthony travesty, it's beyond impossible to believe that Sandusky isn't going to get convicted and go to jail for life.  The claimed personality "disorder" does not even purport to rebut the central evidence in the case, to wit, that Sandusky forcibly molested boys for 15 years.  So he wanted attention.  So what?

I really have no idea what defense counsel is up to, unless he thinks it's a good idea to enrage the jury in addition to turning their stomachs.  

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