Recently in Sex offenses Category

California, like many states, has a mandatory reporting law that requires various people to report child abuse or neglect when it comes to their attention. The Child Abuse and Neglect Reporting Act stems from a law enacted in 1980. It was amended and renamed in 1987.

Among the mandatory reporters are mental health professionals. In 2014, the law was amended again to include, among others, persons who download or stream videos "in which a child is engaged in an act of obscene sexual conduct."
        This morning the California Supreme Court issued its opinion in People v. Arredondo (S244166).  Arredondo was convicted of 14 sex offenses against his three young step-daughters.  He had been repeatedly molesting them over an 8 year period. It finally came to an end when he inappropriately touched one of the victim's friends on multiple occasions.  She told a school counselor of the abuse which lead to Arredondo's arrest.

At trial, the oldest victim was 18-years old and in the 11th grade.  He started molesting her when she was 8-years old and it ended when she was 16-years old.  When she took the stand to testify against Arredondo, she started crying and had a very hard time continuing with her testimony.  The court took a recess so that she could compose herself.  During the recess, the witness box was slightly modified so that a small computer monitor located on the witness stand was slightly elevated so to block her direct view of Arredondo.  Arredondo objected and argued that the modified witness box violated his 6th Amendment right to confront witnesses against him.  The trial court disagreed and overruled the objection.  The monitor remained elevated and Arredondo was subsequently found guilty.

New SCOTUS Criminal Cases

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The U.S. Supreme Court issued a short orders list after its Friday conference today. The Court took up three criminal cases for full briefing and argument.

United States v. Briggs, No. 19-108 and United States v. Collins, No. 19-184 are military cases involving the statute of limitations for rape under the Uniform Code of Military Justice.

Walker v. United States, No. 19-373, asks whether a Texas conviction for robbery can be a "violent felony" under the Armed Career Criminal Act when, at the time of Walker's prior conviction, that crime could be committed by theft plus reckless (not necessarily intentional) injury to another person.

A longer orders list with cases turned down and procedural orders will be released Monday.
As you might gather from the title, United States v. Dailey, USCA9 No. 18-10134, Nov. 4, 2019, involves some complex issues.

When an element of a crime is the fact that the defendant committed or was previously convicted of another crime, described in general terms rather than listing specific code sections, a question arises in deciding whether the other crime fits the description. Do we look at the minimum elements that could possibly be true and still result in the conviction of the other crime? That is the "categorical approach." Or do we look at what the defendant actually did while committing that crime. That is the "non-categorical approach."

The question must be asked for each statute. The Ninth Circuit confronted the problem yesterday in the case of Jazzmin Dailey, who drove a 16-year-old girl, T.B., from Arizona to Las Vegas, instructed her in prostitution, bought her provocative clothing, and threatened to kill her if she told the police. Does this make Dailey a "sex offender" for the purpose of the Sex Offender Registration and Notification Act? One would think it should.
Sex offenders released from prison are three times as likely as other released offenders to be arrested for a new sex crime within nine years of release.

Sex offenders released from prison are less likely than other offenders to be arrested for a new crime within nine years of release.

Both of these statements are true, according to a study released today by the U.S. Bureau of Justice Statistics. See the spin potential?

I predict that this study will be exploited in numerous statistics crimes within a year of its release.
At one time, it was common to attack victims of sexual assault with comments like "she was asking for it." We've come a long way since then. Or have we?

It depends in part on whether the true story of the crime fits the narrative that influential people want told.

Christopher Rufo has this article in the City Journal, titled The Wrong Narrative: Seattle elites show little sympathy for a woman raped by a homeless man.
The California Supreme Court decided today in People v. Superior Court (Smith), No. S225562 that the District Attorney may obtain otherwise confidential treatment records in a case of civil commitment of a "sexually violent predator."

#NotForUs

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Laurel Rosenhall reports for CALmatters:

In one of the first legal challenges since the #MeToo movement forced the California Legislature to confront its history of dismissing sexual misconduct in its own workplace, the Senate is trying to fend off a former employee's lawsuit with arguments that she's not covered by new whistleblower protections and that the Capitol, as part of the public sector, isn't covered by state labor laws.

The state Senate made the arguments in a recent court response to a lawsuit by a former employee who alleges that the Senate broke eight different laws in firing her several months after she reported that she was raped by a fellow staff member--including laws that prohibit retaliation and require employers to accommodate workers experiencing disabling trauma. The Senate is asking the court to throw out half the allegations in advance of a hearing on Tuesday.

The Problems With Old Memories

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How do you deal with an accusation based on a memory so long ago and so lacking in detail that it can neither be proved nor disproved?  The Senate Judiciary Committee is going to hold a hearing on the accusation by Christine Ford against Brett Kavanaugh, but we can already be fairly sure it will be inconclusive, with many people seeing the result they want to see.

In criminal law, an accusation that can't be proved results in acquittal, even though it can't be disproved either. As we have noted before on this blog, "exonerations" on the so-called "innocence list" can be the result of a case going back to the trial court decades after the crime.

How about nominations? Should an unprovable-undisprovable accusation from decades ago scuttle the nomination of a person who has been a straight arrow ever since and (according to dozens of  contemporaries) was also one at the time with the possible/possibly not exception of this one incident? The WSJ has this editorial taking the "no" side of that question.

"Outercourse"?

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As if Brock Turner were not infamous enough for his father's "20 minutes of action" letter, now there is his lawyer's oral argument Tuesday in California's Sixth District Court of Appeal.  Tracey Kaplan reports for the San Jose Mercury News:

A lawyer for a former Stanford swimmer ... tried to convince an appellate court Tuesday to overturn his client's conviction -- on the novel grounds that the athlete wanted "outercourse" with his intoxicated victim, not intercourse.

"Outercourse," his lawyer Eric S. Multhaup explained to the three poker-faced justices, is sexual contact while fully clothed. Turner had his clothes on when he was caught by two Swedish graduate students making thrusting motions on top of a half-naked, intoxicated, unconscious woman, his lawyer noted.

Mili Mitra opines in the WaPo that "the 'outercourse' defense is so patently ridiculous that it reads like a headline from the Onion."

Clever word plays may be good for giving academic articles catchy titles, but they are not so good for advocacy.  Remember "affluenza"?

I really have to wonder about the defense's decision to appeal in this case.  There are six grounds in the appellant's opening brief.  Only one is sufficiency of the evidence, an argument which, if successful, precludes retrial.  If he "wins" on any of the others, the case goes back for retrial and, if reconvicted, resentencing.  Does the defendant really want that?  A greater sentence cannot be imposed just to be vindictive about the appeal, but a greater sentence can be imposed if the second judge believes that a greater sentence is appropriate for the crime.

Having gotten off much too lightly the first time, shouldn't Turner quit while he is "ahead," relative to where he is likely to be on resentencing?

How old is too old?

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In 2011, Leonel Contreras and William Rodriquez, both 16 years old, kidnapped and violently sexually assaulted two teenage girls.  They were both tried as adults and convicted of these crimes. Contreras was sentenced to 50-years to life, and Rodriguez was sentenced to 58-years to life.  On Monday, in a 4 to 3 ruling, the California Supreme Court held that these sentences were unconstitutional (People v. Contreras S224564).
Pursuant to Graham v. Florida, a 2010 U.S. Supreme Court case, juveniles who commit nonhomicide offenses cannot be sentenced to life without the possibility of parole (LWOP).  They "must be given 'some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.'" The California Supreme Court majority held that because Contreras and Rodriguez's sentences would not permit them with an opportunity for parole until age 66 (Contreras) and 74 (Rodriguez), "the chance for release would come near the end of their lives" and is therefore the functional equivalent of LWOP.  The Court further stated that if released at those ages, "they will have spent the vast majority of adulthood in prison" and their sentences therefore violate the Eighth Amendment's cruel and unusual punishment prohibition.  

You Cannot Make This Up, Part Eight Zillion

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There are a number of reasons I did not become a criminal defense attorney when I left the government.  One of them is lack of imagination.  Hence, from the Chicago Tribune, "Accused of assaulting 3 young girls, man says he's boy tapped in adult's body."

A Chicago man accused of sexually assaulting three young girls told prosecutors he considered himself a boy in a man's body, according to Cook County court documents.

Joseph Roman, 38, is charged with predatory criminal sexual assault stemming from repeated attacks on three girls who were 6 to 8 years old at the time, according to prosecutors. Roman was a friend of the girls' families at the time of the attacks between 2015 and January of this year.

During a hearing Wednesday, prosecutors said Roman admitted to some of the attacks and told Chicago police "he is a 9-year-old trapped in an adult's body." He was ordered held without bail

My wife says I'm a eight year-old trapped in a law professor's body.  What I would like to be is anything at all trapped in a 21 year-old's body.
No, even the Ninth Circuit won't buy that argument.

Et Tu, Academia?

As the sexual harassment allegations have toppled one famous and powerful person after another, I have often found myself saying "It couldn't have happened to a less-nice guy."  In many, perhaps most (but not all), cases, the person in question was an arrogant, condescending, sneering, obnoxious person, much too full of himself and contemptuous of others in other contexts.  Personality traits are broad, not focused, and it stands to reason that a person who treats others like that generally would also be the kind to engage in this sort of behavior.

Academia has its share of such people, perhaps more than its share, so it stands to reason that this chicken would eventually come home to roost there.  The time may be nigh.  Melissa Korn has this article in the WSJ.

The Legal Profession Enabling Rape, Part II

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In this entry, I took issue with lawyers who write non-disclosure agreements (NDA's) to furnish to clients for the purpose of helping them muzzle women they have sexually abused or, sometimes, outright raped.  The Harvey Weinstein scandal was the occasion for that entry.

Things have gotten worse.  Yesterday, the New York Times ran a story about a previously very highly regarded lawyer, David Boies, who  --  to translate the somewhat opaque language in which the story is written  --  hired a "private investigative firm" to dig up dirt on one of Weinstein's numerous victims in order to bludgeon her into silence.

The reason the Times is angry about this, as it full well has a right to be, is that Boies was trying to prevent the Times, which was at the time also a client of his, from getting what would have been a fantastic scoop.  The Times is correct in viewing this as a betrayal.

But to my way of thinking, there is something else much more appalling about Boies' behavior:  It's another instance of a lawyer's not merely seeking, through a contractual clause, to suppress truthful information about his client's vile (and criminal) behavior, but of promoting a blackmail scheme to threaten the victim.

"Zealous advocacy," embrace your true name.


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