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You Cannot Make This Up, Part Eight Zillion

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.

Reconsidering Campus Sexual Assault

The handling of complaints of sexual assault on campus has been a mess.  The charge that victims have been treated insensitively and had their complaints too lightly dismissed has often been valid.  The countercharge that campus administrations, whether voluntarily or coerced by the U.S. Dept. of Education, went too far the other direction and degenerated into witch hunts has also been valid at times.

Melissa Korn reports for the WSJ:

Education Secretary Betsy DeVos on Thursday said the department plans to roll back the Obama administration's guidance on how colleges and universities should handle sexual assault cases.
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The federal government will solicit public comment and establish a new regulatory framework to help schools adjudicate the cases, Mrs. DeVos said.
Yesterday the Washington Supreme Court decided In the Matter of the Detention of Troy Belcher, No. 93900-4:

In 2011, at the age of 26, Troy Belcher was civilly committed as a sexually violent predator. In 2015, the superior court ordered that he continue to be indefinitely committed. It based its decision on two sexually violent crimes he perpetrated as a juvenile, a diagnosis of antisocial personality disorder with high levels of psychopathy, and a finding that he was more likely than not to recommit if released.

Unintended Consequences

The Bucks County Courier reports:

Shaquana Green and her toddler daughter disappeared during a weekly Saturday afternoon visit in 2012, an incident that Upper Darby police described in court documents as a custody dispute.Fewer than three hours later, the girl was found unharmed near where she was last seen and returned to her legal guardian, who's her paternal grandmother, according to court records. Green was arrested for violating a court custody order that barred her from unsupervised contact with her child.

That event is how the 26-year-old Bethlehem woman, a single mother with no prior criminal record, ended up a Pennsylvania sex offender. It's a life-crippling label that Green wouldn't have if she lived in any other state. 

But when the Pennsylvania Legislature expanded its sex offender law in 2011 in response to federal legislation, it added new crimes, including the one that Green pleaded guilty to in 2013 -- interference with child custody. Under the amended law, which became effective in December 2012, conviction of that crime carries a 15-year requirement to register as a Megan's Law child sex offender. There is no exemption for parental custody interference with no sexual abuse. 

The Pennsylvania legislature needs to amend the statute pronto.   
Brett Kendall reports in the WSJ:

WASHINGTON--The Supreme Court on Friday agreed to consider whether North Carolina can bar individuals on the state's sex-offender registry from accessing social-media websites such as Facebook.

The high court, in a brief written order, agreed to take up the appeal of Lester Packingham, who was convicted of violating the social-media ban after a Durham, N.C., police officer in 2010 found a Facebook post in which the defendant happily announced the dismissal of a traffic ticket. "Man God is Good!" the post said.

Mr. Packingham in 2002 pleaded guilty to taking indecent liberties with a 13-year-old when he was age 21.

A North Carolina law enacted in 2008 prohibits sex offenders from accessing social-networking sites when the offender knows that the site allows minors to become members. The Supreme Court will consider whether that law is allowed under the Constitution.
Sam Hananel reports for AP:

Supreme Court Chief Justice John Roberts has temporarily blocked a Senate subpoena that seeks information on how the classified advertising website screens ads for possible sex trafficking.

The order Tuesday came hours after Backpage CEO Carl Ferrer asked the high court to intervene, saying the case threatens the First Amendment rights of online publishers.

A federal appeals court ruled Friday that the website must respond to the subpoena within 10 days. Roberts said Backpage does not have to comply with the appeals court order until further action from the Supreme Court. He requested a response from the Senate by Friday.
The order reads in full:

IT IS ORDERED that the August 5, 2016 order of the United States District Court for the District of Columbia, in case No. 16-mc-621, is hereby stayed pending receipt of a response, due by noon Friday, September 9, 2016, and further order of the undersigned or of the Court
The individual Justice assigned to the circuit (the Chief, for DC) is authorized to stay a lower court's order, but they typically refer the application to the full Court for anything more than a brief stay.  I expect that "further order" will come early next week, and it will be from the full Court.


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Peter Holley reports for the Washington Post that "Day-care worker who raped toddlers on video actually a 'charming young lady,' lawyer says"...Really?  A charming young lady?  She videotaped herself sexually assaulting multiple babies and toddlers, then sent the footage to her convicted Tier II Sex Offender boyfriend.  Her boyfriend was on probation for pandering obscenity involving a minor in 2011.  Heather Koon pleaded guilty to four counts of rape, kidnapping, pandering obscenity involving a minor, plus other crimes involving illegal use of a minor in nudity-oriented material.  However, she pleaded not guilty to specifications labeling her a sexual violent predator.  That will be determined at a future hearing.  If so designated, she will receive a mandatory life sentence without parole.

Her attorney said:  "It's very unusual to have a female charged as a sexual predator - almost unheard of...Psychologists tend to think she's more along the lines of a battered woman.  She was being influenced by her boyfriend."

She met a guy, who happened to be a convicted sex offender on probation for offenses involving a minor.  Knowing this, she still chose to date him.  As a day-care worker working for a licensed day-care facility, she was trusted by parents to take care of their young children, not prey on them or sexually exploit them.  She made the choice to sexually assault those children at the day care facility.  She made the choice to videotape the acts.  And she made the choice to send the footage to another sex offender. She is not a "battered woman".  She is a woman who made very wrong choices.  I'm sure she is "charming", but so was Ted Bundy.  She raped children.  She involved herself with a convicted sex offender.  Like her boyfriend, she should also be held responsible for her bad choices.

Trust your gut

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A 50+ year-old single man living alone with 12 young girls who are rarely seen outside and don't attend school is odd.  It's odd enough to raise the eyebrows of those in the neighborhood.  And it did raise eyebrows.  Several calls were made to law enforcement over a two-year period, but nothing was done because the community sense that "something was wrong" was not enough to justify a search warrant.  Not until the police were informed that a teenage girl living in the house had given birth twice while living there was a search warrant finally obtained. 

The police searched the home of Lee Kaplan and discovered the unimaginable - the Amish teen's parents, Daniel and Savilla Stoltzfus, had supposedly "gifted" her to Kaplan a few years earlier to thank him for saving them from "financial ruin."  The Stoltzfus' are also the suspected parents of nine of the other young girls and the grandparents of the two youngest girls (who are believed to be fathered by Kaplan) living in the home.  I don't know much about the Amish community, but I do know that giving your 14-year-old daughter to a 47- year-old man is not an acceptable form of repayment.

Amish or not, "gifting" your teen daughter to a much older man is mind-boggling.  Permitting your younger daughters to live in the house with them is inconceivable.  Allowing that man to impregnate your teenage daughter is abominable. 
The U.S. Supreme Court this morning decided Lockhart v. United States, No. 14-8358:

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have "a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." §2252(b)(2).

The question before us is whether the phrase "involving a minor or ward" modifies all items in the list of predicate crimes ("aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct") or only the one item that immediately precedes it ("abusive sexual conduct").

Only the last item, 6-2, opinion by Justice Sotomayor.  Justices Kagan and Breyer dissent.

Simulacrum of Sin

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The Atlantic has a story about Shin Takagi.  Mr. Takagi manufacturers anatomically correct lifelike child sex dolls for pedophiles to use, as he puts it, to help "people express their desires, legally and ethically. It's not worth living if you have to live with repressed desire." 

To be a conscious person is to have repressed desires.  One need not be a devoted Freudian to accept the plain fact that everyone has desires for what he or she cannot have. It is a mark of maturity (and one would think rather obvious) that life can be lived and even enjoyed without indulging in every desire of the heart.  Indeed, wisdom would say that is a life that is mastered.
Sharon Cohen has this article for AP on a renewed drive to test the DNA from old rape kits.

In resurrecting old crimes, investigators have detected an alarming pattern: Many rapists are repeat offenders.

In Cuyahoga County, home to Cleveland, about 30 percent of cases that have developed from testing so far are serial rape suspects. One of them, Robert Green, assaulted seven women over nearly a decade as evidence went unprocessed. He pleaded guilty last fall and was sentenced to up to 135 years in prison.

I'm not sure I would have said "alarming."  We have known that for a long time.  The DNA provides irrefutable confirmation, though.

Conviction does not always follow a DNA match, though.  The statute of limitations may have run.  A claim of consent may be hard to refute in a very cold case.

"It's great entertainment on television that in one hour's time, we have a crime, we take the sample, we get a `hit,' we arrest the suspect and then he's prosecuted and off to jail," says Doug McGowen, coordinator of Memphis' Sexual Assault Kit Task Force. "That's just not the case, clearly."
"Sentencing reform" is the deliberately gauzy name given the movement for shorter sentences and earlier release.  Its advocates say it will be focused on "low level, non-violent" offenders, but quietly, and less prominently, acknowledge that it's intended to apply to "all offenders."  

This is one reason I want to add explicit language to one of the main "reform" measures, the Justice Safety Valve Act, before it gets a vote.  I want the public to know exactly what "all offenders" means.

It's also the reason I want to highlight an item from today's News Scan.  The Scan is sometimes easy to pass by quickly, because it contains a number of stories. But this one deserves our immediate attention:

Sex Predator Gets Second Chance, Reoffends:  Michael Shepard, released after serving a 15 year sentence for committing sex offenses against children, faces 14 new charges of raping or assaulting at least seven children after being out of prison 18 months.  Claire McNeill of the Tampa Bay Times reports that Shepard initially lied to his neighbors about his crimes, claiming his sex offender status stemmed from a Romeo and Juliet affair with a preacher's daughter.  He was released from prison after two psychologists determined that he "did not qualify for commitment" to a treatment facility after his sentence.  Shepard claims that the children fabricated their stories.

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