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An interesting article (to say the least) which is stirring up many perspectives across the country.

Sixth-graders shoot porn video at school

5 days ago

Officials in the Mexican state of Campeche are scrambling for answers after a pornographic video shot by and starring elementary school students appeared on the Internet. In the brief clip, three sixth-grade boys are seen performing a number of sex acts while in an empty classroom. “It is real, the case is real, the video exists,” a concerned Education Department spokesman said. Although no adults are pictured, the teachers union is also investigating to find out how the students had access to the room. The unsettling scenes were discovered after one boy’s mother saw the clip online and recognized her own son. The students have not been disciplined, but have been offered psychological counseling.

 

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The New York Times May 11, 2012

Who Speaks for the Children?

For decades, Brooklyn prosecutors pursuing child molesters netted few complaints or convictions in the borough’s cloistered, politically powerful community of ultra-Orthodox Jews. Rabbinical authorities banned relatives of the abused from reporting the crimes to non-Jewish authorities; those few who spoke out were shunned — expelled from synagogues, their children expelled from schools — or pressured into dropping their cases.       

As Sharon Otterman and Ray Rivera reported in The Times this week, this intolerable situation has slowly begun to change, as some community members have dared to speak up for the victims, no matter the personal cost. While some religious leaders now say that molesters should be turned over to the police, too many still insist on covering up these crimes.       

Instead of protecting their community, they are doing enormous, shameful damage.       

Brooklyn’s district attorney, Charles Hynes, who has received considerable political support from ultra-Orthodox rabbis, has been accused by victim advocates of not doing enough to face the problem. His office denies this, noting he roiled the community in 1999 in accusing a prominent rabbi of witness-tampering in a child abuse case and three years ago set up a hot line for child abuse complaints in the community.       

He needs to do a lot more to help the victims and demonstrate his independence. Mr. Hynes can start by ending his policy of refusing to announce the names of accused molesters from the ultra-Orthodox community. He does not shield the names of other defendants, and no other city district attorney employs such a selective policy, according to The Times.       

Mr. Hynes’s insistence that victims might hesitate to come forward if defendants were identified is absurd. The clear message to the victims is that the system is intent on protecting abusers.       

Studies find that the problem of child abuse in the Brooklyn community is no greater than elsewhere. What is needed is far more of the candor and initiative displayed last summer by a religious court in Brooklyn’s Chabad-Lubavitch Hasidic neighborhood. The court ruled the traditional prohibition against mesirah — turning in of a Jew to non-Jewish authorities — did not apply in cases of sexually abused children. “One is forbidden to remain silent in such situations,” it declared. Everyone who cares about children should listen.       

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Judge, attorneys weigh next steps after state trooper accused of sex crime assaulted in courtroom

By Christopher Cousins, BDN Staff
Posted April 13, 2012, at 11:37 a.m.

WISCASSET, Maine — Attorneys and the judge involved in the sex-crime trial of Gregory Vrooman were scheduled to meet Friday to determine how to proceed in light of a courtroom assault on Vrooman on Thursday that brought the proceedings to a halt, according to Lincoln County Superior Court clerk.

Vrooman, 46, of Nobleboro, was assaulted by a spectator and hospitalized Thursday morning as the court was preparing to reconvene his trial following jury deliberations. Vrooman, a 24-year veteran of the Maine State Police, is on trial for numerous charges involving sexual abuse of a girl under the age of 14. The alleged assaults happened between December 2009 and November 2010.

Vrooman is on unpaid administrative leave from the Maine State Police.

The court clerk said that the jury had been in deliberations prior to the assault and was preparing to return to the courtroom. The jurors were not present for the altercation, in which William Harrison, 39, of Charlestown, Mass., allegedly attacked Vrooman from behind as he sat at the defense table. Police who were in the courtroom said that Harrison landed at least two punches, injuring Vrooman’s face.

Lincoln County District Attorney Geoffrey Rushlau said the Harrison is a family member of the alleged victim in the case.

Harrison, who was quickly subdued by Lincoln County deputies and court officers, was charged with assault and taken to Two Bridges Regional Jail in Wiscasset. He was released on $5,000 bail later in the day, according to the jail’s administration.

Rushlau said Friday morning that court officers had been notified by the jury that a verdict had been reached, but that no one except for the jurors know what it is at this point.

“The next step is obviously to have the verdict delivered,” said Rushlau, who said he and others were meeting Friday to determine when that will happen. “This is completely unprecedented.”

Rushlau said it would be up to the court to decide whether the altercation could interrupt the legal process.

“That’s a decision for a trial judge,” he said. “If the verdict is guilty, it potentially gives the defendant another avenue for appeal, but I can’t personally see that that would be successful. [The assault] certainly did disrupt the ordinary course of a jury trial.”

Rushlau said that Vrooman has the right not to be present for the reading of the verdict, but said no decision on that front had been brought to his attention. Rushlau was unsure whether Vrooman remained hospitalized Friday morning.

Neither the jury nor the judge in the case, Justice Jeffrey Hjelm, were present during the assault.

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Former Caribou Fire Chief Indicted on Sex Charges

by The Associated Press – May 15th 2012 01:17pm

Caribou - The former chief of the Caribou Fire and Ambulance Department has been indicted on several sex charges.
Aroostook County District Attorney Todd Collins said Monday he cannot divulge much information about the charges against 67-year-old Roy Woods, but said there are two alleged victims.
Woods was indicted last week on three counts of unlawful sexual contact, one count of unlawful sexual touching and three counts of assault. He was not arrested and an arraignment has been scheduled for July.
The Bangor Daily News reports the alleged crimes reportedly all occurred in Caribou.
Woods resigned in January after 44 years with the Caribou Fire and Ambulance Department, including 21 years as chief. In his resignation latter, he cited medical reasons for stepping down. He could not be reached for comment.

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May 13, 2012

Backward on Domestic Violence

In an all-too-rare show of bipartisanship, 15 Senate Republicans joined with the Democratic majority last month to reauthorize the Violence Against Women Act, the landmark 1994 law that is key to efforts against domestic violence, sexual assault and stalking.       

Unfortunately, the lopsided 68-to-31 Senate vote halted G.O.P. opponents only temporarily. The House Judiciary Committee last week approved its version of the reauthorization bill, which not only omits improvements the Senate bill made to the law but also removes existing protections for immigrant women, putting them at greater risk of domestic and sexual abuse.       

The Senate’s measure ensures that victims are not denied services because they are gay or transgender. It also strives to ensure that domestic violence crimes committed by non-Indian men in tribal communities are prosecuted. The Senate bill also would modestly expand the availability of special U-visas for undocumented immigrants who are victims of domestic violence. That move was supported by law enforcement to encourage victims to come forward and testify against their abusers.       

The regressive House alternative removes these and other improvements, including new protections for students on college campuses. The House measure would eliminate a confidentiality requirement in current law that protects the identity of immigrant women who file domestic violence complaints against a spouse who is a citizen or legal resident and allows the women to apply for legal status on their own.       

House Republicans claim there is a big fraud problem in this area, but there is no hard evidence of that. And their plan to end the centralized handling of these issues by a Vermont-based office would undermine the government’s ability to detect untruthful stories.       

House members on both sides of the aisle who are serious about combating domestic violence must work to defeat this atrocious bill. If that fails, the Senate will need to insist on fixing it during the reconciliation process.       

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The New York Times May 11, 2012

Vatican Inquiry Reflects Wider Focus on Legion of Christ

By

VATICAN CITY — The Legionaries of Christ, a powerful but troubled worldwide religious order whose founder became enmeshed in a sex scandal years ago, said Friday that the Vatican was investigating seven Legion priests over allegations of sexual abuse of minors.       

The investigation cast a new shadow upon an order already struggling to move beyond revelations that its charismatic founder, the Rev. Marcial Maciel Degollado, had fathered several children and molested under-age seminarians.       

On Friday, the order said that after looking into “some allegations of gravely immoral acts and more serious offenses” committed by some Legionaries, internal preliminary investigations “concluded that seven had a semblance of truth.” Those cases were forwarded to the Congregation for the Doctrine of the Faith, the Vatican office that handles investigations of sexual abuse, the Legionaries said in a statement.       

The Vatican confirmed that the Congregation was investigating “cases of abuse” carried out by Legionaries but did not address the allegations. The inquiry was first reported by The Associated Press.       

Officials at the order followed the existing canonical procedures and brought these cases, “which for the most part date back decades,” to the attention of Vatican authorities, the Rev. Federico Lombardi, the Vatican spokesman, said in a statement.       

With nearly 900 priests and 70,000 lay members worldwide, the order was founded by Father Maciel in Mexico in 1941. Over the decades, the charismatic leader, who was a prodigious fund-raiser, built it up into a wealthy and politically influential group, and Pope John Paul II singled out Father Maciel as the model for dynamic priesthood.       

But that legacy crumbled when revelations emerged that Father Maciel had fathered several children, abused seminarians and misappropriated funds. In 2006, Pope Benedict XVI removed Father Maciel from priestly duties and restricted him to a life of prayer and penance. He died two years later.       

In 2010, the pope decided against dissolving the order and instead appointed his own delegate to oversee it and make reforms. The Vatican said at the time that the majority of Legionaries had been unaware of Father Maciel’s double life, “a life devoid of scruple and of genuine religious sentiment.”       

But many critics contend that the order’s leaders must have known of the wrongdoings of Father Maciel, who was born in Mexico and began his religious empire there. A request for an investigation brought to the Congregation for the Doctrine of the Faith in 1998 was quashed a year later by the current pope, who was then Cardinal Joseph Ratzinger and head of the Congregation. He reopened the inquiry in 2004.       

The Legionaries said Friday that the order examined all accusations — or well-founded suspicions — it received involving its members, even as it reached out to victims and sought to protect the rights of those involved. It also said that in some cases the police had carried out preliminary investigations.       

Of the seven cases referred to the Congregation at the Vatican, all but one involved sexual abuse dating back decades. One case referred to more recent abuse, the Legionaries said.       

The cases of two other priests accused of other crimes had also been referred to the Congregation.       

The Legionaries also said that civil or canonical investigations had exonerated an unspecified number of priests accused of abuse, but did not elaborate.       

In all cases, the priests accused of wrongdoing have been restricted in their ministries for the duration of the investigation, though this did not constitute an admission of guilt. “The protection of children and of communities is of the utmost importance for the Legion,” the statement said.       

In Mexico, people who said they had been victimized by the order have sought to keep up pressure on the church. During the pope’s visit to Mexico in March, the victims demanded a meeting with the pontiff, and a book was released detailing multiple cases of abuse by Father Maciel.       

“As with everything in the Vatican, it comes many years too late,” Roberto Blancarte, a professor and expert on the Mexican Catholic Church at Colegio de México, said of the latest inquiry.       

Karla Zabludovsky contributed reporting from Mexico City.

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Resolve Conflict Quickly

Parents can help their children by cooperating with each other and by quickly resolving their conflict.  Children whose parents are involved in ongoing conflict over parenting time, child support, or other issues may experience anger, anxiety, depression, or developmental delays.  Parents may resolve conflict in a variety of ways, including consulting family members, religious leaders, mediators, the support enforcement agency, attorneys, or others.  Parents may also wish to seek help for their children by consulting a child psychologist or by seeking services from a local social service agency.  The court system maintains lists of local parent education programs and other services for divorcing, separating, and living apart families on its website.

 Excerpt from A Guide to Making Child-Focused Parenting Time Decisions Prepared by the Court Services Advisory Committee of the Maine District Court

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Rape and abuse of child

Section 23. Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term in a jail or house of correction. A prosecution commenced under this section shall neither be continued without a finding nor placed on file. 

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Sex Offender? No thanks, I’ll take prison

BDN – WINDHAM, Maine — Nathaniel Sargent could have been a free man in less than a year. But his short stint behind bars would have come with a price he considered too high: 10 years of public shame on the state’s online sex offender registry.

Rather than bear the burden that comes with that label, Sargent accepted a four-year prison sentence on a more serious charge.

He’d do it again.

Sargent has accepted many of the ways people might label him. He’s an addict since birth, by his own calculation. He’s a young man who admits he lived for a time with no real conscience. Now, he’s prisoner No. 69366 at the Maine Correctional Center in Windham.

But, in his mind, Sargent is not a sex offender, a label that has become synonymous with monsters and predators like a modern day branding mark.

“I have children myself. If anyone touched them … you know what I mean?” the 22-year-old said recently from the prison, his home for the last several weeks.

It was only by some careful legal maneuvering that Sargent, born and raised in Hancock County, ended up in Windham to serve a four-year sentence for aggravated assault. A misdemeanor charge of sexual abuse of a minor was what worried Sargent more than the threat of a lengthy jail sentence.

Sargent’s attorney, Jeffrey Toothaker, and Hancock County prosecutor Mary Kellett agreed to a plea deal in which the state would drop the sex charge, and the eventual registry requirement, if he pleaded guilty to a felony assault charge.

“I would have been in the same category with pedophiles and rapists,” Sargent said. “That’s not right.”

The young man’s case is emblematic of a broader problem with Maine’s sex offender laws, a problem that has not been solved in the five years since a Canadian man shot and killed two Maine men whose names he found on the state’s online sex offender registry: All offenders are painted with the same brush when it comes to punishment.

The Maine Supreme Judicial Court has even expressed concerns about the state’s registry, including its retroactive application to older crimes. Some of those concerns have yet to be fully addressed.

Sen. Bill Diamond, D-Windham, has spent as much time as any lawmaker discussing and crafting policies on convicted sex offenders and said there are inherent flaws.

“Year in and year out, [the public] wants us to be tough on sex offenders,” he said. “And as lawmakers, we don’t want to be seen as weak. But the more you learn, the more you realize that a knee-jerk reaction doesn’t help.”

So as the state continues to debate changes to sex offender laws — some federally mandated — an uncomfortable question emerges: Are we any safer?

Statistics, in this case, don’t shed a bright light on that question, as comprehensive numbers on sex offenses are difficult to find. The state doesn’t track all sex offenses, but from 1998 to 2009, the number of rapes — not including statutory rapes —  jumped from 229 to 374. Police and sexual assault awareness advocates agree, though, that only a small percentage of rapes are actually reported.

Vigilante justice

Sargent was still a hell-raising teenager in 2006 when Maine’s sex offender registry was thrust into the spotlight in an ugly and tragic way.

Stephen Marshall, a troubled 20-year-old from Nova Scotia, spent weeks researching sex offenders in Maine with the help of the state’s online registry.

On Easter Morning, April 16, 2006, Marshall took the lives of two registered offenders in cold-blooded fashion.

William Elliott, 24, of Corinth and Joseph Gray, 57, of Milo had paid for their crimes with jail sentences and probation, but for Marshall, it wasn’t enough.

The killer knew only the faces, charges and addresses of his victims. He didn’t know that Gray was a loving husband whose wife had forgiven his past sins. He didn’t know that Elliott’s victim was at the time just one year younger than Maine’s age of consent and later became his girlfriend.

Any true motive for Marshall’s crimes died with him. About 15 hours after his killing spree, inside a Greyhound bus on a Massachusetts highway, he put a .45 caliber handgun to his head and pulled the trigger.

For legislators, the killings of Gray and Elliott forced them to take a harder look at the registry, but initial discussions did not result in significant changes.

Five years later, not much has changed, despite mandates imposed by federal law and the prodding of the state’s highest court.

“We still need something in the registry that distinguishes offenders like William Elliott from true pedophiles,” Diamond said. “Those high-risk people, they need to be monitored and the community has the right to know where they are.

“For some others we need to ask: How much do you beat on these people?”

That’s precisely why Nathaniel Sargent went to such great lengths to avoid having to register as a sex offender. Yes, he engaged in a sex act with a 14-year-old girl when he was 21. Yes, he exhibited bad judgment. But the sex was consensual, he said. And after three weeks dating the girl, Sargent realized he was in a lose-lose situation.

“I was like, I can’t do this,” he said. “By then it was too late.”

He moved on. The girl’s parents did not. They filed charges.

Sargent said he was ready to go to trial and make his case, but when his attorney brokered the deal, he accepted.

Toothaker, an Ellsworth defense attorney who often represents sex offenders, said Sargent is simply not in that category. The lawyer said he would not even have worried about negotiating Sargent’s unique deal if the registry “had any brains.”

“It’s one conviction fits all,” Toothaker said. “We really should be grading them and deciding who poses the biggest threat.”

The hurdle is that the discussion about what to do with sex offenders and how to distribute information about them continues to be dominated by emotion rather than common sense or credible statistics. Raw emotion is a valid response to sex offenders, Diamond said, but it shouldn’t skew public policy discussions.

Information premium

There is no murder registry. No arson registry. No drug dealer registry. No drunken driver registry, although Rep. Richard Cebra, R-Naples, has introduced a bill this legislative session  to change that.

So, why are sex offenders subjected to such scrutiny? The real concern among most appears to be “How can we make sure our children are safe?” rather than “I need to know where these people are.”

Maine’s sex offender registry has been one of the most visited websites in the state for years.

Over the last three months, the number of offender records retrieved averaged about 14,600 per day, or 102,200 per week, according to Todd Tolhurst, director of development for Maine.gov.

The federal Adam Walsh Child Protection and Safety Act of 2006, which mandates state offender registries, was created under the promise of safety. If people have access to information, they can take precautions.

The paradox, however, is that society spends its time worried about the small percentage of offenders who truly are violent predators, but overlooks the massive number of offenders who know or are related to their victims.

Stan Moody, a former legislator and prison chaplain, wrote an OpEd column late last month titled “Maine’s sex offender conundrum.” In it, Moody talks about the short-sightedness of the registry.

“We create something of a lifelong leper colony for people who have been caught acting out fantasies prompted by our sex-crazed culture,” he wrote.

But while efforts are made to track offenders after they have committed crimes, there is no concerted effort to counsel sex offenders or to identify the root causes of sex crimes.

Additionally, there is no mechanism to determine risk of re-offense, according to Barbara Schwartz, director of the Department of Corrections Sex Offender Treatment program. Several tools exist to measure risk, but lawmakers are ever fearful of the cost.

Meanwhile, offenders remain easy targets.

In addition to the deaths of Elliott and Gray, numerous sex offenders have reported various levels of assault and harassment over the years. Sargent, who has the look of someone who’s seen the inside of a weight room, probably could fight off any attempted assaults. Others cannot.

Most psychologists agree that harassment of offenders often leads to social isolation and depression, which could impede rehabilitation and cause some to re-offend. In that sense, registry requirements may harm, not protect, public safety.

Still, the registry grows.

Donna Cote, who supervises Maine’s online Sex Offender Registry, said there were about 600 names to monitor when she started in 2000. Late last month, there were nearly 3,000. A decade ago, only a few crimes required sex offender registration. Now, that list includes close to 20 categories of crimes.

Despite exponential growth, the current number of offenders actually is smaller than it was about a year ago.

In 2005, the state passed a law that required all offenders convicted of crimes from 1982 to 1992 to register, which effectively doubled the number of registrants. Courts have since ruled that requirement constitutes retroactive punishment and is unconstitutional. In response, the Legislature amended the law.

The amendment, passed in late 2009, allows registrants convicted of crimes between 1982 and 1999 to petition to come off the registry if they met certain criteria. So far, Cote said, about 600 have been successful.

The change, the biggest to the registry in five years, is a small victory for one-time offenders looking to start their lives anew, but it didn’t come easily. A year before its eventual passage, Gov. John Baldacci vetoed a bill passed by the Legislature that would have allowed the change to come sooner.

Some legislators have said it never should have come to that.

Former state Rep. Pat Blanchette of Bangor said she is haunted by her vote to create a registry that does not differentiate among offenses.

“Part of the action I took in the 122nd [Legislature] in voting for this rollback has caused a young man, whose mother is sitting in this room, to be dead,” Blanchette said in 2006 during a legislative hearing in Augusta, referring to William Elliott. “That’s a hell of a feeling I have to live with, day in and day out.”

Attention diverted

The Adam Walsh Act, passed in 2006, creates a tiered system that categorizes offenders based on the severity of their crimes and the risk they pose to society.

Only a handful of states have come into compliance with the Adam Walsh Act to date, and Maine is not one of them.

The federal law mandates that states make sex offender information available to the public, but the amount of information varies. Massachusetts and Vermont list only offenders identified as high risk. New Hampshire lists people convicted of offenses against children and indicates the general age of victims.

If Maine implemented a similar system, people like Nathaniel Sargent wouldn’t have to worry even if they were convicted of lesser sex crimes.

Currently, Maine’s online registry includes all offenders and offers little insight into what a person did to get listed. Law enforcement agencies across the state have access to much more information but the Law Court has heard cases arguing whether the public needs access to the same information.

Diamond said Maine would do well to create an online registry similar to what Massachusetts has done. Under that system, the names and addresses of the most dangerous sex offenders would be made public on the state’s registry. A second ranking tier would make available the names of medium-risk sex offenders to the police and to the public upon request. The names of the lowest-risk offenders would exist on a “silent” registry available only to the police.

Lawmakers, however, have targeted other bills aimed at sex offenders, sometimes at the risk of exacerbating the real inequities.

Just last week, state senators rejected a Republican-led bill that would have created stricter residency restrictions for sex offenders. The House followed suit earlier this week.

Sen. Debra Plowman, R-Hampden, supported the stricter restrictions.

“We have not yet as a society found enough deterrents to make this stop happening,” she said.

Most experts agree that residency restrictions are little more than feel-good laws that do nothing to protect the public. The city of Bangor came to that conclusion last winter when it rejected a similar proposal brought by a concerned citizen.

“Saying where they can live, that’s dangerous,” Diamond said. “Eighty percent are known to victims. What are we doing about that?”

So why is the Legislature spending so much time on residency restrictions but cannot create a true tiered system? Because there are few public supporters of sex offender rights. Harassment? Public shaming? That’s what you get for committing horrendous crimes, they say.

Few legislators want to publicly disagree.

Back at the Maine Correctional Center in Windham, Nathaniel Sargent talks about how he plans to pick up the pieces of his life. He talks about reconnecting with his two young children, who he knows have suffered without having their father around.

He said he’ll likely return to Hancock County when he’s released but admitted there are bad memories there.

If there is any silver lining to Sargent’s prison time it’s this: When he walks away for good and returns home to start his life over, he will not have to call a police officer every 90 days to update his address, as is mandated by the registry requirements. His picture and his address and his place of work will not be immortalized on a website for anyone to see.

Best of all for Sargent, he won’t have to carry the weight of that burdensome two-word label.


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It’s tough to think rationally after an accident, especially one that involves injuries or extensive car damage; However, the more you stay focused and act wisely, the better off you’ll be when trying to prove a claim.

Provide Accident Details

When dealing with auto insurance providers, give a detailed account of the accident. That includes accident-related matters like the:

  • Time
  • Date
  • Weather conditions
  • Roadway conditions
  • Witness contacts

Provide as complete a recollection of the details of the accident as you can, including the seconds leading up to the accident. It’s also smart to submit a diagram of how the accident occurred.

While at the accident scene, if possible, snap some pictures with a regular or cell phone camera of the scene (including any skid marks), as well as all cars involved. Many insurance experts recommend storing a disposable camera in your glove compartment just for these moments; that’s especially true with the rise of fraudulent accident claims.

If the other driver was breaking the law or distracted, be sure to include that in your report. Of course, it’s best to have evidence to support this, such as the testimony of eyewitnesses. Witnesses can easily tip the balance in your favor.

Remember, in cases when it’s your word against the other driver, the side that presents the most compelling argument usually wins. And, a detailed report provides a solid foundation for a strong argument.

Provide a Police Report

Many times, though, you won’t have the luxury of witnesses to reinforce your account of the accident. That’s when a police report can be handy. But, review the report for accuracy before submitting it to an insurance company. If you feel the report contains some errors or omissions, contact the police officer who wrote it, and respectfully express your concerns.

And, yes, you should always call the police after an accident and have them file a report―even if it’s a minor accident.

Split Liability

Sometimes in accidents when there’s clear-cut evidence and no liability on your part, the insurer representing the other driver may assert you were partially to blame for the accident. If successful, this will reduce the amount of your insurance award, and save the carrier some money.

Keep in mind that many accidents do involve split liability; however, if you’re confident the accident was completely caused by the other driver, stand your ground. Again, the more evidence you have in your favor, the tougher you’ll make it for the insurer to dispute your assertion.

Hire a Liability Lawyer

What happens if you have rock-solid evidence but the insurer refuses to pay on a claim? Or, maybe you don’t have a lot to back up your story, but you know you weren’t at fault for the accident?

In these cases, consider consulting with an attorney, particularly one experienced with car accidents and dealing with auto insurance companies.

Tips were provided by dmv.org

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By Glen Adams: Associated Press, Published March 5, 2012

Maine bill seeks longer statute in sex crimes

AUGUSTA, Maine — Victims of sex crimes committed by a teacher, psychologist or other person in whom victims had placed their trust often need more time to come forward with criminal charges than the law now allows, supporters of a bill to extend the statute of limitations from six to 10 years told lawmakers Monday.

“To put a six-year limitation on that and say after that six years, oops, sorry, you can’t bring charges against that individual … I think we need to give some serious consideration to lengthening this time,” Rep. Anne Haskell told the Criminal Justice and Public Safety Committee.

The Portland Democrat received support from psychologists, social workers, sexual assault prevention activists and a woman who claims she was a victim of a therapist’s abuse. But others warned against tinkering with the statute of limitations, which protects against errors in the criminal justice system.

Haskell’s bill seeks to extend the statute of limitations in criminal prosecutions for crimes involving unlawful sexual touching; unlawful sexual contact; sexual abuse of a minor; and rape or gross sexual assault if the actor has authority over the victim. Examples of a person of authority are therapists, teachers, social workers and coaches. Some committee members expressed concern about the inclusion of employers as well.

Extending the statute in criminal cases is needed because it’s not unusual for victims of illegal sexual contact to bring charges against a therapist or other trusted person of authority for 10 years after the offense, said Sheila Comerford of the Maine Psychological Association, which supports the bill.

“The sexual abuse might not be revealed until much later to another therapist,” Comerford said.

Under present law, the Maine Board of Examiners of Psychologists can strip psychologists who commit such offenses of their license to practice in Maine.

“While this action in many cases is adequate, the board is not a court of law and does not address criminal activity,” said Comerford.

But the chair of the Criminal Law Advisory Commission, which advises the Legislature on criminal law matters, opposed the bill.

The commission’s John Pelletier said statutes of limitation serve a function to protect against errors in the criminal justice system.

“As time passes and the quality of the evidence diminishes, you have a greater chance of errors,” Pelletier said. “If you are the accused long after the offense, it’s hard to mount a defense.”

Haskell asked the committee to cut out a separate portion of the bill that would have removed Maine’s six-year statute in civil cases and leave no time limit. That portion may be taken up next year by another committee.

 “Extended statutes of limitation are very problematic.  Time erases memories, evidence is lost and witnesses die.  Furthermore, people under the psychological care of therapists “with an agenda” are easily influenced resulting in false or less than accurate versions of events,” comments Attorney Stephen Smith.

 

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By Nok-Noi Ricker, BDN Staff, Posted April 11, 2012, at 12:30 p.m.
Last modified April 11, 2012, at 3:33 p.m.

BANGOR, Maine — The former Orono woman convicted last month of aggravated assault for breaking the leg of her 9-month-old son was sentenced Wednesday to three years behind bars with all but nine months suspended.

Lynn Crossman, 24, of Brewer admitted to police that she hit her son on the leg for crying while she was arguing with her parents on the phone in November 2010.

Assistant District Attorney Alice Clifford asked Superior Court Justice John Nivison to impose a three-year sentence on Crossman with all but nine to 12 months suspended and two years of probation when she is released, as well as special conditions of release that require a psychological evaluation, counseling and no unsupervised contact with minors.

Defense attorney Stephen Smith, saying his client has lived a tough life but has worked for the same fast food restaurant for the last four years, asked the judge for a lighter sentence.

“Three years with all but four months [suspended] is appropriate for the crime,” Smith said.

Nivison said Crossman’s work record, the lack of any prior criminal record, and her age were mitigating factors in the case, but he said an aggravating factor was that Crossman “hasn’t taken responsibility for the conduct.”

“Any time a vulnerable member of society is abused, it is a serious offense,” Nivison said.

He imposed the sentence and Crossman was taken into custody.

During her two-day trial, Crossman denied that she told former Orono police Detective Andrew Whitehouse and hospital staff that she had hit her son while arguing with her parents on the phone.

Crossman said she remembered speaking to the detective — who told the jury the day before that she admitted to assaulting her child — but not the specific questions he asked.

Crossman testified she hit her infant son after he kicked his brother while lying on a bed on the day before he was taken to the hospital for the broken leg.

The baby was taken to the emergency room at Eastern Maine Medical Center in Bangor on Nov. 6, 2010, with a broken left femur and hand-print bruising on his back that is a “classic injury” in child abuse cases, two doctors testified.

Crossman’s two children, the baby, who is now just over 2 years of age, and his older brother, who is about 3½, were taken by the Department of Health and Human Services and have been adopted, Eric Winslow, the children’s father, said last month.

Winslow, who was outside the courtroom during Crossman’s sentencing, said he was not surprised by the sentence the judge imposed on his girlfriend.

After court, Clifford stood on the front steps of the Penobscot Judicial Center and said “the state is satisfied” with the sentence. With two years of probation, “if there are any sort of slip-ups, she’ll have that threat of serving the rest of her sentence” hanging over her head, Clifford said of Crossman.

Crossman’s defense attorney said he is appealing the conviction.

“The paperwork will be filed today,” Smith said.

Woman who broke 9 month old sons leg gets nine months in jail

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By Lisa Daniel
American Forces Press Service

Panetta, Dempsey announce initiatives to stop sexual assault

WASHINGTON (April 18, 2012) — The Pentagon’s top civilian and military leaders took their campaign to stop sexual assault in the military to Capitol Hill, Monday, where they announced new initiatives to combat the problem.
Defense Secretary Leon E. Panetta and Army Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff, spoke with reporters after meeting with three members of the House of Representatives who are working on the issue.
“General Dempsey and I consider this a serious problem that needs to be addressed,” Panetta said. “It violates everything the U.S. military stands for.”
Panetta and Dempsey met with Rep. Loretta Sanchez of California, Rep. Mike Turner of Ohio, and Rep. Niki Tsongas of Massachusetts. Sanchez chairs the Caucus on Women in the Military, while Turner and Tsongas co-chair the Military Sexual Assault Prevention Caucus.
“Service members and their families must feel secure enough to report this crime without fear of retribution, and commanders must hold offenders appropriately accountable,” the secretary said.
One Defense Department initiative will elevate the level of investigation for the most serious sexual assault allegations. Local unit commanders will be required to report allegations of rape, forcible sodomy and sexual assault, as well as attempts of those offenses, to a special court-martial convening authority, usually a colonel or Navy captain.
That change will ensure that sexual assault cases receive high-level attention and that cases remain in the chain of command, Panetta said.
The initiatives also include:
– Establishing with congressional approval a “special victims’ unit” within each service composed of specially trained experts in evidence collection, interviewing and working with victims;
– Requiring that sexual assault policies be explained to all service members within 14 days of their entry into active duty;
– Allowing National Guard and Reserve personnel who have been sexually assaulted to remain on active duty status to obtain the treatment and support afforded to active-duty members;
– Requiring a record of the outcome of disciplinary and administrative proceedings related to sexual assault and retaining the records centrally;
– Requiring commanders to conduct annual organizational climate assessments to measure whether they are meeting the department’s goal of a culture of professionalism and zero tolerance of sexual assault;
– Enhancing training programs for sexual assault prevention, including training for new military commanders in handling sexual assault matters; and
– Mandating wider public dissemination of available sexual assault resources, such as DOD’s “Safe Helpline,” a 24/7 helpline via Web, phone or text message operated by the nonprofit Rape, Abuse, and Incest National Network.
The helpline, which assisted more than 770 people between April and September last year, is available at 877-995-5247 or http://www.safehelpline.org.
The initiatives build on others announced in the past year that include appointing a two-star general to head the department’s Sexual Assault Prevention and Response Office, and expanding legal assistance to military spouses and adult military dependents.
Panetta called the changes “a strong package,” but he added that “there is no silver bullet.” All military leaders at every level must understand that they have a responsibility to stop sexual assault, he said.
Dempsey said he agrees with the changes because the crime of sexual assault erodes the trust associated with being in the U.S. military.
“We must send the signal that this is not a problem we are going to ignore,” Panetta said. 

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  • Parents can keep their children out of the middle of adult issues by not using the children as messengers.  Sometimes the message is as something as innocent as a reminder that the child must take her medication before bedtime. Other times, the message may be that the child support payment will be late. Unfortunately, we all know what happens to the bearer of bad news. If the message was difficult for one parent to say directly to the other parent, just imagine how difficult it will be for the child to relay that message. Instead of using their children as messengers, parents should either deal directly with each other or through a mutually agreed upon adult.

 

  • Parents can keep their children out of the middle of adult issues by not asking them to report about what is going on in the life of the other parent. Any time children are asked to divide their loyalty, or to betray one parent to another, the children feel guilty or as if they are being asked to stop loving one parent.  It is certainly appropriate for parents to show interest in the lives of their children by asking “how was your weekend visit?” But, if the interest is not in the child or in how the child feels, the child will pick up on this and may eventually feel angry and used.

 

  • Parents can keep their children out of the middle of adult issues by not attacking or putting down the other parent. Some parents find themselves so angry with the other parent that they vent their anger in front of their children. Other parents may say things to try to make themselves look and the other parent look bad. Children identify with both parents. If one parent puts down the other parent, in the eyes of the child it is as if that parent is also putting down the child.

Excerpt from A Guide to Making Child-Focused Parenting Time Decisions Prepared by the Court Services Advisory Committee of the Maine District Court

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There have been two recent developments which potentially relieve an individual from a duty to register under Maine’s Sex Offender Registration Law, 34-A M.R.S.A § 11201 et seq. “SORNA”).  On September 11, 2009, new legislation went into effect which allows certain individuals to apply to be deregistered.  On December 22, 2009 Maine’s Law Court issued an opinion in the case of State v. Letalien, 2009 ME 130 which expanded the category of those not required to register. I. LEGISLATIVE CHANGES On September 11, 2009 the following legislation went into effect in response to legislative concerns about the ex post facto nature of the SORNA scheme: 1. Exception.  Notwithstanding section 11202, a person sentenced on or after January 1, 1982 and prior to June 30, 1992 is not required to register under this chapter if that person submits to the bureau, in a form to be determined by the bureau, documentation to establish the following:  A. The person was finally discharged from the correctional system prior to September 1, 1998;  B. The person’s convictions do not include more than one Class A sex offense or sexually violent offense or more than one conviction in another jurisdiction for an offense that contains the essential elements of a Class A sex offense or sexually violent offense, whether or not the convictions occurred on the same date;  C. At the time of the offense, the person had not been previously sentenced in this State as an adult or as a juvenile sentenced as an adult for a sex offense or a sexually violent offense;  D. At the time of the offense, the person had not been previously sentenced in another jurisdiction as an adult or as a juvenile sentenced as an adult for an offense that contains the essential elements of a sex offense or a sexually violent offense;  E. Subsequent to the commission of the offense, the person has not been convicted of a crime under Title 17 or Title 17-A in this State that is punishable by imprisonment for a term of one year or more; and  F. Subsequent to the commission of the offense, the person has not been convicted under the laws of any other jurisdiction of a crime that is punishable by a term of imprisonment exceeding one year. This paragraph does not include a crime under the laws of another jurisdiction that is classified by the laws of that jurisdiction as a misdemeanor and is punishable by a term of imprisonment of 2 years or less.  2. Duty continues.  A person’s duty to register continues until the bureau determines that the documentation meets the requirements of this section and any rules adopted by the bureau.  3. Costs.  A person who submits documentation under this section is responsible for the costs of any criminal history record checks required.  4. Restoration of registration status.  The registration obligation of a person sentenced on or after January 1, 1982 and prior to June 30, 1992 that is discharged pursuant to this section is restored by any subsequent conviction for a crime described in subsection 1, paragraph E or F.  34-A M.R.S.A. § 11202-A One key difference between the relief from the duty to register in 34-A M.R.S.A. § 11202-A and the Law Court’s decision in Letalien, described below, is that the registrant must take affirmative actions to deregister. II. State v. Letalien On December 22, 2009 the Law Court issued an opinion in the matter of State v. Letalien, 2009 ME 130 which had significant impact in determining who is subject to registration.  The Court specifically acknowledged the extensive legislative and judicial history of sex offense registration in Maine.  The Court spent considerable time analyzing the ex post facto arguments against various forms of SORNA statutes which had been previously upheld in  various U.S. Supreme Court and Maine Law Court decisions.  The Law Court ultimately concluded in Letalien that Maine’s SORNA statute was unconstitutional as applied to certain defendants. The Court ultimately concluded that the SORNA statute was at least in part unconstitutional as an ex post facto law as applied to certain offenders: To summarize, we conclude: (1) For ex post facto purposes, SORNA of 1999 is properly evaluated on its face, and not in relation to how it has been applied against any individuals. Our suggestion to the contrary in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552, is overruled. (2) The prohibition on ex post facto laws in the Maine Constitution, Me. Const. art. I, § 11, is coextensive with the corresponding prohibition in the United States Constitution, U.S. Const. art. I, § 10, cl. 1. (3) The retroactive application of the lifetime registration requirement and quarterly in-person verification procedures of SORNA of 1999 to offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, without, at a minimum, affording those offenders any opportunity to ever be relieved of the duty as was permitted under those laws, is, by the clearest proof, punitive, and violates the Maine and United States Constitutions’ prohibitions against ex post facto laws. [¶64] Because the Legislature, in its upcoming session, may wish to consider revisions to SORNA of 1999 to address the registration of offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, we postpone the effective date of our mandate to March 31, 2010. See M.R. App. P. 14(c). State v. Letalien, 2009 ME 130.

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I am analyzing whether a client in one of my current cases “knowingly” downloaded a certain number of images for sentencing purposes.  In researching the question I came accross this useful framework used by the 3d Circuit.

More difficult is the question whether Miller received the images knowingly. Other courts, confronting this question, have deemed at least four factors relevant to this inquiry: (1) whether images were found on the defendant’s computer, see United States v. Irving, 452 F.3d 110, 122 (2d Cir.2006); (2) the number of images of child pornography that were found, see id. (finding defendant’s possession of 76 images relevant); (3) whether the content of the images “was evident from their file names,” United States v. Payne, 341 F.3d 393, 403 (5th Cir.2003) (finding “number of images in [defendant's] possession, taken together with the suggestive titles of the photographs” established knowing receipt); and (4) defendant’s knowledge of and ability to access the storage area for the images, see Romm, 455 F.3d at 997-1001 (addressing defendant’s ability to access cache files in hidden subdirectory); cf. Kuchinski, 469 F.3d at 861-63 (same). We summarize the evidence bearing on these four factors:

(1) The government adduced no direct, forensic evidence that the images were downloaded onto Miller’s computer. Agent Kyle testified that it was his “educated guess” that Miller downloaded the images onto the zip disk via the internet, perhaps by trading them in a chat room or by searching for them on a website. A. 195. However, Agent Kyle went on to testify, the government had no proof from Miller’s hard drive that supported this hypothesis. Agent Price, on cross-examination, acknowledged that, despite the FBI’s use of forensic software designed to recover deleted material from hard drives, the FBI had discovered no evidence that Miller’s computer had been used to upload or download child pornography.(fn12) Agent Price further testified that there was no evidence that Miller ever used search engines to locate child pornography websites, or that such websites had ever been visited from Miller’s computer (the FBI’s investigation did reveal, however, that two websites containing adult pornography had been visited from the computer). Agent Price also acknowledged that there was no evidence that Miller ever participated in email exchanges or online chat rooms that pertained to child pornography. Finally, Price acknowledged that there was no evidence that Miller used a “wiping” or “eliminator” program to clear his hard drive of evidence that files had been downloaded. A. 296-97.

(2) The second factor, the number of images of child pornography found, likewise does not weigh in the government’s favor in light of the overwhelming number of adult images that were found. The government presented evidence pertaining to only twenty of the 1200-1400 images found on the zip disk, and the District Court subsequently determined, in the process of sentencing Miller, that only eleven of these images constituted child pornography. Miller contended that he was unaware of the existence of these images and, significantly, Miller volunteered the password of the zip disk to Agent Kyle, cautioning him that the disk contained pornography. Miller also presented evidence that 586 of the images were copied onto the disk at periodic intervals over a seven-hour period, suggesting that they were not individually viewed when they were being copied. Agent Price’s rebuttal to this suggestion was that Miller may have first downloaded the images onto his hard drive, or that of another computer, before copying them onto the disk. This possibility puts sharp light, however, on the facts that no forensic evidence of child pornography was found on Miller’s hard drive, and that there was no evidence adduced that another computer may have been used to download the images.

(3) Nor does the third factor, whether the content of the images “was evident from their file names,” weigh in the government’s favor. Several of the images were embedded with the names of websites that possibly advertised child pornography, but – according to Agent Kyle’s and Smith’s testimony – this does not suggest that the images were obtained from those websites. Moreover, these website names would not be seen unless a person opened and viewed the files. While there is strong evidence that Miller eventually came to view some of the images of child pornography that were on the disk,(fn13) and thus to knowingly possess the images, this evidence does not lend much support to the inference that Miller knowingly downloaded the images.

(4) Turning to the fourth factor, whether the defendant had knowledge of and an ability to access the storage space for the images, it is clear that Miller had access to the images on the zip disk. Indeed, Miller admitted to storing image files, including adult pornography, on the disk. In this respect, the facts of this case are more akin to the facts of Romm, 455 F.3d at 997-1001, where the court found that the defendant’s knowledge that he could access cache files supported the inference that he knowingly possessed the files, than to the facts of Kuchinski, 469 F.3d 853, 861-63, where the court rejected this inference because the defendant was unaware of, “and concomitantly lack[ed] access to and control over the existence of the files.” In contrast to the facts before us, however, the defendant in Romm had stored images of child pornography on the hard drive of his computer, albeit in a subdirectory that was difficult for a typical computer user to access. The Romm court acknowledged that “[n]o doubt, images could be saved to the cache when a defendant accidentally views the images, as through the occurrence of a `pop-up,’ for instance.” 455 F.3d at 1000. However, the court concluded that this “[wa]s not the case” in Romm’s circumstance: “By his own admission . . ., Romm repeatedly sought out child pornography over the internet. When he found images he “liked,” he would “view them, save them to his computer, look at them for about five minutes [ ] and then delete them.” Id. By contrast, Miller has consistently denied that he knowingly viewed or had any interest in viewing child pornography.

Beyond the facts relevant to these four factors, however, the evidence presents a fifth factor that may support the jury’s determination: the number of occasions that the images were copied onto the zip disk. Smith testified that the images copied onto the zip disk on October 13, 2002, were likely transferred automatically. However, images of child pornography were also copied onto the disk on subsequent dates. Specifically, according to their dates created, the eleven images that the District Court determined to actually be child pornography were copied to the zip disk on October 13, October 29, December 17, and December 20, 2002. A reasonable juror might have concluded, from this evidence, that Miller copied the images on more than one occasion.

United States v. Miller, 527 F.3d 54 (3rd Cir. 2008)

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In all states there is an age below which someone cannot consent to sexual activity.  The age varies from state to state.  In Maine the age is 14 or 16 depending on the age of the older partner. In all states that I am aware of the fact that a sexual act may have been purely consensual in the plain meaning of the term is no defense.

The logic behind both the age of consent and the lack of defense of consensuality make perfect sense.  No one could reasonably posit that a 6 year old could consent to sex with a 60 year old.  That said, the age of consent becomes an arbitrary line in the sand that really has no relation to the reality of many relationships.  For example, I recently defended a case in which my simpleton 35 year old client had a relationship with his 15 year old neighbor who was clearly capable of consenting and in fact seemed to have initiated the relationship.  She seemed far more intellectually capable than my client.

It also makes sense not to have a defense that could result in a scenario where my hypothetical 60 year old client points to a few innocent statements by the 6 year old victim that they enjoyed the oral sex as evidence of consensuality (child victims will often confess to the investigator that they enjoyed the encounter).

ALL THAT SAID

I have increasingly been intrigued by the increasingly explicit and aggressive sex education classes that many school systems are pushing as a matter of policy.  A light survey of headlines on the controversies surrounding these programs suggests that schools (state factors) are increasingly condoning either implicitly or explicitly sex amongst the very young.  If I may flag my own politics for a moment, it appears that the feminist, pro-abortion, free condoms for all crowd has taken over the school system.  In my own home state, for example, one recent school system now provides birth control for middle schoolers.

It occurs to me that a fun defense to try would be to wait for the appropriate case-a 15 year old in the right school system who is having factually consensual sex with an older person. I would then argue that the state is estopped from relying on the age of consent statute because the victim had been taught by the state that she could consent to sex, that they provided birth control to her and that they taught that sexual decisions were within her own purview.  I would then argue that the state is estopped from raising an age of consent defense.

Just a thought and one I would welcome some feedback on.

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Child Porn & The Fourth Amendment

Via Sex Crimes and FourthAmendment.com two decisions concerning probable cause and searches for child porn.

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State of New Hampshire v. Jeremy Jennings

There is hope!  Its nice to see that the “you’re not in custody and you’re free to leave” line doesn’t always work with the court.  Unfortunately for the defense bar, the opinion is more on the order of upholding a trial court’s excercise of discretion than a new drawing of the line but we’ll take what we can get.

The court places significance on the idea that even though Mr. Jennings was told he could leave there was no indication on the record that he understood that concept.  Furthermore the interview took place in the police HQ as opposed to more comfortable surroundings and the police clearly indicated that they were interested in speaking with him about certain sexual allegations against him.

I noted this case previously here.  The link to the slip opinion is here.  Congratulations to James T. Brooks, assistant appellate defender of Concord, NH and the trial counsel who set the stage.

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Camera Bias in Videotaped Confessions

My issues with audio and videotaped confessions have usually been with respect to borderline retarded or ill-educated folks being led down the primrose path by a skilled interogator, I never considered “camera-perspective bias.”  This is an interesting study on videotaped confessions from Psychology and Crime News.

In more than 25 percent of wrongful convictions exonerated by DNA testing, innocent defendants made incriminating statements, delivered outright confessions or pled guilty, according to the Innocence Project. Police interrogation tactics – which include exaggerating the evidence against the suspect or implying the suspect could face an extreme sentence – can prompt a suspect to make a false confession, said Daniel Lassiter, an Ohio University professor of psychology.

In videotaped confessions, many law enforcement agencies focus the camera on only the suspect. Lassiter’s research shows that this practice creates what he calls a camera-perspective bias that leads trial participants to view the confessions as voluntary, regardless of how interrogators obtained them.

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First Appeal Issue

From Court TV:

A judge on Tuesday refused to suppress jailhouse statements from a man who allegedly expressed remorse for raping and murdering 9-year-old Jessica Lunsford in 2005. Circuit Court Judge Richard Howard halted jury selection Tuesday in John Couey’s capital murder trial to hold a hearing on whether to suppress the statements that the convicted sex offender allegedly made in 2006. After hearing testimony from two corrections officers and a defense psychologist, Howard ruled there was not a “shred of evidence” to support the assertion that Citrus County jail guards created an environment that was the “functional equivalent of an interrogation” for Couey. Defense lawyers argued that jail guards coerced Couey into making incriminating statements related to the girl’s death by isolating him from other inmates and threatening to withhold privileges from him, such as bathroom trips and water for his coffee.

The defense also argued that Couey was brain damaged and that this brain damage contributed to his statements to the guards.  Couey Trial Blog (no longer active) filled in some of the details

Assistant Public Defender Daniel Lewan argued the jury should not hear the incriminating statements Couey made while incarcerated because he had already invoked his right to an attorney and was not afforded his Miranda rights by guards. Lewan also argued isolation from other prisoners, incentives like coloring pencils and extra coffee and interest in Couey’s Christian beliefs were “tactics” by the guards to elicit a confession. “It is our argument this amounted to interrogation, or the factual equivalent,” Lewan said.    Lead prosecutor Ric Ridgway countered that Couey was “segregated from other prisoners for his own sake,” not total human contact. He cited several court decisions in an argument that Couey  “volunteered statements” that should be admissible in court.

ME:  I often have clients with mild mental retardation or mental health issues that make them particularly vulnerable to “good cop” approaches.  I have yet to get a confession thrown out on these grounds alone.  I wouldn’t say its a great appeal issue for Couey but given the way the publically available evidence is stacking up you can be sure the defense is reaching for anything.  Be assured no matter how hard the defense works, an ineffective assistance of counsel claim will be filed shortly after the appeal is rejected!

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Establish a Workable Means of Commnication: Parents can help their children by establishing a workable means of communicating with each other about their children. At first, some parents may find it difficult to separate their feelings about the relationship or the other parent from their need to give and receive information about the children. Parents can overcome this problem by communicating with each other about their children in a “business-like” manner. This may include agreeing about the time, place, and manner of their communication. It may also include establishing a list of topics and sticking to it. Parents who are unable to talk to each other because of ongoing conflict, hostility, or issues of domestic violence, may find it easier to communicate by putting the information in writing or by communicating through a mutually-agreed upon adult. Except in cases where there is an Order For Protection or other court order prohibiting contact, parents should keep each other or a mutually agreed-upon third person advised of their home and work addresses and telephone numbers. In cases where there is an Order for Protection or other court order prohibiting contact, the parent must follow the order or ask the court to modify the order to permit communication regarding the children.

Excerpt from A Guide to Making Child-Focused Parenting Time Decisions Prepared by the Court Services Advisory Committee of the Maine District Court

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A break down of the actions and steps taken for a personal injury case from the moment client enters office.

Time Frame:                           

Day 1 :                                           Activity

  1. Case comes into our office-support staff completes intake form.
  2. Contingent Fee Agreement explained and presented to client for review and execution.
  3. Authorization forms, including medical, employment, and others signed by client.
  4. Client given instruction sheets and information booklet.

1-2 Days after sign up:

  1. Request all medical records/bills to date.
  2. Request Traffic Accident Report.
  3. Request ambulance run sheet/bill.
  4. Send letters of representation to all known insurance companies (tortfeasor(s), client’s auto & health).

Weeks 2-3:

  1. Upon receipt of Traffic Accident Report draft memo to attorney handling decoding report.
  2. Send Notice of Claim Pursuant to 14 M.R.S.A & 1602 to bad driver(s) by certified mail with restricted delivery.
  3. Witnesses contacted and interviewed by telephone or in person if necessary.
  4. Decision to obtain expert considered
  5. Upon receipt of medical bills enter in damages tab.
  6. Send letters of protection to medical providers if necessary.

12 Weeks Plus:

  1. Determine client’s recovery status.
  2. Keep track of client’s progress and follow up on medical information.
  3. Obtain initial loss of wage or loss of income information from employer.
  4. Review file and diary file for 2-4 week periods to maintain status with client.
  5. Maintain telephone and written contact with insurance adjuster regarding client’s progress.
  6. Maintain running tally of medical expenses, lost wage information, and out of pocket expenses in damages tab.

2-6 Weeks Post recovery or near Complete recovery:

  1. Speak with client and determine whether or not client has reached MMI (maximum medical improvement).
  2. Confirm all treatment providers with client and confirm we have all medical records/bills.
  3. Obtain final lost wage documentation
  4. Inform client that now that we have reached MMI we will draft the demand package to the insurance company.
  5. Prepare demand package and send to adjuster.

4 Weeks After Demand has been sent to insurance carrier:

  1. If adjuster has not responded to demand package contact them by phone to request status.

 6 Weeks After Demand has been sent:

  1. If adjuster still has not responded, call and request exact date on which response can be expected.
  2. Diary file and calendar.

8 Weeks After Demand has been sent:

  1. If there has been no offer, contact client and instruct about necessity to file suit.
  2. Review file in its entirety.
  3. Draft Complaint and Summons
  4. File suit.
  5. Send copy of suit to insurance adjuster.
  6. If adjuster has made a reasonable offer, call client and discuss the offer.

2 Weeks After Offer has been made:

  1. If offer is reasonable with room to move, respond by telephone or in writing with counteroffer.
  2. Continue negotiations for the next several weeks, if necessary to conclude settlement.
  3. If settlement is accomplished, ask for check and release.
  4. Have client execute release immediately and explain disbursement of settlement proceeds.
  5. Pay all unpaid medical bills, liens, and disbursements.
  6. Pay client with closing letter.
  7. Send thank you letters to appropriate parties such as witnesses, etc. Send release and courteous letter back to adjuster.

If Suit has been filed:  Activity 4 Weeks After Suit:

  1. Ascertain whether answer has been timely filed.
  2. If no answer has been filed, determine why and investigate advantages of filing for default.

8 – 16 Weeks After Suit:

  1. Initiate discovery by use of interrogatories and requests for production of documents.
  2. Follow pretrial requirements of court.
  3. If interrogatories and requests for production of documents have been received by defense attorney, review immediately with client.
  4. If interrogatory answers have been reviewed, schedule depositions.

4-6 Months After Suit:

  1. Be certain that all discovery has been completed or at least initiated within required time frames.
  2. Send requests for admission to delineate both liability and damage issues.
  3. Designate experts, if necessary.
  4. Conduct any remaining depositions.

6 Months After Suit to Trial Date:

  1. Review file periodically to determine status in court.
  2. Complete all necessary steps to get case to trial as soon as possible.
  3. Prepare exhibits/witnesses for trial.
  4. Take video depositions of witnesses, including medical witnesses, if necessary.
  5. Prepare trial notebook.
  6. Be certain defense counsel has received all necessary information about experts.
  7. Prepare Motions in Limine, if appropriate.
  8. Contact defense attorney and/or adjuster to determine whether out-of-court settlement is possible.
  9. Contact court from time to time to ascertain time frame for trial.
  10. Prepare for trial.

Timeline: Activity for Personal Injury Case: Excerpt from the Personal Injury Manual from Smith Law Offices P.A.

                                                           

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Adam Walsh Act in the Crossfire

In Maine the Adam Walsh Act is seen (from the defense perspective) as an improvement over the current state of affairs.  While it may be just as draconian in some respects, the AWA at least holds open the possibility, in theory, of an evaluation to see if a registrant is an ongoing risk and assess whether offenders should have to register.  There are other improvements over the current state of law here as well.

This New York Times article details a variety of challenges to the AWA from both the prosecution and defense perspective.  I have previously written of the defense challenges-particularly the Commerce Clause theories.  I was unaware that there was any pushback for such localized concerns as Alaska’s where someone in the remote bush might have totravel by bushplane to register.  AWA does not create any allowances for this sort of problem.  At heart, I am an ardant federalist and state’s rights kind of guy.  As a defense lawyer, however, I see the states’ temptation to constantly ratchet up the severity of these laws as well as my clients’ efforts to deal with the patchwork of state laws as they may happen to move around.  I have seen the AWA as a worthy attempt to balance the inevitability of a registration law with the need for consistency and fairness to offenders.  It would certainly be an improvement in my home jurisdiction.  Perhaps AWA needs a rewrite to allow a bit more state flexibility

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Massachusetts Challege to Adam Walsh Act Loses

From Sex Crimes:

The first decision on a motion to dismiss by any court concerning a 18 USC 4248(a) civil commitment hearing has been entered in the District of Massachusetts.  At only eight pages in length, the opinion isn’t long on legal reasoning.

I suspect the conservative First Circuit will treat any appeals from any of the First Circuit states in a similar summary fashion.  No suprise at this level-a loss

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Proposed AWA Guidelines Issued by DOJ

The USDOJ has issued Adam Walsh Act guidelines, FAQ and a Fact Sheet.  As at least one legislature has put a raft of sex offender bills on hold pending issuance of the above guidelines it will be interesting to see how states start to align their registration requirements with the AWA.

Hat Tip:  Sex Crimes

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Adam Walsh Act Update

Via Sex Crimes AG Gonzales updates the federal implementation of the Adam Walsh Act.

The Adam Walsh Act also created an enhanced direct avenue for Federal enforcement of sex offender registration requirements. Under new section 2250 of title 18, sex offenders who knowingly violate the Adam Walsh Act registration requirements under circumstances supporting Federal jurisdiction, such as failure to register following relocation from one State to another, can be imprisoned for up to 10 years. The Department’s Criminal Division and the United States Attorneys’ Offices have developed policy and guidance for prosecutions under the new Federal failure to register offense and are moving forward aggressively in bringing Federal prosecutions in appropriate cases. Since Section 2250 was enacted, Marshals Service investigations have resulted in the issuance of 84 arrest warrants for fugitives in violation of the law. Marshals and other law enforcement officials have been able to arrest 66 of those fugitives.     Beyond the measures I have described relating to sex offender tracking, notification, investigation, apprehension, and prosecution, the Adam Walsh Act enacted important reforms affecting the correctional treatment of sex offenders. For example, the Act adopted new provisions for civil commitment of persons found to be sexually dangerous and subject to Federal jurisdiction. This means that court-ordered civil commitment can now be sought for a sex offender in the custody of the Bureau of Prisons, where it can be shown that his condition would make it seriously difficult for him to refrain from further acts of molestation if released. Pursuant to the Adam Walsh Act commitment provisions, the Bureau of Prisons has 30 inmates certified as sexually dangerous persons (not limited to those incarcerated for sex offenses) and the responsible United States Attorneys’ Offices are now engaged in litigation to secure the judicial commitment of these individuals as authorized by the Adam Walsh Act. The Bureau of Prisons is institutionalizing the screening and certification of inmates who satisfy the statutory criteria as sexually dangerous persons, and civil commitment of such persons for the protection of the public and for their care and treatment will be sought in all appropriate cases.

Sex Crimes has some new posts in an “Adam Walsh Act Week” about the AWA and civil commitment, registration, bail, access to evidence and commerce clause challenges

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By Seth Koenig, BDN Staff
Posted April 26, 2012, at 12:59 p.m. Last modified April 26, 2012, at 4:50 p.m.

  Advocates call for online registry of priests accused of sexual abuse in Maine

 

FALMOUTH, Maine — Two men stood outside the official Falmouth home of Catholic Bishop Richard Malone Thursday morning to protest what they described as Malone’s refusal to publish an updated database of priests and church employees “credibly accused” of sex crimes against children.

The duo, Paul Kendrick and Harvey Paul, represented the Ignatius Group, a loosely knit nationwide network of supporters of victims of the alleged sexual abuses. Kendrick, who spoke to members of the media at the Twin Ponds Drive site Thursday, said he and other group members have demonstrated outside Catholic Church properties repeatedly over the years seeking the creation of a church-run database similar to the state of Maine’s sex offender registry.

Kendrick used the example of Father John Audibert, a Catholic priest who 10 years ago admitted sexually abusing a teenage boy, to illustrate his point. He said the whereabouts of Audibert since his removal from active ministry in 2002 has not been kept public, and that he remains a threat to young people wherever he is.

“Nobody knows where he is, in fact nobody knows what he looks like,” Kendrick said. “He could be living in this neighborhood.”

In a response late Thursday morning, a spokeswoman from the Roman Catholic Diocese of Portland downplayed the small protest as a publicity stunt. Sue Bernard, communications director for the Diocese, disputed Kendrick’s characterization of Audibert’s whereabouts as being unknown, saying in a statement issued to the Bangor Daily News that the appropriate authorities are aware of his location.

“The two-person protest was nothing more than a ruse to get media attention and unnecessarily attempt to disrupt and alarm a neighborhood,” Bernard said. “Mr. Kendrick is aware that John Audibert does not live in this neighborhood or even in the town of Falmouth. Kendrick, civil officials and neighbors of Audibert are all aware of his background and where he resides.”

But Kendrick argued that the public remains in the dark. He and Paul — who has said he was abused by a Catholic seminarian while a student at St. Mary’s School in Biddeford as a youth — called for a full online database of “credibly accused” priests and church officials, with pictures, work histories, updated home addresses and numbers of accusations against them.

Kendrick said such databases have been launched by Catholic leaders in Boston and Philadelphia, and he said Malone should use those as templates “to improve upon.”

In addition to keeping the public informed, he said, the database could serve as validation for other victims of childhood abuse at the hands of priests who have yet to come forward.

“It just may protect a child, and it just may help someone who was abused as a child release some of that toxicity, some of that shame that’s built up inside,” Kendrick said.

While there was no sign of Bishop Malone himself at the Twin Ponds Drive location, the demonstration attracted the disdain of at least one resident of the high-end neighborhood. A woman driving away from her nearby home slowed down near the protesters and chastised reporters for covering them.

“We don’t need this here,” said the woman, who refused multiple requests to comment further or give her name.

Kendrick called the woman’s reaction “tragic” and “uninformed.”

“The silence of Catholics and that neighbor’s response are not only sad, but shameful,” he told reporters after she drove away. “If she had ever sat and listened to a child talk about being assaulted or raped, she’d never respond like that.”

“I actually knew Father Audibert as my parish priest.  He was assigned for a period of time to my home parish AFTER the allegations were well known but before the Church instituted a polcy of defrocking priests who had been credibly accused.  Father Audibert was a great priest who publically acknowledged his issues from the pulpit.  The congregation accepted that and he was widely respected.  We all have some cross to bear.  This is not to disregard the harm he caused but does not diminish his humanity either.” Commented Stephen Smith, P.A.

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These stories can be interesting as they give insight into different investigative techniques. (2007)

Children’s Museum Director Busted

From CNN:

(CNN) — The chief operating officer of the National Children’s Museum was arrested Tuesday and is charged with distributing child pornography over the Internet, authorities said.

Robert A. Singer is accused of sending images depicting child pornography to people he believed to be a 12-year-old girl and her 33-year-old mother, according to a statement issued by U.S. Attorney Michael Garcia of the Southern District of New York.

In reality he was communicating with an undercover detective for the New York Police Department.

. . .

Singer, 49, was arrested at his home in Falls Church, Virginia, by federal agents, according to the prosecutors’ statement. Authorities allege he engaged in several instant messaging “chats” and e-mail communications with the undercover detective, posing as the woman and her daughter, from August to September.

He is charged with five counts of distributing child pornography in interstate commerce. If convicted on each count, he would face a sentence of up to 140 years in prison — up to 20 years for the first count and up to 40 years for each additional count, prosecutors said.

Singer allegedly initiated contact with the undercover detective, posing as the mother, in an America On Line chat room called “Cuties.” The chat room attracts people who “are known to trade in pornographic images, including child pornography,” according to an affidavit filed in the case by a special agent who investigates child pornography and child exploitation for U.S. Immigration and Customs Enforcement.

“On five separate occasions in August 2007, Singer sent several images of child pornography over the Internet to the mother and the daughter, including images depicting sexual acts between minors and adults and images depicting known victims of child exploitation,” prosecutors said.

In his communications with the supposed daughter, Singer pretended to be a 15-year-old boy, authorities said. In August 2007, he sent her two images featuring child pornography, according to the affidavit, with the instruction, “just delete it when you are done.”

A search of Singer’s AOL account activity showed that from July to September, he sent about 80 images featuring child pornography to people including the detective, authorities said in the statement. Also, the search revealed that he had received about 10 images and one video depicting child pornography.

. . .

The museum, formerly known as the Capital Children’s Museum, has been closed to the public since 2004, and operates from administrative offices, the statement said. A new facility is being built and is scheduled to open in 2012.

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Aging and Sick Sex Offender to Be Civilly Committed?

Whatever the wisdom of civil commitment laws it would seem that this fellow might qualify.  Increasingly, though, the states are going to have to contend with the high cost of health care in keeping aging and sick convicts behind bars.

Even though his aging, bloated body is confined to a wheelchair, a judge was warned yesterday a 59-year-old convicted sexual predator remains dangerous to children. A forensic psychologist assured Lawrence Superior Court Judge Howard J. Whitehead that convicted child rapist Wayne Chapman, who bragged he had sexually molested between 50 and 100 boys and even fantasized about killing some of them, “presents a high and unacceptable risk to re-offend.” “It just doesn’t go away,” Christine Schnyder Pierce testified. Chapman, an interstate predator, has been incarcerated for 31 years. Having served his time, he is hoping to retire in Massachusetts, but the Essex District Attorney’s Office is fighting to have Whitehead civilly commit him for life as a “sexually dangerous” person.

Read the rest in the Boston Herald

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IRVING YOUNGER’S 10 COMMANDMENTS OF CROSS EXAMINATION

 1. Be Brief

Be brief, short and succinct. Why? Reason 1: chances are you are screwing up. The shorter the time spent, the less you will screw up. Reason 2: A simple cross that restates the important part of the story in your terms is more easily absorbed and understood by the jury. You should never try to make more than 3 points on cross-examination. Two points are better than three and one point is better than two.

 2. Use Plain Words

The jury can understand short questions and plain words. Drop the 50 dollar word in favor of the 2 dollar word. “Drive your car” instead of “operate your vehicle.”

 3. Use Only Leading Questions

The law forbids questions on direct examination that suggest the answer. The lawyer is not competent to testify. On cross-examination the law permits questions that suggest the answer and allows the attorney to put his words in the witnesses’ mouth. Cross-examination, therefore, specifically permits you to take control of the witness, take him where you want to go, and tell your important point to the jury through the witness. Not asking controlled leading questions leaves too much wiggle room. What happened next? I would like to clear up a couple of points you made on direct? These questions are the antithesis of an effective cross-examination. Any questions which permit the witness to restate, explain or clarify the direct examination is a mistake. You should put the witness on autopilot so that all of the answers are series of yes, yes, yes!

 4. Be Prepared

Never ask a question that you do not know the answer to. Cross is not a fishing expedition in which you uncover new facts or new surprises at the trial.

 5. Listen

Listen to the answer. For some, cross-examination of an important witness causes stage fright; it confuses the mind and panic sets in. You have a hard time just getting the first question out, and you’re generally thinking about the next question and not listening to the answer.

 (Smith’s Law: “Listen to the witnesses answer. Often it matters more how the witness says something rather than what the witness is saying”.)

 (Smith’s Corollary: “If you only can “discover” what the State offers in discovery be prepared to mix it up with the witness and take some chances”.)

 6. Do Not Quarrel

Do not quarrel with the witness on cross-examination. When the answer to your question is absurd, false, irrational contradictory or the like; Stop, sit down. Resist the temptation to respond with “how can you say that, or how dare you make such an outrageous claim?” The answer to the question often elicits a response, which explains away the absurdity and rehabilitates the witness.

 7. Avoid Repetition

Never allow a witness to repeat on cross-examination what he said on direct examination. Why? The more times it is repeated, the more likely the jury is to believe it. Cross-examination should involve questions that have nothing to do with the direct examination. The examination should not follow the script of the direct examination.

 8. Disallow Witness Explanation

Never permit the witness to explain anything on cross-examination. That is for your adversary to do.

 9. Limit Questioning

Don’t ask the one question too many. Stop when you have made your point. Leave the argument for the jury.

 10. Save for Summation

Save the ultimate point for summation. A prepared, clear and simple leading cross-examination that does not argue the case can best be brought together in final summation.

 “Summarized from The Art of Cross-Examination by Irving Younger. The Section of Litigation Monograph Series, No. 1, published by the American Bar Association Section on Litigation, from a speech given by Irving Younger at the ABA Annual Meeting in Montreal Canada in August of 1975.”

 

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Rules for Sex Offender Registration (Dept. Public Safety Reg.)

16                    DEPARTMENT OF PUBLIC SAFETY

 222                  BUREAU OF STATE POLICE

                         STATE BUREAU OF IDENTIFICATION

 Chapter 14:     RULES RELATING TO THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT OF 1999 (34-A MRSA c.15)

 14.01   DEFINITIONS:

             A Photograph required to be submitted by a convicted Sex Offender or Sexually Violent Predator under the “Sex Offender Registration and Notification Act of 1999” shall mean a Passport Photograph, described as a full faced, chest up, unmounted, color photograph not larger than 2 ¾ x 2 ½ inches with a white or off-white background and a space showing above the person’s head. The photograph must have been taken not more than six (6) months prior to submission.

 14.02   RULE RELATING TO THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT OF 1999

            A.        A Photograph submitted under this Act for the maintenance of the Sex Offender Registry by a convicted Sex Offender or Sexually Violent Predator shall meet the definition of a Passport Photograph described in this rule.

 STATUTORY AUTHORITY: 34-A MRSA c.15

 EFFECTIVE DATE:

            November 14, 1999

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Federal Sex Offender Treatment Program

David Beneman, Maine’s Federal Defender, summarizes the Sex Offender Management Program handbook that is given to all inmates placed in the program.

 Program Philosophy. The program is based on the philosophy that criminal sexual behavior can be managed through “intensive supervision and competent treatment.” Thus, even though this is not a “treatment program,” psychological evaluations and treatment do in fact play a pretty significant role in the program, and appear to be de facto mandatory conditions for “successful” participation.

 Psychosexual Evaluation and Risk Assessment. A psychosexual evaluation and risk assessment is completed for all inmates during the course of the program. The assessment component “may” consist of a series of interviews, questionnaires, psychological tests, and physiological assessments. Participants are measured in 3 areas: intelligence & cognitive functioning; personality & psychopathology; and psychosexual functioning. Penile plethysmographs and polygraphs may also be recommended. The evaluation results are used to develop the Correctional Management Plan for each inmate AND “to make appropriate recommendations for institutional and community supervision and treatment.” We can safely assume that those recommendations will be harsh for any inmate who refuses to participate in the evaluation process (see point 5 below). The resulting CMP may contain recommendations for treatment. Inmates are informed that adherence to the CMP will be “closely monitored” and that they will be held accountable for failing to adhering to its contents (again, see point 5).

 Treatment Aspects: There are 3 types of “treatment” provided at Devens that may be recommended in the CMP:

(1) Sex Offender Education Program, which is designed to “promote acceptance of responsibility, awareness of the harm of sexual victimization and victim impact, and education about relapse prevention concepts”;

(2) Non-residential Sex Offender Treatment, which is a “significantly less intrusive” version of the Butner program that may consist of group and/or individual therapy; and

(3) Psychiatric Treatment, with the potential for medication.

 Post-release: Program staff makes recommendations for appropriate post-release housing and/or community center placements, suitable employment, community-based treatment, and community supervision. They do this through a comprehensive discharge packet which is sent to the USPO approximately 90 days prior to release and contains detailed risk assessment information addressing such areas as polygraph testing, treatment recommendations, employment and Internet restrictions, contact with minors, etc. It also includes predictions of risk-assessment based on “observation, interview, file review and clinical judgment.” All program participants are referred to sex-offender treatment programs upon release and are subject to the BOP’s sex offender jurisdiction notification rules.

 Penalties for refusing to participate: Completing psychological tests, participating in psycho-education classes and non-residential therapy, and other similar components of the program are voluntary. HOWEVER, failure to participate “may” (read: will) prohibit community center placement, and “may” (read: will) be viewed as indicating an increased risk of re-offense and will therefore impact the risk assessment that is sent to Probation (and likely the SDP certification decision as well). Other institutional sticks for refusing to participate include keeping inmate pay at the Maintenance pay level and assigning the inmate to the “least preferred housing available.”

 Potential for Discipline: Specific violations of program requirements are subject to the Inmate Disciplinary Process. I believe this is referring, in part, to the sweeping restrictions on “inappropriate materials,” which include among other things pornographic or sexually explicit materials, nude or partially nude depictions of adults or children, publications depicting physical abuse or sexual violence, “any material that depicts, describes or encourages activities which may lead to violence, sexual crimes, or exploitation,” and “any other material that, in the clinical opinion of SOMP staff, is considered to have the potential to contribute to future sexual offending behavior.” NOTE that not all of these materials are otherwise restricted in the general BOP population AND that program staff “may provide therapeutic guidance on the risks of using such materials,” which presumably opens up another opportunity to probe for statements that may be harmful in the future.

 Confidentiality: According to the handbook, inmates are told that “their confidentiality is protected at all times, except in cases where there is potential harm to self or others, when the security of the correctional institution is threatened, or when there is suspected child abuse.” Obviously, the BOP will argue that they are entitled to breach confidentiality for purposes of the SDP evaluation because “there is potential harm to others.” We should consider arguing that confidentiality can’t be breached until AFTER there has been a determination that this person should be certified as “sexually dangerous,” which itself means that there is a potential harm to others if the person is released. Wondering whether the person is potentially dangerous cannot be enough to breach confidentiality — otherwise, the policy is a tautology that renders the promise of confidentiality meaningless for all program participants (and probably all inmates designated as sex offenders). The biggest downside to this argument is . . . what does it get us? More certifications? Or could we use the deficient notice to argue for exclusion of the statements? Along this line, according to the handbook, there is a BOP policy that obligates the BOP to protect inmate confidentiality. Does anyone have it? If not, we should get it.

 Length of program: From entry until release from prison.

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Sexually Dangerous persons and the Federal Bureau of Prisons

David Beneman cites his fellow defender Miriam Conrad for the following useful information about BOP and sex offender treatment:

Sexually Dangerous Persons

BOP has a new tool authorized this summer as part of the Adam Walsh Act.  BOP may now “certify” inmates as “sexually dangerous persons” (SDP).  Certification can occur prior to sentencing, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence.  We will all need to pay attention to the risk of this new federal SDP designation, 18 USC 4248.

SDP Commitment

In the past couple of weeks, Defenders have learned that just prior to release, clients are being transferred to the Butner, NC Federal Medical Center and certified as SDPs, based on a caseworker’s review of records. We are told that of 500 cases reviewed to date, proceedings have been initiated in 11.

A “sexually dangerous person” is one who “has engaged or attempted to engage in sexually violent conduct or child molestation and . . . suffers from a serious mental illness, abnormality or disorder resulting in serious difficulty refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. 4247. The definition was added to the existing definitional statue in the in chapter 313 of title 18 which addresses mental disease or defect.

The Attorney General and/or the Director of the Bureau of Prisons may certify that a person is a “sexually dangerous person,” 18 U.S.C. 4248, “[a]t any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence.” 18 U.S.C. 4241(a). Note that under amended 18 U.S.C. § 3583(k), those convicted of violating 18 U.S.C. § 1201 (kidnapping) involving a minor, or of any offense under 18 U.S.C. §§ 1591(sexual trafficking of children), 2241 (aggravated sexual abuse), 2242 (sexual abuse), 2243 (sexual abuse of a minor), 2244 abusive sexual contact), 2245 (sexual abuse resulting in death), 2250 (failure to register as a sex offender), 2251 (sexual exploitation of children), 2251A (selling or buying children), 2252 (activities related to material involving sexual exploitation of minors), 2252A (child pornography), 2260 (production of child pornography), must be placed on supervised release for a mandatory minimum term of 5 years with a maximum of life.

We can expect review by BOP of anything in the PSR.  The review may include psychological evaluations submitted by the defendant or ordered by the court for sentencing purposes, previous state or federal sex offenses, and anything in the BOP record, including admissions and other evidence gathered in the course of sex offender treatment or management.

At some point after a certificate has been filed, the person is entitled to an adversarial hearing with the right to counsel, the opportunity to testify, to present evidence, subpoena witnesses, and confront and cross-examine witnesses. 18 U.S.C. §4246. CJA counsel or a Federal Defender will be appointed for those who qualify.  The statute does not contain a timetable for a hearing and the person remains in the custody of the Attorney General or the Bureau of Prisons pending resolution. 18 U.S.C. 4247(d), 4248(a)-(b).

How to Advise Clients

At a minimum, we need to advise clients charged with sex offenses or with any hint of sexual impropriety in their record that anything they disclose in the sentencing process, or in sex offender or substance abuse “treatment,” or in any conversation with a BOP caseworker or counselor may be used to commit them, possibly for life.

Sex offender treatment is voluntary.  Sex offender management appears to be BOP’s choice. If a client volunteers for treatment, or is placed in a sex offender management program, then refuses to talk, BOP will assume the worst. If they talk, they run a risk of talking themselves into a 4248 commitment. Based on the numbers so far, BOP has sought commitments in roughly 2.5 % of cases reviewed.  BOP retains the burden of proving that the client is a “sexually dangerous person”, BUT the client remains detained pending that hearing and determination.  Currently we expect the less BOP has to work with the better. Until we see how widespread SDP commitments are and how the courts will react to these cases, volunteering for treatment carries a real risk. In a management program trying to remain silent may be nearly impossible depending on the context and the client.  

We need to be advising clients charged with sex offenses or with any hint of sexual impropriety in their record that anything they disclose in the sentencing process, or in sex offender or substance abuse “treatment,” or anything they might say to a BOP counselor or caseworker may (will) be used against them for a possible SDP civil commitment under 18 U.S.C. 4248. Advise clients on the risks of participating in any voluntary treatment program, the choice not to participate, the option of remaining silent in any mandatory management program, and the remind them of the 5th Amendment rights regarding sexual misconduct or thoughts during any interaction or conversations with BOP personnel. “While the Fifth Amendment does not generally attach in civil commitment proceedings, it may nonetheless apply where a truthful answer might incriminate a defendant in future criminal proceedings or increase his punishment”.

See Allen v. Illinois, 478 U.S.364, 372, 106S. Ct.2988, 92 L. Ed. 2d 296 (1986); Estelle v. Smith, 451 U.S.454, 101 S. Ct.1866, 68 L. Ed. 2d 359 (1981).  This remains an evolving area and we need to keep a vigilant eye.

For some ideas, see the cases addressing sex offender treatment which in the past often including use of polygraphs, as a condition of supervised release.  These cases look at some of the 5th Amendment issues. Several circuits have endorsed polygraph testing as part of sex offender treatment for those on supervised release. ·         United States v. Lee, 315 F.3d 206, 213 (3d Cir. 2003

US v. York, 357 F.3d 14, 22 (1st Cir. 2004)

United States v. Dotson, 324 F.3d 256, 261 (4th Cir. 2003)

United States v. Zinn, 321 F.3d 1084, 1089-90 (11th Cir. 2003)(a polygraph “may provide an added incentive for the offender to furnish truthful testimony to the probation officer. Such purpose would assist the officer in his or her supervision and monitoring of the appellant.)

A case that stands for stronger 5th amendment rights is United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005)( defendant who had been incarcerated for a refusal to answer questions that he deemed incriminating while on supervised release could raise a Fifth Amendment challenge to the revocation of that release.) the case notes the difference between admitting conduct to which you have been convicted vs. uncharged conduct.

On penile plethysmograph testing as a condition of supervised release see United States v. Weber, 451 F.3d 552 (9th Cir. 2006)(the particularly significant liberty interest in being free from plethysmograph testing requires a thorough, on-the-record inquiry into whether the degree of intrusion caused by such testing is reasonably necessary ‘to accomplish one or more of the factors listed in § 3583(d)(1)’ and ‘involves no greater deprivation of liberty than is reasonably necessary, given the available alternatives.)

Sex Offender Treatment and Management Programs

BOP currently has one sex offender treatment program (SOTP) at Butner with 112 beds, and a sex offender management program (SOMP) at Devens with 400 participants. In the Adam Walsh Act, Congress directed BOP to expand these programs. See 18 U.S.C. §3621(f)(1). According to Dr. Andres Hernandez, the Director of Sex Offender Treatment for BOP, the BOP is “actively working to expand sex offender services by implementing SOMPs and SOTPs, as well as a forensic evaluation service.” See Statement of Andres E. Hernandez at http://energycommerce.house.gov/108/Hearings/09262006hearing2039/Hernandez.pdf

BOP counts as “sex offenders” those serving a sentence for a sex offense and those with any sex offense in their history. This regulation has been struck down for including past offenses, but it remains on the books and BOP continues to follow it. See Fox v. Lappin, 409 F. Supp.2d 79 (D. Mass. 2006) (enjoining BOP from notifying local jurisdiction under section 4042(c) of release of prisoner serving federal felon in possession sentence based on 1981 state sex offense); Simmons v. Nash, 361 F.Supp.2d 452 (D.N.J. 2005) (enjoining BOP from notifying local jurisdiction under section 4042(c) of release of prisoner serving federal drug sentence based on 1983 state offense of attempting to promote adult prostitution).

See

US v. Whitney, 2006 U.S.Dist. LEXIS 74524 (D. Mass.Oct. 26, 2006)(Civil commitment sought for drug defendant with a juvenile history of sexual assaults).

Inmates participating in the SOTP do so on a voluntary basis, are subjected to polygraph exams and penile plethysmography, must accept responsibility for their “crimes,” and are either required or encouraged to admit previously undetected offenses and bad thoughts. BOP keeps a record of all of this. Dr. Hernandez used this information in studies, which he reported to treatment professionals and to Congress, finding that while only a small percentage of Internet offenders had known contact offenses at the time of sentencing, over 80% disclosed contact offenses during “treatment.” Dr. Hernandez concluded, “these Internet child pornographers are far more dangerous to society than we previously thought.” See Hernandez Statement.

Sex offender management involves “risk assessment” and “management.” This apparently is not voluntary. It is a way to segregate sex offenders and control what they do, say and read. It may also involve disclosure of undetected offenses and bad thoughts.

Dr. Hernandez’ testimony seems to push for a BOP assumption that regardless of what our clients have actually been convicted of, or admitted, most “sex crime” related clients are dangerous, serial hands-on sex abusers.  For example, Dr. Hernandez says,  “Eighty-five percent of inmates [convicted of possessing or distributing child pornography] were in fact contact sexual offenders, compared to only 26 percent known at the time of sentencing.”  His message; in reality the “lookers” are really “touchers” so they are dangerous.  As for his facts, those come from the self confessions of those he and the BOP work with.

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Catholics, Confession & Sex Offenders

I haven’t been wildly enthusiastic about posting to A Stitch in Haste because of my perception of his anti-Catholic/anti-religion attitude.  He himself describes “Some people accuse me of having a (very slight) bias against the Roman Catholic Church. I can’t imagine why.”

That said, he linked to an interesting article in The Washington Post about the Sacrament of Confession and an attempt by the Church to revive it.

Also known as the sacrament of reconciliation, confession involves several mandatory steps: being sincerely contrite, articulating to a priest (who stands in the place of Jesus) what was done wrong, apologizing, receiving an assigned penance and being forgiven.

In my own practice defending clients accused of sex crimes, I have come to the conclusion that most accused clients are not monsters but are themselves children at some level, have a genuine demon they struggle with and very few are genuinely evil.  Most are genuinely contrite.  Speaking objectively as I can, my observations make the alleged crimes no less monstrous or the need for punishment and/or isolation from society no less real (except for my clients of course!).  That said, one of the most rewarding aspects of my practice is to be able to step aside from my role as legal counselor and, with the appropriate client, remind them of the support religion can provide-whether Catholic or otherwise.

Why society is so enthusiastic about the usefulness of therapy and Oprah-style confessionals while ignoring 2000 years of religious tradition that accomplishes the same thing (for free) is beyond me.  Although most closely linked with Catholisism, other Churches also have traditions concerning the confession of sin.  I believe that whatever ones belief in the Almighty it should be recognized that confession can constitute an excellent support system and ultimately be good for a client’s mental health as well as preventing recidivism.

UPDATE:  Interestingly one of the most confessed sins in the article referenced above is watching internet pornography-something I find in my practice that is tied quite closely to some fairly intense psychological problems.

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Online Dangers Overrated?

Just anecdotally from my reviews of police reports it appears that chatrooms are the hunting grounds of choice and while there may be chatrooms connected with these social networking sites that the sites themselves are really secondary to the chat.  I have found it more and more useful to review an opposing witness’s “pages” on these sites.  I find them most often useful in divorce cases but interestingly even in a recent homicide case the “victim” turns out to have some interesting postings.

From Techdirt:

Over the past few years there has been a huge number of grandstanding politicians claiming that social networks like Facebook and MySpace were breeding grounds for online predators. . .. Of course, it turns out that the entire premise is faulty. A few years back we pointed to a study that showed the problem was entirely exaggerated. . . . Now there’s a new study out going even deeper in noting that sexual predators are unlikely to pretend to be teenagers using social networks, but rather are very upfront about who they are and what they want. In most cases, the victims knew that they were chatting with an older person, and believed that they were in a legitimate relationship, rather than being tricked. Once again, this suggests that all the hype and new laws being proposed to deal with the “problem” of predators on social networks are misplaced.

I remain agnostic on the issue.

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Say What!

I am a little stunned that the Democratic Congress who often rightfully chastises the Bush administration for civil rights violations came up with this masterpiece.

From CNET:

The U.S. House of Representatives on Wednesday overwhelmingly approved a bill saying that anyone offering an open Wi-Fi connection to the public must report illegal images including “obscene” cartoons and drawings–or face fines of up to $300,000.

That broad definition would cover individuals, coffee shops, libraries, hotels, and even some government agencies that provide Wi-Fi. It also sweeps in social-networking sites, domain name registrars, Internet service providers, and e-mail service providers such as Hotmail and Gmail, and it may require that the complete contents of the user’s account be retained for subsequent police inspection.

Before the House vote, which was a lopsided 409 to 2, Rep. Nick Lampson (D-Texas) held a press conference on Capitol Hill with John Walsh, the host of America’s Most Wanted and Ernie Allen, head of the National Center for Missing and Exploited Children.

Allen said the legislation–called the Securing Adolescents From Exploitation-Online Act, or SAFE Act–will “ensure better reporting, investigation, and prosecution of those who use the Internet to distribute images of illegal child pornography.”

The SAFE Act represents the latest in Congress’ efforts–some of which have raised free speech and privacy concerns–to crack down on sex offenders and Internet predators. One bill introduced a year ago was even broader and would have forced Web sites and blogs to report illegal images. Another would require sex offenders to supply e-mail addresses and instant messaging user names.

Wednesday’s vote caught Internet companies by surprise: the Democratic leadership rushed the SAFE Act to the floor under a procedure that’s supposed to be reserved for noncontroversial legislation. It was introduced October 10, but has never received even one hearing or committee vote. In addition, the legislation approved this week has changed substantially since the earlier version and was not available for public review.

Not one Democrat opposed the SAFE Act. Two Republicans did: Rep. Ron Paul, the libertarian-leaning presidential candidate from Texas, and Rep. Paul Broun from Georgia.

This is what the SAFE Act requires: Anyone providing an “electronic communication service” or “remote computing service” to the public who learns about the transmission or storage of information about certain illegal activities or an illegal image must (a) register their name, mailing address, phone number, and fax number with the National Center for Missing and Exploited Children’s “CyberTipline” and (b) “make a report” to the CyberTipline that (c) must include any information about the person or Internet address behind the suspect activity and (d) the illegal images themselves. (By the way, “electronic communications service” and “remote computing service” providers already have some reporting requirements under existing law too.)

The definition of which images qualify as illegal is expansive. It includes obvious child pornography, meaning photographs and videos of children being molested. But it also includes photographs of fully clothed minors in overly “lascivious” poses, and certain obscene visual depictions including a “drawing, cartoon, sculpture, or painting.” (Yes, that covers the subset of anime called hentai).

. . .

Failure to comply with the SAFE Act would result in an initial fine of up to $150,000, and fines of up to $300,000 for subsequent offenses. That’s the stick. There’s a carrot as well: anyone who does comply is immune from civil lawsuits and criminal prosecutions.

There are two more points worth noting. First, the vote on the SAFE Act seems unusually rushed. It’s not entirely clear that the House Democratic leadership really meant this legislation to slap new restrictions on hundreds of thousands of Americans and small businesses who offer public wireless connections. But they’ll nevertheless have to abide by the new rules if senators go along with this idea (and it’s been a popular one in the Senate).

The second point is that Internet providers already are required by another federal law to report child pornography sightings to the National Center for Missing and Exploited Children, which is in turn charged with forwarding that report to the appropriate police agency. So there’s hardly an emergency, which makes the Democrats’ rush for a vote more inexplicable than usual.

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A very interesting case on the Confrontation Clause & Child Witneses

The Confrontation Blog has a great and very detailed post on the use of hearsay from child witnesses.  Anyone defending child molestation cases understands that the use of child hearsay in sexual abuse cases including not only criminal cases but child protective proceedings and civil matters.  This great post details some recent progress the Ohio defense bar has been making in holding the State’s feet to the fire.

In a pre-Crawford trial, these statements were admitted as – surprise – excited utterances, though apparently Nathan did not exhibit distress until well into the interview. The appellate court, pre-Crawford, affirmed, and the state supreme court, soon after Crawford, denied review; even on a motion for reconsideration, highlighting Crawford, the state supreme court declined review. But then the U.S. Supreme Court – in a decision noted in the very first posting on this blog – vacated and remanded for reconsideration in light of Crawford. Siler v. Ohio, 543 1019 (2004). On remand, the appellate court held unanimously that Nathan’s statements were testimonial and that admitting them in the absence of an opportunity for cross-examination violated the confrontation right. State v. Siler, 843 N.E.2d 863 (Ohio App. 5th Dist. 2005). And now the Ohio Supreme Court has reached the same conclusion, also unanimously on this point. So that is a measure of how far matters have progressed from the pre-Crawford era, and perhaps the immediate post-Crawford era as well.

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Sex By Fraud

Via Sex Crimes:

The Massachusetts Supreme Court has made a ruling in the odd area of law concerned sex by fraud.  Here is a media account of the ruling:

A woman who had sex with her boyfriend’s brother in her darkened room late one night claimed she was raped, saying the man tricked her into the act by impersonating her boyfriend.

But Massachusetts’ Supreme Judicial Court disagreed Thursday, citing a half-century-old state law that says it is not rape when consent to sexual intercourse is obtained through fraud or deceit.

The high court said the state’s rape law defines rape as sexual intercourse compelled “by force and against (the) will” of the victim. The court cited a 1959 ruling it made in another case in which it found that fraud cannot be allowed to replace the force required under the law.

The SJC noted that the state Legislature has had “ample opportunity” to change the rape statute to include fraud or deceit, but has not done so.

“Fraudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute,” the court said.

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Master & Slave Contracts & Consent

One of my first sex crime cases involved a “master” who was involved in an ongoing relationship with a married woman.  The sex was pure S&M with ropes, cuffs and rough sex.  After the husband found out about the adultery, she ended the relationship but they met one last time in a parking lot.  Afterwards (and after the husband found out) she alleged that my client had forced her to have oral sex.  My client was arrested and charged with rape.

The case developed apace and unbeknownst to the investigators I had a signed copy of a “contract” which described in exquisite and graphic detail that she consented to a wide variety of imaginative sex acts and that as the “slave” she acknowledged that the “master” could force her to do whatever she wanted.  The alleged victim had signed the contract as “Mrs ["master's" last name]” instead of her own name.  She had also left out this little detail from the police.  She brought a protection from abuse action as is so often counseled by a court “advocate.”  The look on the detective’s and prosecutor’s face at the protection hearing when I sprang the contract on the witness was utterly priceless.  The case died soon thereafter.

Since that case I have kept a lookout for cases which discuss whether an alleged victim can consent to be raped under similar circumstances and have not run across any.  Please send me a link if you are familiar with any cases of this type.

I don’t have the original contract but these documents are quite common in the sadomasochist community and a few samples are located below:

Gloria’s Oversexed Mind has a link to a humorous story about a couple attempting to file a similar document at a courthouse.

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Genarlow Wilson Update

Ht_wilson_football_060306_sp Another case of justice miscarried is being played out in Georgia where Genarlow Wilson has been sent to prison for a decade for consensual sex with a girl not much younger than himself.  He has been there for over 2 years.  Genarlow is a 17 year old star football player and honor student who went to a wild party.  At the party were two girls, one 17 and one 15.  Also present was a video camera.  The police found the footage after the 17 year old claimed she was raped. The video tape suggested otherwise.  The 15 year old was giving oral sex to a substantial number of boys present (all except Wilson accepted pleas).  Due to a quirk in the law because the conduct involved oral sex rather than “regular” sex, Genarlow faced the ten year sentence.  “Regular sex” would have been a misdemeanor.

ABC Primetime reports that

He stood trial in February 2005 for five days. And at first, the jury’s deliberations moved swiftly. Jurors voted to acquit Wilson of raping the 17-year-old.

“I mean it wasn’t even an hour,” said jury forewoman Marie Manigault. “We immediately saw the tape for what it was. We went back and saw it again and saw what actually happened and everybody immediately said not guilty.”

But there was one other charge the jury had to decide on. The second girl in the videotape was 15, and the age of consent in Georgia is 16. And under state law, prosecutors charged Wilson with aggravated child molestation. To those close to the young man, it was an outrage.

“Nobody could believe that this is the law,” Mann said.

Even jurors frowned on the charge. “A bad law, absolutely,” Manigault said.

And in Georgia, that they’d had oral sex made matters worse. Until 1998, oral sex between husband and wife was illegal, punishable by up to 20 years in prison. In Wilson’s case, even though he is only two years older than the girl, she was 15 and — willing or not — could not consent legally that night.

Whatever their feelings about the law, jurors felt they had no choice but to find Wilson guilty of aggravated child molestation. Moments later, back in the jury room, jurors were told for the first time that the conviction came with a mandatory sentence of at least 10 years in prison. In addition, Wilson would be forced to register as a sex offender for the rest of his life.

CNN’s Anderson Cooper reports in video, The New York Times has an editorial, Atlanta Magazine has an article, ESPN also reports here. ESPN’s take is dead on

“Yet no one will do anything to free him, passing responsibility around like a hot potato. The prosecutors say they were just doing their job. The Supreme Court says it couldn’t free him because the state legislature decreed the new law didn’t apply to old cases, even though this case was the entire reason the new law was passed.”  [ME:  and of course no legislator wants to be seen as soft on crime-especially sex offenders]

In December,the Georgia Supreme Court rejected Genarlow’s motion for reconsideration.  Sex Offender Issues reports that the “code was amended last July to treat consensual oral sex between teenagers no more than four years apart as a misdemeanor, the same punishment given for consensual intercourse between teenagers.”  Law.com reports on efforts in the Georgia legislature for a bill to allow re sentencing.

Legal Blog Roundup on the Wilson case:

UPDATE:  Sentencing Law and Policy reports on an Atlanta Constitution-Journal article on an outbreak of name calling between the defense and members of the Georgia legislature.

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May 2, 2012

Irish Cardinal Rejects New Accusations on Pedophile Priest

By DOUGLAS DALBY

DUBLIN — The leader of the Catholic Church in Ireland, Cardinal Sean Brady, said on Wednesday that he would not resign despite new accusations that he failed 35 years ago to alert the parents of victims of a serial pedophile priest, allowing the abuse to continue for at least another decade.       

The cardinal’s statement blamed other members of the church hierarchy as failing to act to halt the priest, Brendan Smyth.       

“With others, I feel betrayed that those who had the authority in the Church to stop Brendan Smyth failed to act on the evidence I gave them,” Cardinal Brady said in his statement. “However, I also accept that I was part of an unhelpful culture of deference and silence in society, and the church, which thankfully is now a thing of the past.”       

Cardinal Brady resisted calls to step down two years ago over his role in a 1975 church investigation, saying his role had been confined to taking notes in interviews with a child who said he and others were being sexually abused by Father Smyth.       

The cardinal, who was a teacher, canon lawyer and bishop’s secretary at the time, maintains that his notes had been passed on to his superiors and it had been up to them to deal with the matter, given that in 1975, he had no major role in the church and no authority over Father Smyth. However, a BBC current affairs program broadcast on Tuesday in Northern Ireland showed church documents from the time in which the cardinal described himself as having been “dispatched to investigate the complaint” — not acting as a stenographer — and showcasing details of the accusations along with accounts of those who said the revelations had not halted the abuse.       

On the program, “The Shame of the Catholic Church,” Brendan Boland, who was 14 when he raised the alarm against Father Smyth and instigated the 1975 investigation, said he had at the time supplied the names and addresses of five other children that he believed were either being abused by the priest or were in danger of being abused by him. A case by Mr. Boland against the Archdiocese of Armagh and Cardinal Brady was settled in November 2011 for an undisclosed sum.       

Now 51, he says he was sworn to silence after his interview with Cardinal Brady and two other priests at a meeting in Belfast. The BBC program reported that the parents of the children he named said they were not warned by anyone in the church about the danger Father Smyth posed.       

One of those named said Father Smyth’s abuse continued. The priest is also accused of assaulting that child’s sister and then four younger cousins over the ensuing 13 years.       

The individual concerned, speaking on condition of anonymity, told the program: “Nobody came to our house. They should have come to our house and warned our family or my parents and said, ‘Look this is what’s happening; this man is involved in this. We would strictly advise you to keep him away from the house.       

“Brendan, poor Brendan actually thought giving this information, he thought he was going to protect me and protect other people and thinking this was going to be the end of it.       

“And by God it is far from the end.”       

Cardinal Brady, who has led the Irish church since 1996, said the documentary had overstated and misrepresented his role.       

“The commentary in the program and much of the coverage of my role in this inquiry gives the impression that I was the only person who knew of the allegations against Brendan Smyth at that time and that because of the office I hold in the church today I somehow had the power to stop Brendan Smyth in 1975,” he said. “I had absolutely no authority over Brendan Smyth.”       

Father Smyth’s eventual trials caused a furor when it emerged that the church had moved him from parish to parish across the island for 40 years as he left a trail of accusations in his wake. He was first jailed in a sexual abuse case in 1994 in Northern Ireland. On his release in 1997 he was extradited to the Irish Republic, where he was sentenced to a further 12 years after pleading guilt to 74 charges of indecent and sexual assault. He died at 70, having served less than a year of that sentence.       

Maeve Lewis, executive director of an Irish group working on behalf of victims of sexual abuse, One in Four, called on the cardinal to explain his actions.       

“This is going to be heartbreaking for all those who suffered abuse after those first disclosures were made, because they know their suffering could have been avoided if only action had been taken,” she said.       

Following the program, the church was quick to defend the cardinal. In a statement it said that in 1975 “no State or church guidelines for responding to allegations of child abuse existed in Ireland.”       

On Wednesday, a Vatican official, Msgr. Charles J. Scicluna, told Ireland’s national radio RTE that Cardinal Brady had “fulfilled his duties well.” He said the church in Ireland needed leaders who had “learned the hard way and are determined to protect children.” He qualified this afterward, saying: “They have learned because they have realized that you have to act immediately.”       

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May 2, 2012

Signs of Decision on Accused Philadelphia Priests

By JON HURDLE

SPRINGFIELD, Pa. — Several hundred Roman Catholic priests from the Archdiocese of Philadelphia gathered Wednesday for a closed-door meeting with Archbishop Charles J. Chaput days before he has said he hopes to announce the results of an investigation into claims of sexual abuse against 27 priests.       

Church officials declined to disclose the topic of Wednesday’s meeting at a Catholic high school in suburban Philadelphia, and priests said beforehand that they had not been told what would be discussed. But the archbishop scheduled an announcement for Friday afternoon.       

Priests made no comment to reporters after the 90-minute meeting.       

The meeting prompted speculation that the archbishop would announce whether the priests would be allowed to remain in ministry after being placed on administrative leave early last year.       

In a March 8 column on a church Web site, Archbishop Chaput said that some of the 27 cases were “very near conclusion” and that he hoped most would be completed within eight weeks. “Justice requires resolution of these men’s circumstances,” he wrote.       

The priests were suspended after a Philadelphia grand jury report in January 2011 accused three named priests and a Catholic schoolteacher of abuse and said at least 37 other priests were still in ministry despite “credible” allegations of abuse against them.       

The report also charged Msgr. William J. Lynn, former secretary for clergy at the archdiocese, with child endangerment and conspiracy for allegedly allowing accused priests to work in positions where they could continue to abuse children, despite his responsibility for investigating reports of abuse.       

The meeting comes during the sixth week of the criminal trial in Philadelphia of Monsignor Lynn, the most senior official of the Roman Catholic Church in the United States to be tried on charges relating to sexual abuse.       

In response to the grand jury’s accusation against 37 priests, the archdiocese placed on administrative leave 4 of those named in the report, an additional 21 active priests whom it did not identify, and 2 who were retired.       

Of the 10 other priests, 8 were allowed to remain in ministry, while 2 no longer serve in the Archdiocese of Philadelphia. One of the suspended priests has since died.       

DNA

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“Abandoned” DNA used by Police

Haven’t seen this yet but I am sure we will.

From the New York Times:

The two Sacramento sheriff detectives tailed their suspect, Rolando Gallego, at a distance. They did not have a court order to compel him to give a DNA sample, but their assignment was to get one anyway — without his knowledge.

A letter John Athan was duped into sending to the police led to his arrest 20 years after the slaying of Kristen Sumstad, 13.

Recently, the sheriff’s cold case unit had extracted a DNA profile from blood on a towel found 15 years earlier at the scene of the murder of Mr. Gallego’s aunt. If his DNA matched, they believed they would finally be able to close the case.

On that spring day in 2006, the detectives watched as Mr. Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed.

The practice, known among law enforcement officials as “surreptitious sampling,” is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. Mr. Gallego’s trial on murder charges, scheduled for next month, is the latest of several in which the defense argues that the police circumvented the Fourth Amendment protection against unreasonable search and seizure.

Critics argue that by covertly collecting DNA contained in the minute amounts of saliva, sweat and skin that everyone sheds in the course of daily life, police officers are exploiting an unforeseen loophole in the requirement to show “probable cause” that a suspect has committed a crime before conducting a search.

“The law cannot tolerate such back-door methods, which seize something that any reasonable person expects to remain private,” Mr. Gallego’s lawyer, David Lynch, wrote in a motion to suppress the DNA evidence extracted from the cigarette butt.

The privacy implications of surreptitious DNA sampling may extend beyond individual investigations. The police, critics say, could collect DNA deemed “abandoned” from targeted individuals and monitor their movements even if they are not suspected of committing a serious crime. Innocent people whose DNA turns up unexpectedly may find themselves identified by a database file that they did not know existed.

. . .

“It’s a great tool,” said Micki Links, a sergeant in the Sacramento sheriff’s homicide division. “Our hands are tied on a lot of things as far as what we can do and what we can search, so when we find something that’s within the law, we’re going to use it.”

Sometimes the police dupe suspects into relinquishing their genetic identity by offering them a Coke during a routine interview and picking up the can. In Buffalo last year, undercover police waited until Altemio Sanchez, suspected of strangling and raping several women over a quarter-century, paid the check and left after dinner with his wife at a local restaurant before confiscating his glass. He later admitted killing three women and received a life sentence.

. . .

Some legal experts advocate curbs on surreptitious sampling. Albert E. Scherr, a professor at Franklin Pierce Law Center in Concord, N.H., who has a grant from the National Institutes of Health to study the practice, suggests that the police be required to meet the “reasonable suspicion” standard before secretly collecting DNA. “You’re not asking them to let criminals go free,” he said. “You’re just asking them to investigate a little more.”

Read more here.  Simple Justice has a post on the article as well.  CrimProf Blog reports that DNA can be a double edged sword for the prosecutors in VA.

DNA

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Increased use of DNA will lead to Increased Prosecution of Sex Crimes

From the New York Times:

Gov Eliot Spitzer seeks to expand New York’s database of DNA samples to include people convicted of most crimes, including minor drug offenses, harassment or unauthorized use of credit card, while making it easier for prisoners to use DNA to try to establish their innocence; state currently collects DNA from those convicted of half of all crimes, typically most serious; Spitzer’s proposal would not cover offenses considered violations, like disorderly conduct; it would seek mandatory sampling of all prisoners in state, as well as all of those on parole, on probation or registered as sex offenders; expansion would add about 50,000 samples to database, at cost of $1.75 million; Assemblyman Joseph R Lentol, chairman of committee which deals with criminal justice, says Spitzer may get support of state lawmakers because his proposed expansion of DNA collection addresses concerns about access for wrongly convicted . . . .

As the DNA labs, both public and private, get caught up on their workloads this will start to make more sense to lawmakers nationwide and to the lobbyists for the DNA industry in particular.

DNA

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NH DNA Law Credited for Arrest

From the Boston Globe:

CONCORD, N.H. — The 1994 murder of a college student in Alaska would still be a cold case if New Hampshire had not passed a law in 2002 requiring DNA samples from all state prisoners convicted of violent crimes.

Kenneth Dion, 37, of Rochester, was charged in April with the murder of Bonnie Craig, who was abducted on her way to an early morning class at the University of Alaska Anchorage, then beaten, raped, and killed. The break in the case happened when police matched DNA evidence from Craig’s body to Dion, who is serving a six- to 15-year prison sentence in New Hampshire for several armed robberies.

The case has given new strength to a bill being considered in Alaska that would require police to collect a DNA sample from adults arrested for any felony or a crime against another person, but New Hampshire’s law is considerably narrower.

New Hampshire is one of just seven states that do not require DNA samples from all convicted felons. Before the 2002 law, the state required samples only from people convicted of sexual assaults. Since expanding the requirement to violent offenders, the state has struggled with a backlog of cases, leading to delays in information being entered into the federal database.

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Transportation For Illegal Sexual Activity And Related Crimes

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Sexual exploitation and other abuse of children

 

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Sexual abuse

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Sexual abuse

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Sexual exploitation and other abuse of children

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Canadian Prisoner Exchange

While often more applicable to drug cases, it can be very helpful to have the option for Canadian clients to have the option of going back home on a “prisoner exchange.”  Essentially, after serving 1 year in an American jail, a Canadian can apply to be exchanged for an American prisoner (in the Federal System).  Attached is the Canadian Embassy’s publication on the prisoner exchange program.  Another key aspect of the program is that the U.S. Attorney has to agree-so it helps to have been on their good side before sentencing.

Download canadian_prisoner_program.pdf

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Maine’s First “Jessica’s Law” Sentence (After Trial)

From the Bangor Daily News:

In the first application at trial of what is known as Maine’s Jessica’s Law, a Rockland man was sentenced to 22 years in prison for sexually assaulting a 4-year-old girl.

Micah Boland, 31, was sentenced Thursday in Waldo County Superior Court. Boland had been convicted in a jury-waived trial in February, and Justice Jeffrey Hjelm handed down his sentence after a review of Boland’s background and criminal history.

. . .

Assistant District Attorney Eric Walker said the sentencing was the first time Jessica’s Law was used in Maine after a trial. Like the federal version of Jessica’s Law, the state sentencing guidelines apply to instances of sexual assault of a person under 12.

There have been other sentences given in Maine under the law, but those were the results of plea agreements, Walker said. The law instructs judges to begin their deliberations with no less than a 20-year sentence, although they have the option of raising or lowering the sentence depending on the defendant’s background and other factors.

The assault took place in March 2007 in Liberty while Boland was staying with friends. The family left the 4-year-old in Boland’s care for a short time, and the girl revealed the assault to her mother and grandmother a few days later.

Boland confessed his behavior to police and recordings of those interviews were played in court during the trial. Although Boland did not take the stand in his own defense, the girl, who had reached her fifth birthday by the time of the trial, testified against him.

. . .

Walker said that, because of the nature of the crime, he recommended a 25-year sentence. Camden defense attorney Jeremy Pratt argued for a six-year term, Walker said.

Upon his release, Boland will be placed on lifetime supervision, which means he will essentially be on probation for the rest of his life. Any criminal activity during that period would land him back in jail, Walker said.

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May 3, 2012

Calls Grow for Cardinal in Ireland to Resign

By DOUGLAS DALBY

DUBLIN — Pressure is building on the leader of the Catholic Church in Ireland, Cardinal Sean Brady, to resign in the wake of damaging accusations made against him in a BBC television documentary about his role in a secret inquiry into clerical sexual abuse.       

Abuse survivors, senior government ministers, serving priests, canon lawyers, newspaper editorials, police officials, human rights groups and the head of the country’s biggest children’s charity were among those calling on the cardinal to step down Thursday over his failure 37 years ago to report damning evidence against the Rev. Brendan Smyth. That failure allowed Father Smyth to continue abusing children for at least 13 more years.       

Father Smyth, who died in prison at age 70, was convicted in the 1990s and admitted to molesting and raping about 100 children in Ireland and the United States.       

Speaking in Parliament, Deputy Prime Minister Eamon Gilmore on Thursday described the disclosures in the BBC program as “another horrific episode of failure by senior members of the Catholic Church to protect children” and said the cardinal should resign for failing to report the accusations.       

Prime Minister Enda Kenny, who delivered a landmark speech last year denouncing Vatican interference in investigations into clerical sexual abuse, said the office he held precluded him from calling for the cardinal’s resignation, but on Wednesday he said the primate should “reflect” on the contents of the BBC program.       

Northern Ireland’s deputy first minister, Martin McGuinness, a Catholic, said the cardinal’s decision to stay on would “leave many Catholics wondering whether anything is to be done by the leadership of the Catholic Church to ring the changes which many believe are required at such a sad time for all.”       

The calls for Cardinal Brady’s resignation were echoed by Fergus Finlay, the chief executive of the children’s charity Barnardo’s, who said the cardinal had a “moral responsibility” to follow up on what he had heard and “to break ranks if he discovered nothing had been done.”       

Cardinal Brady has insisted that his role in the 1975 internal church investigation was secretarial in nature and that he had fulfilled his duty by passing on to his superior accurate transcripts of meetings with children who said they had been abused.       

However, the BBC documentary, which was shown Tuesday, produced handwritten documents concerning one such interrogation involving Brendan Boland, a 14-year-old who came forward to accuse Father Smyth. In the documents, Father Brady, not yet a prelate, described himself as having been “dispatched to investigate the complaint,” prompting accusations that he bore greater responsibility than he has admitted.       

“The documentation of the interview with Brendan Boland, signed in his presence, clearly identifies me as the ‘notary’ or ‘note taker,’ ” the cardinal said in a statement in response to the program. “Any suggestion that I was other than a notary in the process of recording evidence from Mr. Boland is false and misleading.”       

Cardinal Brady said he “felt betrayed” on learning almost two decades later that the notes he had passed on had not been acted upon by his superiors, leaving the way for Father Smyth to abuse numerous other children, including those named in the interview by Mr. Boland.       

His critics rejected the cardinal’s version of events. Sam Adair, one of those abused by Father Smyth after 1975, told Ireland’s national broadcaster RTE: “The facts of the matter are that this man was a leading, skilled canon lawyer, highly paid and sought after, and promoted to the highest rank of the Roman Catholic Church in Europe. He was a skilled canon lawyer; he was not a note-taker.”       

Father Smyth, one of Ireland’s most notorious clerical pedophiles, was moved from parish to parish for 40 years, leaving a trail of accusations in his wake. He was first jailed in a sexual abuse case in 1994. On his release in 1997, he was extradited to the Irish Republic, where he was sentenced to 12 more years; he died having served less than a year.       

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Cultural Commodification of Child Sexuality

Sex Crimes has an interesting post on the commodification of child sexuality and the parasitic way in which the public reacts and profits from news about sex crimes.

Mandatory reporting laws encouraged sexual abuse disclosures and a cultural acceptance of child sexual abuse as a social problem. But along with this acceptance came an unexpected reconstruction of childhood. Accepting the prevalence of child sexual abuse caused a shift in thinking about childhood. When sexual abuse was uncovered, we could no longer hold the image of “ innocent” child in our minds without thinking about sex. The sexually abused child generates an image of an “innocent” child with a “knowing” adult. We might be disgusted, or outraged, but in our minds, thinking of a child being sexually abused means we are thinking about children and sex… we can’t help it.

The arousal created by the tension of sex combined with outrage had wide consumer appeal. Public disclosures exposed the raw reality of adult sexual abuse of a child. What the media discovered was that child sexual abuse was not only a public policy issue, it also had entertainment value.  Our appetites for feature articles, TV dramas, magazine stories, and movies seemed insatiable. We wanted the stories – Movie stars who were molested, politicians who were victims, priests who were offenders, day care providers who were perpetrators. The problem of child sexual abuse was not only newsworthy, it was marketable.  Child sexual abuse excited and upset us. It was shocking, but we couldn’t get enough of it. The problem of child sexual abuse not only gained widespread acceptance, but also became a saleable commodity.

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May 4, 2012

Strauss-Kahn Faces Allegations of Sexually Assaulting Woman at a Hotel in Washington

By and MAÏA de la BAUME

PARIS — French prosecutors are seeking to widen an investigation of Dominique Strauss-Kahn, the former chief of the International Monetary Fund, to look into accusations that he sexually assaulted a woman at a hotel in Washington in 2010, the prosecutor’s office in the northern city of Lille said on Friday.       

The prosecutor’s office said investigators had formally requested to expand the inquiry, which has already resulted in charges in March against Mr. Strauss-Kahn of “aggravated procurement in an organized gang,” the legal term for pimping, over a prostitution ring centered in Lille.       

The latest accusations emerged two days before a hotly contested runoff vote for the French presidency, in which the Socialist candidate is in the lead. The newspaper Libération obtained transcripts of the police interview of a young Belgian woman who said she and another Belgian woman were hired to participate in a sex party in a Washington hotel. The woman accused Mr. Strauss-Kahn — who was once the front-runner to be the Socialist candidate for president — of holding her down and pulling her hair as he assaulted her.       

Mr. Strauss-Kahn’s lawyers in Paris immediately issued a statement denouncing the accusations as a “lynching,” citing the timing of the presidential election and the fact that the information was emerging now although investigators had made their request to expand the inquiry on March 28. The lawyers also denied that any violence occurred and said the two women at the party had offered contradictory information.       

The accusations date from December 2010 and involve two Belgian escorts who said they were paid 2,500 euros, about $3,200, for a three-day trip to Washington, that included a sex party at the W Hotel with Mr. Strauss-Kahn and three other men from France.       

The Libération article cites direct statements from the transcripts accusing Mr. Strauss-Kahn of knowing that the women were paid escorts and also that he forced one into a particular sex act by gripping her hands, pulling her hair and hurting her. “Certainly, I didn’t scream, but I did say clearly several times to stop in a high voice,” she said, according to the article.       

Neither of the two women, both in their 20s, filed a complaint, and the Metropolitan Police Department and the F.B.I. said they had no report of such an incident. The second woman reportedly has said that she did not hear the other woman make clear demands to Mr. Strauss-Kahn to stop.       

The accusations stem from an investigation of a high-profile prostitution ring labeled the Carlton Affair in the French news media because of sex parties that were held in luxury hotels, including the Hôtel Carlton de Lille. In addition to Mr. Strauss-Kahn, eight other people are under investigation, including a lawyer, a police officer and a hotel manager.       

If convicted, Mr. Strauss-Kahn, who is 63, could face a maximum of 20 years in prison and 3 million euros, or nearly $4 million, in fines.       

With the request to widen the investigation, the Lille prosecutor has the option of refusing the request or starting a preliminary police investigation.       

John H. Cushman Jr. and Michael S. Schmidt contributed reporting from Washington.

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May 4, 2012

Tennessee: Split Verdict in Sex Trafficking Case

By THE ASSOCIATED PRESS

A federal jury in Tennessee delivered a split verdict on Friday against nine people, mostly Somali men, who were accused of operating a sex trafficking ring in three states. Three men were convicted, and six were acquitted. The defendants are among 30 who were indicted in the case, which spans from Minnesota to Ohio and Tennessee. The jury of six men and six women deliberated over five days this week before returning the verdict. Van Vincent, an assistant United States attorney, said the government would not stop prosecuting these cases. A Somali witness identified only as Jane Doe No. 2 testified that she was used as a prostitute by gang members starting at the age of 12. She cried in court as she described being taken to several apartments around suburban Minneapolis to have sex with Somali men for money, sometimes as little as $40. Idris Ibrahim Fahra, Andrew Kayachith and Yassin Abdirahman Yusuf were found guilty of conspiracy to commit sex trafficking of children by force, fraud or coercion.       

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May 4, 2012

5 Philadelphia Priests Are Barred From Ministry

By JON HURDLE

PHILADELPHIA — The Roman Catholic archbishop of Philadelphia announced Friday that five priests under investigation for sexual abuse would be permanently removed from ministry, while three other priests had been exonerated. The 8 were among 26 priests who were suspended in early 2011 because of past accusations of sexual abuse or improper sexual behavior.       

The five who will be removed were deemed “unsuitable for ministry,” while the other three may return to active ministry immediately, said Archbishop Charles J. Chaput, announcing his first major action in the scandals since he took office last fall.       

His predecessor, Cardinal Justin Rigali, suspended the 26 priests after a withering grand jury report in February 2011 accused the archdiocese of allowing as many as 37 priests to keep working, and remain in possible contact with children, despite “substantial evidence of abuse.”       

At a news conference, Archbishop Chaput said that one of the priests in the grand jury report had died, and that church officials had not yet reached conclusions about 17 others. Six of those priests are still under criminal investigation by the Philadelphia district attorney’s office.       

Eight other priests never named in the report were exonerated last year. Two others had already left the archdiocese.       

The announcements were a small step forward for the 1.5-million member Archdiocese of Philadelphia, which has been racked by charges that widespread abuses were ignored, even as it struggles with contentious cutbacks in neighborhood Catholic schools and parishes.       

“We cannot change the past, but I pray and I do believe that the lessons of the last year have made the church humbler, wiser and a more vigilant guardian of our children’s safety,” Archbishop Chaput said.       

The grand jury allegations were especially shocking to many church members because they suggested that priests under investigation for abuse were still wearing the cloth years after the national church had declared a zero-tolerance policy.       

When the suspensions were announced in February and March 2011, church critics called them long overdue and evidence of official failure to act. But many priests and church supporters called them an overreaction to bad publicity, unfairly tarring priests who had not been credibly accused of crimes.       

Some priests had been accused of serious sexual abuse, others of “boundary issues” violations like improper sexual conversations or light physical contact.       

The grand jury report led to criminal charges against Msgr. William J. Lynn, who was responsible for looking into abuse claims but, it alleged, had been more concerned with shielding the church from scandal. Monsignor Lynn, the most senior church official in the country to be criminally indicted in the sexual abuse scandal, is on trial in Philadelphia on charges of conspiracy and child endangerment. He has pleaded not guilty.       

At least one priest who was declared unfit this week has told friends that he is angry and innocent, and will appeal the decision.       

Asked to describe his meetings with the priests whose investigations have concluded, Archbishop Chaput said they were “difficult, very difficult.” For those found suitable for ministry, he said, “there was great relief and joy.”       

The five priests will be under permanent supervision from now on, the archbishop said. “Minimally, it would require a process of monitoring for the rest of their lives.”       

The five will not face criminal charges, said Tasha Jamerson, a spokeswoman for the district attorney’s office, because the statute of limitations had run out by the time of the grand jury report.       

Barbara Blaine, the president of the Survivors Network of those Abused by Priests, or SNAP, said Friday, “We are shocked that 14 months after a grand jury raised concerns over 37 accused priests, only eight of these cases are resolved.”       

This article has been revised to reflect the following correction:

Correction: May 5, 2012

In an earlier version of this article, a quote about the future of the priests was incorrectly attributed to Archbishop Charles J. Chaput. He did not say, “leading lives of prayer and penance and not allowed to wear a collar,” at the press conference. An earlier version also incorrectly described the five priests as having been defrocked. They remain priests but have been barred from ministry.

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May 6, 2012

More Time for Justice

Hawaii significantly strengthened its protections against child sexual abuse last month when Gov. Neil Abercrombie signed a measure extending the statute of limitations for civil lawsuits filed by child victims. At least as important, it opens a one-time two-year window to allow victims to file suits against their abusers even if the time limit had expired under the old law.       

Like similar laws in California and Delaware, the Hawaii measure recognizes some wrenching realities. It can take many years, even decades, before child abuse victims are emotionally ready to come forward and tell their stories in court. But by then, they may be barred from suing by the statute of limitations. For example, many suits against the Catholic Church have been blocked because the church’s covering up for pedophile priests made it hard for victims to come forward until long past the time limit for bringing civil claims.       

Hawaii’s new law allows child victims to bring suits up to the age of 26 (it was 20), or three years from the time the victim realizes the abuse caused injury. The law’s leading opponent was the Roman Catholic Church, which has been working hard to defeat statute of limitations reform across the country.       

Lobbying by the church recently succeeded in blocking reform in Pennsylvania. But lawmakers in Massachusetts seem ready to follow Hawaii’s example by passing similar reforms.       

In New York, Gov. Andrew Cuomo has not yet indicated that he would support a measure sponsored by Margaret Markey in the Assembly to lift the statute of limitations for one year for civil lawsuits involving child sex abuse. After that year, an accuser would have 10 years after turning 18 to make a claim, instead of five years, which is the current law. Mr. Cuomo has voiced concern about fading memories and missing evidence, but those concerns need to be balanced with justice for victims and the need to stop abusers.       

Like measures in other states, the Markey bill requires that a victim obtain a certificate from a mental health professional to show there is a reasonable basis to believe the abuse occurred before a suit can go forward.       

Getting the measure through the State Senate would be an uphill climb; previous attempts have failed, and Republican leaders have again vowed to stop it. Cardinal Timothy Dolan has made defeating statute of limitations reform one of his top legislative priorities. Mr. Cuomo’s strong leadership will be needed if New York is to match Hawaii’s accomplishment any time soon.       

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A very interesting case on the Confrontation Clause & Child Witneses

The Confrontation Blog has a great and very detailed post on the use of hearsay from child witnesses.  Anyone defending child molestation cases understands that the use of child hearsay in sexual abuse cases including not only criminal cases but child protective proceedings and civil matters.  This great post details some recent progress the Ohio defense bar has been making in holding the State’s feet to the fire.

In a pre-Crawford trial, these statements were admitted as – surprise – excited utterances, though apparently Nathan did not exhibit distress until well into the interview. The appellate court, pre-Crawford, affirmed, and the state supreme court, soon after Crawford, denied review; even on a motion for reconsideration, highlighting Crawford, the state supreme court declined review. But then the U.S. Supreme Court – in a decision noted in the very first posting on this blog – vacated and remanded for reconsideration in light of Crawford. Siler v. Ohio, 543 1019 (2004). On remand, the appellate court held unanimously that Nathan’s statements were testimonial and that admitting them in the absence of an opportunity for cross-examination violated the confrontation right. State v. Siler, 843 N.E.2d 863 (Ohio App. 5th Dist. 2005). And now the Ohio Supreme Court has reached the same conclusion, also unanimously on this point. So that is a measure of how far matters have progressed from the pre-Crawford era, and perhaps the immediate post-Crawford era as well.

 

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Death Penalty and Child Rape

Sex Crimes and Sentencing Law and Policy discuss the wisdom of imposing the death penalty in child rape cases.

I used to be very much in favor of the death penalty and at some level remain philosophically unopposed in certain cases.  I have come to believe, however, that the expense of trying these cases, coupled with the possibility of error tips the balance against the use of the ultimate criminal price.  Price and error rate concerns are something that should be worked out by voters in each jurisdiction subject to appropriate federal oversight of the rights of prisoners.  My own home state does not impose the death penalty and I would vote against its imposition here.  If the voters of Texas feel differently and are willing to pay the real cost of an appropriate defense I have no issues.  See CrimProfBlog for a discussion of the price of death penalty defense and Bring It On (no longer available 5/2012) for a discussion of actual innocence and the death penalty.

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Romeo & Juliet in the First Circuit

I am only getting back into the swing of things now after getting reaquainted with my family and getting the practice back up to speed after my deployment.  As part of that process I am trolling through old posts of blogs I like to see what has been written over the past several months.

VIA Sex Crimes:

From Appellate Law & Practice:

US v. Cadieux, No. 05-2567 affirms a felon-in-possession conviction subject to the longer sentences under the ACCA, see 18 U.S.C. § 924(e)(1).

. . .

Also, a “1989 conviction for indecent assault and battery on a child under fourteen” as a violent felony for purposes of the ACCA.  The First provides a useful analysis for determining whether a state law crime is violent.  We know where this is going.  The First looks at its other precedent and concludes that “inappropriate sexual touching [by adults against children] is a crime that presents a serious potential risk of physical injury to another” and is therefore violent.”  The First parses though the state statutes, and concludes that the likelihood that the defendant was convicted of a “Romeo-Juliet” offense is quite low. Why?  “We have scoured the caselaw and could not discover a single reported case in which a juvenile was convicted under Section 13B for consensual sexual activity with a similarly-aged youth.”  Okay, that part is crap.  Just because there isn’t a reported case doesn’t mean that people have not plead guilty.  They could have done a lot better than just looking on Westlaw.  But, since they decided they wanted to send this guy to jail, they did not bother to take the issue seriously.  Whatever the case, they First does make a good point that the liklihood of this being a Romeo-Julliet conviction is low, and then says “If and when a person is convicted under section 13B for consensual sexual contact with a youth of the same or similar age, and sentencing enhancement based on that conviction is sought, we reserve the right to revisit the issue” (Can courts “reserve” rights?  What does that even mean?)

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Around the Blogosphere

Via Sex Crimes here is a link to a brief in Ohio arguing against residency restrictions and a link to the Federal Register where the Adam Walsh Act proposed regulations are posted.  Sex Crimes also links to a Missouri decision on the retroactivity of residency restrictions

FourthAmendment.com links to an Ohio decision regarding staleness in obtaining a search warrant for child pornography.  Bottom line:  information with respect to child pornography is presumptively not stale.

Sentencing Law and Policy hopes for a favorable decision in the Faulks case which is still pending before the US Supreme Court:

I have previously discussed the Faulks case here and here, . . .the main questions presented from our initial petition (which is available here; BIO here; reply here):

In 1998, following a jury conviction, Judge Rebecca Beach Smith sentenced Celestine Faulks to the Guidelines-maximum term of 30 months in prison and five years’ supervised release. Seven years later, as Faulks’s term of supervision was nearing completion, a federal probation officer alleged that Faulks had committed a state crime in violation of a condition of her release.  Faulks denied the allegation.  At a revocation hearing under 18 U.S.C. § 3583, Judge Smith decided disputed questions of identity, actus reus, mens rea, and witness credibility using a civil standard of proof. Judge Smith found Faulks guilty of the alleged offense and sentenced her to a three-year term of imprisonment. This case presents two questions:

1. Whether a federal judge may, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), impose upon a former federal offender a new three-year term of imprisonment based solely on the judge’s disputed factual findings, by a preponderance of the evidence, that the former offender committed a state offense during her term of supervised release.

2. Whether proceedings in which federal judicial officials initiate, investigate, and adjudicate disputed allegations that a former federal offender has violated a condition of supervised release by committing a state offense violate the constitutional guarantees of the Fifth and Sixth Amendments as set forth in Apprendi, Blakely, and Mine Workers v. Bagwell, 512 U.S. 821 (1994).

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Federal Good Time Calculations in Need of Recalculation

Steve Sady of the Ninth Circuit Blog has some interesting thoughts on issues in need of US Supreme Court Attention.  I am most interested in the following sentencing issue.  Given that federal sentences are typically quite lengthy the extra 7 days per year of sentence adds up.

The Good Time Statute Requires Calculation Based On The Sentence Imposed, Not Time Served.
Last year, a federal district judge in Texas joined two other district judges who had found that the BOP has misinterpreted the federal good time credit statute, thereby requiring prisoners to serve seven extra days for every year of their terms of imprisonment. After reversal in the Fifth Circuit, the case came before the Supreme Court on a petition for certiorari. In a Statement Respecting the Denial of Certiorari, Justice Stevens complimented the “thoughtful opinion” in the Texas district court and indicated the merit of the prisoners’ postition:
“[B]oth the text and the history of the statute strongly suggest that [the good time credit statute] was not intended to alter the pre-existing approach of calculating good-time credit based on the sentence imposed. . . .[T]he question has sufficient importance to merit further study, not only by judges but by other Government officials as well.”
Although the “pre-existing approach” resulted in a maximum of 15% good time credits against the sentence imposed, instead of the BOP’s maximum of 12.8%, Justice Stevens found the lack of a Circuit split determinative.
This issue is of exceptional importance and should be addressed regardless of a Circuit split. Resolution of the issues will affect the actual time served of over 95% of federal prisoners, involving thousands of years and hundreds of millions of dollars in prison expenses. Given the calibration of the Sentencing Table to the 15% rule, federal prison sentences are 2.2% higher than called for by the Sentencing Commission (as blogged here). In an unprecedented step, the Federal Public and Community Defenders for every District signed on to an amicus curiae brief asking the Court to resolve this question of unprecedented importance.
And there are the continuing costs of litigation (not to mention the $346 million in over-incarceration costs and additional $66 million with each new year). We have accepted the Justice Stevens challenge and are preparing the third wave of litigation (the first established that the good time statute is ambiguous, culminating in Pacheco-Camacho; the second sought to develop a split on the statute from the three district court opinions). This should not be necessary given that litigation over violations of the Administrative Procedure Act (as set out in the filing linked here) would be mooted by simply following the plain language of the statute or, at worst, applying the rule of lenity to an ambiguous penal statute (as outlined in the Mujahid petition here, which also traces the inconsistencies in the Circuit approaches).
The most recent purely statutory challenge is coming to the Court from the Tenth Circuit in Wright. The Court should take this opportunity to settle the good time statute’s construction once and for all.

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New First Circuit Cases

Appellate Law & Practice analyzes new cases from the First Circuit:

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New DOJ Anti-Porn Task Force

From the Salt Lake Tribune

WASHINGTON – Maybe, from now on, the girls will be a little less wild, thanks to Brent Ward.     Ward, who was among the most strident adversaries of the porn industry as U.S. Attorney in Utah in the 1980s, is heading a new Justice Department task force aimed at enforcing federal obscenity laws. . . .

“We’re not going to prosecute it away, but it’s important, I think, that Americans see their government trying to do something about it,” he said. The task force, with a total of four prosecutors, 10 FBI agents and a postal inspector, has the job of putting together cases that can be prosecuted by U.S. attorneys in various states. It’s a bid to revive obscenity prosecution, Ward said, after a dormant period in the Clinton administration, which coincided with an explosion of Internet pornography. “To me, it was clearly a big mistake,” Ward said. “Vigorous action, when Internet dissemination of pornography was growing and still in its infancy might have had a significant deterrent effect and we might not be where we are now.” Estimates on the size of the porn industry range from $4 billion to $12 billion, and the Internet has made it more accessible, although a recent University of California-Berkeley study said only 1 percent of Web sites contain pornographic material. Nonetheless, Ward says most obscenity cases today are Internet-related, and the content is more extreme than when he was a Utah prosecutor building a reputation fighting magazine and mail-order video distributors. “Back in the ’80s, Brent was one of the two or three prosecutors willing to take on pornography,” said Robert Peters, of the group Morality In Media. In a case Ward says opened his eyes to pornography’s harm, he battled “dial-a-porn” phone sex lines that allowed children to make countless calls to hear explicit material. And he essentially closed the last two X-rated theaters in Utah after convicting their owner on tax charges.

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Statutory Rape is a “Crime of Violence”

First noticed on First Circuit Federal Defender Blog (no longer available 5/2012), Aguiar v. Gonzales has some heavy implications for people standing before a federal judge for immigration or sentencing enhancement issues.  While it is difficult to predict future federal offenses by an individual client that may trigger some of the more draconian sentencing enhancements for “crimes of violence”, lawyers should be on the lookout for “sweet” pleas to statutory rape situations that may then trigger unpleasant collateral immigration proceedings.

When determining whether a particular crime is a “crime of violence” we generally follow what has been termed the “categorical approach,” restricting our inquiry to the statutory definition of the offense without regard to the underlying facts.

United States

v. Meader, 118 F.3d 876, 882 (1st Cir. 1997).

In United States v. Sacko, 178 F.3d 1, 4-5 (1st Cir.1999)(“Sacko I”), we found that, in cases involving statutory rape,it was permissible to go beyond the statutory language and examine the charging documents and jury instructions. In doing so in the instant case, all we glean from the charging documents is that Aguiar was over eighteen and that the victim was between fourteen and sixteen. Because there was no trial, there were no jury instructions. Thus, for the purposes of this case, “our inquiry remains limited to the statutory formulation” of the offense.

United States

v. Sherwood, 156 F.3d 219, 221 (1st Cir. 1998).

Under this approach, “only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.” Chery v. Ashcroft, 347 F.3d 404, 407 (2d Cir. 2003) (internal quotation marks omitted). Given the terms of Section 11-37-6, we must therefore determine whether sexual penetration involving a person who is eighteen and a person one day shy of the age of sixteen involves a substantial risk of the use of physical force. We conclude that it does.

Section 11-37-6 explicitly provides that a child under the age of sixteen is unable to legally consent to the sexual conduct the statute prohibits.

In framing the question for us to consider, Aguiar argues that we must examine the “typical” or “ordinary” conduct contemplated by the statute. . . .  He then equates the “ordinary” conduct contemplated by the statute with “  conduct between a male on his 18th birthday and a female one day shy of her 16th birthday.”

Id.

We assume that Aguiar means “factually consensual,” because under the statute it is clear that a minor under the age of sixteen cannot legally consent. In other words, legally, the typical or ordinary conduct contemplated by the statute is not consensual.

. . .

At least seven other circuits have addressed an issue similar to the one before us today. The Second, Fifth, Eighth, Tenth, and Eleventh Circuits have interpreted offenses involving similar statutes to be “crimes of violence” — even if the conduct is factually consensual — because they always involve a substantial risk of the use of physical force. . . . (citations omitted) On the other hand, the Seventh and Ninth Circuits have found that not all cases involving violations of similar statutes present a substantial risk that physical force will be used.

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Zoophilia Documentary

The movie “Zoo”, reviewed in the New York Times reminds me of a case in Northern Maine a few years back where an elderly father was accused (and served time!) for assaulting his adult son with an axle because the son was a “zoophile” who was “married” to his dog.  In an ironic twist the legislature had taken out the previous provision of Maine law which prohibited sex with animals.  There were some uncomfortable moments when the legislature in the aftermath of the case rushed to re implement the no sex with animals law had hearings and the son showed up with his “wife” to testify against the bill.  Great soap opera.

The director Robinson Devor apparently would like viewers who watch his heavily reconstructed documentary, “Zoo,” to see it as a story of ineluctable desire and human dignity. Shot on Super 16-millimeter film, with many scenes steeped in a blue that would have made Yves Klein envious, “Zoo” is, to a large extent, about the rhetorical uses of beauty and metaphor and of certain filmmaking techniques like slow-motion photography. It is, rather more coyly, also about a man who died from a perforated colon after he arranged to have sex with a stallion.

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Crawford and Victim Statements to Medical Personnel

The Confrontation Blog has an interesting analysis by Jeffrey Fisher of a post Crawford hearsay case involving medical personnel.

The California Supreme Court issued its decision yesterday in the long-awaited case of People v. Cage. (Thanks to Paul Vinegrad for calling my attention to it.) It treats a statement by a young victim to a police officer, in the station-house and the hospital, as testimonial, and his statement to a doctor, which the court regarded as having been asked and given solely for medical purposes, as non-testimonial. The court acknowledges a conflict in reasoning with State v. Mechling, 633 S.E. 311 (W. Va. 2006), but does not purport to overrule People v. Sisavath, 118 Cal.App.4th 1396 (Cal. App. 2004). I’m sorry that I’m too rushed now with other matters to make a longer comment on the case at this time. But I’ve asked Jeff Fisher to expand on his initial comments, and here is what he has to say:

. . .

The California Supreme Court held that John’s statement to the officer was testimonial because it was not materially distinguishable from the statement Amy Hammon gave the police in Hammon v. Indiana (decided in the same opinion as Davis v. Washington). In the more noteworthy portion of the opinion, the Court also held that the statement John made to the doctor was nontestimonial. In dealing with statements to doctors that describe criminal conduct, there are three general approaches a court might take:
(1) Statements describing criminal conduct as causing a physical condition and identifying an alleged perpetrator are testimonial. Courts, including the California Court of Appeal in an opinion that the California Supreme Court here did not call into question, have taken this approach when the doctors have examined victims as a coordinated part of a criminal investigation. See, e.g., People v. Harless, 125

Cal.

App. 4th 70 (2004), rev. granted, 109 P.3d 69 (

Cal.

), rev. dismissed, 119 P.3d 962 (

Cal.

2005) (statement to doctor “in the course of the district attorney’s investigation of child abuse” testimonial); Medina v. State, 143 P.3d 471 (

Nev.

Oct. 5, 2006); Hernandez v. State, 946 So.2d 1270 (Fla. App. Jan. 26, 2007).
(2) Statements describing criminal conduct as causing a physical condition are not testimonial but statements identifying an alleged perpetrator are testimonial. Some courts have adopted this position in cases in which doctors were not coordinating their efforts with the police. See, e.g., State v. Slater, 908 A.2d 1097 (

Conn.

2006); In re T.T., 815 N.E.2d 789 (Ill. App. 2004); State v. Bartholomew, 127

Wash.

App. 1006 (2005). Some states, in fact, provide that statements identifying an alleged perpetrator to doctors do not even satisfy the medical diagnosis hearsay exception. See, e.g., Commonwealth v. DeOliveira, 849 N.E.2d 218, 224 (

Mass.

2006).
(3) No statements made to doctors (at least when police are not also part of the interview) are testimonial. Some courts have adopted this position in cases, as in (2), in which doctors were not coordinating their efforts with police. See, e.g., People v. Vigil, 127 P.3d 916 (

Colo.

2006); State v. Vaught, 682 N.W. 2d 284 (

Neb.

2004); United States v. Peneaux, 432 F.3d 882 (8th Cir. 2005)

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Crawford Cases and Hearsay

David Beneman abstracts some post-Crawford cases.  “The combined opinion is headed as Davis v. Washington. In the first case, Davis v. Washington, the victim called 911 and told the operator that the assailant was “jumpin’ on” her and “usin’ his fists,” and then, in response to questioning, she identified the assailant as Adrian Davis. In the second case, Hammond, the police responded to a reported domestic disturbance and questioned the victim in her house in the aftermath of an assault by her husband. In an 8-1 decision by Justice Scalia (only Justice Thomas dissented), the Court held that the transcript of the initial portion of the 911 call was not testimonial, and therefore admissible, because the primary purpose of the interrogation was to meet “an ongoing emergency,” while the victim’s statement in Hammon was testimonial, and therefore inadmissible, because there was no ongoing emergency and the “primary purpose” of the questioning was to obtain evidence.

Washington and Hammon v. Indiana.

The Court stated the rule as follows: Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Summary: Statements are non-testimonial, (so not barred by the Confrontation Clause), when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Statements are testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Parts of 911 call that took place during assault in which police interrogated caller about, assailant’s identity, were not testimonial. (Davis)

Statements made to police after a report by a 3rd party of a domestic disturbance were testimonial where the declarant told police everything was fine, police did not see any assault, police separated declarant from assailant, but on questioning by police of declarant, she described assault that had happened recently.(Hammon) While finding parts of 911 call not testimonial, the decision does not say all 911 calls or all parts of a single 911 call are not testimonial. Court limits: “This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot…’evolve into testimonial statements’…once that purpose has been achieved.”

For those interested there is a fascinating discussion (fascinating taken in context) on the SCOTUS blog: http://www.scotusblog.com/movabletype/ with comments by the defendants’ attorneys, Jeff Fisher and Professor Richard Freedman, about what the decision means and foretells. There is quite a bit in the opinion and it is far from the “last word” on confrontation clause. A side note of interest, Thomas writing a lone dissent, especially with the opinion coming from Scalia. Such intrigue !”

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Defending Criminal Charges of Domestic Violence – Session 2. Chapter 2 MSBA Page #1-4

Presenters: David J. Bobrow, Esq., Bedard & Bobrow PC, Eliot.

State Consequences of a Domestic Violence Conviction

The fact that domestic violence causes physical injuries, dysfunctional families, and broken relationships is well known.  Many people are unaware that there has been a continuous change in the way our legal system deals with domestic violence and convictions.

Ever since our society’s attitude toward domestic violence began to change, numerous laws have been enacted every year that specifically address domestic violence within our state and our federal statutes.  As a result, the consequences of committing or being accused of committing domestic violence are also growing.  The following list illustrates some of the consequences associated with domestic violence convictions.

 1)      The actual sentence.

 Enhanced jail or prison time as opposed to convictions for straight assault, fines, the completion of a fifty-two week batter’s intervention classes, probation for a one time assault, and attendance in domestic violence court programs.

 2)      The loss of employment opportunities.

 One of the most serious consequences of domestic violence is the stigma that is attached to these crimes.  With a conviction of domestic violence on one’s record, it can be very difficult to obtain employment in certain types of occupations, especially jobs within government.  This is an extremely understated consequence.  Many employers and job applications inquire about convictions.  A domestic violence conviction often eliminates one from possible employment.  Many employers are on record stating they will not hire one with a domestic violence related conviction.  Domestic violence
convictions also have far reaching effects for those within the legal system, often resulting in suspensions or firings.

 3)      The denial or revocation of a state license to engage in a particular type of business.

 An allegation of having committed domestic violence can also make it difficult for a person to obtain or maintain a state issued license, such as a license to sell real estate or a license to work in or operate a care facility.  People have also reported being denied medical legal licenses due to domestic violence related convictions.

 4)      The issuance of a restraining (protection from abuse) order:

 Restraining orders are issued by courts routinely where there are allegations of domestic violence.  An obvious consequence to these orders is the loss of ability to contract certain persons, to return or to reside in a residence, to see one’s children, and to possess firearms.  This can occur even with a conviction, but upon a finding of abuse.  See 19-A M.R.S.A. §4001, et seq.

 5. The loss of the right to possess firearms.

 A conviction for domestic violence related incidents can result in federal charges for the possession of a firearm. See 18 U.S.C . §922(g), et.seq.  A domestic assault conviction will always trigger 18 U.S.C. §922(g).  A conviction for domestic violence criminal threatening or terrorizing likely does not, but this law and the interpretation of this law continue to change.  When a restraining order is issued, it is the offender may be restrained from owning or possessing a firearm.  This restriction is particularly burdensome to people with occupations that require the possession of handguns.

 6)      The loss of immigration status.

 A conviction for domestic violence can result in the loss of a person’s immigration status.  This loss of immigration status can occur, even in situations of a deferred disposition where the defendant has the ability to withdraw a plea of guilty upon successful completion of an anger management program, batterer’s intervention program, or other conditions.

 7)      The loss of child custody, visitation or parental rights.

 A major factor the court must consider in determining custody, visitation, and parental rights is whether or not there has been domestic violence within the relationship.  Courts are particularly sensitive to this issue when considering the best interests of the minor children.  Under 19-A M.R.S.A. §1653(B), the Legislature makes a specific finding of the impact of domestic violence upon the family.  Domestic violence can be the sole basis for an award of allocated or sole parental rights to the victimized parent.  Domestic violence is a factor for consideration in the best interest of the child standard.  19-A M.R.S.A.  §1653(3)(L)(M).  In cases of domestic violence, the Court is not permitted to award primary residence to a parent who committed abuse absent a finding of best interest and that safety of the child has been accounted for. 19-A M.R.S.A. §1653(6).

 8)      An increase in the amount of spousal support paid.

 Although Maine is a no-fault state (but see 19-A §902(G) and the statute (19-A M.R.S.A. §951-A(5)(A)-(Q) does not cite domestic violence as a ground for a determination of spousal support, in certain cases it could certainly be argued as a factor where the violence directly impacted the need for spousal support.

 9)      The loss of the right to collect spousal support.

 In some states such as California, a person who is found to have committed domestic violence may lose his or her opportunity to collect spousal support.  No Court in Maine has ever made this explicit finding.

 10)   An unequal division of property.

 The Law Court specifically noted in Boyd v. Boyd that fault findings are a “particularly inappropriate consideration in property distribution.” 421 A.2d 1356, 1358 (Me. 1980). This prevents domestic violence from being an explicit basis for an unequal division of property, with explicit being the keyword.

11)   An automatic extension to a foreign spouse and his or her children to remain within the country and in an increased obligation to support them.

 In cases where foreign spouses make allegations of domestic violence against their spouses who are sponsoring them, the foreign spouse will be granted an automatic extension to his or her right to remain within our country.  When this happens, the sponsored spouse’s obligation to support the foreign spouse and his or her children is also extended.

 12)   A civil lawsuit by the victim spouse.

 Victims of domestic violence can file civil suit against their former spouses.  See Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993).  These lawsuits can result in awards of large compensatory and punitive damages.

 13)   A crime of moral turpitude.

 Domestic violence is considered a crime of moral turpitude.  Consequently, when a person has a conviction for domestic violence on his or her record, his or her credibility can be called into question when testifying.

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A breakdown on the formula process used at our office for our clients.

Demand Figure:

                The first step is to evaluate the medical bills.  If the injury is one that can be objectively proven multiply the total medical bills by a factor of two, three, four, or five depending upon the length of time the injury took to heal, the quality of your medical documentation, and whether or not the particular area of the body was totally symptom-free to the injury.

                Next determine the actual loss of income resulting from the injury.  Be certain it is  well documented and cannot be successfully attacked or tested at trial.  The best documentation is the simple calculation of several weeks lost time at a certain rate of pay per week.  The worst would be an estimate of self-employment income lost as estimated by your client with little supporting documentation.  If the loss is well documented, reasonable, and consistent with medical reports, multiply the total by two, three, or four depending upon the quality of your documentation and the length of time for recovery. 

                If there is a permanent impairment assessment or indication of permanency by a reputable physician and the assessment is stated in terms of percentage, use a figure of between $1000 and $2000 for each percentage point of permanent impairment.  If there is no permanent impairment assessment, but there is an indication that the injury has some degree of permanency, use a figure of $500 to $1000 for each decade of your client’s remaining life expectancy.

                Add the value of medical bills, loss of income, and permanent impairment together to equal the demand figure.

Settlement Disbursement:

                Settlement amount less attorney’s fee, out-of-pocket expenses, medical liens/outstanding medical bills equals total amount payable to client. 

 Excerpt from the Personal Injury Manual  from Smith Law Offices P.A. 

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May 7, 2012 The NY Times

Ireland: Catholic Church Leader Apologizes, but Will Not Resign

By REUTERS

 The leader of the Irish Catholic Church, Cardinal Sean Brady, apologized Monday to victims of sexual abuse but rejected calls to resign after a TV documentary reported that he had failed to warn parents their children were being sexually abused by a priest in 1975. The documentary, broadcast by the BBC last Tuesday, said that an abuse victim, Brendan Boland, gave Cardinal Brady the names of children being abused by the priest but the cardinal failed to act to ensure their safety. “I apologize without hesitation to him and to any victim,” Cardinal Brady said on the state broadcaster RTE. Three out of the four main political parties in Ireland have called on Cardinal Brady to consider his position. “I’ve heard those calls, but I’ve also heard the many, many calls from people who want me to stay,” the cardinal said. “I’m not changing my position.”       

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May 7, 2012

Ex-Officer Sentenced to 75 Years in Prison for Sexual Assault

By RUSS BUETTNER

A former New York City police officer who managed to avoid a rape conviction for a sexual attack on a schoolteacher at gunpoint was nonetheless sentenced on Monday to 75 years to life in prison.       

In issuing the sentence, Justice Richard D. Carruthers of State Supreme Court in Manhattan criticized the former officer, Michael Pena, for abandoning his official oath and assaulting the 25-year-old woman “in the most brutal and degrading manner possible.”       

Mr. Pena, who turned 28 on Friday, was convicted in March on three counts of predatory sexual assault and related charges. Justice Carruthers declared a mistrial on two rape counts, which unlike the other counts required a finding of penetration, after the jury of eight men and four women said they were at an impasse on those charges.       

The victim, who had cried out and gasped for air when the mistrial was declared, beamed with a wide smile and hugged friends and family and law enforcement officers in the courtroom after the sentence was announced.       

She had entered the courtroom with several other women shortly before addressing the judge. Speaking for only a few moments, she said the attack was on her mind constantly.       

“He used his weapon and basically destructed my life with the choice he made that day,” she said.       

Mr. Pena also spoke briefly and haltingly. He apologized for the “pain and anguish” he had caused the victim, her friends and family, as well as his own friends and family, who were also represented in the courtroom. He said he wished he could go back to that day “and grab myself by the shoulder,” as his voice trailed off.       

“I have no explanation for what happened that day,” he added.       

Justice Carruthers barely let Mr. Pena finish his last sentence before levying a 25-years-to-life term on each of the three predatory sexual assault counts, to be served consecutively. The judge praised the young woman’s bravery and composure during the attack and throughout the prosecution.       

Mr. Pena was off duty when he grabbed the woman just after 6 a.m. on Aug. 19 in the Inwood section of Manhattan. She was waiting outside for a ride to her first day in a new job teaching second grade when Mr. Pena accosted her at gunpoint; he led her to a courtyard, where he repeatedly sexually assaulted her, threatening to shoot her in the face if she made any noise or opened her eyes.       

Justice Carruthers dismissed a claim by Mr. Pena’s lawyer, Ephraim Savitt, that Mr. Pena had been drunk and not entirely aware of his actions.       

“He was as aware and self-possessed on that day as he was vicious and devious,” the judge said.       

Mr. Savitt had asked the judge for a sentence of 10 years to life, citing his client’s three and a half years of service on the police force and lack of a prior criminal record.       

“What my client did was unforgivable,” he said in court. “But it was also an aberration.”       

Mr. Pena would not be eligible for parole until after his 100th birthday.       

Outside the courtroom, Mr. Savitt called the sentence “draconian” and said it exceeded others issued to terrorists and murderers. He said he would consider an appeal.       

The office of Cyrus R. Vance Jr., the Manhattan district attorney, has not yet indicated whether it might seek a retrial on the rape counts, or whether its decision will be colored by the sentence. In a statement, Mr. Vance commended the victim’s bravery and said the “life sentence underscores the brutal nature of the defendant’s attack on an innocent young woman.”       

Justice Carruthers set a court date of May 23 to hear whether prosecutors would seek a retrial on the rape counts.       

During the trial, the jury’s deliberations took an unexpected turn.       

In a meeting with the judge, one juror raised questions about whether the judgments of another juror, Lloyd E. Constantine, were being clouded by his relationship with a losing candidate for Manhattan district attorney in the 2009 election.       

The court would later learn that Mr. Constantine knew Mr. Vance and the losing candidate, Richard Aborn, and had not disclosed those relationships during jury selection. Neither side in the case asked that Mr. Constantine be removed from the jury.       

After the mistrial was declared, one juror said that Mr. Constantine had been among the three holdouts opposed to convicting Mr. Pena on the rape counts.      

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The leading edge of the post-gay marriage controversies arrives

Despite whatever well meaning assertions were made to the contrary, the legalization of gay marriage is going to invite more of these kinds of challenges to laws against consensual incest and bigamy.

From The New York Times

CINCINNATI, March 23 — A man convicted of having sex with his 22-year-old stepdaughter is seeking to challenge Ohio’s incest law through an appeal to the United States Supreme Court.

Paul D. Lowe, 44, a former sheriff’s deputy, pleaded no contest to a sexual battery charge in 2004 for having intercourse with his stepdaughter, who was 22. He was sentenced to 120 days in jail, three years of community control and 250 hours of community service and was designated a sexual offender.

The case is complicated by the county prosecutor’s contention that the sex between Mr. Lowe and his stepdaughter was not consensual.

The case originated in 2003 when the stepdaughter told the police that she had been raped by Mr. Lowe. Because the woman made the accusation well after the sex occurred and to save her the trauma of cross-examination, prosecutors chose not to charge Mr. Lowe with rape, but only with sexual battery based on the incest law, said Ronald Mark Caldwell, an assistant Stark County prosecutor.

The conviction was upheld by the Ohio Supreme Court in a 6-to-1 decision on Feb. 28. It ruled that Mr. Lowe had no constitutional right to have sex with his stepdaughter and that the Ohio law unambiguously barred sex regardless of the stepchild’s age.

review the constitutionality of the Ohio law for a more clear-cut case. “When the state of Ohio goes and tries to prosecute the 70-year-old for sleeping with his 50-year-old stepdaughter, we’ll worry about this when that happens.”

. . .

Prof Berman at Sentencing Law & Policy is quoted in th earticle but yet link in his blog.

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French Kissing a Minor to Be  A Registerable Sex Offense

This type of legislation will inevitably start appearing in the legislative cycle in other states.  While the conduct described below seems wholly inappropriate, I would be concerned about a 13 3/4 year old kissing a 18 1/4 year old being criminalized.  We already see enough “Romeo and Juliet” problems without adding kissing to the list.  Maybe increase the age difference?

From CNN: (no longer available)

RICHMOND, Virginia (AP) – State legislators passed a law Saturday that would require adults who French kiss a child younger than 13 to register as a sex offender.  Gov. Timothy Kaine says he plans to sign the bill that would make French-kissing minors a sex offense.

Those convicted of tongue-kissing a child would be guilty of a misdemeanor, punishable by up to one year in jail and a $2,500 fine. The House of Delegates passed the legislation 96-1 and the Senate 39-0.

The bill now heads to Gov. Timothy M. Kaine, who said he supports the legislation.

Delegate Riley Ingram, R-Hopewell, introduced the bill on behalf of a woman whose 10-year-old daughter was French-kissed by the 62-year-old husband of her babysitter.

The only crime prosecutors could charge the man with was contributing to the delinquency of a minor, which did not require that he register as a sex offender.

Ingram and other members of the House fought to make the crime a felony, but later gave in to senators who thought that classifying it as a felony was too harsh.

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Residency Restrictions Upheld In Palm Beach

Via Sex Crime Issues:

WEST PALM BEACH — A judge on Monday ruled that Palm Beach County’s residence restrictions on sex offenders are constitutional, even as details emerged about the ordinance making some of them homeless.
County Judge Paul Damico seemed sympathetic to the arguments raised by a defense attorney, but said he had no legal basis to rule that the county ordinance is unconstitutional.
ss stringent 1,000 feet.
Assistant Public Defender James Snowden, joined by attorneys for two other sex offenders, argued that the ordinance is vague, violates one’s right to contract with anyone who is willing to rent or sell him a residence and amounts to cruel and unusual punishment.
Snowden represents Bruce Bauer, who is charged with violating the county ordinance and his probation by living within 2,500 feet of 11 public school bus stops.
“There’s virtually nowhere for him to live,” Snowden said.
Another sex offender recently began living temporarily under the bridge at 45th Street and Interstate 95 – with state Department of Corrections approval – when his probation officer couldn’t find him a place to lawfully live, Snowden said.
The man eventually moved to Fort Lauderdale.
In another courtroom Monday, defense attorney Nellie King told a judge that her client, a 67-year-old convicted sex offender, lived for at least a week in a lawn chair in the parking lot of his probation office when she and an investigator could not find housing for him.
He now lives in Loxahatchee in violation of the county ordinance, but has not yet been ruled in violation of his probation.
Assistant State Attorney Lanna Belohlavek told Damico that the county’s ordinance, similar to those adopted by some municipalities, passes muster.
“Just because it’s burdensome doesn’t mean it’s unconstitutional” or cruel and unusual punishment, she told the judge.
Damico agreed with Belohlavek’s argument that people don’t have a constitutional right to live wherever they want.
The prosecutor also argued that the ordinance language mirrors that of the state law restricting where sex offenders live, and the state law has withstood constitutional challenges.
Snowden said there’s one big difference: The county more than doubles the area in which restrictions are placed on sex offenders.
Damico said the judiciary cannot legislate the parameters of the restrictions, “but I understand your argument.”
“The law perhaps is forcing these people to go underground, and that’s unfortunate,” Damico said.

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New York DNA Law Expands

This law out of NY widening the collection of DNA from convicted criminals is likely to be taken up by other states.  My gut says that it will cause more convictions than exonerations and will likely ensnare a few previously unknown suspects.

From the New York Times:

Gov. Eliot Spitzer is proposing a major expansion of New York’s database of DNA samples to include people convicted of most crimes, while making it easier for prisoners to use DNA to try to establish their innocence.

Currently, New York State collects DNA from those convicted of about half of all crimes, typically the most serious.

The governor’s proposal would order DNA taken from those found guilty of any misdemeanor, including minor drug offenses, harassment or unauthorized use of a credit card, according to a draft of his bill. It would not cover offenses considered violations, like disorderly conduct.

In expanding its database to include all felonies and misdemeanors, New York would be nearly alone, although a handful of states collect DNA from some defendants upon arrest, even before conviction.

Mr. Spitzer is also seeking mandatory sampling of all prisoners in the state, as well as all of those on parole, on probation or registered as sex offenders.

That expansion alone would add about 50,000 samples to the database, at a cost of about $1.75 million, his office said. It did not provide an estimate of the cost of taking DNA samples in all future convictions.

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Regulating MySpace et al

From the New York Times:

Now, after years of exponential growth of such Web sites and dozens of high-profile cases of criminal activity stemming from them, politicians in a half-dozen states are pushing legislation aimed at protecting children by requiring sites like MySpace.com and Facebook.com to verify the age of every user and require parental permission for those under 18.

But while the proposals have earned praise from worried parents, those who run the sites and independent technology experts say they are little more than grandstanding and would be impossible to enforce.

Indeed, MySpace already requires that users be at least 14 to create profiles, and limits access to those belonging to anyone under 18, while Facebook requires that users be older than 13 and shows profiles only to other members in the same social network.

Neither set of rules has stopped children like those in North Carolina from lying about their ages or blocked adults from masquerading as teenagers.

“Everyone looking at this has good intentions at their core, but there are some solutions that sound like they are the easy silver bullet and there is just no such thing,” said Hemanshu Nigam, the chief security officer for MySpace, warning that the proposed restrictions could create a false sense of safety. “You’ll see teens who are going to get around it and probably end up in a place where it is more difficult to protect them.”

Richard Blumenthal, the Connecticut attorney general, who has spearheaded the growing movement to crack down on the sites, frequently brushes off such concerns by arguing that “if we can put a man on the moon, we can verify someone’s age.”

“This is a basic issue of safety,” he said in a recent interview. “These kinds of Web sites have created this complete delusion that this is a private world that an outsider does not get into, but it is a total misnomer. Anyone can get in.”

Mr. Blumenthal and Roy Cooper, the North Carolina attorney general, both Democrats, started a national task force last year on the issue that now includes attorneys general from nearly every state. The initial focus was on pressuring MySpace to raise its minimum age for registration to 16 from 14, but when the company resisted, Mr. Blumenthal and others began introducing legislation to force its hand.

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Sensible Sex Offender Registration Discussion Continues

a public defender has though through some of the issues I raised earlier concerning what a sensible sex offender registraion law might look like.

I particularly like this one:

13. Penalty for misuse: Anyone using publicly available information to threaten, harass or injure a released sex offender shall be guilty of the offense corresponding to their actions, or a Class D felony, whichever is greater.

I’m not sure if the following suggestion would be wise legislation, however.

12. Parents will be charged with the task of educating their children about not talking to strangers and not getting into strangers’ cars.

And I’m not so sure about this one either.  I think a better approach might be a presumption in favor of privacy.

3. Statutory exemptions: Offenders convicted of “statutory rape” where the sexual contact was consensual are automatically exempt from any registration and registry requirements.

UPDATE:  Gideon asks why I may have a problem with #3.  The issue is what is constitutes consensual.  This is purely an arbitrary call but I would point out that it is not uncommon for social workers to report that even very young children often find sexual contact with adults pleasurable.  While there is little doubt in my mind that many (but certainly not all) modern 14 year olds are very sexually active and are fully aware of what they are doing, I am reluctant to believe that an 8 or 10 year old is NOT fully aware of the implications of the acts no matter how “sophisticated” they may appear.  The legislatures of the several state have made their own judgment call on ages of consent.  My only concern about the proposal was a blanket exemption for “consensual” without a consideration of the age of the child.  This aproach has the same failings as a blanket approach that all sex offenders should register. 

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Castration Sudy Law Emasculated

Via CrimProfBlog:

[Virginia] Gov. Timothy M. Kaine vetoed a bill Tuesday that would have required state agencies to study whether Virginia should start castrating violent sex offenders instead of confining them, some for the rest of their lives.

The General Assembly, hoping to reduce the costs of housing the state’s most dangerous sex offenders in prison or treatment facilities, overwhelmingly supported having state officials study whether criminals should have the option of “physical castration” in exchange for being released.

Kaine (D) vetoed the bill because, he said, he thinks health professionals, not legislators, are the most qualified people to determine how to treat sex offenders, some of whom might be mentally ill

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Select Penile Plethysmography Caselaw

The following cases are a collection of all cases in Maine, Massachusetts and New Hampshire, as well as the First Circuit, which significantly reference penile plethysmography.  I have also included select cases from other federal jurisdictions.  The Harrington case seems to be the most widely cited case but it may well be that Harrington should be limited to its facts in light of Berthiaume (interestingly both cases involved the same psychologist who practices widely in my home jurisdiction).  While I may post more about this later, the broad trend seems to be to prohibit the plethysmograph as direct evidence but to allow its use for sex offender treatment and to penalize those who refuse to have it administered.

Most of the below cases are hyperlinked to Casemaker which is a membership/paid service.  If anyone has links to free case reports I will gladly substitute them.  I am also asking for continued patience with some formatting issues that string out cites and quotes over several lines.  If anyone has any suggestions I am in your debt.  Likewise I would be interested in recieving any Motions or Orders related to this topic for linking to this post.  While these tests are treated skeptically by the courts my sense is that we will see more of these cases as ever more intense and onerous treatment requirements are imposed.  One case below cited a two studies to the effect that between 15-25 percent of all sex offender treatment programs use these devices and that the use of the plethysmograph is a widely accepted tool for treatment.

MAINE

 Cooke v. Naylor, 573 A.2d 376 (Me. 1990)

As to the trial court’s exclusion of the penile plethysmograph test, Naylor’s own expert testified that the test offers only “probabilities and similarities to pedophilic profiles,” and other experts testified that these tests are of questionable reliability even in establishing a correct pedophilic or non-pedophilic profile for the individual undergoing evaluation. In the absence of any proof that this evidence was scientifically reliable or could be of benefit to the trier of fact, we find no error in the court’s decision not to admit it. M.R.Evid. 702, 104(a) . . ..

MASSACHUSETTS

NEW HAMPSHIRE

None Found

FEDERAL

A reasonable finder of fact could conclude that requiring the plethysmograph involves a substantive due process violation. The procedure, from all that appears, is hardly routine. One does not have to cultivate particularly delicate sensibilities to believe degrading the process of having a strain gauge strapped to an individual’s genitals while sexually explicit pictures are displayed in an effort to determine his sexual arousal patterns. The procedure involves bodily manipulation of the most intimate sort. There has been no showing regarding the procedure’s reliability and, in light of other psychological evaluative tools available, there has been no demonstration that other less intrusive means of obtaining the relevant information are not sufficient.

The more troublesome decision is the use of the penile plethysmograph, but here the main focus must be upon [the psychologist] rather than the other defendants. There may be procedures so bizarre that lay persons and lawyers could not conceivably stand behind a doctor or psychologist who proposed their use. But this hardly appears to be such a case. Indeed, we conclude that [the psychologist] himself has not engaged in a violation of clearly established law. It follows that the other defendants did not do so either.

Because we have already noted that the plethysmograph test is “useful for treatment of sex offenders,” United States v. Powers, 59 F.3d 1460, 1471 (4th Cir. 1995), the district court clearly acted within its discretion in imposing this condition on Dotson’s release. The test also meets the “reasonably related” requirement in that it is aimed at providing Dotson with treatment, fostering deterrence, and protecting the public. See Berthiaume v. Caron, 142 F.3d 12, 17 (1st Cir. 1998) (describing this usage of the plethysmograph as “an accepted tool” and “a standard practice” in the field of sex offender treatment); see also Walrath v. United States, 830 F.Supp. 444 (N.D.Ill.1993), aff’d, 35 F.3d 277 (7th Cir. 1994) (holding that the use of the plethysmograph for treatment as a condition of parole is valid).

Powers has not provided, nor have we found, any decisions acknowledging the validity of the use of penile plethysmography other than in the treatment and monitoring of sex offenders. See, e.g., State v. Emery, 156 Vt. 364, 593 A.2d 77 (1991) (validity of penile plethysmography as part of offender’s treatment); Walrath v. United States, 842 F.Supp. 299 (N.D.Ill.1993) (monitoring by penile plethysmograph as valid condition for parole), aff’d, 35 F.3d 277 (7th Cir.1994).

Moreover, although defendant points to several possible flaws in the CCS report and questions the scientific validity of polygraphs and plethysmographs, the standard under the Sentencing Guidelines is mere “probable accuracy.” While the standards for accuracy in the scientific community and the test for the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Frye v. United States, 293 F. 1013 (D.C.Cir.1923), are stricter than this sentencing standard, none of the cases or studies cited by defendant suggests that polygraphs and plethysmographs fail the probable accuracy test. Accordingly, we are unable to say that the district court abused its discretion in admitting the polygraph and plethysmograph results.

As we have explained, however, the burden is on the government, not the defendant, to establish at the time of sentencing that plethysmograph testing is both reasonably necessary “to accomplish one or more of the factors listed in § 3583(d)(1)” and “involves no greater deprivation of liberty than is reasonably necessary.”(fn21) Williams, 356 F.3d at 1057 (internal quotation marks omitted). On remand, if the government continues to seek submission to plethysmograph testing as a condition of supervised release, then it must meet its burden of justifying the requirement, and the district court must make on-the-record findings that it has done so.

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Computer Crime in Maine

From the Bangor Daily News

Lewiston Police Chief Bill Welch, a leader of Maine’s Computer Crimes Task Force, said that “in the neighborhood of two dozen” youths have been charged statewide with similar crimes “in the last two years or so.” Welch said he checked with two computer forensic labs hosted by the task force, located in Lewiston and Vassalboro, for information about the juveniles and said he discovered “a lot don’t get prosecuted” in connection with downloading sexually explicit materials. Lack of criminal intent is the reason, said Welch, who has chaired the Computer Crimes Task Force policy board since its launch in 1999. “It’s very different if a 15-year-old is viewing images of a 12-year-old [compared with] when an adult is looking at images of children,” Welch said. In the latter “there is a criminal intent.” He said lab operators report that the cases most likely to be prosecuted involve dissemination — “when someone is giving those pictures out.” The task force is designed to assist police and prosecutors with investigating and prosecuting any crime in which a computer is used as an instrument in committing or assisting in a crime. In the case of the Bangor teen, evidence was sent to the National Center for Missing and Exploited Children database in an attempt to identify the victim or victims. Based on that information, the teen was charged with a Class C crime, which is a felony, Reid said. While information about the Bangor case is restricted, the age of the victim typically determines the class of the crime. The younger a victim, the more serious the crime, Reid said. Many youngsters are unaware of laws that prohibit the downloading of child pornography, said David Finkelhor, director of the Crimes Against Children Research Center. The center is part of the Family Research Laboratory in the sociology department at the University of New Hampshire in Durham, where Finkelhor is a professor. “There [are] a lot of sexual offenses by juveniles using the Internet,” he said. “A large number of teens have said they have downloaded child porn. Many do not realize it’s criminal. [To them] it’s sexual exploration. “We also know many kids are taking sexual photos of themselves and friends and sending them to people,” Finkelhor said. “That is child pornography production and that’s criminal as well.” It’s hard to determine the amount of criminal intent when children are involved, he said, adding that the phenomenon is growing as access by juveniles to computers increases. A significant increase in the number of computer-related crimes in recent years led the Bangor Police Department to create a three-computer station for its computer crimes unit at the new police station on Summer Street. Satellite computer crime labs are set up in Belfast, Rockland, Augusta and Portland, Welch said. The number of cybercrimes is expected to keep on rising, said U.S. Attorney Paula Silsby. “The whole issue of child pornography is a significant one,” she said Wednesday. “Ever since computers became commonplace in every home, we have seen more and more Internet-based crimes, from possession of child pornography to distribution of child pornography,” she said. “It’s a huge, huge issue because of the ease of access. You can sit in your living room and access child pornography.” According to a Maine Computer Crimes Task Force 2004-05 report, the number of Internet crimes increased by 173 percent, compared with its 2002-03 report; requests for computer forensic examinations increased by 56 percent; and criminal investigations involving computers increased by 75 percent. The 2006-07 report is nearly complete and has similar numbers, Welch said. On average, police officers in Maine seize a computer every two days.

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Identity theft as a defense?

Via Crime & Consequences news from across the pond that theft of ones credit card may be a succesful defense to charges that you downloaded child pornography.  Given the raft of credit card thefts in this country there may be some application for defense lawyers here but I suspect the applications will be limited in scope.  Most of these investigations will arise from IP address investigations and searchg warrants and alleging credit card theft will be only one link in a multi-link web binding the defendant.

Hundreds of Britons accused of being paedophiles in the country’s biggest Internet child pornography investigation were actually victims of credit card fraud, it was claimed last night.

More than 7,000 – including rock star Pete Townshend – were said to have downloaded child-porn images from a U.S. website.

But an investigation has found that many of those charged as part of the police inquiry codenamed Operation Ore were innocent and their card details had been used illegally.

Simon Bunce, who was accused of using the Texas-based Landslide website, said he was certain his personal information had been used fraudulently. Police found no evidence on his computer but his credit card details were found on the site.

“Thirty-nine people committed suicide after being accused of what I was accused of,” he said. “I reacted in a different way. I investigated it diligently and I established I was the victim of credit card fraud.”

The case against Mr Bunce was dropped after six months.

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Third Trial Ordered for Accused Sex Offender

From the Manchester Union Leader:

CONCORD – A man twice convicted of sexually molesting a friend’s daughter should get a third trial, the state Supreme Court ruled yesterday.

Delvin White, 62, formerly of Bangor, Maine, and Manchester, was convicted in 1997 of molesting two sisters, a 12-year-old and an 8-year-old, while staying in the apartment after supper with their father and his fiancee.

White, who had met the girls’ father while he was in state prison, had previous convictions for child molestation in Maine and Colorado. He had been transferred to the New Hampshire prison from Maine, where he was serving a rape sentence.

The state Supreme Court upheld White’s 1997 conviction, but the 1st U.S. Circuit Court of Appeals in Boston overturned it because White did not get a chance to cross-examine the girls. He successfully argued the girls’ credibility was key to the verdict against him, so he should be allowed to show they had made false accusations of sexual abuse before.

At his second trial in 2005, charges involving the 8-year-old were dropped, but White was convicted of rape and felonious sexual assault on the 12-year-old.

During that trial, White argued the girls had made false accusations of sexual abuse before, including against a man named Roger Houston.

In a sworn statement before White’s trial, the older girl said a jury decided the accusations against Houston were false. But during testimony she clarified that, saying she had thought the jury didn’t believe her because they acquitted Houston. She said she later understood that Houston could have been acquitted because the state had not done enough to prove its case.

To bolster the girl’s credibility, prosecutors called as a witness a police officer who testified that Houston had confessed to him, but later withdrew his confession.

In yesterday’s unanimous ruling, the justices said the trial judge should not have allowed the police officer to testify because White was not allowed to confront Houston directly or question him.

From State v. Delvin White New Hampshire Supreme Court (March 30, 2007)

In 1997, the defendant was convicted of sexually assaulting both girls. We affirmed that conviction on appeal. See State v. White, 145 N.H. 544 (2000), cert. denied, 533 U.S. 932 (2001). The defendant subsequently sought a writ of habeas corpus from the United States District Court for the District of New Hampshire, which was denied. White v. Coplan, 296 F. Supp. 2d 46 (D.N.H. 2003). The defendant appealed and the Court of Appeals for the First Circuit reversed and ordered a new trial. White v. Coplan, 399 F. 3d 18 (1st Cir. 2005), cert. denied, 126 S. Ct. 478 (2005). . . .

Because Houston’s confession is testimonial, it is only admissible if he testified, or if he was unavailable and had been subject to prior cross-examination by the defendant, or if it is offered for some reason other than its truth. See Maher, 454 F. 3d at 19-20. It is undisputed that Houston did not testify. Additionally, the record does not indicate that the defendant had any prior opportunity to cross-examine Houston. Moreover, as pointed out by the defendant during trial, there was no indication that Houston was unavailable as a witness. The State did not present any evidence or argument that it had ever attempted to contact him or that it had taken any steps aimed at securing his presence. See Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 777 (2005) (witness is “unavailable” when absent from the hearing and the proponent of the witness has been unable to procure attendance by process or other reasonable means). Finally, Houston’s confession was offered for its truth. The State’s intention in admitting the confession was to demonstrate that Houston had, in fact, assaulted the two girls, but that he was nonetheless acquitted. If the statement was not offered for its truth, it would have had no value to the State. Accordingly, for the above reasons we conclude that Winn’s testimony about Houston’s confession was inadmissible. Because the defendant did not open the door, the State was not permitted to introduce Winn’s inadmissible statements about Houston.

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Can’t posess child porn-and can’t destroy it either?

Crime and Federalism reports on a new landmine for the ethical attorney:

And what of the prosecution of Greenwich attorney Phil Russell? He faces felony charges for violation of a new penal code making it a crime to alter or destroy evidence in contemplation of a federal investigation. This provision of Sarbanes-Oxley makes it easier to prosecute destruction of evidence by eliminating the prior requirement that the evidence destroyed be closely related to a federal investigation actually taking place.

Russell represented a Greenwich church. An employee of the church was found to be viewing child pornography on a church computer. Apparently, Russell counseled firing the employee. That was done. Then Russell destroyed the computer so that images on it could not be retrieved. The newspaper headlines screamed that Russell had destroyed evidence in a child porn case.

This may be the first test of the new statute, 18 U.S.C. 1519, against a lawyer counseling a client. Whether the statute survives a vagueness challenge is an open question

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Federal Court Probation Revocations Simplified (in Maine)

David Beneman, Maine’s Federal Public Defender, reports that Maine’s probation revocation procedure in federal court will be simplified:

You will no longer need to have clients facing a supervised release violation sign a “waiver” form before the Court reads probation’s proposed sentencing report.  The Court plans to receive and read both the Violation Petition and Sentencing Report simultaneously as soon as they are filed.

Background

Under our previous “system”, Probation prepared a sentencing report for each supervised release violation either simultaneously with or very shortly after the filing of the Revocation Petition.  This was made available to counsel and the client, but only provided to the court pre-adjudication, IF the client signed a waiver form.  This process is a local one, not required by any rule or case law.  It was started by Judge Carter years ago.  There is no specific explanation for why it began and apparently if not unique to

Maine

, there are a limited number of districts following this method.

 

Reason for Change

With the conversion to ECF and e-mail for so much of the Court’s business, the waiver form has become a bottleneck.  Almost every defendant facing a violation of supervised release ends up signing it, but counsel has to get the signature.  Almost 90 % of violations result in admissions.  The Court assures us there is nothing in a sentencing report that the Court can’t ignore in those few cases that are contested.  The difficulty with the old system is timeliness.  The judges would rather read the Petition and the Report at the same time so they can move on to the next stack of things to read.  Particularly in

Bangor

, with defendants being held at various facilities, it is becoming common for counsel and the client not to get the waiver signed in advance.  The client comes to court and admits and then the court has to go read the report while everyone waits.  The judges want to avoid this.

 

Potential “Up Side” for Defense

I have discussed this in our office. Neither Virginia nor Eric had the waiver step in their previous jurisdictions and neither finds it helpful. Bruce Mallonee, the CJA panel representative also sees no problem.  I feel getting rid of the additional step may at times work to our client’s benefit.

1.         Improved relations.  We do not need to ask a client to “waiver” something, particularly not at the first meeting.

2.         The sooner (earlier) the court has the recommendation the earlier the “ceiling” is set on the process and we can begin working on things which have “changed” since then, hopefully lowering the sentence.  This is the biggest potential advantage.

There is little a judge will read in the recommendation that is “worse” than the details already in the Revocation. To the extent the judges read the Petition and Sentencing Memo together at the time of filing, we would prefer to have the passage of time that the early reading allows.  For counsel the change may save an otherwise unneeded trip to the jail.

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10 Commandments of Sex Crime Defense

Sex crimes are a special breed of criminal case. Even among criminal defense lawyers there is a subtle bias against taking these types of cases. The general public might eventually forgive a brutal assault from twenty years ago but it will require a young man to register for the rest of his life for a consensual act with a girl 5 years and a day younger than he who lied about her age. In our sexualized society with its numerous “advocacy” groups and a burgeoning underclass of cynical prevaricators willing to use false sexual allegations to gain an edge of get out of a situation it is important that defense lawyers be willing to take on and willing to win these cases. In my practice I have taken a special interest in this area of the criminal law. The purpose of this article is not to offer a detailed legal treatise but to provide some general thoughts on the defense of sex crimes which may be of use to the beginning practitioner.

1. BE WILLING. Society’s distaste for the perpetrators of sex crimes creates subtle and not so subtle pressures on an attorney to put in less than a full effort on these types of cases. The ethical and responsible attorney will not be influenced by these pressures.

2. CONTROL THE CLIENT. The basic advice any criminal defense lawyer should give any client about remaining silent goes double for sex crimes. Internal psychological pressures unique to sex cases often induce clients to spin out of control while making unwise statements or unwise legal decisions. Speak with the client early and often to reinforce the client’s rights and the importance of patience.

 3. GET THE CHILD PROTECTIVE RECORDS. In child molestation cases there is often a gold mine in the state’s child protective records. Often the DA and/or police will never have looked at these records. In Maine, most such records are kept on a computerized system called MACWIS and are often surprisingly detailed. I have found everything in these records from flat contradictions of the discovery, discussions between the social worker and the police concerning strategy and outright denials of abuse by the victim. Social workers in the child protective system are often inexperienced, do not have the same agenda as the police and operate under a different evidentiary standard.

4. LISTEN TO THE CLIENT. Clients throw up creative and fantastic alibis which are obviously ridiculous. Unfortunately, the defense lawyer who listens to too many of these stories can adopt a jaded attitude and not really listen for the possibilities in what might seem at first blush to be yet another fantasy. Be open minded to seemingly far-fetched defenses. Witnesses in sex crimes, including alleged victims, often have complex or longstanding personal relationships with the accused. Motivations to lie or shade the truth are varied and often difficult to discern.

5. DEVELOP A RELATIONSHIP WITH THE PROSECUTOR. Most prosecutors, like most defense lawyers are reasonable and honorable people. Don’t take such an adversarial attitude that you cannot talk rationally to your opponent. Prosecutors hate putting alleged victims on the stand, especially children. Even the preparation for trial can be devastating for such witnesses. The defendant is usually no angel and the facts are often bad. It is irresponsible for a defense lawyer not to be cognizant of the bad facts and be able to advise the client of his options. A plea can often be worked out on terms more favorable than not.

6. DON’T BE AFRAID OF TRIAL. It is always up to the client whether to accept a plea or go to trial. Jurors, as with any other citizen, often come into sex crime cases with strong attitudes amounting to a presumption of guilt and extreme sympathy for the alleged victim. Such attitudes are, in my experience brittle and with the correct set of facts and correct presentation can be easily shattered. Although subconsciously they may come into the case with a “hang ‘em high” attitude, many jurors have at one point or another been exposed to horror stories concerning false allegations of rape or molestation. The successful defense lawyer will learn how to tap the latent knowledge that people do get falsely accused of these crimes. Jurors understand that the human heart is difficult to plumb and that understanding can be the lubrication needed to fit an otherwise round peg in the proverbial square hole.

7. CONSIDER THE SEX OFFENDER REGISTRATION ACT AND OTHER COLLATERAL EFFECTS EARLY IN THE PROCESS. Given that most defense lawyers are handed a difficult set of facts and that statistically conviction is likely, the wise defense lawyer will discuss what a desirable end-state might look like with the client early on. Often in a first offense case the jail time is negligible and the probation difficult but doable. The thing that really sends clients over the edge is the notion that as a result of their conviction they might have to spend the rest of their lives, or at least the next 10 years, paying for the privilege of having the police notify their neighbors that they are a convicted sex offender. Likewise, sexual allegations can be a powerful tool in adversarial child custody proceedings. Another often overlooked aspect is the standard requirement that convicted sex offenders go through some form of sex offender rehabilitation. These programs can be very expensive, onerous and adversarial. These programs have gotten very aggressive and dictate where the client lives, with whom he lives, polygraph tests and other burdens that may not have been contemplated without proper counseling. Such programs are particularly difficult for the client who maintains his innocence after having been convicted at trial as they will be forced to “admit” the facts alleged in the conviction or face being kicked out of the program triggering a probation violation. Too many inexperienced attorneys will ignore these collateral effects during the preparation period. Counsel should be prepared to vigorously argue against probation conditions which set the client up for failure and should be constantly on the lookout for plea opportunities to reduce or eliminate any registration requirements.

8. MAKE USE OF COLLATERAL PROCEEDINGS. Often allegations of sexual misconduct are accompanied by related divorce, child custody proceedings, child protective proceedings and protection from abuse proceedings. One of the worst aspects of going to trial in sex crime cases is that there is no opportunity to interview the alleged victim. This places the defense attorney at an enormous disadvantage on cross examination. Hearings in collateral cases, however, present a prime opportunity for the defense attorney to interject himself into these collateral proceedings and cross examine key witness. The transcript of the collateral hearing is an invaluable record for investigation and trial preparation. The only potential downside is that the adversarial witnesses see you in action and potentially their fear is diminished. As prosecutors will often consult with alleged victims during the course of plea discussions, fear of taking the stand can be a powerful motivator for an alleged victim to put the stamp of approval on a plea deal favorable to the defense.

9. BE KIND TO THE ALLEGED VICTIM. Do not confuse an aggressive defense with being nasty during the cross examination of the alleged victim. If there is information favorable to the defense it can be gotten in such a way as to not confirm the jurors’ innate belief that all defense lawyers-especially defense lawyers representing rapists and molesters-are scum. If you can take a matter-of-fact, professional and sometimes even sympathetic approach to the alleged victim it can make jurors more receptive to your later arguments, humanize your client and possibly disarm the witness into making potentially useful statements.

10. PREPARE FOR SENTENCING FROM DAY 1. As with any criminal case, the odds are in favor of conviction. While the attorney can make every effort to get an acquittal, the statistics are that your client will be standing in front of a judge after a plea or trial verdict. Line up favorable witnesses early, especially favorable “neutral” witnesses. Rehearse with sentencing witnesses what they will say. Be especially wary of family members who can’t believe their loved one committed such a heinous act. Judges, in my experience, are looking to see the kind of support system to which the defendant will return. If the judge perceives that important family members may seek to “enable” the defendant after his return to society, they will often put the defendant away for longer to compensate. Consequently it is important to drill family witnesses to stay away from the facts of the case during their colloquy. Those witnesses who have made excuses about the facts of the case have invariably hurt the client. Beware also the professional witness with an agenda. Often the client will seek out psychologists, counselors or other professionals with less than an objective world view about the client. Failure to screen out these individuals or to instruct them not to address the facts of the case is only slightly less damaging than having a family member do the same thing. Judges also love to hear a defendant make a statement at sentencing. Such colloquies are often the only time a judge can gain insight into a client on a personal basis instead of through intermediaries. If your client elects to make a statement make sure you see it first and strike out any self-serving remarks which do not express remorse. Of course if the client is planning an appeal, no statement should be made.

CONCLUSION Obviously there is much more to defending persons accused of sex crimes than my brief thoughts above. It is important with any criminal case to have a thorough knowledge of the law, to investigate the case, to fully inform the client of options and outcomes and to adequately prepare for sentencing. The most important thing however is having the attitude that these cases can be won and a willingness to win them.

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Access to Church for Sex Offenders

I have been sometimes disturbed to hear of sex offenders being denied access to church under circumstances that strike me as egregious and punitive (ie denied access by their PO despite full knowledge of the entire church community of the offenders offense).  The probation office has now promulgated a

Download ChurchSafetyPlan.pdf

I had not seen before.  It is apparently recent and in response to some of the concerns that I and perhaps others have expressed in the past.

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Online Prostitution

Lucky for most clients that the police don’t have more resources for this kind of thing as online prostitution seems to be where all of the activity occurs.

From the Manchester Union-Leader:

PLAISTOW – One of six men arrested in a highly publicized prostitution sting in Kingston appeared in court Monday, pleaded guilty to a Class B misdemeanor charge of soliciting sex online for prostitution and was fined $720.

A judge suspended another $720 in fines for Steven Lafave, 44, of Auburn. If he has no run-ins with the law in the next 12 months, he won’t have to pay the suspended amount, according to the Plaistow District Court.

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Alleged Multi-State Prostitution Ring Busted

From the Boston Globe:

They put an ad in a Boston weekly newspaper looking to hire and train girls with “a desire to travel and see new places.” But other times, they allegedly just abducted teenage girls off the street and threatened to kill them if they didn’t work as prostitutes.

In a sweeping federal indictment unsealed yesterday, six men are accused of running a violent Boston-based prostitution ring that forced girls as young as 15 into service and transported them across the country and as far away as Bermuda to work as prostitutes.

They are also accused of networking with convicted sex traffickers from other states to swap or hand off girls after they grew tired of them.

The 22-page indictment describes a so-called “toss up” in New York City, where pimps traded the young prostitutes among themselves.

Darryl “Young Stallion” Tavares, 23, of Revere; Shaun “Syncere” Leoney, 25, and Rueben “Ruby Black” Porcher, 28, both of Dorchester; Eddie “Young Indian” Jones, 24, of Roxbury; Aaron “Breeze” Brooks, 22, of Quincy; and Trueheart “Dwayne” Peeples, 29, of Portland, Maine, are all charged with conspiracy to transport adults and minors across state lines for prostitution from 2001 to 2005, as well as other prostitution-related offenses.

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 Brewer woman, man charged after photo of sexual assault involving minors sent to police

By Nok-Noi Ricker, BDN Staff
Posted May 08, 2012, at 3:52 p.m.

BREWER, Maine — An electronic photo of a sexual assault involving children was sent to police, and a local man and woman are now behind bars facing aggravated gross sexual assault charges, Brewer police Detective Sgt. Jay Munson said Tuesday.

“There is more than one victim,” the detective said. “None of the victims have attained the age of 12 yet.”

Brewer residents Katie R. Dube, 27, of Washington Street and Terrence A. Pinkham, 27, of Tibbetts Street, both were arrested just before 9 a.m. Thursday, May 3 and charged with felony gross sexual assault and sexual exploitation of a minor, the detective said.

“Someone acquainted with the two gained access to [the sexual assault image] and forwarded it along to law enforcement,” Michael Roberts, deputy district attorney for Penobscot County, said Tuesday about the incriminating digital picture.

One of the victims was a 7-year-old male at the time of the crime and is related to one of the accused, Roberts said. Munson declined to release information about the other victims.

Dube and Pinkham made their first court appearance on Friday. Dube’s bail was set at $50,000 cash and Pinkham’s bail was set at $100,000.

Pinkham was charged with Class A gross sexual assault, which carries a penalty of up to 30 years in prison, and Dube was charged with Class B gross sexual assault and faces up to 10 years behind bars, if convicted.

Both face Class B charges of sexual exploitation of a minor.

“Gross sexual assault is having sexual contact or intercourse with someone who has not yet reached the age of 12,” Munson said. “Sexual exploitation is creating or taking film of someone engaged in a sexual act that has not yet attained the age of 12.”

They “created child porn,” the detective said, explaining the second charge. The electronic images “were never disseminated [over the Internet] that we know about,” he added.

The Department of Health and Human Services partnered with Brewer police during the ongoing investigation that started in November, Munson said.

“They are involved in protecting the children,” he said.

Most likely Dube and Pinkham will be indicted by the Penobscot County grand jury, which is scheduled to meet later this month.

Their next scheduled court date is July 5.

Pinkham was charged in November with unlawful possession of a synthetic hallucinogen after he was found with bath salts drugs when arrested for attempting to avoid paying a taxicab fare. He also was convicted of sale and use of drug paraphernalia in November and ordered to pay a $300 fine, according to court listings printed in the Bangor Daily News.

Both Dube and Pinkham were taken to Penobscot County Jail in Bangor after their arrests, and both remained behind bars Tuesday unable to make bail.

BDN writer Judy Harrison contributed to this story.

 

 

 

 

 

 

 

 

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Neuroscience & the Law

An interesting article on where the future may lie in lie detector science.  I don’t think the lie detector or even this new MRI science will ever be really allowed in the courtroom but it certainly does have implications for those currently dealing with lie detection science and probably for the future of sex offender treatment as well.

“The Brain on the Stand’  From the New York Times

The idea of holding people accountable for their predispositions rather than their actions poses a challenge to one of the central principles of Anglo-American jurisprudence: namely, that people are responsible for their behavior, not their proclivities — for what they do, not what they think. “We’re going to have to make a decision about the skull as a privacy domain,” Wolpe says. Indeed, Wolpe serves on the board of an organization called the Center for Cognitive Liberty and Ethics, a group of neuroscientists, legal scholars and privacy advocates “dedicated to protecting and advancing freedom of thought in the modern world of accelerating neurotechnologies.”

One of the most enthusiastic proponents of neurolaw is Owen Jones, a professor of law and biology at Vanderbilt. Jones (who happens to have been one of my law-school classmates) has joined a group of prominent neuroscientists and law professors who have applied for a large MacArthur Foundation grant; they hope to study a wide range of neurolaw questions, like: Do sexual offenders and violent teenagers show unusual patterns of brain activity? Is it possible to capture brain images of chronic neck pain when someone claims to have suffered whiplash? In the meantime, Jones is turning Vanderbilt into a kind of Los Alamos for neurolaw. The university has just opened a $27 million neuroimaging center and has poached leading neuroscientists from around the world; soon, Jones hopes to enroll students in the nation’s first program in law and neuroscience. “It’s breathlessly exciting,” he says. “This is the new frontier in law and science — we’re peering into the black box to see how the brain is actually working, that hidden place in the dark quiet, where we have our private thoughts and private reactions — and the law will inevitably have to decide how to deal with this new technology.”

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Inside the Mind

From CrimPsychBlog:

Increasing Honest Responding on Cognitive Distortions in Child Molesters: The Bogus Pipeline Revisited

An article in the March 2007 issue of Sexual Abuse: A Journal of Research and Treatment presents the results of an experimental comparison between child molesters’ responses on a questionnaire and their responses when attached to a fake lie detector known as a ‘bogus pipeline’.

……..

Forensic psychologists who try to understand paedophiles, or, as the authors here describe them, ‘child molesters’ (abbreviated to ‘CMs’), are interested in cognitive disortions (distorted thought patterns) because it has been suggested that distorted thinking allows CMs to justify their behaviour to themselves. The sort of distorted thinking we’re talking about involves endorsement of statements such as “if an adult has sex with a child who enjoys it and seems to want it, it should not be considered a crime” or “children are not as innocent as most people think” (taken from Gannon, 2006, p.364). One of the ‘treatments’ for CMs, cognitive behavioural therapy, involves helping CMs to identify cognitive distortions and to recognise them as distortions, in the hope that this will help them control their offending in future (Gannon, 2006).

Let’s assume that CMs do indeed hold cognitive disortions about child-adult relationships, and that making CMs accept that these are not normal or healthy beliefs is key to useful treatment (note that this assumption is fairly controversial, but we haven’t the space to go into that debate here). The first step in treatment is, therefore, eliciting a CM’s beliefs about sex with children, but this is not as easy as you might think. It can often be difficult to measure true cognitive distortions in CMs. Why? Well, when any of us are asked about our attitudes or thoughts about something embarrassing or socially undesirable we have a tendency to massage the truth a little to make ourselves look better. Gannon et al. (2007) hypothesised that CMs do the same when asked about their thoughts about children.

So how can you persuade someone to reveal socially undesirable attitudes or beliefs? Enter the bogus pipeline (BPL), devised in 1971 by Edward Jones and Harold Sigall (’pipeline’ as in ‘pipeline to your innermost thoughts’; ‘bogus’ as in fake). These researchers were initially somewhat tentative about how the BPL procedure worked and concluded that “for whatever reason or reasons, subjects attached to the bogus device appear much more ready to express negative affect in experimental settings where one might normally expect the inhibition of such feelings” (p.349). However, in their meta-analytic review of BPL research, published in 1993, Neal Roese and David Jamieson concluded that, despite criticisms, “the BPL effect reflects the valid operation of the procedure to reduce socially desirable responding” (p. 372).

This seems to have been what happened with Gannon et al.’s study. Their results indicated that when CMs were attached to a fake lie detector, they responded with increased endorsements of cognitive disortion items (such as those I mentioned earlier) compared to when they were not subjected to the BPL procedure. Thus, Gannon et al. argue:

Our results suggest that CMs consciously minimize both the extent to which they hold offense-justifying beliefs and the extent to which they engage in socially disapproved of behaviors (p.18).

This has particular contemporary resonance because sex offenders are now being polygraphed as part of their treatment in the UK. However, as we’ve pointed out before in the Deception Blog, the effectiveness of polygraphy with sex offenders is probably more about ‘truth facilitation’ than ‘lie detection’. One possibility is that the polygraph acts as a kind of ‘bogus pipeline’, facilitating the disclosure of socially undesirable responses…

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Psychological Study of Sexual Harassment

Via Psychology and Crime News, this study (available for a fee) caught my eye.  I don’t really get involved in civil employment/sexual harassment law that much, but this is on topic, interesting and may generate some insights after I think about it awhile.

In 3 studies, the author tested 2 competing views of sexual harassment: (a) It is motivated primarily by sexual desire and, therefore, is directed at women who meet feminine ideals, and (b) it is motivated primarily by a desire to punish gender-role deviants and, therefore, is directed at women who violate feminine ideals. Study 1 included male and female college students (N = 175) and showed that women with relatively masculine personalities (e.g., assertive, dominant, and independent) experienced the most sexual harassment. Study 2 (N = 134) showed that this effect was not because women with relatively masculine personalities were more likely than others to negatively evaluate potentially harassing scenarios. Study 3 included male and female employees at 5 organizations (N = 238) and showed that women in male-dominated organizations were harassed more than women in female-dominated organizations, and that women in male-dominated organizations who had relatively masculine personalities were sexually harassed the most.

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Prof. Lyons Gives Some Useful Cross-Examination Tips

I first noticed word of this study on CrimProfLog.  The study, published in the February issue of the Journal of the American Academy of Child and Adolescent Psychiatry is described by Thomas Lyon, a professor of law and psychology at USC who co-authored the study.  Although my review of Prof. Lyons’s publically available material indicates that he may approach his research with a certain predisposed attitude toward the prosecution, his research does contain some helpful hints (in bold) for the defense.

“Some researchers have begun to question the assumption made by clinicians and others who work with sexually abused children that children are reluctant to disclose abuse,” said Lyon. “This study supports the classical view – even when children overcome barriers to disclosure, they are still susceptible to pressures.” The researchers did not find any evidence to support the belief that retraction is a sign that the original allegations were false. Lyon explained: “If inconsistencies mean the child really wasn’t abused, then one should see a relation between inconsistency and other evidence of abuse. We didn’t see any such pattern.” The study has important implications for how cases of sexual abuse are investigated and prosecuted. “When a child is at high risk of reversal,“ suggested Lyon, “investigators should carefully document the child’s first interview. Videotaping can preserve the child’s story. It might even reduce the likelihood that the child will be pressured by others.” The results cast new light on doubts raised in several recent high-profile sexual abuse cases about the credibility of child witnesses. For example, the alleged victim and his brother in the Michael Jackson case were impeached by the defense based on inconsistencies and the alleged victim’s initial reluctance to acknowledge that abuse occurred. “Perhaps they really were lying,” said Lyon, who notes that the young men did not suffer from an unsupportive parent. “But jurors should also be told how difficult it is for truly abused children to maintain their story.”

The study can be found for a fee here.

In the study, Friedman and fellow researcher Thomas Lyon, professor of law and psychology at the University of Southern California in Los Angeles, working with a team of Oberlin undergraduates, conducted two in-class demonstrations with 86 Oberlin schoolchildren between the ages of 4 and 13 shortly before and after Halloween. Three months later, the children were asked to recall the content of the demonstrations and when they occurred.

Friedman and Lyon discovered that no matter what their ages, the children had difficulty remembering that Halloween was near the demonstration date. They also couldn’t remember whether the demonstrations had happened before or after the holiday, although they could remember other details very well. Findings from the study were published in the November/ December 2005 issue of Child Development.

The study also showed that open-ended questions, such as “Tell me everything you remember about that day,” almost never produced information related to the time of the event. At the same time, focused questions like “What season was it?” led to lots of inaccurate answers. This, says Friedman, demonstrates a need for future research on what kinds of questions elicit the most accurate information while minimizing the amount of inaccurate information.

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Link Between Sex Offenses & Religiousity

Via CrimPsychBlog:

Eric Schwitzgebel, Associate Professor of Philosophy at University of California at Riverside and author of The Splintered Mind blog, commented last month on research on the links between religiosity and sexual offending behaviour.

As he explains, the researchers analysed the criminal records and self-reported religious affiliations of 111 male sexual offenders in prison in Australia:

[The analysis] indicated that […] those who maintained religious involvement from childhood to adulthood had more sexual offense convictions, more victims, and younger victims, than other groups. Results challenge assumptions that religious involvement should, as with other crimes, serve to deter sexual offending behavior.

 

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The Lie Detectors: The History of an American Obsession

I haven’t had a chance to read this yet myself but the review makes the book look interesting for anyone with an interest in law enforcement issues.  I myself am deeply skeptical of relying on a polygraph for anything having had some bad client experiences with them.

From the New York Times

 Amazingly the lie detector, largely spurned by the rest of the world, lives on in the United States although new technologies have appeared on the horizon: machines that measure minute changes in facial expression, vocal pitch or heat around the eyes. None of them, Mr. Alder notes, address a central problem pointed out by Montaigne four centuries ago, the inconvenient fact that “the reverse side of the truth has a hundred thousand shapes and no defined limits.”

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Restriction & Registrate Debate Continues

a public defender and Sex Offender Issues are also debating what sex offender restrictions should look like.  I do not subscribe to mandated therapy as does Sex Offender Issues.  Therapy usually needs to be voluntary, accompanied by a desire to change a problem, to be effective.  Likewise, incarceration for the incorrigible is a legitimate way of protecting society (not that any of my clients fall into this category of course!).

Not all persons accused of sex crimes are guilty, however, neither are all innocent.  We must recognize that while many innocent or low-risk people get caught in the net there is a legitimate societal interest in locking away the truly dangerous.

Lawdoc comments that all “objective” exams are subject to interpretation and bias.  While this may be true the use of a previously agreed upon objective scoring system has got to be orders of magnitude more objective than a single psychologist or even a panel of psychologists with a wide variety of training and biases making the decision.  No system will be perfect.

Lawdoc also suggests that my blanket prohibition against convicted offenders working with children is subject to the same criticism I level against the current regime as being irrational.  I accept that as true to a certain extent but I have imported to my suggestion the notion that anything less will simply not be politically viable.

Lawdoc also questions whether

people on the private registry still have to submits change of address and change of work address within 72 hours? Would they have to give DNA samples? Would they have to give a photograph every year? Would they be charged a fee to register? A private registry for low risk sex offenders who have served their sentence still does not meet the criteria for a narrowly tailored law for a compelling state interest.

ME:  Most states also require DNA samples from all felons regardless of whether they are sex offenders.  I have not thought deeply as to fee issue.  I see no issues with a yearly photograph.  To me these are simply technical details.  I believe most of my clients on the public registry would be much happier on a private registry even if it came with a nominal fee and some minimal reporting requirements.  Notice I said happier-not happy.

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Sensible Sex Offender Restrictions

Elizabeth, the doyenne of sexinthepublicsquare.com left a comment asking what a rational sex offender registration scheme might look like.  I have often commented that I think sex offender restrictions are here to stay, are not necessarily the blanket evil that many of my on line colleagues posit and are notoriously irrational as usually enacted.  Elizabeth’s comment then challenges those of us interested in such issues to come up with a more rational alternative.

For myself, I think the chief evil of 90% of the current laws is the utter lack of effort to separate out true predators from one-time mistakes.  When teenagers sending sexy cellphone pictures to each other or 15 year olds having sex with 13 year olds or 30 year old convictions become lifetime registrable offenses, I think we have a problem.

My proposal then is the following:

REGISTRATION

  1. An individual psychological evaluation using a scientifically based objective scoring system should be used to determine likelihood of recidivism.  The problem with subjective evaluations by “experts” is that no one wants to be the guy who “cleared” a sex offender who then commits some subsequent act.  No system is perfect, objective scoring may allow for a more objective view of the evidence rather than overly relying on the “what if.”
  2. An objective scoring system would take into account, but not fixate, on what the offense of conviction might be.
  3. Create a public registry and a private registry.  A private registry would allow the police to keep awareness of those individuals screened out as “low risk” but not expose these individuals to the same level of opprobrium experienced by the more serious offender.  “High risk” individuals would be placed on a public list but some click through screen should be put in place warning of criminal penalties for harassment of individuals on the list.  Even “low risk” offenders could be screened out from certain types of jobs but this type of screening is already in place and does not require public exposure.
  4. The objective evaluation process could allow for the movement, over time and based on objective reevaluation, either from or to the public registry.
  5. A federal law or interstate compact would make the laws more consistent between the states to allow for predictability for offenders and authorities.  Restrictions and registrations should be kept completely away from municipalities or the patchwork of resulting laws would create a compliance nightmare.
  6. Objective criteria should be used to determine whether offenders are a risk to their own children.  Too often offenders commit a crime which shows them to have a certain proclivity (a man who likes underage teenage boys, for example) and that crime is then used as a weapon in the subsequent family law proceeding or child protective case to show that the offender is a danger to individuals that do not fall into the sphere of the offender’s sexual desires (like infant female children in the example above).  The knee jerk reaction is easy, the reality can be very hard to witness.

RESIDENCY & WORK RESTRICTIONS

  1. No sex offender should work with children.
  2. It is not practical to completely prohibit offenders from simply being within a school zone at any time given that roads often travel very close to schools and day-cares.
  3. Prohibiting an offender from actually having a home within a certain zone may be unopposable but such restrictions should not, as a practical matter, prohibit residency within areas commonly considered residential.
  4. Exceptions should be made for long-standing family ties to a certain home within a school zone.  If the offender gets out of jail after 10 years and has no support system other than mom who lives 1999 feet from a school, it is in society’s interest to allow the offender to live there.  There should be a way to allow residency within otherwise prohibited zones under similar circumstances.
  5. Sex offenders should not be arbitrarily denied opportunities for worship or education.

I could be persuaded that each of the above suggestions is not wise or could be supplemented by additional detail.  I invite anyone with an interest in the topic to submit away.

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Optimism on Sex Offender Residency Restrictions

A Public Defender has a post up optimistically describing efforts by various states to slow down and rationalize residency restrictions.  He is more optimistic than I.  I have said before I think residency and other restrictions are here to stay-that said the push should be to rationalize the laws and legislate at the state level so as to avoid ill though out and draconian local ordinances.  I understand that states can be irrational and draconian as well but are likely to be less so in a deliberative body (the legislature) consisting of a sizable number of people rather than the select few that actually run most towns.

My own unscientific survey of the scene convinces me that small cities and smaller towns are more likely to jump on the banishment bandwagon than the states.

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A Response to Lawdoc

In linking to a public defender’s recent post on violent crime registries I noted in passing that

“I suppose on some level this makes more sense than many current sex offender restrictions.  As I citizen I have never been opposed to such registries but deplore and abhor the ham-handed and ineffective way that they are imposed.”

Andrew (“Lawdoc”) suggests in his comment on my post that I wouldn’t like it so much if bar complaints were similarly registered whether or not they were substantiated.  This may be a good time to lay out some philosophical differences with most of my fellow members of the defense bar:

1.  I do not believe it does the defense bar and its allies in the blogosphere and elsewhere to blindly rail against any and all sex offender (or violent crime registries if this law goes any further) registries.  The registries are clearly here to stay and wishful thinking is not making them go away.

2.  The defense bar is going to be more effective assisting lawmakers in crafting RATIONAL registry laws in the first instance rather than swinging blind hay makers in the vain hope something will dissuade lawmakers from a “popular” course of action which has so far been upheld by the courts.

3.  In my role as a citizen I think its entirely possible for a rationally crafted registration law to be of some use in alerting the public to dangers of which it may otherwise be unaware.  I am critical of somewhat random categories of crimes being held up as a rational method of categorization rather than a scientific look at the probabilities a particular individual poses a danger.

4.  If the defense community was successful in absolutely barring all registry laws, I think there would be a mass movement to create harsh mandatory minimums in these cases beyond anything we can currently imagine and that these mandatory minimums would have a far harsher effect than registration.  See e.g. the Genarlow Wilson case.

5.  Having represented my share of the irrational and wicked, I have received more than my share of bar complaints from the disgruntled.  So far the bar has not seen fit to publish my name.  If it did see fit to publish it would be after a consideration of who I was as an individual.  That said, is Andrew really suggesting that lawyers who engage in sleazy or overly negligent conduct should not be publicized for the protection of the public?

I have a healthy skepticism of the bar complaint process and I believe the tone and slant of this blog establish where my sympathies lie.  We do ourselves no service by blinding ourselves in the service of unachievable goals.

But keep those letters coming!

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Violent Crime Registry Proposed

A Public Defender reports on a new proposal in the Connecticut legislature which may bear watching for its possible importation into other jurisdictions.

Via the OLR, I see that one such curious bill is Senate Bill 708 – An Act Creating A Violent Offender Registry. Yes, this bill proposes a registry akin to the sex offender registry for violent offendes. The offenses are:

  1. murder (including felony murder and arson murder),
  2. first-degree manslaughter,
  3. 1st-degree manslaughter with a firearm,
  4. 1st–degree kidnapping of a minor,
  5. 1st–degree assault, or
  6. conspiracy or criminal intent to commit any of the above crimes.

First time offenders are required to register for 10 years and second offenders for life. Failure to register is a Class D felony.

I suppose on some level this makes more sense than many current sex offender restrictions.  As I citizen I have never been opposed to such registries but deplore and abhore the ham-handed and ineffective way that they are imposed.

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Sex Offenders In Church

Via No Sex Offenders Need Apply from ReligionandSpirituality.com:

What can a church congregation do when one of their number is a convicted sex offender who says church attendance is important for his rehabilitation? A Reno, Nev. congregation is grappling with just that issue.   According to the Reno Gazette-Journal, clergy and members at Lutheran Church of the Good Shepherd are in a quandry over how to protect their children while following Christ’s example of welcoming sinners.          “Clearly, we are called to love,” said the Rev. Rebecca Schlatter, associate pastor. “But is it safe to love this particular person up close?”  Calvin Brugge, the person in question, agreed to sign and follow a convenant of 17 conditions. Among them are he can only attend the 7:30 a.m. Sunday service, he’s barred from using the restroom and church-sponsored functions that include children are forbidden to him. The church also plans to have a support team meet with him regularly and an accountability team to watch him on church property.  ”I have thought for years that this would be the acid test of a group of Christians practicing what they preach,” said the Rev. Carl Wilfrid, senior pastor. “Jesus makes it a priority to include people who mainstream society tends to push out: prostitutes, tax collectors, sinners, whatever. And so it’s pretty clear that to be people of Christ you would work to include people.”

ME:  My experience with churches accepting sex offenders has been overwhelmingly positive. My experience with teh probation office allowing sex offenders to go to church has been overwhelmingly negative.  The probation office seems to have developeda speciality of hounding convicted sex offenders into some sort of violation or utter isolation.  I have had more than one client forbidden from attending church-even when the pastor and congregation were completely aware of the full record of conviction.  The reason given is that “children are present.”  I have yet to have a client who wants to follow through with a legal challenge but I would dearly love to find someone in this situation who is willing to stand up and be counted.

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Romeo & Juliet Laws in Florida

Thanks to Molly for pointing out that the St. Petersburg Times has reported that Florida has passed a Romeo & Juliet law.

From the St. Petersburg Times:

A 28-year-old man has shed his sex offender status under a new “Romeo and Juliet” law intended to allow certain people convicted of teenage sexual activity to separate themselves from the state’s registered sex offenders.

The Florida Department of Law Enforcement said Anthony Croce of St. Petersburg is the only person so far to qualify for removal from Florida’s registry of sex offenders under the law named after William Shakespeare’s star-crossed teen lovers.

Underage sex is still a crime in Florida, but the law, which went into effect in July, allows a judge to remove the sex offender designation in certain cases.

The victim in the case must be between 14 and 17, a willing participant in the sexual activity and no more than four years younger than the offender.

The offense must be the only sex crime on the offender’s record.

Croce was 17 when he started having sex with his 15-year-old girlfriend, but her mother pressed charges after he turned 18. Croce pleaded no contest to lewd and lascivious behavior, which required him to register as a sex offender.

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New Subpoena Protective Measures

Massachusetts recently altered its subpoena procedure in the case of Commonwealth v. Sean Dwyer to require lawyers seeking normally privileged 3d party records to give notice and seek permission of the court.  This brings Massachusetts in line with a similar rule change in Maine.  A few years ago I was at a conference where a senior judge jumped down a respected defense acquaintance of mine who had enthusiastically described his enthusiasm for subpoenaing medical and psychological records from 3d parties.  Frankly, I thought my friend was correct but shortly thereafter Maine changed M.R.Crim.P 17 on such matters.  I’ll expand this post when I get a minute as it really constitutes a much more restrictive defense environment.  In Maine, the rule is similar to that of a “Clifford Order.”

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Appeal of Sentence

From the Bangor Daily News-a little self promotion.  The sentencing in this case raises some real questions.  The judge “sentenced” the defendants on 9/27 by announcing “the numbers” that he had determined in a sentencin memorandum dated 2 days prior to the sentencing hearing.  He then filed an “amended” sentencing memorandum which apparantly changed only the date of the memorandum to the date of sentencing and adding the word “amended.”  In Maine you have to ask permission of the Law Court to appeal a sentence but given that, at a minimum, the proceedure used here violated the defendant’s right of allocution (right to address the judge at sentencing), I am hopeful.

From the Bangor Daily News:

ELLSWORTH – A man and a woman from Mount Desert Island who each were sentenced last month to serve several years in prison for rapes they committed two years ago have filed appeals.

Lawyers representing Peter Mills, 50, of Southwest Harbor and Stephanie Stark, 46, of Bar Harbor have filed notices of appeals at Hancock County Superior Court in Ellsworth. Mills received a 10-year prison sentence for raping three women and Stark received a seven-year prison sentence for raping two of the same victims.

Attorney Stephen Smith of Bangor, representing Stark, wrote in his notice that Stark’s sentence, imposed Sept. 27 by Justice William Brodrick, was “wholly disproportionate to the crime.”

. . .

Smith and Pileggi also each suggested that the judge did not follow proper procedure when he wrote out sentencing analyses for Mills and Stark two days before the sentencing occurred.

The victims in the case, who were raped during a three-day period in June 2005, each testified during the trial that they believe they were drugged before being sexually assaulted. Each of the victims testified they drank wine given to them by Mills before the assaults took place. The weeklong trial was held in June in Penobscot County Superior Court in Bangor.

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Privileged communications to victim witness advocates

Title 16, Chapter  1: WITNESSES

Subchapter 2: QUALIFICATIONS, PRIVILEGES AND CREDIBILITY

Subchapter 5: IMMUNITIES

Posted by admin2 on
May 9, 2012

South Korea: U.S. Soldier Receives 6-Year Sentence in Rape of Teenager

By THE ASSOCIATED PRESS

 

A court in Seoul sentenced an American soldier on Wednesday to six years in prison for raping a South Korean teenage girl last year. The Seoul Central District Court’s sentencing of Pvt. Kevin Robinson follows the sentencing in November of another American private to 10 years in prison for a similar crime. The two cases rekindled anti-American sentiment and prompted American officials to apologize. United States Forces Korea says it is checking whether Private Robinson intends to appeal.

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May 9, 2012

Ultra-Orthodox Shun Their Own for Reporting Child Sexual Abuse

By and

The first shock came when Mordechai Jungreis learned that his mentally disabled teenage son was being molested in a Jewish ritual bathhouse in Brooklyn. The second came after Mr. Jungreis complained, and the man accused of the abuse was arrested.       

Old friends started walking stonily past him and his family on the streets of Williamsburg. Their landlord kicked them out of their apartment. Anonymous messages filled their answering machine, cursing Mr. Jungreis for turning in a fellow Jew. And, he said, the mother of a child in a wheelchair confronted Mr. Jungreis’s mother-in-law, saying the same man had molested her son, and she “did not report this crime, so why did your son-in-law have to?”       

By cooperating with the police, and speaking out about his son’s abuse, Mr. Jungreis, 38, found himself at the painful forefront of an issue roiling his insular Hasidic community. There have been glimmers of change as a small number of ultra-Orthodox Jews, taking on longstanding religious and cultural norms, have begun to report child sexual abuse accusations against members of their own communities. But those who come forward often encounter intense intimidation from their neighbors and from rabbinical authorities, aimed at pressuring them to drop their cases.       

Abuse victims and their families have been expelled from religious schools and synagogues, shunned by fellow ultra-Orthodox Jews and targeted for harassment intended to destroy their businesses. Some victims’ families have been offered money, ostensibly to help pay for therapy for the victims, but also to stop pursuing charges, victims and victims’ advocates said.       

“Try living for one day with all the pain I am living with,” Mr. Jungreis, spent and distraught, said recently outside his new apartment on Williamsburg’s outskirts. “Did anybody in the Hasidic community in these two years, in Borough Park, in Flatbush, ever come up and look my son in the eye and tell him a good word? Did anybody take the courage to show him mercy in the street?”       

A few blocks away, Pearl Engelman, a 64-year-old great-grandmother, said her community had failed her too. In 2008, her son, Joel, told rabbinical authorities that he had been repeatedly groped as a child by a school official at the United Talmudical Academy in Williamsburg. The school briefly removed the official but denied the accusation. And when Joel turned 23, too old to file charges under the state’s statute of limitations, they returned the man to teaching.       

“There is no nice way of saying it,” Mrs. Engelman said. “Our community protects molesters. Other than that, we are wonderful.”       

Keeping to Themselves

The New York City area is home to an estimated 250,000 ultra-Orthodox Jews — the largest such community outside of Israel, and one that is growing rapidly because of its high birthrate. The community is concentrated in Brooklyn, where many of the ultra-Orthodox are Hasidim, followers of a fervent spiritual movement that began in 18th-century Europe and applies Jewish law to every aspect of life.       

Their communities, headed by dynastic leaders called rebbes, strive to preserve their centuries-old customs by resisting the contaminating influences of the outside world. While some ultra-Orthodox rabbis now argue that a child molester should be reported to the police, others strictly adhere to an ancient prohibition against mesirah, the turning in of a Jew to non-Jewish authorities, and consider publicly airing allegations against fellow Jews to be chillul Hashem, a desecration of God’s name.       

There are more mundane factors, too. Some ultra-Orthodox Jews want to keep abuse allegations quiet to protect the reputation of the community, and the family of the accused. And rabbinical authorities, eager to maintain control, worry that inviting outside scrutiny could erode their power, said Samuel Heilman, a professor of Jewish studies at Queens College.       

“They are more afraid of the outside world than the deviants within their own community,” Dr. Heilman said. “The deviants threaten individuals here or there, but the outside world threatens everyone and the entire structure of their world.”       

Scholars believe that abuse rates in the ultra-Orthodox world are roughly the same as those in the general population, but for generations, most ultra-Orthodox abuse victims kept silent, fearful of being stigmatized in a culture where the genders are strictly separated and discussion of sex is taboo. When a victim did come forward, it was generally to rabbis and rabbinical courts, which would sometimes investigate the allegations, pledge to monitor the accused, or order payment to a victim, but not refer the matter to the police.       

“You can destroy a person’s life with a false report,” said Rabbi Chaim Dovid Zweibel, the executive vice president of Agudath Israel of America, a powerful ultra-Orthodox organization, which last year said that observant Jews should not report allegations to the police unless permitted to do so by a rabbi.       

Rabbinic authorities “recommend you speak it over with a rabbi before coming to any definitive conclusion in your own mind,” Rabbi Zweibel said.       

When ultra-Orthodox Jews do bring abuse accusations to the police, the same cultural forces that have long kept victims silent often become an obstacle to prosecutions.       

In Brooklyn, of the 51 molesting cases involving the ultra-Orthodox community that the district attorney’s office says it has closed since 2009, nine were dismissed because the victims backed out. Others ended with plea deals because the victims’ families were fearful.       

“People aren’t recanting, but they don’t want to go forward,” said Rhonnie Jaus, a sex crimes prosecutor in Brooklyn. “We’ve heard some of our victims have been thrown out of schools, that the person is shunned from the synagogue. There’s a lot of pressure.”       

The degree of intimidation can vary by neighborhood, by sect and by the prominence of the person accused.       

In August 2009, the rows in a courtroom at State Supreme Court in Brooklyn were packed with rabbis, religious school principals and community leaders. Almost all were there in solidarity with Yona Weinberg, a bar mitzvah tutor and licensed social worker from Flatbush who had been convicted of molesting two boys under age 14.       

Justice Guston L. Reichbach looked out with disapproval. He recalled testimony about how the boys had been kicked out of their schools or summer camps after bringing their cases, suggesting a “communal attitude that seeks to blame, indeed punish, victims.” And he noted that, of the 90 letters he had received praising Mr. Weinberg, not one displayed “any concern or any sympathy or even any acknowledgment for these young victims, which, frankly, I find shameful.”       

“While the crimes the defendant stands convicted of are bad enough,” the judge said before sentencing Mr. Weinberg to 13 months in prison, “what is even more troubling to the court is a communal attitude that seems to impose greater opprobrium on the victims than the perpetrator.”       

Silenced by Fear

Intimidation is rarely documented, but just two weeks ago, a Hasidic woman from Kiryas Joel, N.Y., in Orange County, filed a startling statement in a criminal court, detailing the pressure she faced after telling the police that a Hasidic man had molested her son.       

“I feel 100 percent threatened and very scared,” she said in her statement. “I feel intimidated and worried about what the consequences are going to be. But I have to protect my son and do what is right.”       

Last year, her son, then 14, told the police that he had been offered $20 by a stranger to help move some boxes, but instead, the man brought him to a motel in Woodbury, removed the boy’s pants and masturbated him.       

The police, aided by the motel’s security camera, identified the man as Joseph Gelbman, then 52, of Kiamesha Lake, a cook who worked at a boys’ school run by the Vizhnitz Hasidic sect. He was arrested, and the intimidation ensued. Rabbi Israel Hager, a powerful Vizhnitz rabbi in Monsey, N.Y., began calling the mother, asking her to cease her cooperation with the criminal case and, instead, to bring the matter to a rabbinical court under his jurisdiction, according to the mother’s statement to the court. Rabbi Hager did not return repeated calls seeking comment.       

“I said: ‘Why? He might do this again to other children,’ ” the mother said in the statement. The mother, who asked that The New York Times not use her name to avoid identifying her son, told the police that the rabbi asked, “What will you gain from this if he goes to jail?” and said that, in a later call, he offered her $20,000 to pay for therapy for her son if the charges were dropped.       

On April 24, three days before the case was set for trial, the boy was expelled from his school. When the mother protested, she said, the principal threatened to report her for child abuse.       

Prosecutors, against the wishes of the boy’s parents, settled the case on April 27. Mr. Gelbman was given three years’ probation after pleading guilty to endangering the welfare of a child.       

Mr. Jungreis, the Williamsburg father, had a similar experience. He first suspected that his son was being molested after he came home with blood in his underwear at age 12, and later was caught touching another child on the bus. But, Mr. Jungreis said, the school principal warned him to stay silent. Two years later, the boy revealed that he had been molested for years by a man he saw at a mikvah, a ritual bath that observant Jews visit for purification.       

Mr. Jungreis, knowing the prohibition on calling secular authorities, asked several rabbis to help him report the abuse, but, he said, they told him they did not want to get involved. Ultimately, he found a rabbi who told him to take his son to a psychologist, who would be obligated to notify law enforcement. “That way you are not the moser,” he said the rabbi told him, using the Hebrew word for informer. The police arrested Meir Dascalowitz, then 27, who is now awaiting trial.       

Prosecution of intimidation is rare. Victims and their supporters say that is because rabbinical authorities are politically powerful; prosecutors say it is because there is rarely enough evidence to build a criminal case. “The intimidation often works, at least in the short run,” said Laura Pierro, the head of the special victims unit at the Ocean County prosecutor’s office in New Jersey.       

In 2010, Ms. Pierro’s agency indicted Shaul Luban for witness tampering: he had sent a threatening text message to multiple recipients, urging the Orthodox Jewish community of Lakewood, N.J., to pressure the family of an 11-year-old abuse victim not to cooperate with prosecutors. In exchange for having his record cleared, Mr. Luban agreed to spend about a year in a program for first-time offenders.       

Mr. Luban and others “wanted the phone to ring off the hook to withdraw the complaint from our office,” the Ocean County prosecutor, Marlene Lynch Ford, said.       

Threats to Advocates

The small cadre of ultra-Orthodox Jews who have tried to call attention to the community’s lack of support for sexual abuse victims have often been targeted with the same forms of intimidation as the victims themselves.       

Rabbi Nuchem Rosenberg of Williamsburg, for example, has been shunned by communal authorities because he maintains a telephone number that features his impassioned lectures in Yiddish, Hebrew and English imploring victims to call 911 and accusing rabbis of silencing cases. He also shows up at court hearings and provides victims’ families with advice. His call-in line gets nearly 3,000 listeners a day.       

In 2008, fliers were posted around Williamsburg denouncing him. One depicted a coiled snake, with Mr. Rosenberg’s face superimposed on its head. “Nuchem Snake Rosenberg: Leave Tainted One!” it said in Hebrew. The local Satmar Hasidic authorities banned him from their synagogues, and a wider group of 32 prominent ultra-Orthodox rabbis and religious judges signed an order, published in a community newspaper, formally ostracizing him.       

“The public must beware, and stay away from him, and push him out of our camp, not speak to him, and even more, not to honor him or support him, and not allow him to set foot in any synagogue until he returns from his evil ways,” the order said in Hebrew.       

“They had small children coming to my house and spitting on me and on my children and wife,” Rabbi Rosenberg, 61, said in an interview.       

Rabbi Tzvi Gluck, 31, of Queens, the son of a prominent rabbi and an informal liaison to secular law enforcement, began helping victims after he met troubled teenagers at Our Place, a help center in Brooklyn, and realized that sexual abuse was often the root of their problems. It was when he began helping the teenagers report cases to the police that he also received threats.       

In February, for example, he received a call asking him to urge an abuse victim to abandon a case. “A guy called me up and said: ‘Listen, I want you to know that people on the street are talking about what they can do to hurt you financially. And maybe speak to your children’s schools, to get your kids thrown out of school.’ ”       

Rabbi Gluck said he had helped at least a dozen ultra-Orthodox abuse victims bring cases to the Brooklyn district attorney in recent years, and each time, he said, the victim came under heavy pressure to back down. In a case late last year that did not get to the police, a 30-year-old molested a 14-year-old boy in a Jewish ritual bath in Brooklyn, and a rabbi “made the boy apologize to the molester for seducing him,” he said.       

“If a guy in our community gets diagnosed with cancer, the whole community will come running to help them,” he said. “But if someone comes out and says they were a victim of abuse, as a whole, the community looks at them and says, ‘Go jump in a lake.’ ”       

Traces of Change

Awareness of child sexual abuse is increasing in the ultra-Orthodox community. Since 2008, hundreds of adult abuse survivors have told their stories, mostly anonymously, on blogs and radio call-in shows, and to victims’ advocates. Rabbi-vetted books like “Let’s Stay Safe,” aimed at teaching children what to do if they are inappropriately touched, are selling well.       

The response by communal authorities, however, has been uneven.       

In March, for example, Satmar Hasidic authorities in Williamsburg took what advocates said was an unprecedented step: They posted a Yiddish sign in synagogues warning adults and children to stay away from a community member who they said was molesting young men. But the sign did not urge victims to call the police: “With great pain we must, according to the request of the brilliant rabbis (may they live long and good lives), inform you that the young man,” who was named, “is, unfortunately, an injurious person and he is a great danger to our community.”       

In Crown Heights, where the Chabad-Lubavitch Hasidic movement has its headquarters, there has been more significant change. In July 2011, a religious court declared that the traditional prohibition against mesirah did not apply in cases with evidence of abuse. “One is forbidden to remain silent in such situations,” said the ruling, signed by two of the court’s three judges.       

Since then, five molesting cases have been brought from the neighborhood — “as many sexual abuse-related arrests and reports as there had been in the past 20 years,” said Eliyahu Federman, a lawyer who helps victims in Crown Heights, citing public information.       

Mordechai Feinstein, 19, helped prompt the ruling by telling the Crown Heights religious court that he had been touched inappropriately at age 15 by Rabbi Moshe F. Keller, a Lubavitcher who ran a foundation for at-risk youth and whom Mr. Feinstein had considered his spiritual mentor.       

Last week, Rabbi Keller was sentenced in Criminal Court to three years’ probation for endangering the welfare of a child. And Mr. Feinstein, who is no longer religious, is starting a campaign to encourage more abuse victims to come forward. He is working with two prominent civil rights attorneys, Norman Siegel and Herbert Teitelbaum, who are asking lawyers to provide free assistance to abuse victims frustrated by their dealings with prosecutors.       

“The community is a garden; there are a lot of beautiful things about it,” Mr. Feinstein said. “We just have to help them weed out the garden and take out the things that don’t belong there.”       

Friday: The Brooklyn district attorney is criticized for his handling of ultra-Orthodox Jewish child sex-abuse cases.

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Communications with Client and Medical/Disability/Auto Insurance Adjusters 

Communications with Client:

            Photographs of Injuries/Property Damage:  At the beginning of the case it is important to discuss with the client the importance of obtaining photographs of their injuries (bruises, scars, stitches, etc.) or vehicle damage.  These photographs are extremely important and beneficial to provide to the tortfeasor’s insurance company.  The photographs do not have to be taken by a professional.  Explain to the client that we will need to know who took the photograph and when it was taken.

Status of Recovery:  When contacting the client to discuss the status of their recovery it is important to ask them how they are feeling, if they are still out of work, find out who they have received recent treatment from, and confirm all dates of service and medical providers we have on file with them to ensure we are not missing any records.

Demand Stage:  Once it has been determined that the client has reached MMI inform them that we will draft the demand package to the insurance company.  Be sure to explain what the demand package is and what it consists of.  Also inform them that we will be in contac with them from time to time while preparing the demand package to discuss pain and suffering, ask questions, and discuss the demand amount.

Obligation to Reimburse Insurance Providers:  Many people are not aware that if their health insurance, disability insurance, or auto insurance makes a payment on their behalf that they must reimburse that provider for what they paid out in the event that they receive a settlement.  It is important to discuss this with the client so that they are fully aware of this.

Posture of Case after Demand has been Sent:  Explain to the client that once the demand has been sent to the insurance company it can take anywhere from two weeks to a month or potentially more for the insurance adjuster to investigate their claim.  The amount of time for them to evaluate the claim varies on the extent of damages and documentation provided.

Communication of Settlement Offer/Counteroffer:  It is important that the client is aware that all settlement offers will be discussed with them thoroughly prior to any acceptance or counteroffer.  When contacting the client to discuss any settlement offer or potential counteroffer it is important to know what the client will walk away with after all bills, etc. have been paid (see calculation for settlement disbursement).

            Potential Need for Trial:  If the client’s expectation and the adjuster’s offer are miles apart then it is important to discuss with the client the possibility of taking the case to trial.  They need to be aware that if the case has to go to trial it may take 1-2 years to settle and they could potentially lose or walk away with less than what the last settlement offer was.  The expenses incurred as a result of taking a case to trial also needs to be discussed with the client.  While most cases settle without ever reaching this point it is still a possibility that the client needs to be aware of.

Receipt of Settlement Funds:  Client and their spouse (if applicable) will need to come in and sign the settlement check.  The check will then be deposited into our IOLTA Trust Account.  It will take 2-3 business days for the check to clear.  Once the check has cleared we can issue the client a check for their portion of the settlement proceeds.  They can pick up the check or we can mail it to them.

Communications with Adjusters:

Medical/Disability/Auto Insurance:  It is imperative to establish a relationship with our client’s medical insurance and/or disability insurance provider at the very beginning of the case.  All health insurance/disability insurance providers have subrogation interest rights to recover any money they paid out relative to the client’s claim out of any settlement proceeds received.  Once the client has reached MMI a final itemization of payouts (their lien) must be obtained.

Once the case has settled we often times can get insurance liens reduced to account for the prorate share of the clients’ attorney’s fees incurred in obtaining recovery from a third party.  In special circumstances we have been able to get liens waived entirely or reduced significantly (typically only if there is very little money available with high damages).

Excerpt from the Personal Injury Manual from Smith Law Offices P.A. 

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Wanton or reckless behavior creating a risk of serious bodily injury or sexual abuse to a child

Section 13L. For the purposes of this section, the following words shall have the following meanings:— 

“Child”, any person under 18 years of age. 

“Serious bodily injury”, bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death. 

“Sexual abuse”, an indecent assault and battery on a child under 14 under section 13B of chapter 265; aggravated indecent assault and battery on a child under 14 under section 13B1/2 of said chapter 265; a repeat offense under section 13B3/4 of said chapter 265; indecent assault and battery on a person age 14 or over under section 13H of said chapter 265; rape under section 22 of said chapter 265; rape of a child under 16 with force under section 22A of said chapter 265; aggravated rape of a child under 16 with force under section 22B of said chapter 265; a repeat offense under section 22C of said chapter 265; rape and abuse of a child under section 23 of said chapter 265; aggravated rape and abuse of a child under section 23A of said chapter 265; a repeat offense under section 23B of said chapter 265; assault with intent to commit rape under section 24 of said chapter 265; and assault of a child with intent to commit rape under section 24B of said chapter 265. 

Whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act shall be punished by imprisonment in the house of correction for not more than 21/2 years. 

For the purposes of this section, such wanton or reckless behavior occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk that his acts, or omissions where there is a duty to act, would result in serious bodily injury or sexual abuse to a child. The risk must be of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. 

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Victims of violent crime or sex offenses & Parole Boards

Section 133E. Victims, and parents or legal guardians of minor victims, of a violent crime or a sex offense for which a sentence was imposed, who have been certified by the department of criminal justice information services in accordance with section 172 of chapter 6 and section 3 of chapter 258B, may testify in person at the parole hearing of the perpetrator of the crime of which they were victims, or submit written testimony to the parole board. 

For the purpose of this section, “sex offense” and “violent crime” shall be defined as follows: 

“Sex offense”, an indecent assault and battery on a child under 14 under section 13B of chapter 265; aggravated indecent assault and battery on a child under 14 under section 13B1/2 of said chapter 265; a repeat offense under section 13B3/4 of said chapter 265; indecent assault and battery on a mentally retarded person under section 13F of said chapter 265; indecent assault and battery on a person age14 or over under section 13H of said chapter 265; rape under section 22 of said chapter 265;  rape of a child under 16 with force under section 22A of said chapter 265; aggravated rape of a child under 16 with force under section 22B of said chapter 265; a repeat offense under section 22C of said chapter 265; rape and abuse of a child under section 23 of said chapter 265; aggravated rape and abuse of a child under section 23A of said chapter 265; a repeat offense under section 23B of said chapter 265; assault with intent to commit rape under section 24 of said chapter 265; assault of a child with intent to commit rape under section 24B of said chapter 265; kidnapping of a child under section 26 of said chapter 265; enticing away a person for prostitution or sexual intercourse under section 2 of chapter 272; drugging persons for sexual intercourse under section 3 of said chapter 272; inducing a minor into prostitution under section 4A of said chapter 272; living off or sharing earnings of a minor prostitute under section 4B of said chapter 272; incestuous marriage or intercourse under section 17 of said chapter 272;  disseminating to a minor matter harmful to a minor under section 28 of said chapter 272; posing or exhibiting a child in a state of nudity under section 29A of said chapter 272; dissemination of visual material of a child in a state of nudity or sexual conduct under section 29B of said chapter 272;  unnatural and lascivious acts with a child under 16 under section 35A of said chapter 272; aggravated rape under section 39 of chapter 277; and any attempt to commit a violation of any of the aforementioned sections pursuant to section 6 of chapter 274. 

“Violent crime”, any crime (a) for which an individual has been sentenced to imprisonment of 1 year or more, and (b) that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another. 

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Sex Offender Registry Law

Section 178D. The sex offender registry board, known as the board, in cooperation with the department, shall establish and maintain a central computerized registry of all sex offenders required to register pursuant to sections 178C to 178P, inclusive, known as the sex offender registry. The sex offender registry shall be updated based on information made available to the board, including information acquired pursuant to the registration provisions of said sections 178C to 178P, inclusive. The file on each sex offender required to register pursuant to said sections 178C to 178P, inclusive, shall include the following information, hereinafter referred to as registration data: 

(a) the sex offender’s name, aliases used, date and place of birth, sex, race, height, weight, eye and hair color, social security number, home address, any secondary addresses and work address and, if the sex offender works at or attends an institution of higher learning, the name and address of the institution; 

(b) a photograph and set of fingerprints; 

(c) a description of the offense for which the sex offender was convicted or adjudicated, the city or town where the offense occurred, the date of conviction or adjudication and the sentence imposed; 

(d) any other information which may be useful in assessing the risk of the sex offender to reoffend; and 

(e) any other information which may be useful in identifying the sex offender. 

Notwithstanding sections 178C to 178P, inclusive, or any other general or special law to the contrary and in addition to any responsibility otherwise imposed upon the board, the board shall make the sex offender information contained in the sex offender registry, delineated below in subsections (i) to (viii), inclusive, available for inspection by the general public in the form of a comprehensive database published on the internet, known as the “sex offender internet database”; provided, however, that no registration data relating to a sex offender given a level 1 or level 2 designation by the board under section 178K shall be published in the sex offender internet database but may be disseminated by the board as otherwise permitted by said sections 178C to 178P, inclusive; and provided further, that the board shall keep confidential and shall not publish in the sex offender internet database any information relating to requests for registration data under sections 178I and 178J: 

(i) the name of the sex offender; 

(ii) the offender’s home address and any secondary addresses; 

(iii) the offender’s work address; 

(iv) the offense for which the offender was convicted or adjudicated and the date of the conviction or adjudication; 

(v) the sex offender’s age, sex, race, height, weight, eye and hair color; 

(vi) a photograph of the sex offender, if available; 

(vii) whether the sex offender has been designated a sexually violent predator; and 

(viii) whether the offender is in compliance with the registration obligations of sections 178C to 178P, inclusive. 

All information provided to the general public through the sex offender internet database shall include a warning regarding the criminal penalties for use of sex offender registry information to commit a crime or to engage in illegal discrimination or harassment of an offender and the punishment for threatening to commit a crime under section 4 of chapter 275. The sex offender internet database shall be updated regularly, based on information available to the board and shall be open to searches by the public at any time without charge or subscription. The board shall promulgate rules and regulations to implement, update and maintain such a sex offender internet database, to ensure the accuracy, integrity and security of information contained therein, to ensure the prompt and complete removal of registration data for persons whose duty to register has terminated or expired under section 178G, 178L or 178M or any other law and to protect against the inaccurate, improper or inadvertent publication of registration data on the internet. 

The board shall develop standardized registration and verification forms, which shall include registration data as required pursuant to sections 178C to 178P. The board shall make blank copies of such forms available to all agencies having custody of sex offenders and all city and town police departments; provided, however, that the board shall determine the format for the collection and dissemination of registration data, which may include the electronic transmission of data. Records maintained in the sex offender registry shall be open to any law enforcement agency in the commonwealth, the United States or any other state. The board shall promulgate rules and regulations to implement the provisions of sections 178C to 178P, inclusive.  Such rules and regulations shall include provisions which may permit police departments located in a city or town that is divided into more than one zip code to disseminate information pursuant to the provisions of section 178J categorized by zip code and to disseminate such information limited to one or more zip codes if the request for such dissemination is so qualified;  provided, however, that for the city of Boston dissemination of information may be limited to one or more police districts. 

The board may promulgate regulations further defining in a manner consistent with maintaining or establishing eligibility for federal funding pursuant to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. section 14071, the eligibility of sex offenders to be relieved of the obligation to register, including but not limited to, regulations limiting motions under subsection (e) of section 178E, section 178G and relief from registration pursuant to paragraph (d) of subsection (2) of section 178K. 

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Rape, generally

Section 22. (a) Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise, or is committed during the commission or attempted commission of an offense defined in section fifteen A, fifteen B, seventeen, nineteen or twenty-six of this chapter, section fourteen, fifteen, sixteen, seventeen or eighteen of chapter two hundred and sixty-six or section ten of chapter two hundred and sixty-nine shall be punished by imprisonment in the state prison for life or for any term of years. 

No person serving a sentence for a second or subsequent such offense shall be eligible for furlough, temporary release, or education, training or employment programs established outside a correctional facility until such person shall have served two-thirds of such minimum sentence or if such person has two or more sentences to be served otherwise than concurrently, two-thirds of the aggregate of the minimum terms of such several sentences. 

(b) Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years; and whoever commits a second or subsequent such offense shall be punished by imprisonment in the state prison for life or for any term or years. 

Whoever commits any offense described in this section while being armed with a firearm, rifle, shotgun, machine-gun or assault weapon, shall be punished by imprisonment in the state prison for not less than ten years. Whoever commits a second or subsequent such offense shall be punished by imprisonment in the state prison for life or for any term of years, but not less than 15 years. 

No person serving a sentence for a second or subsequent such offense shall be eligible for furlough, temporary release, or education, training or employment programs established outside a correctional facility until such person shall have served two-thirds of such minimum sentence or if such person has two or more sentences to be served otherwise than concurrently, two-thirds of the aggregate of the minimum terms of such several sentences. 

For the purposes of prosecution, the offense described in subsection (b) shall be a lesser included offense to that described in subsection (a).

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Rape of child

Section 22A. Whoever has sexual intercourse or unnatural sexual intercourse with a child under 16, and compels such child to submit by force and against his will or compels such child to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for life or for any term of years. A prosecution commenced under this section shall neither be continued without a finding nor placed on file.