March 6, 2014
Bowing to the Pentagon, the Senate agreed after impassioned debate Thursday to leave the authority to prosecute rapes and other serious crimes with military commanders in a struggle that highlighted the growing role of women in Congress.
The vote was 55-45 in favor of stripping commanders of that authority, but that was short of the 60 necessary to move ahead on the legislation sponsored by Sen. Kirsten Gillibrand. Her bill would have given the decision to take serious crimes to courts-martial to seasoned military trial lawyers, independent of the chain of command.
The debate and vote were the culmination of a nearly yearlong campaign to curb sexual assault in the ranks, led by female senators who have questioned whether the military's mostly male leadership understands differences between relatively minor sexual offenses and serious crimes that deserve swift and decisive justice.
Thursday's rejection is unlikely to be the final word. Defeated but unyielding, Gillibrand and her allies vowed to seize the next opportunity to force another vote, probably in the spring when the Senate starts work on a sweeping defense policy bill for the 2015 fiscal year.
"Many people said to me, 'Kirsten, I'm going to watch this, and if it doesn't get better in the next six months, I'm with you next time,'" she said at a news conference.
"We will not be stopped. Look, I've been here long enough to see how sometimes change is painful and slow. But it happens. I've seen it. And we will see it again," said Sen. Barbara Boxer, D-Calif.
Pentagon leaders vigorously opposed the measure, as did former prosecutors and military veterans in the Senate who argued that commanders should have more responsibility, not less, for the conduct of the men and women they lead in war and peacetime.
"We can't let the commanders walk away," insisted Sen. Claire McCaskill of Missouri, who bemoaned the tenor of a policy debate that pitted her against fellow Democrat Gillibrand. ..Continued.. by NPR.org
The “Peeping Tom” laws in Massachusetts only apply when people being photographed unknowingly are either nude or partially nude in places like dressing rooms, and do not cover those in public settings who are fully clothed but may be exposing part of their body, whether accidentally or intentionally.
That was the argument that the state’s highest court used when they sided with a defendant on Wednesday who argued that he didn’t break the law when he was caught taking “upskirt” photos of women on the Green Line in 2010. “We interpret the phrase, ‘a person who is … partially nude’ in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her,” Supreme Judicial Court judges ruled this week. “A female passenger on an MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is ‘partially nude,’ no matter what is or is not underneath the skirt by way of underwear or other clothing.”
The ruling stemmed from charges against 31-year-old Michael Robertson, who brought his case to the Supreme Judicial Court after a Boston Municipal Court judge denied his appeal to drop charges from the 2010 incident. Robertson was accused of taking pictures up two women’s skirts, including an MBTA Transit Police decoy.
In backing Robertson, the Supreme Judicial Court reversed the order of the lower court blocking his motion to dismiss those charges. “Because the MBTA is a public transit system operating in a public place and uses cameras, the two alleged victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy,” the court ruled, citing the state law and how it’s written. “[Parts of the law] do not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA.”
Judges said the state will need to update the language in the existing “Peeping Tom” laws to reflect issues presented like those in Robertson’s case. In the past, state elected officials have tried to push through such language, and another effort to get the law in place will have to be made. ..Continued.. by Steve Annear
March 3, 2014
The question of whether a photo of a naked boy in National Geographic constitutes child pornography when found in the troubling jailhouse stash of a convicted sex offender goes before the state’s highest court today.
“After a summer day’s swim, a boy returns to his new bike,” reads the caption under award-winning photojournalist Lynn Johnson’s picture in “Inside the Dragon,” the magazine’s 2008 special edition on China. The Norfolk District Attorney’s Office convinced a grand jury that in the prison footlocker of convicted sex offender John Rex, the image merited a charge of possession of child pornography in 2012.
Reached yesterday, a surprised Johnson, who wasn’t aware her photo was at the center of a legal battle, called the controversy “pretty astounding.”
Other materials confiscated from the former Chelmsford resident as contraband by the Department of Correction included a 1900 photo of a child skinny dipping from a sociology textbook chapter on swimwear, photographs of naked children standing on rocks from a magazine for nudists and a tracing of a photograph of 1981 Florida murder victim Adam Walsh holding a baseball bat.
Rex, 43, who is serving a 25-year sentence for pleading guilty in 1996 to child rape and attempted kidnapping, appealed the porn charges successfully. Superior Court Judge Mitchell J. Kaplan dismissed the charges, ruling none of the photographs amounted to a lewd exhibition of children’s body parts, as required by state statute, and that Rex ”did not commit an act of sexual abuse of a child when he cut (the photographs) out,” according to briefs filed with the SJC.
David Traub, spokesman for Norfolk DA Michael W. Morrissey, declined comment yesterday because the push to reinstate the pornography charges is pending. Prosecutors argued in their court filing, “The defendant did not collect the photographs to make an artistic statement or for educational purposes. The only reasonable inference is that he kept them to fulfull deviant sexual desires.”
The line between art and porn is one to be drawn by a jury, prosecutors said, not a judge.
Rex’s attorney Bruce W. Carroll did not immediately respond to requests for comment. He stated in his SJC brief, “Whenever a photograph is taken of a nude child, or any nude person ... being naked is, often times, the point of the picture.” ..Source.. by Laurel J. Sweet
March 2, 2014
We've all seen them: the public service announcements about sex trafficking in America. They're plastered on buses and billboards; images of young women exploited for their bodies, with hotlines to call for help.
The numbers are staggering. The Justice Department estimates that each year at least 200,000 children are trafficked for sex in the U.S., and it is said to generate upward of $32 billion a year.
Across the country, teens are being picked up on prostitution charges. It's a stunning contradiction in the law: Girls who are too young to legally consent to sex are being prosecuted for selling it.
Amy Farrell is an expert who studies sex trafficking laws. She tells NPR's Arun Rath some states are trying to fix the problem through what are called safe harbor laws.
Twelve states have passed safe harbor legislation for child victims of sex trafficking, according to Farrell. She says the basic premise of these laws is to give law enforcement and prosecutors a way to divert children who have been prostituted from a juvenile delinquent proceeding and instead put them into what's called a "child in need" proceeding.
In some states without safe harbor laws, there are efforts to set up special courts specifically to deal with these cases.
"This has basically been a whole series of individual judges seeing these cases coming through their courts and becoming passionate and involved in the issue and being willing to work with prosecutors, the defense bar and service providers to establish these problem-solving courts," she says.
Creating A Safe Place
In California, there is no safe-haven law; minors can, and are, prosecuted for prostitution. But in Los Angeles County, Judge Catherine Pratt has set up a special juvenile court to help victims of sex trafficking.
During the last few years, Pratt has been consumed by her work helping young victims of sex trafficking get treated as just that: victims. She says it's been a tough battle because the justice system treats anyone who sells sex as a criminal — even a child.
In normal juvenile courts, young women who are picked up for prostitution don't get counseling and other services — they get punished. Girls can be sentenced to juvenile detention or forced to testify against their exploiter.
Pratt remembers one case that made her believe the system was broken. A young girl was asked to testify against her pimp, in a public adult court, in a case that involved her being drugged into unconsciousness. She was asked by the district attorney to review a tape of the incident, which she had never seen, and identify the defendants in the court. ..Continued.. by NPR Staff
At the age of 22, Edgar Coker thinks it’s normal to go straight to work and then straight home every day to spend all of his free time hidden behind closed doors.
It’s a frame of reference the former North Stafford resident forged from living nearly one-third of his life with the undeserved label of rapist and having that information available to all via Virginia’s online Sex Offender Registry.
Coker’s perspective is one Nicole Pittman has seen repeatedly in studying how children and teens are impacted by being listed on sex offender registries across the country. Pittman, a national expert on the topic, authored the 2013 Human Rights Watch report “Raised on the Registry: The irreparable harm of placing children on sex offender registries in the U.S.”
Juveniles on sex offender registries must continually re-register, are limited in where they can go and are publicly ostracized, all of which create a sense of imprisonment, Pittman said.
“It’s almost an institutionalized feeling,” she said.
Like a prison without walls.
It took a team of attorneys five years of legal battles to correct the injustice that began in June 2007 when a 14-year-old girl told her mother that Coker raped her inside their Aquia Harbour home.
After he was sentenced, the girl admitted she lied to avoid getting in trouble for having sex with her friend.
The legal team’s efforts resulted in a Feb. 10 ruling by Judge Designate Jane Marum Roush, who vacated Coker’s convictions and ordered his name removed from the state’s Sex Offender Registry.
But nothing can erase the 19 months he was confined in juvenile detention, or the nearly seven years he and his family have endured harassment and the fear of making some misstep that leads to additional charges.
And while they celebrate the legal victory, neither Pittman nor Coker’s team expect he will ever recover from being labeled a rapist.
“That damage has been done,” Pittman said. “It’s sort of a lifelong sentence that will be with him.”
A ‘HAPPY-GO-LUCKY’ CHILD
Growing up in a household with five siblings, Edgar Coker was outgoing and “a little jokester,” his mother, Cherri Dulaney, said during an interview shortly after his exoneration.
“He was just this little, happy-go-lucky child without a care in the world.”
At 15, the lanky 6-footer’s chief interest was playing basketball, something he often did with his younger brothers on the courts in their neighborhood. He even dreamed of playing internationally, an idea spurred by a youth coach’s suggestion he might have that level of skill.
The Brooke Point High School student had never been in trouble with the law before, and at 15 didn’t even know what it meant to be a rapist.
But that soon changed.
On June 7, 2007, three days after his neighbor accused him of rape, he was charged with that plus abduction and breaking and entering. He soon was locked up in the Rappahannock Juvenile Center in Stafford. ..Continued.. by PAMELA GOULD
February 28, 2014
Under current Pennsylvania law, juvenile sex offenders have to comply with lifetime registration requirements. But this month, a third Pennsylvania judge ruled that law unconstitutional, setting the stage for the issue to be addressed by the state supreme court.
Judges from York, Monroe, and Lancaster counties have now all written opinions stating that the law fails to take juveniles’ greater capacity for reform into account. As Lancaster County Court of Common Pleas Judge David R. Workman wrote in his opinion earlier this month:
Statistics demonstrate that juvenile sex offenders have lower recidivism rates than adult sex offenders. This is due, in part, to the fact that juveniles sexually offend for different reasons than adults. For instance, juveniles lack maturity and impulse control, behaviors which lead to the original offense, but which will not exist once the juvenile reaches adulthood. … During adolescence a juvenile’s brain is amenable to substantial change and develops considerably in areas associated with reasoning and emotion … As a result recidivism rates for juveniles are low and strikingly less than that for adults.The registration rules for juveniles are the same as they are for adults: For initial registration, they must submit photographs, DNA samples, and fingerprints, along with information verifying all physical details such as hair style, hair color, tattoos, and piercings, as well as descriptions of what car they drive, any family cars they may occasionally drive, the names of schools attended broken down by classroom location, employer’s addresses, and Internet monikers.
Following initial registration, they must appear in-person at a pre-approved registration site every 90 days to re-confirm this information and be photographed again. If anything changes, such a new hairstyle, job, or car, they must report the change in-person within three days.
And like adult offenders, juveniles who fall out of compliance are subject to mandatory incarceration for three to five years, with no opportunity to provide a defense.
Aside from the fact that the onerous and expensive system has not been proven effective at making children safer and has been mandated by the federal government, it is very possibly unconstitutional, as the three county-level judges in the state have ruled.
The York County judge cited the work of Dr. Michael Caldwell of the University of Wisconsin, co-author of “An Examination of the Sex Offender Registration and Notification Act as Applied to Juveniles: Evaluating the Ability to Predict Sexual Recidivism” and an expert in juvenile justice issues, as evidence of the disparity in recidivism rates.
From the York County opinion:
In what Dr. Caldwell describes as “the most extensive” research study to date, a meta-study of over sixty-three studies and over 11,200 children “found an average sexual recidivism rate of 7.09% over an average 5-year follow-up.” These rates are compared with a 13% recidivism rate for adults who commit sexual offenses.Authors of a Human Rights Watch report point out that the concept of sex offender registration relies on the notion that children must be most protected from strangers. They note that 93 percent of sexually abused children are assaulted by family members, close friends, or acquaintances, according to the justice department.
Juvenile assailants are sometimes acting out a cycle of abuse.
“Many of the kids that we represent were sexually abused themselves and were acting out based on what was done to them,” says Riya Saha Shah, attorney at Philadelphia’s Juvenile Justice Center, the organization representing youth on the registry. “Or it was inappropriate sexual contact between siblings. Some of these kids [are] intellectually disabled. It’s not like that stranger rape or adult-predator child molester situation that you may think of when you think of adults on the sex offender registry.”
For particularly heinous crimes, a juvenile age 14 and older who commits crimes that would be felonies if an adult, or use a weapon in the course of a rape, can be tried in court as an adult in Pennsylvania.
The law requiring registration, known as the Pennsylvania Sex Offender Registration Notification Act (SORNA), has only been in effect since 2012. Like states across the country, Pennsylvania passed SORNA in order to comply with the Adam Walsh Child Protection and Safety Act, which was signed into law by President Bush in 2006. States must comply with the act or risk losing federal funding for “essential criminal justice services,” including pre-trial diversion projects for non-violent offenders.
More than 100 Pennsylvania juveniles have been put onto the registry since the law went into effect, according to Shah. Most of them committed acts prior to the law’s implementation, but were forced onto the registry after the law was passed.
The stated goal of SORNA is that “registered sex offenders will perceive that the authorities’ knowledge of their identities, locations, and past offenses reduces the chances that they can avoid detection and apprehension if they reoffend, and this perception may help to discourage them from engaging in further criminal conduct.”
The Human Rights Watch report argues that the real psychological effect on young registrants was profound isolation.
From the report:
They are stigmatized, isolated, often depressed. Many consider suicide, and some succeed. They and their families have experienced harassment and physical violence. They are sometimes shot at, beaten, even murdered; many are repeatedly threatened with violence. Some young people have to post signs stating “sex offender lives here” in the windows of their homes; others have to carry drivers’ licenses with “sex offender” printed on them in bright orange capital letters. Youth sex offenders on the registry are sometimes denied access to education because residency restriction laws prevent them from being in or near a school.
Shah told RH Reality Check that the Pennsylvania Supreme Court is scheduled to address the state’s appeal of the York County ruling, the first of the three, in late March, though it could be postponed if the state also appeals the Lancaster and Monroe County rulings and the cases are consolidated.
Meanwhile, Shah is hearing anecdotal reports that district attorneys and judges reluctant to place kids on lifetime registry are avoiding doing so by offering pleas to non-SORNA offenses or downgrading charges—for example, charging a juvenile for indecent assault, as opposed to aggravated sexual assault.
“That still provides them with the necessary treatment and supervision, but it removes that huge imposition and punishment of the registry,” said Shah.
If the state supreme court rules SORNA unconstitutional, then Pennsylvania will no longer be subject to financial penalties for non-compliance. The other states with SORNA legislation are Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, South Carolina, South Dakota, Tennessee, and Wyoming.
Many states haven’t passed a SORNA law because the cost of implementation is higher than the penalty for non-compliance. ..Source.. by Tara Murtha
HAMMOND | Seven Lake County men have filed a class-action lawsuit on their own seeking millions in compensation from the Lake County Sheriff's Department, Google and others alleging they were wrongly posted online as sex offenders.
The group claims the sex and violent offender registration law in question does not apply to their cases and thus they are each entitled to $3.5 million over each of the next seven years.
The suit was filed in federal court by registrants of Gary; and of East Chicago. ..Source.. by Bob Kasarda
February 27, 2014
This case first appeared in January. See Pennsylvania Supreme Court reinstates child porn charges in Lehigh County sexting case with the court's decision.2-26-2014 Pennsylvania:
LEHIGH COUNTY, Pa.—In a move that may have the effect of branding a teenage girl—and possibly hundreds more—as a "sex offender" for life, the Pennsylvania Supreme Court has reinstated child porn charges against the girl, known in court papers only as "C.S.", who posted a hardcore video of two of her teenage friends on Facebook.
C.S. was originally charged with violations of 18 Pa.C.S. §6312, "Sexual Abuse of Children," for having "disseminated" the video in violation of subsection (c) of the law, and also under subsection (d), "Child Pornography." However, in 2012, Lehigh County Judge Robert L. Steinberg dismissed those charges, ruling that the law was unconstitutional as applied to C.S. because it "fails to provide a teenager of ordinary intelligence 'fair notice' of what is prohibited."
Trouble was, C.S.'s attorney, Andrea Olsovsky, hadn't argued that point during the original hearing. Rather, she had argued that §6312 didn't apply to her client because, according to a report in the Allentown Morning Call, "sharing photos or videos voluntarily created by teens lacks the elements of abuse and exploitation minors suffer when they appear in pornographic material."
That argument would appear to track one of the "Exceptions" noted in §6312(f), which states, "This section does not apply to any of the following ... (2) Conduct prohibited under section 6321 (relating to transmission of sexually explicit images by minor), unless the conduct is specifically excluded by section 6321(d)." ..Continued.. by AVN
February 26, 2014
A defamation lawsuit filed by Alpha and a coalition of borough council members against anonymous online users has been dismissed.
New Jersey Superior Court Judge John Purcel tossed the 31-page lawsuit, citing a "failure to prosecute," court records say. According to a rule cited in the decision, if a civil complaint has been pending for four months and a required proceeding has not occurred, the judge will dismiss the case without prejudice after notifying the parties involved.
Court records indicate no action had been taken on the suit since it was filed last summer.
The judge's Jan. 31 dismissal of the lawsuit without prejudice allows for it to be refiled, but borough attorney Christopher Troxell said that was unlikely.
"The Borough of Alpha has chosen to not move forward," Troxell said today.
The borough, along with council members Louis Cartabona, Carol Schwar and Michael Schwar, as well as then-members Craig Dunwell and Michael Savary, filed the six-count suit in July against the anonymous users, including those behind a pair of Save Alpha social media accounts.
The council members claimed statements made by the posters, which included accusations of illegal activity and misconduct, hurt the borough and irreparably damaged their reputations.
Included in the lawsuit were pictures of posts made on the Twitter account @Save_Alpha and Facebook account of save.alpha.NOW as well as a posting on the "Defeat Dunwell" blog.
Among the statements the suit declared were defamatory was an accusation Dunwell had demanded a six-pack of beer in exchange for keeping a neighbor's utilities from being turned off for nonpayment. The lawsuit also cited a post which claimed five council members broke the New Jersey Open Public Meetings Act by meeting privately.
In August, several legal experts said the borough and council members may have been fighting an uphill legal battle in their defamation claims.
Cartabona declined to comment today, saying he was choosing silence "just in case the borough decides to tackle this problem of anonymous posters making comments that hurt the borough business in the future."
Dunwell, who lost a re-election bid in November, and Councilwoman Carol Schwar also declined comment when reached by phone. ..Source.. by Matthew Bultman