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April 19, 2015

Sex Trafficking: Should All Perpetrators Be Sentenced As Sex Offenders?

4-19-15 National:

Recently I was contacted by an organization seeking feedback from survivors regarding a sex trafficking bill. I often advocate that any anti-trafficking efforts should include feedback from survivors, and I'm grateful they reached out to me as well as other survivors. One of the main points of this particular bill was that it would require any person convicted of sex trafficking youth to register as a sex offender. This sounds like a no-brainer, right?

Well...maybe not. When I first began anti-trafficking advocacy in 2009, I believed any person convicted of human trafficking should face mandatory sentences, including registration as a sex offender if the offense involved sex trafficking minors. However, after reading multiple cases, I've since changed my mind. I now believe that each case should be judged on an individual basis. And, if you read Wendy Barnes' recently released memoir, And Life Continues: Sex Trafficking and My Journey to Freedom, I think you might agree or at least be open to the debate.

Wendy Barnes was 15 years old the first time she met Greg, a sixteen-year-old high school junior who would ultimately become the father of her three children and force her to accept a life in prostitution for 12 years. "All I wanted was to be loved," writes Wendy in a personal email. "I wanted to be special to someone."

Wendy grew up in what she calls a "pretty average" home life. She writes: "Considering that 'average' is the biggest bulk between horrible and great. We were poor, the 'working poor.'" Wendy says she was "picked on" by peers and her older brother while in grade school. "I had red hair and freckles and the neighborhood kids were [bullies]...I was quiet and mostly a loner." ..Continued.. by Holly Austin Smith

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High court won't be asked to consider case of boy on sex offender list

4-19-15 Nebraska:

The Nebraska Supreme Court won't be asked to weigh in on whether the way a state law is written should result in a 12-year-old boy ending up on the state's Sex Offender Registry.

The question specifically is whether, by the letter of the law, minors listed on another state's sex offender registry should be put on Nebraska's list when they move to Nebraska, even if their cases went through juvenile court.

In Nebraska, lawmakers opted to exclude juveniles unless they were prosecuted criminally in adult court.

But when the Minnesota boy in this case moved to Nebraska to live with relatives, the Nebraska State Patrol determined he had to register because of a subsection of the law.

Specifically, it says the Sex Offender Registry Act applies to "any person who on or after January 1, 1997 ... enters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."

In this case, the boy was 11 when he was adjudicated for criminal sexual conduct in juvenile court in Minnesota. A judge there gave him probation, counseling and community service, and his name went on a part of that state's predatory offender list visible only to police.

That led the patrol to conclude that the boy should be put on the list.

In August, the boy's family filed a federal lawsuit seeking to block the patrol from putting him on Nebraska's registry, which is public.

In February, Omaha attorney Joshua Weir asked Senior U.S. District Judge Richard Kopf to certify the question to the Nebraska Supreme Court because there is no case law to address the issue.

Kopf declined, but Weir said he sees reason for optimism in the judge's 10-page ruling this week.

"Although Judge Kopf ruled against the motion, I am very encouraged," he said Tuesday by email. "Judge Kopf noted that the law was clear that other sections of the law clearly did not apply to a juvenile adjudication."

In his order, Kopf noted that the Nebraska Juvenile Code says juvenile court adjudications are not to be deemed convictions.

Although similar, an adjudication is a juvenile court process through which a judge determines if a juvenile committed a given act.

In Kopf's order, he said if a conviction is a prerequisite to be a sex offender under Nebraska law, the subsections shouldn't apply to people required to register elsewhere based on juvenile court adjudications.

But he also noted that the specific subsection the patrol was applying to an out-of-state adjudication has not been considered by a court before.

And, he wrote, the plaintiffs didn't seek to certify to the Nebraska Supreme Court the question of whether the state's Sex Offender Registry Act applies to people required to register elsewhere as sex offenders because of adjudication.

They asked whether the subsection applies to a minor required to register in a state where the public isn't notified of juvenile court adjudications, he said.

Kopf said the question was unclear and "cannot reasonably be interpreted in the manner suggested by the plaintiffs' question." ..source.. by Lori Pilger

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'State secrets' hide reasons for pardon of Savannah sex offender

4-19-15 Georgia:

Barry Davis pleaded guilty in Chatham County Superior Court in August 1995 to a charge of aggravated sodomy on a 4-year-old girl. Under the open-ended plea, he was sentenced to 10 years in prison with two to serve and the remainder on probation. He was required to register on the state’s sex offender registry.

Eighteen years later, the state Board of Pardons and Paroles granted Davis a pardon, and he stopped registering as a sex offender. His attorneys contend that is not a crime because of his pardon.

Chatham County’s prosecutors disagree.

On Feb. 26, 2014, a Chatham County grand jury indicted Davis for violating the sex offender registration statute for failing to update his new address with the Chatham County sheriff’s office.

For District Attorney Meg Heap and her chief assistant, Greg McConnell, the case has been an eye-opener. It began with the pardon. They received no notice it was even being considered and have been given no justification for it.

“We discovered a flaw,” Heap said, one she calls “the big black hole of no accountability, no transparency and no information.”

The five members of the pardons and paroles board, appointed by the governor, “hide behind state secrecy” in a world she found was dismissive bordering on arrogant.

Heap and McConnell spearheaded action with the Prosecuting Attorneys’ Council of Georgia in the recently completed session of the Georgia General Assembly to change the rules to craft a fix. House Bill 71 is awaiting Gov. Nathan Deal’s signature to become law.

That law would require the board to give victims and prosecutors the right to be heard on pending pardons and would bring openness to the process that has been lacking.

While prosecutors did not get all they wanted — the “state secrecy” remains — Heap said, “We’re pleased with what we have.”

How we got there

Davis, 57, who now lives in Charlotte, N.C., remains on a $4,500 bond under the Chatham County indictment as prosecutors and defense attorneys renew their sparring over the legal arguments involved.

Those issues before Chatham County Superior Court Judge Penny Haas Freeseman are not expected to reach a ruling before late summer. Even then, they face almost certain appeals by the losing party.

Davis was released from prison on July 15, 1997.

On Feb. 13, 2013 — 18 years after his conviction — he was pardoned by the Georgia Board of Pardons and Paroles. Davis then refused to comply with the state’s sex offender registry requirements, according to court documents.

In her statement of facts in the Davis case, which were filed with the court, Assistant District Attorney Lyndsey Rudder said Davis was pardoned on Feb. 13, 2013, “on the grounds that he was a law abiding citizens and had been rehabilitated; he was not pardoned on grounds of actual innocence.”

That same date, Davis “also received a restoration of his civil rights,” but “did not receive a full restoration of his civil rights” because the board did not restore his rights to possess a firearm.

In a footnote to that same document, Rudder said, “The board never states that a sex offender who has received a restoration of rights is relieved of the requirements of the sex offense statute.”

The prosecutor also said that on the day after his pardon, Davis renewed his sex offender registration at the Chatham County Sheriff’s Department.

He “was warned that regardless of his pardon he was required to continue (to) register as a sex offender,” the prosecution document said.

Then Davis moved to Charlotte, N.C., without notice to the local sheriff’s office.

On Jan. 22, 2014, Davis registered as a sex offender in Mecklenburg County, N.C., claiming he had just moved there, the state contends. He had been living there since March 15, 2013, the state contends.

The defense side

Meanwhile, Davis’ attorney, Assistant Public Defender Amy Ihrig, contends the parole board’s actions are not subject to review, even by a court, and that Davis’ prosecution should be dismissed as a matter of law.

Because he was pardoned, he is constitutionally protected from prosecution for the alleged crime, she argued.

In court documents responding to the prosecutor’s motion to unseal Davis’ file, now barred by “state secrecy,” Ihrig contended the pardon records were not relevant to the pending prosecution because the validity of the pardon was not something that can be determined by the district attorney or the courts.

In Georgia, “there exists a bar to review, either judicial or otherwise, of the validity of a pardon,” she wrote. “This is because the Georgia Constitution and the doctrine of separation of powers vests in the state Board of Pardons and Paroles the sole authority and power to issue a pardon.”

And she said, “Appellate courts of this state affirm that no other branch of government, including the judicial branch, has legal authority to address actions by the state Board of Pardons and Paroles.”

Her position is supported by Assistant Attorney General Rebecca Dobras who told Freesemann during an April 7 hearing that “they’re still our records. … (the board) still has an interest in keeping these records classified.”

She called them “confidential state records,” adding the district attorneys “have just been speculating on what may be in this file,” adding what the prosecutor wanted was not relevant.

“Why do you need the file?” she asked. “What do you hope to see?”

During the hearing, Rudder told Freesemann she needed to see the records “because I think there are absolutely could be an indication there was fraud inside the pardon” stemming from false information, etc.

Dobras responded that a pardon isn’t subject to judicial review, so it doesn’t matter what was said.

“It doesn’t matter what they reviewed. It doesn’t matter if there’s fraud. ... It doesn’t matter that they have allegations of fraud or allegations of incompetence, none of that matters,” Dobras said.

“The fact is he was pardoned. ... And even if you find they’re not confidential state secrets, they’re still irrelevant to the criminal proceeding at hand.”

The McConnell factor

McConnell, Heap’s chief assistant, is a 31-year veteran prosecutor who served four years with the Smyrna Police Department in Cobb County and is known for his dogged approach to cases.

He was incensed over the parole board’s failure to notify either local prosecutors or the victim’s family about Davis’ pardon and about the board’s repeated refusals to unseal Davis’ file to shed light on why they granted him a pardon.

McConnell testified before Freesemann this month that he has “at least five times” requested that the board unseal the record, most recently on Feb. 15.

For the prosecutors, the problem is twofold.

First, Heap said board members hide behind a “state secrets” veil that she said poses “a lack of transparency that just opens itself to fraud occurring.”

In the Davis case, she said, he went to the victim “under the guise of reconciliation and then tried to get her to recant what happened, but she refused.

“This is what the law needs to protect.”

Secondly, Heap said the board’s policies run counter to the state’s Victims’ Bill of Rights that make sure victims of crime have a voice throughout the criminal justice system.

“From arrest, bond, hearings, whatever happens, the victim has a right to be notified,” Heap said. “We were never told.”

For McConnell, it runs deeper.

He recalled sitting in his office one day when “out of the blue” he received a call from the Chatham County Sheriff’s office reporting that they had a registered sex offender (Davis) who said he did not have to register because he had a pardon.

“That was the first time I learned about it,” he said.

When he inquired, McConnell said, he was told the pardon was in the defendant’s file in the Chatham County Superior Court Clerk’s office.

When he asked further if the board would share the reason for the parole, he was given the “state secret” response.

On at least five occasions, all in writing and by certified mail to the board, McConnell’s requests were denied or ignored.

“They never informed the victims or prosecutors of an impending pardon,” McConnell said.

A pardon may be granted because an offender has been rehabilitated and determined to no longer be a threat or actual innocence has been established.

“We’d like to know what they looked at to determine that he’s been rehabilitated,” Heap said. “But we were told it is a state’s secret.”

“They can pardon whomever they choose, but we want to know who and when they have been pardoned.”

Recurring issue

The issue is not a new one.

After a hearing in February 2014, Chatham County Superior Court Judge Timothy R. Walmsley granted a defense motion to quash a prosecution subpoena for Albert Murray, the parole board’s chairman.

“The court finds that the requested documents are classified as a state secret pursuant (to law) and are thus exempted from disclosure,” Walmsley ruled.

He also determined the records were “not relevant” to the grand jury’s inquiry.

But Walmsley added, “The court has expressed reservations and concern with the current pardoning process and the apparent lack of notification to victims and the prosecuting attorneys.”

He urged the board to work with prosecutors “in possible pardon situations and to consider the likely effects on the victims and criminal process for failure to do so.”

He also “encourages” the board to reconsider its refusal to declassify the documents McConnell requested and ordered a copy of the board’s file be submitted to the court under seal.

Walmsley ruled the board’s records were not relevant to the grand jury proceedings, and the Court of Appeals in December dismissed the matter as moot because the grand jury had returned an indictment in the case.

BREAKOUT

WHAT OTHER STATES DO


A review of pardon and parole programs nationwide found that 40 states allow for gubernatorial pardons, either with a board making recommendations to the governor or those in which the governor acts alone.

In 10 states, systems similar to Georgia’s — a board of pardons and paroles with no oversight — are used. Those include Alabama, Connecticut, Minnesota, Idaho, Nevada, South Carolina, Texas and Utah.

In South Carolina, an offender required to register as a sex offender may only be removed from the registry if the pardon is based on a “finding of not guilty specifically stated in the pardon.”

In Texas, the duty to register as a sex offender is not affected by a pardon unless it is based on a “subsequent proof of innocence.” ..Source.. by Assistant District Attorney Lyndsey Rudder

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April 17, 2015

Supreme Court: Stallworth Does Not Have to Register as a Sex Offender

4-16-15 Mississippi:

The Mississippi Supreme Court ruled today that a Jackson pastor, who was convicted of a sex crime in another state but had the conviction expunged, does not have to register as a sex offender in Mississippi.

Jeffrey A. Stallworth pleaded guilty to a misdemeanor sexual assault of a woman in Maryland in 2002, requiring him to register as a sex offender.

Later, in 2010, a Maryland judge expunged the conviction. Stallworth argued that he should not have to appear on the Mississippi sex offender registry. The Mississippi attorney general's office, which is representing the state, disagreed with Stallworth's argument.

In a split decision, the state supreme court agreed with Stallworth's interpretation.

"Under Mississippi law, an expungement removes all records relating to an arrest, indictment, trial, and finding of guilt, in order to restore one to the status occupied prior thereto," Presiding Justice Jess Dickinson wrote for the majority, which included justices Ann Lamar, James Kitchen, David Chandler, Leslie King and Josiah Coleman.

Dickinson continued: "At the moment Stallworth’s Maryland conviction was expunged, the law provides that he was restored to the status he had occupied before he was convicted, which means that—in the eyes of the law—he had no conviction. And before Stallworth was convicted, he had no duty to register as a sex offender. So if we are to follow the law and recognize that Stallworth has been returned to that status, then we must find that he has no present duty to register as a sex offender."

Writing for the minority, Justice Michael Randolph, said: "The one fact that has remained constant in all of these proceedings, whether in Mississippi or Maryland, is that Petitioner entered a plea of guilty to committing a sex offense. The only new issue Petitioner brings to this Court is whether a Maryland expunction order relieves Petitioner of a duty to register as a sex offender. No Mississippi records of Stallworth’s status as a sex offender have been expunged."

Chief Justice Bill Waller and Justice Randy Pierce concurred with Randolph's opinion.

Stallworth is also candidate for the Hinds County Board of Supervisors. ..Source.. by R.L. Nave

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April 15, 2015

Disabled sex offender allowed to sue sheriff

4-15-15 Indiana:

A federal lawsuit brought against the Tippecanoe County Sheriff’s Office last year by a disabled inmate will proceed toward trial, thanks to a judge’s green light earlier this month.

Anthony Scott Overla, a convicted sex offender whose right leg is amputated below the knee, was assigned a top bunk in Tippecanoe County Jail, according to a civil complaint filed by the American Civil Liberties Union of Indiana.

Despite officers and medical staff in the jail being made aware that Overla uses a prosthetic leg, they failed to meet the inmate’s repeated requests for a bottom bunk and chair to use in the shower, the suit alleges.

As a result, he sustained an injury March 31, 2013, jumping from the top bunk, which wasn’t equipped with a ladder, according to the suit.

“I have a liner and a gel pack that goes on my leg. There is a pin in there that ruptured my stump and snapped in two pieces,” Overla said during a Jan. 8 hearing in the U.S. District Court of Northern Indiana, according to an official court transcript made public this week.

Overla said he made at least 30 oral complaints and repeatedly requested — but never received — grievance forms to seek medical treatment for his broken prosthesis and leg, which later developed a bacterial infection.

Multiple jail officers failed to log Overla’s complaints, the suit alleges.

“Some of them told me it wasn’t grievable. Some of them told me they would get back to me. Some of them told me they would talk to a sergeant. And some didn’t say anything,” Overla said, according to the transcript.

Kelly Eskew, one of two ACLU staff attorneys representing Overla, said Tuesday that her client went seven months before receiving adequate medical attention — after he was transferred to the Indiana Department of Correction.

“And that’s just unconscionable,” she said.

Federal law stipulates that an inmate cannot bring a claim in court against a jail unless and until he or she has exhausted the facility’s internal grievance process.

Eskew said the law is designed “to create a hurdle” between inmates and the court.

“But sometimes it just prevents lawsuits,” she said.

Well aware of that hurdle, Eskew and fellow attorney Ken Falk spent months preparing for the Jan. 8 hearing, at which they argued that Overla had exhausted every step of the grievance process available to him.

Doug Masson, who has represented the Tippecanoe County Sheriff’s Office more than a decade, countered the ACLU’s claims. He called six witnesses during the hearing, including former Sheriff Tracy Brown and jail administrator Capt. Denise Saxton.

Masson argued that Overla is ineligible to proceed with the lawsuit because he failed to exhaust all administrative remedies available at the jail.

Saxton, three officers and the jail nurse testified that they had no record of any complaints from Overla, although they all admitted it’s possible some complaints weren’t logged properly.

Eskew said the jail’s complaint process fell apart in practice, causing her client to suffer significant harm.

“They have a written grievance process, and it was not followed,” she said. “Every jail officer that we deposed ... had a different understanding of how that process worked, and they implemented it differently.”

U.S. District Judge Joseph Van Bokkelen found that Overla had presumptively done everything he could to complain about his living conditions, even though additional options spelled out in the jail’s policy book remained beyond his reach.

“A ‘dose of common sense’ leads the Court to conclude that (Overla) was mislead on the grievance process, the jail personnel have a poor understanding of the Jail’s grievance procedure, and (Overla) exhausted all of the remedies available to him,” the judge wrote Feb. 20.

It would be unreasonable to assume that Overla remained silent about his injury for months on end, Bokkelen added.

“It is much more plausible,” he wrote, “to infer that (Overla) was continually misled on the grievance procedure by jail staff, either purposely or inadvertently, which frustrated his efforts to exhaust his administrative remedies.”

Bokkelen clarified his order April 2 in response to a request from Masson to reconsider.

The decision means Overla and the ACLU have permission to continue pressing for damages.

“The fact that he’s cleared this hurdle now puts him on even footing with someone who’s not in jail who’s filed a lawsuit,” Masson said Tuesday.

Moving forward with the discovery process, Masson said, the focus will shift from the grievance process to the allegations Overla raises.

“Once we’ve conducted discovery on those substantive issues, we’ll see if we have grounds to move for summary judgment on any or all of his claims,” Masson said.

Eskew said Overla’s case raises several significant constitutional issues and involves alleged violations of the Americans with Disabilities Act and deliberate indifference to an inmate’s medical needs.

Although the ACLU isn’t seeking injunctive relief in this case, the organization does hope to improve medical conditions and the grievance process inside Tippecanoe County Jail, she added.

The parties have until early 2016 to complete the discovery process, Masson said, noting that he’s offered some advice to jail staff in the meantime.

“My recommendation has been to emphasize keeping even more meticulous records because it makes it even easier to respond to these sorts of cases,” he said.

Overla was incarcerated at the time of his alleged injury for failing to register as a convicted sex offender. He pleaded guilty and was sentenced to six years with the Indiana Department of Correction, where he remains in custody.

His earliest possible release date is in September.

Overla, 29, was 15 years old in 2000 when he was adjudicated a delinquent child for criminal sexual abuse in Macon County, Illinois, according to Tippecanoe Superior Court 1 records.

He was ordered to register as a sex offender for 10 years but failed to do so in 2006, 2009 and 2013, court records state.

He was sentenced to a stint in prison for each conviction, and his decade on the sex offender registry started over each time he was released. ..Source.. by Steven Porter

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State high court upholds Jefferson County’s ruling in 2012 case

4-15-15 Washington:

The Washington State Supreme Court has upheld a Jefferson County court’s ruling that state prosecutors can charge a member of an Indian tribe who is living on another tribe’s land, according to the high court’s March 19 opinion.

In 2012, a Jefferson County Sheriff’s Office detective began investigating whether Howard John Evans Shale, a member of the Yakama Nation and a convicted sex offender, had moved to the Quinault Indian Nation’s reservation without registering with the county.

Shale had been convicted in 1997 of raping a child younger than 12. Upon his release from prison, he moved to Seattle and registered as a sex offender with King County.

With help from a fellow sheriff’s deputy and a Quinault tribal police officer, the detective found Shale had been living on the reservation by splitting his time between two family homes.

Jefferson County Prosecutor Scott Rosekrans charged Shale with failing to register with the county sheriff.

Shale moved to dismiss the charge, arguing the county had no jurisdiction over a tribal member in Indian country. Superior Court Judge Keith Harper declined Shale’s motion and eventually found him guilty, noting that because Shale was not a member of the Quinault Indian Nation, the state retained jurisdiction.

Judge Harper concluded state law “carved out from state authority only ‘Indians when on their tribal lands,’ not tribal members while on another tribe’s land.”

Shale appealed Harper’s decision, again arguing the court did not have jurisdiction as he was a member of a federally recognized Indian tribe and the crime took place on tribal land. A state appeals court affirmed his appeal and sent the question of jurisdiction to the high court.

In its opinion, the high court noted the state’s prosecution of Shale does not preempt a tribal court from charging and trying him, though it also stated the U.S. Supreme Court had held that tribal courts do not have jurisdiction over members of other tribes. In this case, that meant the state had jurisdiction. ..Source.. by Nicholas Johnson

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April 14, 2015

Alabama blogger ordered to pay $3.5 million in defamation lawsuit

4-14-15 Alabama:

A Shelby County blogger, who spent five months in jail before agreeing to remove stories from his website about the son of a former governor, has now been ordered to pay $3.5 million in a defamation lawsuit filed by a former campaign manager for Alabama Attorney General Luther Strange.

The blogger had written about an alleged affair between Strange and the campaign manager.

Jefferson County Circuit Judge Donald Blankenship on Monday entered a default judgment against Roger Shuler and his website Legal Schnauzer for $1.5 million in compensatory and $2 million in punitive damages. The judge wrote that all the elements for the judgment were present, including that a false and defamatory statement was made.

Jessica Medeiros Garrison, a Birmingham lawyer, filed the defamation lawsuit in 2013 against Shuler. She had managed Strange's 2010 campaign for Alabama Attorney General and served as Chief Counsel and Deputy Attorney General in 2011.

"The facts are clear and the judgment speaks for itself," Garrison stated in an email Tuesday to AL.com. "The absolute and blatant disregard for the truth has to come with consequences. I am very happy to finally be in a position to set the record straight," she wrote.

Bill Baxley, one of Garrison's attorneys, also said the ruling "speaks for itself." He said he doubts his client will be able to collect any money from Shuler, who had his house foreclosed upon a year or so ago. ..Continued.. by Kent Faulk

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W.A.R. Announces: SORNA Lawsuit

4-14-15 National:

The WAR Admin Team AND our Class Action Core Team are proud to announce that we will begin work this week on two law suits to be filed at the federal level this fall. The first is on behalf of registered sex offenders and the second on behalf of families and friends of registered sex offenders.

The challenges will be against SORNA and its impact on registrants and their families. In addition, the public impact based on an upcoming survey by Professor Crysanthi Leon of the University of Delaware. For more information CLICK HERE

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April 13, 2015

Don’t be so hysterical about sex crimes

4-13-15 National:

A study on offenders that indicates a genetic tendency has some sinister implications

In the film Minority Report, police employ psychics who foresee offences before they’re committed. The special unit “PreCrime” swoops down to arrest citizens before they break the law. We’re not there yet, but a large Swedish study has nudged us an inch towards Philip K Dick.

Across more than 20,000 cases of male sex offences in Sweden 1973–2009, men with brothers or fathers convicted of sex offences were five times more likely than average to commit the same kind of crime. (The chances were 2.5% if sexual predation ran in the family, 0.5% among the general male population.) The study’s authors brandish numerous disclaimers: they’re not giving offenders an excuse, proposing male relatives of rapists be imprisoned or isolating a sex-abuse gene. But they believe the finding of a broad genetic proclivity paves the way for prevention strategies. As one forensic psychiatrist put it: “If interventions can be provided that are not harmful, this is an opportunity.”

Imagine being the son or brother of a man imprisoned for sexual assault – traumatic in itself. A social worker rings the doorbell. She offers therapy, anger management or gender–sensitivity training – when you’ve done nothing wrong. Wouldn’t you slam the door in her face, after telling the busybody from PreCrime where she can shove her “prevention strategies”?

It’s challenging to conjure any intervention that would not be stigmatizing and insulting. One could even risk planting a seed of fatalism about the inevitability of giving into a base nature.

Previous research has hinted at a genetic component of criminality, particularly at the possibility of a heritable predisposition to violence, which reminds us of the problematically thin line between explanation and excuse. Instead of insisting that their client was dominated by a dark-hearted older brother, maybe lawyers for Boston Marathon bomber Dzhokhar Tsarnaev could have argued that the males in his family share a tragic genetic marker that inclined both young men towards terrorism.

Lawyers might look before they leap at this novel line of defence. Criminality being partially preordained may seem to let culprits off the hook. Yet it also makes the proclivity seem ineradicable and suggests that reform is unlikely: once a baddie, always a baddie. The prospect is sci-fi for now, but picture a population whose DNA has been identified as antisocial, kept in vast, isolated camps to protect the virtuous, whose inclination to decency is also genetically certifiable.

That vision is only preposterous to an extent. Because we already treat sex offenders as if they’re genetically marked. There’s no other crime on the books that you never live down and for which you never finish paying your debt. Released sex offenders must lodge their whereabouts with the police, whether their offence was violent rape or mere voyeurism, and may be electronically tagged.

They’re required to inform police if they leave home for a week or more, and to ask permission to holiday abroad (sometimes denied). Police are licensed to identify sex offenders to members of the public. Those given sentences of more than 30 months are put permanently on the sex offenders register, like Santa Claus’s list of who’s been naughty and nice. We don’t treat these people as folk who’ve done wrong, but as folk who are wrong – hopelessly and irredeemably dangerous because of what they are.

In this sense, the Swedish study’s results are unwelcome. If anything, we need to dial down the hysteria over sex crimes, increasingly regarded as more horrific than murder, and allow for the possibility that some people make a mistake and don’t repeat it, even if that mistake is of a sexual sort.

We could also allow for the possibility that a conviction was itself a mistake. Take the case I heard of anecdotally recently of a man whose secondary-school girlfriend was in his class, and barely below the age of consent, which he was barely above. Her angry father had him arrested. With a sex offence on his record, the poor guy’s life is ruined. Does he really belong on that register? Perhaps in future we could have his DNA tested for whether he’s one of those “monsters” after all. ..Continued.. by Lionel Shriver

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