Innocence Is Irrelevant

8-11-17 Tennessee:

This is the age of the plea bargain—and millions of Americans are suffering the consequences.

It had been a long night for Shanta Sweatt. After working a 16-hour shift cleaning the Tennessee Performing Arts Center, in Nashville, and then catching the 11:15 bus to her apartment, she just wanted to take a shower and go to sleep. Instead, she wound up having a fight with the man she refers to as her “so-called boyfriend.” He was a high-school classmate who had recently ended up on the street, so Sweatt had let him move in, under the proviso that he not do drugs in the apartment. Sweatt has a soft spot for people in trouble. Over the years, she had taken in many of her two sons’ friends, one of whom who had been living with them since his early teens.

When Sweatt got home that night, early in November of last year, she realized that her boyfriend had been smoking marijuana, probably in front of the kids. She was furious, words were exchanged, and he left. Sweatt finally crawled into bed after midnight, only to be awakened at about 8:30 in the morning by an insistent knock at the door. She assumed that her boyfriend was coming to get his stuff and get out of her life. ..Continued..

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Court says secretly filming nude young girls in bathroom isn’t child porn

11-11-2016 Tennessee:

Tennessee top court says even if defendant was aroused, the girls weren't having sex.

The Tennessee Supreme Court is vacating the child-porn production conviction of a Knoxville man, named Thomas Whited, who secretly filmed his 12-year-old daughter—and 14-year-old friend—showering, going to the bathroom, and undressing. Although the father recorded the bathroom for two months for sexual reasons, the high court vacated his 22-year sentence because what he filmed did not amount to pornography. The girls were not having sex, the high court reasoned (PDF) Monday, and instead the minors were videotaped in the bathroom performing "everyday activities."

Most states define child pornography to some extent on whether it is intended to sexually arouse the viewer, which was the case in the prosecution of Whited, a US Army National Guardsman. However, under Tennessee's child pornography laws, the intent of the viewer or producer of the recorded images doesn't matter. What does matter, however, is the story the images tell.

Tennessee defines child porn as depicting children having sex, simulated "sexual activity," and "lascivious exhibition" of children's private parts. There was no sexual or simulated sexual activity being filmed in the case of Whitfield, and the term "lascivious" is overbroad, the high court reasoned. Because of that vagueness in "lascivious," the court suggested that filming a baby's first bath could be considered child porn: ..Continued.. by David Kravets

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Lawsuit challenges Tennessee sex offender registry

11-9-2016 Tennessee:

Retroactive enforcement of Tennessee's sex offender registry law is being challenged in a federal court lawsuit that mimics a separate, successful appeal that led to the nullification of retroactive laws in Michigan.

The case, filed Tuesday in U.S. District Court in Nashville, argues that Tennessee's registration laws are illegally applied retroactively. It notes that the laws and restrictions on those offenders have become significantly more burdensome since the laws were first enacted in 1994.

The first registry law deemed the register of sex offenders confidential and only accessible by law enforcement. The General Assembly tweaked the law multiple times, and made registrants public, and then overhauled it a decade later. Legislators added restrictions including in-person reporting and limits on where offenders could live and work.

Offenders cannot live or work within 1,000 feet of parks or educational institutions and state laws say those who committed crimes against minors cannot live with minors.

And the lawsuit says that in nearly every year since the 2004 overhaul, restrictions on sex offenders have increased and are now unreasonably applied to offenders like a man the lawsuit names as John Doe.

"The State of Tennessee has burdened him, retroactively, with an increasingly onerous and punitive registration law whose vague and arbitrary provisions and crushing criminal penalties enable and encourage law enforcement to treat him like a pariah and disrupt his and his family members’ lives at any moment, without warning or reason," the lawsuit reads.

In early 1994, before the state's first sex offender registry law, Doe pleaded no contest to two counts of attempted aggravated sexual battery involving his daughter, the lawsuit states. He completed a five-year probation term in 1999 and has not been convicted of a crime since, the lawsuit states. The man went to work as a pilot and then in property management.

But the lawsuit alleges Metro Nashville Police and U.S. Marshals showed up at Doe's house, harassing him though he was compliant. It says in 2011, police and Nashville prosecutors threatened to arrest and prosecute the man because he lived in a duplex next door to his son, daughter-in-law and grandchildren.

Doe was kicked out of his house, the lawsuit says, while fighting in a Nashville court for the right to live in the duplex and have his own children come visit. Nashville Criminal Court Judge Seth Norman ruled in 2013 that the law's ban on residing with a minor did not include the duplex living arrangement nor overnight visits, court records show.

The lawsuit challenges the retroactive application of the registry laws, including those restrictions on contact with minors, work and residency. It argues those restrictions violate the due process clause of the 14th Amendment and a constitutional provision known as the ex post facto clause, which says laws cannot retroactively enact punishment on previously legal conduct.

It asks a federal judge to stop the state from enforcing those provisions against Doe and remove him from the registry, noting that he pleaded no contest before the registry even existed, Doe's lawyer, Ed Yarbrough, told The Tennessean on Wednesday.

A ruling in Doe's favor could have wide-sweeping impact on hundreds of other offenders, who would be able to use it to challenge their own terms of supervision and restrictions. The case was initially assigned to U.S. District Judge Waverly Crenshaw in Nashville.

The challenge in Michigan, decided earlier this year, could foreshadow a favorable ruling from the 6th Circuit Court of Appeals, the federal appeals district that includes Michigan and Tennessee. The lawsuit lists 10 cases in courts around the country that have recently declared retroactive enforcement of sex offender registries unconstitutional.

In the August appeals court ruling, the federal judges struck down a retroactive provision of Michigan's sex offender registry law, finding that it violated the ex post facto clause.

The Tennessee challenge names Gov. Bill Haslam and Tennessee Bureau of Investigation Director Mark Gwyn as defendants. TBI maintains the sex offender registry in Tennessee, but local law enforcement agencies handle registration and monitoring. TBI officials said they had not yet received the lawsuit and could not comment. A spokesman for the Tennessee Attorney General said the office just received the complaint and would not comment.

Though the number of people on the registry fluctuates, on Wednesday there were about 15,800 registered sex offenders in Tennessee, TBI officials said. ..Continued.. by Stacey Barchenger

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Tennessee inmate asking for hepatitis C treatment dies

7-1-16 Tennessee:

John Bilby knew he didn't have much time left. But, at least for a few days, it appeared as though the longtime Tennessee inmate and sufferer of hepatitis C might have some hope. Diane Douglas, Bilby's wife, said he was recently told he was at the top of the list to receive the best available treatment for his hepatitis C, a chronic disease that slowly destroys the liver.

Douglas said the day after Bilby told her this, he died. "He was a very strong man, strong minded. He realized he had done wrong, but with me and him and the chaplain, he realized God would forgive him for it," Douglas told The Tennessean. "I was with him for 16 years, and he finally made peace with that. He was changing his life around." ..Continued.. by Dave Boucher

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Inmates with hepatitis C sue Tennessee prison officials for treatment

7-25-16 Tennessee:

Tennessee inmates infected with hepatitis C filed a federal lawsuit against state prison officials late Monday, asking the court to force the state to start treating all inmates who have the potentially deadly disease.

The lawsuit, filed by attorneys with the American Civil Liberties Union and other advocates in U.S. District Court in Nashville, says the Tennessee Department of Correction officials knowingly denying inmates care for their hepatitis C, also known as HCV, constitutes cruel and unusual punishment. It alleges the department is denying care because the best available medication is too expensive.



"In reality, (department officials) ignore the medical needs of (inmates) and class members in order to save costs. (The department's) written policies for HCV diagnosis, assessment and treatment utilize outdated standards of care and normalize the practice of refusing treatment for unjust and medically unsound reasons," the lawsuit states.

Inmates Charles Graham, also known as Charles Stevenson, and Russell L. Davis are named as plaintiffs in the lawsuit. Attorneys representing the inmates include Thomas Castelli, the ACLU-TN legal director; Karla Campbell of Nashville-based law firm Branstetter, Stranch and Jennings; and Elizabeth Logsdon of advocacy organization Disability Rights Tennessee. No Exceptions Prison Collective, an inmate advocacy organization, also helped compile the lawsuit.

"Incarcerating people under conditions that erode their health, safety and human dignity amounts to cruel and unusual punishment, which not only has devastating long-term effects for those individuals, but which undermines the purported purpose of a rehabilitative criminal justice system," Castelli said in a news release.

They are seeking what's known as class-action status for the case: If successful, that would mean every inmate infected with hepatitis C also could be eligible to receive treatment in the future. The lawsuit names as defendants new department Commissioner Tony Parker, department Assistant Commissioner of Rehabilitative Services Dr. Marina Cadreche and department Medical Director Dr. Kenneth Williams.

In a statement, department spokeswoman Neysa Taylor defended the state's medical practices.

"The Tennessee Department of Correction is currently unaware of the referenced court filing but is confident the department is providing adequate medical care as determined by medical protocol," Taylor said in an email late Monday.

In the past, the department also has argued that it is adequately treating all inmates. But a Tennessean investigation earlier this year found that, as of March, nearly 3,500 inmates had hepatitis C while only eight were receiving treatment that could cure them. As of the end of June, the enormous disparity between those infected and those receiving treatment remains: There are 2,935 inmates with hepatitis C, while four are receiving the newest treatment, Taylor said. An additional inmate refused treatment, and three have completed the newest treatment, Taylor said.

Although infected inmates routinely leave and enter the Tennessee prison system, the change in number of inmates infected probably shows that at least several hundred inmates who remain infected have returned to their communities in the past few months. The department also doesn't test every inmate who enters the prison system. But of the 901 inmates tested in 2015, 424 tested positive for hepatitis C, Taylor previously told The Tennessean.

Advocates — including Jeannie Alexander, head of No Exceptions — say that means there are probably hundreds of other inmates with the disease who are not diagnosed.

"It is immoral and a violation of human rights and constitutional rights to knowingly refuse treatment to prisoners suffering from Hepatitis C when an effective treatment that has become the new standard of care is available," Alexander said in an emailed statement. ..Continued.. by Dave Boucher,

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Murfreesboro man battles the courts to get named removed from the TN Sex Offender Registry

1-22-16 Tennessee:

A man who lives in Murfreesboro has appealed the Rutherford County Circuit Courts after learning that he has been labeled as a sex offender in the Sex Offender Registry. Matthew B. Foley is currently on the registry and listed as "Violent."

Recently released court documents show that 30 year old Foley was 16 years old when he was charged with conspiracy to commit rape and aggravated kidnapping in Rutherford County. He was later convicted for facilitation of especially aggravated kidnapping.

Looking back to 2001 when the crime took place, Foley and an adult, who is currently under indictment for aggravated rape and aggravated kidnapping - were riding around when they observed a 13 year-old girl that they did not know at the movie theater. Documents show they essentially grabbed the girl, drove her around Murfreesboro and ended up at Nice's Mill Dam. Once at the dam the adult allegedly took her out of the car and into the woods and raped her. Foley was not convicted of the rape, but only facilitation of especially aggravated kidnapping.

The courts noted that Foley's plea itself is not a sexual crime, and therefore the usual things are not mandatory, however he agreed that the judicial system would apply sexual offender treatment to his conviction.

The courts originally said the statute of limitations for Foley to file an appeal has already been reached. He asserted that the statute of limitations should be extended because he did not learn until well after its expiration that the State sought to enforce the provisions of the sexual offender registration act against him.

The Criminal Appeals Courts agreed to examine the case closer and have since reversed the dismissal of the case from moving forward. Therefore, Foley will have a second chance for post-conviction relief.

An evidentiary hearing will take place in the near future, which could ultimately mean that Foley's name will be removed from the Sex Offender Registry.

The courts released their opinion on the case Wednesday, January 20, 2016. ..Source.. by WGNS Radio

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Colleges provide fuller picture of sex assaults

10-18-15 Tennessee, National:

Nashville-area colleges big and small are developing programs to address the issue. Still, numbers suggest many have work to do.

New federal regulations now require colleges to log incidents of domestic assault, dating violence and stalking — in addition to sexual assaults — in their annual campus safety reports, which had to be completed this month.

Local advocates say the additional data provide a clearer picture of the realities of sexual violence on campus.

“Sexual violence doesn’t happen in a vacuum,” said Kathy Walsh, executive director of the Tennessee Coalition to End Domestic and Sexual Violence. “If you really want to address sexual violence, you have to address dating violence, intimate partner violence and stalking.”

The rules, part of amendments to the Violence Against Women Act and the Clery Act, also require colleges work to prevent those crimes.

Although the changes went into effect in July, Tennessee colleges have been scrambling to meet them for more than a year. Nonprofits, including the Tennessee Coalition, have hosted roundtables, workshops and conferences as colleges big and small developed and refined policies to address the issues. ..Continued.. by Adam Tamburin

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Student Wrongfully Expelled for Rape Triumphs in Court: Due Process Beats 'Yes Means Yes'

8-15-15 Tennessee:

The University of Tennessee shifted the burden of proof and violated the rights of accused student Corey Mock.

A judge overturned the expulsion of Corey Mock—a University of Tennessee at Chattanooga student and star wrestler—after determining that UTC’s administration had improperly required Mock to prove that he was innocent of sexually assaulting another student.

The decision is a significant blow to the concept of affirmative consent. According to Judge Carol McCoy, UTC’s consent standard wrongfully shifted the burden of proof and violated Mock’s due process rights.

Mock’s expulsion stemmed from a sexual encounter with a fellow student, Molly Morris, during the spring of 2014. Morris and Mock had met online and quickly become friends; they hung out on several occasions and decided to attend a house party together. Morris had too much to drink—someone might have slipped her something, though no evidence established this—and went to the bathroom to be sick. Mock found her, took her to a bedroom, and they had sex.

A week after the incident, Morris told Mock that she had not given consent. Three months later, she formally accused him of raping her.

The campus judicial process initially cleared Mock, but UTC Chancellor Steven Angle took an interest in the case after meeting with Morris. Angle asked the campus adjudicators to re-hear the case. This time, Mock was found guilty.

The rationale was atrocious. As KC Johnson of Minding the Campus explains:

Angle, for his part, argued that Mock had failed to prove that he had obtained affirmative consent—that is, that Mock, not UTC, had the burden of proof in the initial hearing. UTC hadn’t adopted a “yes means yes” policy, but Angle inferred it through various provisions in the school’s code, and in other writings.

UTC’s decision was a powerful confirmation of due process advocates’ worst fears about affirmative consent policies. I have long-argued that the “Yes Means Yes,” when judged by university officials, in tandem with a preponderance of the evidence standard, creates a de facto assumption that an accused student is guilty unless he can prove otherwise--turning innocent until proven guilty on its head.

Consider what evidence Mock would have had to present at his hearing in order to clear himself. Only a signed document—or, perhaps, a video of the encounter—could have definitively established that he had Morris’s permission to proceed. Do college administrators really expect students to draw up consent papers, or film sex tapes? (Sadly, some activists do.)

Earlier this week, Judge Carol McCoy recognized the fundamental unfairness of Mock’s situation and agreed with him that UTC had established an impossible standard. According to her ruling:

The UTC Chancellor improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation that he forcibly assaulted Ms. Morris. He made no finding that Ms. Morris did not consent, intertwined the definition in SOC 7 of sexual assault and sexual misconduct, and made no distinction as to which acts had occurred.

The Washington Examiner’s Ashe Schow reports that Mock and his family are relieved:

Mock's father, in an email to the Washington Examiner, said that he and his son are "very pleased with the judge's decision; we weren't sure if anyone was going to follow the law, and this has restored our faith." But he is aware that UTC may try to appeal the ruling and that this case may not be over.

As for what's next for Corey Mock, his father is unsure.

"No idea where Corey goes from here, he is weighing his options, something he hasn't had in a long time," Mock's father wrote. "This is the first good news we have had in over a year and we are thanking God and trying to enjoy it."

The ruling is obviously a great outcome for Mock, and perhaps UTC administrators will be less eager to railroad accused students in the future. But many more judges will have to reach the same conclusion as McCoy if anything is to be done to stop affirmative consent policies from sweeping the nation’s campuses. ..Source.. by Robby Soave

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Tennessee Supreme Court overturns forfeiture of Cumberland County sex offender’s home

3-10-15 Tennessee:

The Tennessee Supreme Court has ruled that the government must show that it complied with state forfeiture laws – both procedurally and substantively – if it is going to seize someone’s property.

Tennessee law says the state may seize land, homes, cash, cars or other property if they were used in the commission of a crime.

The decision involved a Cumberland County man who was convicted of possessing child pornography on his home computer.

The state issued a forfeiture warrant for the home of Charles Sprunger after his 2008 arrest. The opinion overturned the forfeiture of the home, saying the state didn’t follow the law.

The court said the Tennessee Constitution disfavors forfeiture, so the laws must be strictly interpreted. ..Source.. by WATE.com

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Court slams attorney, reverses Scott County man's conviction

2-10-2015 Tennessee:

A Scott County public defender is being rapped by an appellate court for hustling a man through the criminal justice system with no investigation, no hearings, no explanation of the consequences and lying to a judge about his work on the case.

In an opinion released late last week, the Tennessee Court of Criminal Appeals is giving rare approval for Joshua Tyrell Cross to withdraw a guilty plea he made in rape charge of which he said he was innocent.

Cross was charged in a July 2012 incident in Oneida in which a woman said she woke up naked and injured in her bed and recalled an image of a man on top of her sometime during her sleep, according to the opinion. She did not immediately report it and no DNA analysis was conducted. Other witnesses put Cross in her house earlier.

Cross was charged with aggravated rape, and 8th Judicial District Assistant Public Defender Dale Potter was assigned the case. According to the opinion, Potter did not interview any witnesses or the victim. He did not ask for a preliminary hearing or a bond hearing. He urged Cross to take a plea deal on an attempted rape charge.

Potter skipped a grand jury review, and Cross was never even arraigned, a basic guaranteed right, according to the opinion. He entered his plea in September 2012 — two months after his arrest.

As part of the plea deal, Cross was sentenced to three years and ordered to register as a sex offender for life. A week later, Cross sought to withdraw his plea. Scott County Criminal Court Judge Shayne Sexton held a hearing.

Potter admitted he told Cross not to worry about a lifetime on the sex offender registry, the opinion stated.

“He said (he told Cross) that ‘you never know what the law will be when he gets ready to come off probation or later down the road.’ Counsel said he did not review with the defendant the community supervision for life form,” the court wrote.

The opinion also noted Potter lied when Judge Sexton asked him if he had interviewed witnesses and otherwise prepared the case for trial.

“Counsel agreed that the trial court asked him … whether he had interviewed the witnesses and would be ready for trial if the defendant chose to plead not guilty,” the opinion stated. “Counsel said he informed the trial court he had done so.”

Because of Potter’s failings, the appellate court is sending Cross’ case back to court and a new beginning.

“(Cross’s) plea was entered based upon several misunderstandings, which were attributable to (Potter’s) advice,” Appellate Judge Robert H. Wedemeyer wrote. ..Source.. by Jamie Satterfield

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UTC wrestler expelled over sexual misconduct finding

12-4-2014 Tennessee:

Corey Mock, a nationally ranked senior wrestler at the University of Tennessee at Chattanooga, was expelled late Tuesday afternoon after the university’s judicial system found him guilty of sexual misconduct.

Because of federal privacy laws, little is known about the details of the case, which was ruled on by an academic professor and not a criminal court judge.

The UTC ruling points to a growing national debate about how university sexual misconduct and sexual assault cases are handled and shows how a much higher standard for sexual consent is being enforced on U.S. college campuses.

A female UTC student brought accusations against Mock, a senior, last spring, Mock’s attorney Jeff Rufolo said, and since then he has been on athletic department suspension.

Mock previously wrestled at the University of North Carolina at Chapel Hill, where his father is the program’s head coach.

“The only thing we can say is that he is no longer a student at UTC,” said UTC wrestling coach Heath Eslinger.

No criminal charges were ever filed against Mock, a decision university officials say is typically left up to the victim. State law does not require instances of sexual assault on college campuses to be reported to police.

Rufolo said his client was accused of having sex with another UTC student “without her consent.”

When the case was first considered by a campus judicial officer, also a full-time professor, Mock was found not responsible. However, weeks later, the decision was reversed, his attorney said.

Rufolo said the decision was appealed to university Chancellor Steven R. Angle, but documents show the appeal was denied. The family can petition for reconsideration, or has 60 days to determine whether to appeal the case to Chancery Court. Rufolo said they are considering whether they can handle that financial burden.

“[The judicial officer] issued an order finding the university did not meet its burden [of proof] and that Corey Mock was not responsible and then dismissed all charges,” Rufolo said. “The university asked that she reconsider her opinion and with no new evidence, testimony or hearing she changed her mind, issuing another order on Aug. 25 doing an absolutely 180-degree turn.

“With no new evidence and the same findings of fact, the order was identical with the only exception (being) that the university had met its burden of proof and that Corey was found responsible.”

The university would not confirm that sequence of events, but documents signed Tuesday show that Mock’s expulsion was effective Aug. 25.

For all practical purposes, Mock’s collegiate wrestling career is over.

“The [Chancery Court] judge would have to hear the case before the Southern Conference tournament in February and, barring a miracle, I don’t see that happening,” Rufolo said.

University sexual misconduct and sexual assault proceedings have been highly debated in recent months thanks to several high-profile cases. Some, especially victim advocates, say the secrecy afforded by federal law in campus investigations allows for assaults to be buried.

A 2010 investigation by the Center for Public Integrity found that most students deemed responsible for such an attack face little to no penalties. Earlier this year, the U.S. Department of Education announced an investigation into 55 universities for violations of Title IX, which requires fair and equitable resources for women in an environment free of discrimination.

Last spring, Florida State University’s much-criticized handling of sexual assault allegations against Heisman Trophy winner Jameis Winston triggered a national conversation about internal investigations. And a November article in Rolling Stone magazine questioned administrative handling of sexual assault at the University of Virginia.

Others claim that handling a case outside of the legal system denies defendants their due process rights. In some campus sexual assault proceedings defendants are not allowed lawyers or allowed to question the person making accusations.

Still, UTC’s process seems to mirror the judicial system. Defendants can subpoena witnesses. They can request discovery of evidence and submit evidence. They are also allowed to have a lawyer and are bound by sworn statements.

“Sometimes students just don’t want to go through the legal system,” Chuck Cantrell, a UTC spokesman, said. “They don’t want to go to court, they don’t want to press criminal charges, they just want to make sure someone is aware of what happened.”

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Caroline Huffaker, coordinator of the sexual assault response team at the Rape Crisis Center near UTC, said the university and campus police force response to sexual assault has constantly improved. Though “hookup culture” and alcohol certainly fuel under-reporting on campus, Huffaker said, the core issue is the same everywhere.

“It’s not a UTC problem, it’s not a Hamilton County problem, it’s a people problem in every community in America,” she said.

Heavily redacted documents provided by the university show that UTC’s chancellor contemplated the national conversation about rape on college campuses when considering Mock’s appeal.

“The recent focus on sexual assault on campuses … has resulted in heightened attention and care about how colleges and universities define and respond to allegations of sexual assault and address issues of ‘consent’ that are typically associated with sexual assault allegations,” a findings of fact document in the Mock case states.

The document goes on to say that silence does not indicate consent when two students are about to have sex. Both parties must verbally agree to sex prior to the act. This “yes means yes” standard replaces a “no means no” standard, and the burden to get consent is placed on the person initiating sexual activity, the document says.

Five sex offenses were reported on UTC’s campus last year, and only two were reported the year before.

Still, experts say those numbers don’t reflect the true risk.

A National Institute of Justice study estimates that for every 1,000 women attending college, there are 35 incidents of rape each academic year.

Off-campus sexual victimization is much more common among college women than on-campus victimization, the report adds. Also, less than 5 percent of completed or attempted rapes are reported to law enforcement. ..Source.. by Ward Gossett, Claire Wiseman

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Salvation Army revisits shelter policy after family turned away due to son's age

12-4-2014 Tennessee:

The Johnson City Salvation Army is reviewing its emergency shelter policy after the organization turned away a homeless family with a teenage son on a cold night earlier this month, all because of the boy's age.

Tim Lejeune says on one of the coldest nights of the year, despite the organization's white flag waving outside the shelter, the Salvation Army turned his family away, because his son is 15 years old.

"They said he's too old to stay on the women's side, because of the women running around in their pajamas and they said he's too young to stay on the men's side in case some pervert wants to do whatever," Lejeune said.

Lejeune says his wife, their 15 year-old son, 16 year-old daughter and five year-old son, all down on their luck, have been living in their car for the last several weeks.

Lejeune says it was so cold one night earlier this month he took his family to the Salvation Army. Noticing the organization's white flag blowing in the cold air, generally a symbol that all are welcome due to hazardous weather conditions, he says he expected the organization to welcome them with open arms. Instead, he says the shelter told them there was no way they could stay there with a 15 year-old boy.

"He said, 'I'm sorry, your son, y'all can't stay here, because of his age,'" Lejeune said. "I said, 'Are you kidding me?'"

"It was just heartbreaking," 15 year-old Dustin Lejeune said late last week.

Prepared to return to their cars to sleep in 18 degree weather, Johnson City police officers came upon the family and took up their cause. However, that proved unsuccessful.

Certain the family should not be expected to sleep in their car on one of the coldest nights of the year, the officers brought the family to the Johnson Inn and then did something remarkable. They pooled their resources and were prepared to pay for a motel room for the family with money out of their own pockets.

"They collected money to put the family up and when they were at the Johnson Inn, the clerk that was working there that night realized what was going on, so they themselves comped the room for the family," Maj. Garry Younger said. "In return, the officers took the money they collected and went and bought groceries that they gave to the family. I'm very proud that we employ people with that fortitude that care about the citizens."

Police officers AD McElroy, Justin Jenkins, Toma Sparks and Robert McCurry were not the only ones to help this family with a selfless act. Along with police, Washington County-Johnson City 911 dispatchers on shift two helped raise enough money to buy this family groceries, dinner and leave some cash behind for them.

Salvation Army Captain Michael Cox says the organization has a longtime policy that prohibits boys ages 12 to 16 from staying at the shelter. According to Cox, the policy is in place for safety reasons; ultimately to protect children.

Cox says space limitations at the shelter do not allow the building to house maturing boys. He says that policy has only been an issue once before in the last decade or so. That said, he says the Salvation Army is now revisiting its shelter policy.

"It was an unfortunate situation altogether, because we did not have the facilities to put that family in place," Cox said of the situation. "We did offer further assistance and that was denied."

In the moments after we first met the family we shared their contact information with the Salvation Army. Monday their car was parked outside the organization. The organization has filled up their gas tank and even let them spend a couple nights at the shelter, but not because of any change of heart. Lejeune says their 15 year-old son is now receiving mental help at an area hospital.

"He ended up having a breakdown and ended up at Woodridge and felt it was all his fault that we were homeless that we couldn't go anywhere, because of him," Lejeune said.

While the family awaits the release of their son, they say they are now trying to get their kids enrolled in school and find a permanent housing solution. ..Source.. by Nate Morabito

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First statewide bullying count confirms 5,478 cases

10-25-2013 Tennessee:

Tennessee’s first statewide count of school bullying incidents found 5,478 cases last school year, shocking the lawmaker who asked for the study.

The Department of Education report turned up 7,555 reports of bullying. Investigations confirmed acts of bullying in 73 percent of reports.

“The numbers, they’re quite shocking,” said Sen. Bill Ketron, R-Murfreesboro. “I was thinking there’d be less than a thousand reports of bullying captured. Over 5,000? That’s huge. And that’s just what was reported.”

Ketron and Rep. Charles Curtiss, D-Sparta, passed legislation requiring the statewide study in 2012 in the wake of two high-profile bullying-related student suicides in Middle Tennessee.

“Nobody had ever captured that data,” Ketron said.

Ketron, saying that bullying impacts students, hampers learning and reaches beyond classrooms into the communities, said he wants the data to spur districts to examine the effectiveness of their bullying policies.

An often-cited national study of bullying found that more than 7 million teenagers, or 28 percent of students, reported being bullied at school in the 2008-09 school year, according to the National Center for Education Statistics. The report did not tally incidents by state. In 2011, the U.S. Department of Education found 46 states had anti-bullying laws.

Middle Tennessee school districts reported a wide range of incidents. Davidson County reported 923 cases, with 812 confirmed after investigation. Some districts substantiated a small fraction of reports. For example, Robertson County had 193 allegations and 13 confirmed cases of bullying. Williamson County logged 50 reports and substantiated 11 cases. ..Continued.. by Tony Gonzalez

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Backlash for Reporting a Sex Offender

Video on News Report site.

4-27-2013 Tennessee:

A father says his family has paid a price for raising questions about whether a registered sex offender should be attending Girl Scout functions.

"My daughters received a couple of messages on her Facebook stating we are just making up lies about Mr. Maynard," Richard Cox said.

That's the kind of retaliation that Cox says he and his 13-year-old daughter don't deserve.

Cox has been consoling his family throughout the process of finding out whether Keith Maynard did anything against the law. He says he doesn't understand why his family is being harassed, after reacting the way he felt most fathers in his position would.

"Myself and my family, we feel like we did the right thing, trying to protect our child as well as everybody else."

Cox says he knew Maynard had been convicted of statutory rape of a 15- year- old girl who he met through the Girl Scouts.

Ultimately, a judge clarified that Maynard wasn't violating any laws, and the convicted sex offender is allowed to attend girl scout meetings as long as he's with his daughter or wife.

Even though Cox says the family has been under a lot of attack, he isn't angry, and certainly not looking for revenge. ..Source.. by News Channel 9.com

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Tennessee Supreme Court Considers Whether Minor Is An Accomplice In Her Own Statutory Rape

1-24-2013 Tennessee:

It's hard to imagine a more devastatingly unjust view of child sex crimes than one that considers the victim as an accomplice in the crime committed against them. But in Tennessee that's the very issue before the state supreme court in a case that has drawn attention to a centuries old rule that strikes some troubling contemporary notes on rape, consent and force.

In State v. Collier, a 42 year-old man was convicted of aggravated statutory rape after having sex with a 14-year-old victim. Collier, who authorities say was an old friend of the teenager's father, allegedly picked the victim up from a friend's house, took her back to his home where he had sex with her. When the girl returned home the next day she told police she had called Collier from her friend's house and that he picked her up and that she had consented to sex with him. Based on her statement Collier was arrested and charged with aggravated statutory rape.

During his trial, Collier denied he had sex with the girl, but was nonetheless convicted. On appeal Collier argued there wasn't enough other evidence to support his conviction because the victim, by telling authorities she consented to sex with Collier, was in fact an accomplice to the crime. Under Tennessee law, Collier argued, prosecutors need more than her testimony to support a conviction and absent that additional evidence his conviction should be overturned.

Believe it or not, under Tennessee common law, it is possible for a minor sex crime victim to also be an accomplice in the crime. The issue turns on whether that victim voluntarily consented to the sexual activity. If you're head is swimming after that last sentence, you are not alone. The very idea of statutory rape is that some kinds of sexual encounters are legally impossible to consent to per se—such as the one between a forty-two-year-old man and a fourteen-year-old girl. Yet in Tennessee a string of cases suggest the pernicious idea that minors are culpable in their victimization is not at all a thing of the past.

The rule that a child sex crime victim can also be an accomplice in the crime committed against them first emerged from an 1895 case in which a Tennessee court found no "evidence of force" in a case involving an uncle having sex with his niece. Because there was no evidence of force, the court upheld a decision to convict them both of the crime of incest, embracing the idea that "evidence of force" is the same thing as "evidence of consent" and suggesting that even in the case of minors an absence of such evidence suggests culpability in the crime by the victim.

Then, in 1960, the Supreme Court in Tennessee reversed the conviction of a father who was accused of having sex with his daughter multiple times over two years. In that case the court ruled that despite the fact his daughter gave birth to a child she claimed was the product of that sexual abuse, without the benefit of DNA testing and absent evidence of force or other corroborating evidence, the law considered the victim an accomplice to the statutory rape crime and therefore the state needed more evidence to support the conviction.

These are the same issues, and the same sentiments, under review in the Collier case.

 And that is really the point. By classifying sex abuse victims as accomplices in the crimes committed against them, those protecting abusers have succeeded in exploiting a rule that requires prosecutors use more than evidence from co-conspirators in prosecuting those charged with a crime. In almost any context other than statutory rape prosecutions, such an evidentiary prohibition on prosecutors makes sense: after all, the state should be forced to find evidence to support a charge and conviction beyond just the testimony of someone who helped commit the crime. But in the context of laws that criminalize sex between adults and children, the idea that a child's "admission" to "consent" to an act to which they cannot legally consent is used as the basis for finding them culpable in their own victimization defies all logic, reason, and moral defense.

Some legal observers believe the Tennessee Supreme Court agreed to hear the case in order to do away with this idea once and for all. But when the state Supreme Court in Alabama unilaterally declares a fetus a person by judicial fiat, it is hard to feel optimistic about this kind of case. And that is even more true in a political climate where conservatives freely invoke the rhetoric of "legitimate rape" and "honest rape" and when judges in states like California opine on whether a rape victim's case is "real" or merely a "criminal law problem" during the sentencing of her perpetrator. We can talk about the Tennessee law as "arcane" but if it is used to support decisions in the modern day, there is nothing arcane about it. Here the State Supreme Court has an opportunity to make an important clarification in the law and end the legal practice of diminishing the victimization of statutory rape survivors. Let's hope the court takes such an opportunity seriously. ..Source.. by Jessica Mason Pieklo

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Registered Sex Offender Denied Access to Children Over Parents’ Objections: McCall v. McCall

8-21-2012 Tennessee:

Facts: A year after their divorce, Mother and Father filed a joint motion to modify their parenting plan to, among other things, permit a registered sex offender to be in the presence of their children. After a hearing, the trial court granted the relief sought by both parents except the court refused to permit the registered sex offender to be in the children’s presence. Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court. Mother argued that Tennessee law does not prohibit a person who has been convicted of sexual battery by an authority figure from living in the same household as a minor unless the victim of the sexual battery was a minor. In this instance, the registered sex offender the parents wanted to be allowed to be around their children pleaded guilty to sexual battery by an authority figure in which the victim was not a minor. Mother argued that, because there is no “lawful prohibition against” the sex offender being in the presence of minor children, the trial court erred by denying the parties’ motion to modify the parenting plan to permit the sex offender’s presence around their minor children.

The welfare of the children is the primary consideration of the court when fashioning a parenting plan. Additionally, the trial court’s duty to make decisions that are in the best interest of the children is not trumped by an agreed order. Parents’ private agreements do not bind the court with respect to issues affecting the best interests of the children, and they do not relieve the court of its obligation to act in the children’s best interest.

Tennessee law provides that a registered sex offender must stay away from areas where children are believed to be present, e.g., schools, child care facilities, parks, playgrounds, etc. After citing these provisions, the Court concluded:

Tennessee statutes, taken together, impose a duty on trial courts to protect the best interests of children. Nothing in the statutes suggest that the trial court abused its discretion in denying Parents’ motion to amend the parenting plan to allow a convicted sexual offender to be in the presence of the minor children in this case. Mother’s argument is wholly without merit.

The trial court’s decision was affirmed.

K.O. Comment: It is highly unusual for a trial court to overrule the desires of both parents as to how their children should be raised. Two things stand out here: (1) the parents were asking the court to make a special exception to existing law that prohibits a sex offender from being around their children, and (2) the record failed to explain the sex offender’s relationship to the parents. ..Source.. by Herston Roskind Attorneys

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Tennessee County Seeks to Identify Authors of About Ten Thousand Comments

8-16-2012 Tennessee:

So reports Paul Alan Levy (Public Citizen Consumer Law & Policy Blog), with links to various documents, including the letter objecting to the subpoena, which in turn includes the subpoena as Exhibit A:

Shelby County, a government body in the southwestern corner of Tennessee that contains the city of Memphis, has subpoenaed Memphis’ daily newspaper, the Commercial Appeal, seeking to identify the authors of roughly ten thousand anonymous comments that have been posted to 45 different stories on the paper’s web site….

The subpoena arises out of a controversy about a proposed consolidation of school districts sought by the county commission. The consolidation has been highly controversial, and attracted extensive coverage by the local media, including many stories in the Commercial Appeal. The comments section of the various Commercial Appeal stories came to be a significant forum for community discussion of the issue. The debate raged in heated terms, with a number of comments reflecting racist views, as some citizens opposed the proposed consolidation because they were afraid that it would increase their children’s exposure to black children. Some comments were posted in sufficiently uncouth terms that the Commercial Appeal removed them for violation of the web site’s terms of service. Eventually the Tennessee Legislature passed a law that interfered with the consolidation plan, authorizing local jurisdictions to vote on whether to establish their own school districts, and Shelby County has sued to block the law, claiming that its purpose is to perpetuate segregation.

Although Shelby County has yet to articulate its precise reason for seeking the subpoena, our best guess is that the identities are being sought to help prove the discriminatory animus behind the legislation. The argument appears to be that, if the comments identify particular members of the public as racist, and if other evidence shows that those same members of the public urged their legislative representatives to pass the anti-consolidation bill, the citizen advocates’ racist views can then be attributed to the legislation which therefore can be struck down.

Now subpoenas aimed at identifying anonymous speakers are sometimes permissible. For instance, if the plaintiff is arguing that an anonymous speaker has libeled him, and there is enough evidence that the statement is indeed potentially libelous — i.e., that it makes a factual assertion, and a jury could reasonably conclude that the assertion is false and defamatory — then the plaintiff needs to be able to identify the defendant. The same may be true in some other cases, such as disclosure of trade secrets. ..continued.. by Eugene Volokh

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Accused killer wins appeal on violation of sex registry law

7-12-2012 Tennessee:

Accused murderer Jeffrey Stock has won a minor — and potentially insignificant — legal victory for failing to register as a sex offender prior to the rape and murder of his alleged victim, 19-year-old Megan Maxwell.

The U.S. Court of Appeals for the Sixth Circuit ruled Wednesday the six-year sentence U.S. District Judge Ronnie Greer imposed for Stock’s failing to register in Cocke County as a sex offender was excessive and remanded the case for resentencing.

The six-year sentence was roughly double the advisory guideline sentencing range of 33 to 41 months in federal prison.

The appellate court’s ruling essentially concluded that Greer erred when he accepted the U.S. Probation and Pretrial Services report that Stock’s criminal history warranted the highest tier of offender status.

Stock pleaded guilty to two counts of sexual battery in Indiana in 2008.

During the sex-offender trial in federal court in Greeneville, an Indiana detective testified the sexual batteries were actually rapes, and a Newport detective testified that Stock was the last person seen with Maxwell.

Greer said he didn’t consider those factors in imposing sentence, however, the court of appeals suggested the prosecution crossed the evidentiary line by putting the testimony before jurors, according to the decision.

“The government denied … that it was ‘trying to prove that (the Indiana offense) was actually a rape instead of a sexual battery,’ apologizing ‘if that’s how it appears,’” a footnote in the 14-page decision states.

“But that’s exactly how it appears, particularly in light of the government’s attempt to connect Stock to an unsolved missing-person case,” the notation further states.

Citing established precedent, the court concluded a six-year sentence was “substantially unreasonable when the district court failed to identify compelling justification for the guidelines variance or to account for the disparity from other sentences for similar offenses.”

The appellate court recognized Greer’s frustration with Stock avoiding meaningful punishment for past crimes, but noted the six-year sentence was “by far the longest sentence imposed during all of 2008, 2009 and 2010 — possibly ever” for a defendant with a criminal history similar to Stock’s.

Stock was indicted on the failure-to-register offense in June 2009. Maxwell disappeared in April of the same year after visiting her father in Newport.

Her remains were not located until April 2010 between the Parrottsville and Del Rio communities of southeastern Cocke County.

The defendant was indicted for first-degree felony murder, rape and theft for allegedly stealing Maxwell’s car. The indictment alleges Maxwell was killed “during the perpetration of rape and theft.”

Stock’s father, 65-year-old Terry Stock, was indicted for being an after-the-fact accessory to first-degree murder for allegedly providing his son with transportation following the homicide and removing “evidence of guilt.” ..Source.. by Robert Moore, Tribune Staff Writer

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Appellate court overturns Ogle decision

6-13-2012 Tennessee:

SEVIERVILLE — A state appellate court overturned a local judge’s decision to remove a man from the sex offender registry based on the man’s claim that it violated his protection against double jeopardy.

Christopher Kennedy entered a guilty plea in Feb. 14, 2001, to the charge of aggravated sexual battery as part of a plea agreement that saw him serve a nine-year sentence, to be followed by lifetime community supervision as a sex offender.

After he was released on the sentence, which included time served, he was indicted in Nov. 13, 2008, for violating the conditions of his supervision. ..Source.. by JEFF FARRELL

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Memphis police open sex abuse probe against AAU's Dodd

12-10-2011 Tennessee:

Memphis police have opened an investigation into sexual abuse allegations against Amateur Athletic Union president Bobby Dodd that date to the 1980s, police said on Friday.

Police officials said they were contacted by the AAU regarding accusations of abuse "which occurred in Memphis, Tennessee, approximately 30 years ago," according to police spokeswoman Sergeant Alyssa Macon-Moore.

The accusations against Dodd follow recent allegations of sexual abuse of boys by assistants to Hall of Fame coaches at Penn State and Syracuse universities that rocked the world of major college athletics.

A South Carolina military college, The Citadel, has also revealed that it had failed to take action against a student accused of inappropriate behavior with children at a summer camp.

The allegations against the AAU official surfaced after two accusers told sports network ESPN that Dodd, 63, had engaged in a pattern of inappropriate touching and masturbation while they stayed in hotels during tournaments and that he gave alcohol to underage players, the network reported.

The players making accusations against Dodd said they were abused between the ages of 12 and 16, ESPN reported.

The AAU could not immediately be reached for comment. But ESPN reported that the organization said it had contacted Memphis police after learning about the allegations on the sports network's "Outside the Lines" news program.

"The Memphis Police Department takes allegations of child sexual abuse very seriously," Memphis Police Director Toney Hamilton said in a statement.

"Although this case has its challenges due to the amount of time that has passed, it will be thoroughly examined; and if the investigation reveals the law was violated the person responsible will be held accountable," he added.

ESPN said the AAU had also begun its own investigation and that Dodd, who has been the organization's chief executive since 1992, would not be returning from current medical leave.

The sports network said one of the former players had been contacted by a Memphis police detective.

One of the accusers, who spoke anonymously, accused Dodd of drugging him when he was a youth and offering him $1,000 if he would agree to have oral sex on him while he was bound and blindfolded.

They have also said they saw hundreds of pictures in his filing cabinet depicting the clothed backsides and crotches of players and bags filled with dozens of pairs of boys underwear, ESPN reported.

The AAU, one of the biggest nonprofit volunteer sports organizations in the country, is dedicated to promoting and developing amateur sports and physical fitness programs for athletes of all ages, the group says on its website. ..Source.. by Tim Ghianni

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Youth sports executive accused of sexual abuse by former players

(CNN) -- The Memphis police and the Amateur Athletic Union have launched an investigation after two players alleged that the leader of a local youth sports organization molested them decades ago.

The two players were interviewed by the ESPN's show "Outside the Lines" and the story is scheduled to be aired at 10 a.m. Sunday.

A story on ESPN.com said the players allege that Robert "Bobby" Dodd inappropriately touched them and abused them sexually while they slept in hotel rooms during tournaments.

CNN could not reach Dodd for comment despite repeated attempts. ESPN also could not immediately get a comment from Dodd.

Readers of this story should also be aware that this story contains sexually graphic content.

The athletic union released a statement saying the allegations against Dodd dated back several decades.

"The AAU has opened an independent investigation into these matters and also has contacted local law enforcement in Memphis, where the activities allegedly occurred. We will actively cooperate with any and all authorities to determine the facts and the truth."

Dodd is dealing with colon cancer and would not be returning as president and chief executive officer of the youth organization, the statement said.

Memphis authorities said they take "allegations of child sexual abuse very seriously. Although this case has its challenges due to the amount of time that has passed, it will be thoroughly examined; and if the investigation reveals the law was violated, the person responsible will be held accountable."

The allegations come amid child sex scandals at Penn State and Syracuse universities.

One of the accusers, identified by ESPN as Ralph West, said he was age 14 at the time of the alleged abuse. West said he was on a basketball team ran by Dodd who would sometimes slip into his hotel room.

"Must have been three in the morning. I was dead asleep and I don't remember anything but waking up and he has his, he's trying to put his hand in my boxer shorts. And I jumped up straight out of the bed and he's not there but he's laying on the floor next to me down by the bed. And of course I was freaked out," West told ESPN.

Another accuser, whom ESPN did not name, said Dodd gave him alcohol before taking him to a bedroom and touching his private parts.

"We were at his house and he provided us with some alcohol and, looking back on it now, I know for a fact that he put something in my, my drink that night because the last thing that I can really remember was him carrying me into his bedroom and I can remember him, you know, touching me in ways that I, I didn't uh, I didn't want another man touching me," the accuser said.

West said he tried to find ways to keep Dodd out of his hotel room when they were at out of town basketball tournaments.

"I was afraid to even fall asleep when he was around. And it got to where I would barricade my, if I had a hotel room I would take the table and chairs and I'd block it all against the door," West told ESPN. "And it got to where he couldn't assault me but he would push his way in the room and then end up, I'd see, I wouldn't see him, I would hear him, he'd lay at the floor of the bed masturbating. And you just lay there horrified." ..Source.. by CNN Wire Staff

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