Sex offenders on probation: setting them up to fail

Sex offenders are the modern witches. There are so many things that rankle when it comes to society’s increased crackdown on sex offenders and their subsequent treatment, but one that never fails to get to me is their ridiculously unfair treatment on probation.

True, there are some that need the intense supervision, that should not be permitted to intermingle with society, but those with the highest risk are the fewest in number.

Nuance in treatment, however, doesn’t seem to exist. So the heavy chains of probationary conditions apply to all “sex offenders” across the board: be it the 19 year old who had sex with his 15 year old girlfriend or the sex offender convicted of inappropriate touching as opposed to the serial rapist.

To begin with, when a pre-sentence investigation report is prepared prior to sentencing, the probation officer is free to replace the results of any evaluation with his/her own “judgment”. I often see reports in which they state that the defendant was evaluated as having a very low risk of re-offending, yet, because in the probation officer’s judgment there were multiple victims, the defendant is actually a medium-to-high risk of re-offending. I’ve seen that recommendation even in cases where the defendant was convicted of assaulting one victim and acquitted of the others. So now we have somenoe with no appropriate training making these judgments and thereby controlling the destiny of a defendant.

When a defendant then starts probation, he is expected to undergo sex offender treatment. It doesn’t matter if he maintains his innocence or if he pled under the Alford doctrine1 [pdf]. If he fails to admit2 [pdf], then he has violated his probation.

So, probations now offers an attractive alternative to defendants: take a polygraph. If they pass, they will not have to admit. If they fail, they must admit.

Polygraph testing is an inexact science and the results are unreliable. The results are open to interpretation and subject to the view of the examiner and are generally inadmissible in CT courts (See State v. Porter, 241 Conn. 57). So while the polygraph examiner on the State’s payroll might say that the defendant failed the polygraph, an independent examiner might well say he passed. However, the State routinely uses the failed polygraph to institute violation of probation proceedings, notwithstanding an otherwise unblemished record on probation.

There is also a split among prosecutors in their reliance on polygraphs (at least that I have seen). Some leave it up to probation to determine whether a defendant is in compliance while others view defendants passing a polygraph and not having to admit as violating probation (because they didn’t actually admit to their crimes).

It doesn’t end there, however. These polygraphers don’t limit their questions to the crime for which the defendant has been convicted. They start asking more general questions: “Have you ever molested someone else?”, “Have you committed another crime for which you haven’t been caught?” There is no Fifth Amendment protection. These questions have been deemed legitimate and the responses can often lead to a violation of probation. Even if the answers to questions about the crime for which the defendant is on probation are deemed “honest”, if the answers to other questions, about other supposed crimes are “deceitful”, then the defendant is written up for failing to pass the polygraph and a warrant issues.

Defendants then come to us to seek advice. There really is nothing we can tell them. “Yes, I know you maintain your innocence. Yes you did not do this. However, they can force you to admit”.

The only option available is to indirectly advise the client to “tell probation what they want to hear”, which, in my opinion, is an untenable option.

While polygraph results may or may not be admissible in a VOP hearing, they certainly can be used by a judge in determining what sentence to impose after a violation is found.  The outcome is generally not good.

So the sex offender on probation is essentially screwed. Whether it is registration, residency restrictions or the onerous “treatment” conditions.

I wonder what this does for treatment of sex offenders. I’m sure some of them lie and admit, just to get it over with. Is that what we really want? Is admission of the crime such a necessary part of this “treatment” and why are prosecutors, probation officers and judges so hung up on this admission. If the probationer shows a pattern of non-compliance, then I understand issuing a warrant. If, however, this is the only blemish on an otherwise satisfactory record of compliance, then is it really worth it? Don’t we have enough people in prisons already?

1. State v. Faraday, 268 Conn. 174 (2004). 2. State v. Bruce T., 98 Conn. App. 579 (2006).

27 thoughts on “Sex offenders on probation: setting them up to fail

  1. Leah

    Taking all of this one step further with sex offenders who are truly innocent:

    1) They don’t lie to get it over with, they lie to keep from getting a 25+ year sentence. Three or 5 or 10 years is certainly better than 25.

    2) They lie (or plea bargain) because the DA will keep adding charnges the longer they maintain their innocence. Remember therer is no physical evidence needed, just an allegation

    3) The conditions of probation or parole are difficult, however it does not stop there. Most all of our states now have a Jessica’s Law and this means residency restrictions and GPS for life. It doesn’t stop the day parole ends. That is the worst part of the whole scenario.

    We have put the citizens, legistlators and probation and parole officers in charge even though they are have no professional training on mental illness. The TRUTH is that over 90% of sex offenses between a child an adult takes place with someone known to the child, like a family friend, relative, priest (yikes!), coach etc. Parents are in charge of whom their children associate with. Mr. Predator who lives down the street is the least likely to offend, but Uncle Bob is another story. Where a person lives is irrelevant to whether or not they will choose to molest. He can walk, drive, ride a bike, take a bus and go wherever he likes during the hours children are at a school. However, when children are at home with their parents at night, Mr. Predator must be at least 1,000, 2,000 or 2500 (depending where you live) away from a school or park. This is not public safety, this is abusurdity.

    I ask every legislator in America, who will be the first one to stand and tell the truth, whether or not is in the best interests of your political career? Stop wasting our precious tax resources on feel good laws that actually make children less safe as sex offenders drop off the registry every day because they have no where to live.

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  2. SPO

    The problem, Leah, is people like Timmendequas and Couey. Those may be, thankfully, rare occasions, but they rightfully scare parents to death. I think you guys have to acknowledge that (which Gid does).

    The best argument, I think, is the misallocation of resources. We waste time with a one-shot fits all approach to sex offending. Without doubt, a 19 year who has sex with his 15 year old girlfriend is not likely to be a dangerous offender when he gets more mature. And spending a lot of resources on him means less on more dangerous predators.

    This polygraph thing, I don’t know. Sounds Orwellian to me.

    As an aside, and I cannot help but notice this, it strikes me that most of the people here are pretty liberal, and liberals nowadays prefer government in action–doesn’t this give you guys some pause? How in the world is government supposed to run health care, the economy or anything else?

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    1. Gideon Post author

      Yeah, but you know we have a fundamental disagreement about this sort of thing.

      For every Couey there are hundreds of non-recidivist sex offenders who have successfully rebuilt their lives. Again, we’re punishing the many for the acts of the few.

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      1. lisa marcus

        Could not agree more! When a person says to me ‘did you know there is a sex offender living in the neighborhood’ i immmediately think so what! Having experienced our wonderful judicial system at it’s best i do know there are many many innocent people being forced to conform to what the legislatures believe is justice!

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  3. GB

    SPO, you make a good point, but the problem is that 550,000 people wear the face of Couey and Timmendequas because of vote hungry politicians and sensation hungry media. Offenders like them are VERY rare. The three most publicized offenders in the recent past were ALL in violation of parole and should never have been on the street to begin with. It’s an established fact (using US Department of Justice statistics) that this type of offender rarely reoffends. Five hundred and fifty thousand offenders are being subjected to a blanket punishment as a result of the completely heinous deeds of a few.

    Leah is right about the more clear and present danger being a family member, relative, or someone the child knows and trusts, in fact over 90% of child sexual abuse is at the hands of someone close to the child. (This statement also is from a USDOJ report). A parent while being rightly scared of people like Couey et.al. should also be much more vigilant of someone that is much closer to their child because that is where the greater danger lies.

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  4. Windypundit

    Our justice system’s obsession with getting a confession just creeps me out. I’m not talking about confessions under police interrogation (that’s a whole different issue) but rather the confessions in the court system—allocutions, enhanced pentalties for not “taking responsibility”, and now the types of failure to admit that you’re talking about. It all has a Stalinist show-trial feel to it: It’s not enough to convict someone, but the person has to confess, lest the people think the state is fallible.

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  5. GreenEarth

    Based on the present topic, my story is one of which I cannot publically denounce, for fear of revocation, I took a plea bargain not really knowing the consequences at the time. Everything was a blur and I was hoping to wake up from a nightmare. But I didn’t. As it follows I found nothing about my life being natural. I bargained my life away at a six year deferred sentence with everything supposedly sealed when my term of probation is completed. It had sounds of relief at the time. However, with the legislators enacting new retroactive laws, in which I believe to be “expo facto”, I will be punished for a crime I falsely confessed to. I did so for fear of facing a possible conviction with a term punishable up to 100 years. My attorney convinced me it was the best possible route even though the allegations were false. Everything was based on a mother’s vindictive allegations and no proof. My supossed victim was even convinced something happend. I was in total darkness tring to make sense of how this could happen to me.

    Of course there were polygraphs, in which I believe were designed to make me fail. Questions like, “Are you being truthful about you sexual contact with ….?” Of course I failed because I had admitted to something I didn’t do. Then I had to make up other stories just tell the “therapists” and polygraphers what I believed they wanted to hear. Magically I passed later. Imagine that. The truth doesn’t matter as long as you fess up.

    Today, I live my life in fear having no faith or trust in our JS or just about anyone I suppose. I especially do not have faith or trust with the attorney I entrusted my life with. Take the deal, he says, or risk going to prison.

    Since the allegations, for over 8 years, I have been on depression and anxiety meds and have been treated for major panic attacks. Something I never struggled with before. I am afraid to go anywhere by myself especially if kids are around. I am afraid to even look at a child. When I must go somewhere by myself, I look straight ahead and block out everyone and everything around me. I used to be happy and loved life. Now I am looking forward to life after this world.

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    1. KageOkami

      Hello

      I feel your pain on this one. I thought that I was reading my boyfriends story when I found your post. He lost his case because his lawyer was an idiot. For five years now he has had to suffer probation and treatment programs. The restricions of these programs are painful and expensive not only for him, but anyone supporting him.

      They say that you have to admit guilt or you will never get out of treatment. He has been on anti depressants and still has “hopeless days.” We cannot be out past 9:00p.m at night, no overnight stays like for weekend getaways. Let alone leaving the state or country.

      He had actually finished a treatment plan and has never once violated his probation. He has done everything right and now they want to put him back into another treatment program. It is relentless. Some programs don’t allow s.o.’s to have signifigant others so we may have to pretend that I am a family friend.

      He has lost his will to fight the system and has spent most of his money on lawyers and treatment. He has a hard time in public places for fear of even accidental contact. He wants me to tell the treatment people whatever they want to hear and not make a stink, but I am not sure I can hold my tongue. Injustice is a pet peeve of mine and the treatment of s.o.’s mirrors that of the Salem witch trails. One of these therapists needs to be accused of unwanted contact and end up in thier own program. Maybe that will get some results.

      Recidivism rates are three time as high for other crimes and none of these people are required to registered after they have served thier sentence. Nor required to be in expensive treatment programs. They go to jail if they re-offend. Why are sex crimes treated completely different. My boyfriend says he would have been better off going to jail. Treatment is worse and never ending.

      S.O. treatment is warranted in some cases, but for the most part it does more harm than good and alienates the offender from society. They lose jobs, friends, and freedoms. The question is how do we stop it?

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    2. lbm

      My loved one called the system cooruptional officers-not correctional officers! So true. The same thing in fact happened-there was no evidence-just allegation but the law requires a lifetime of registration for a crime not committed!
      So sad that in this country this is happening.

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  6. Ilah

    “And spending a lot of resources on him means less on more dangerous predators.”

    That’s precisely the issue, and it should be of grave concern to anyone interested in public safety. New Jersey, forex, has repeatedly documented one of the lowest recidivism rates in the nation; their system involves individual risk assessments and limited notification based upon risk. However, the feds have mandated those systems be scrapped in favor of “offense-based” tiers. In Indiana, the system permitted the fifty diagnoses and assessed “Sexually Violent Predators” to be shuffled into a deck of thousands of newly designated-by-statute Predators.

    The public has no way to know who those fifty are, and law enforcement doesn’t have the time to monitor them anymore because of the other thousands on the list. But the Feds apparently wanted it that way–mindboggling from a public safety perspective.

    And keep in mind that as sex offender registries have expanded, and as law enforcement spends more time enforcing ancillary laws, the number of new adult sex crimes solved has steadily decreased.

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  7. just

    You could post all year on this and not address all the issues that are being manipulated. Treatment providers also have their own set of restrictions, which may go beyond what the court has imposed.

    At the federal level, the PSI is used to make a number of unsubstantiated allegations that your attorney may ignore or the court won’t address, because it “doesn’t affect the sentence.” But the BOP views the PSI as truth, as will the treatment provider, leaving one to constantly defend what your attorney and judge chose not to.

    If one mantained their innocence at trial, they cannot be forced to admit guilt in a treatment program, especially if they are appealing the verdict.

    I would recommend that anyone subject to a polygraph read up on how it’s applied to prepare yourself. It’s a fraud and highly manipulated, and can be beat. Although a friend told me recently that they changed their procedure. He said the examiner asked him the same question three times in a row, before going on to the next qustion. Something new I suppose.

    My advice is to never admit to something you have not been convicted of, because the consequences could be more severe than any threat by a P.O. or treatment provider. But to do this one must steep themselves in the law, what protections and rights are still available.

    If you know what your rights are, and are willing to fight for them, then others are forced to respect you. Don’t trust your lawyer, your P.O. or the treatment provider. You’ll regret it.

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  8. T. Carman.

    I was charged with lewdness with a minor, in a case whereas no such advent ever took place. It was agreed by the prosecutor that if I could pass a polygraph test she would dismiss the charges, so my attorney arranged for a polygraph test with a reputable private agency, of which I passed with no problem. But then the prosecutor required that I be tested by her own polygraph agent, to which we also agreed since I had not committed any crime. The prosecutor’s polygraph test was done by a woman officer with the North Las Vegas Police Department, the same Department which had originally initiated the charge. Now since I had no reason to lie, I accepted their challenge with no reserve; however during the testing I noticed that the Officer was tapping the side of the polygraph machine with her pencil, to which I considered to be unusual, but was too naive to suspect any foul play. Later when I was told that I failed the test on all points, I knew I had been duped. But that was too late, and bought me 5 long years of hell in the Nevada State Prison, and now the torment of having to register as a sex offender for life in the State of Utah as well.

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  9. Stacy

    My husband is currently one sex offender probation…and is not even a registered sex offender, there has been a mistake made and no one will acknowledge it. He was convicted of burg II and indecent exposer for relieving himself in a park, which in my state of Oregon you have to be convicted of two counts of indecent exposer to be considered a sex offender. Now trying to change his life around, being on sex offender probation has pretty much made that impossible. Seeing the parole and probation system first hand but not actually being on probation myself makes me sick, these people are not helping anyone, they are ruining peoples lives!

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  10. janice chalk

    i am a mother of 3 daughters i can understand society reacting to a predator/offender. (only because they have been notified of offender in area)
    but, tell me what about the drug pushers,the inlistment into gangs? are we suppose to close schools and other public places where these dangers may occur, i guess we need to divert back to horse and wagon as well god forbid if one of our offsprings were to crimpled,or killed by the drunk driver or the elderly one whom may have a slow response. do we label everyone? i mean when did man become GOD. i agree this is the risk we all have to take to live a life. i wonder where these so called predators can attend church and be a member? if you read in the scriptures there was only one that god did forgive judas for taking his on life. NEVER , had anyone been ostracized for committing any sin. yes, i know this is religion and we are talking about laws and rights. which origenated from the bible in the begining but as time has progressed man has become judge i feel the people who have a problem with the freedom to live a healthy equal life ARE the problem LIFE is for everyone. him without SIN let he be the one to cast the first stone. NOT just one kind of sin (,but whatever man conceides to be sin) that seems to be the way man has made it. Well, i’m here to prove that i can be as christ was non-judging. just compasionate willing to help my fellow EQUAL or not to make it in this life and get back to our previous life we lived with christ.

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  11. Gideon Post author

    janice chalk replied to the notification e-mail instead of coming here to post, so I’ll post her comments below:

    well earth, i have a question for you. do we as individuals have rights too? i have a friend , who has been incarcerated for 5 1/2 months he is labeled sex offender there had been an issue at my home that involved the taking of items (which were mine) the police were called, stated it was a civil issue for us to return the items. we did. noone was arrested we thought that was the end of it. well 4 months later my friend is arrested no one else even though there were 3 others involved finally that was presented to state attorney hey dismissed the case he is still in jail, what the deal is they were prejudice in this action . because of all this my friend s’ business has dwindled down to nothing not the mention his reputation as business owner his credibility, respect, trust, and reputation if people only knew how how hard it is to obtain such things. tell me is there any action we can take to recover the final loss we have been effected by such prejudice? i’m sure this may be unprecedented in such manner, but could you give some advice on it. there is no one in this state that will assist with any actions thank-you for your time

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  12. Mark from Jersey

    Things are going to get interesting soon as the U.S.A.G. has released the Final Guidelines on how the States are mandated to impose SORNA:

    Anyone that has committed a sex-based offense with a “possible” prison term of over (1) year, even if no time was served, will have to register for life (Tier III) or (25) years (Tier II) even if they were not “convicted”, even if they have never had to register before… I.e. people with a “deferred adjudication” whose conviction was “sealed”, “expunged”, whatever… as long as there was a sentence imposed:

    (Directly from the Final Guidelines, p.82: “For example, SORNA’s requirements remain applicable if a jurisdiction has a procedure under which certain sex offense convictions (e.g., those of young adult sex offenders who satisfy certain criteria) are referred to as something other than “convictions,” or are nominally “vacated” or “set aside,” but the sex offender remains subject to penal consequences based on the conviction.

    In Connecticut, this includes people whom were granted “accelerated rehabilitation” for a sex-based offense. The registration window begins from the date of sentence (see the Final Guidelines, p.7), so the seventeen year old kid who made a mistake with a younger teen, that committed an offense (24) years ago, was adjudicated a youthful offender (I.e. sentence imposed but no conviction) will now face registration if he is arrested for ANY new charge, even a traffic offense.

    (Directly from the Final Guidelines, p.46: Example 3: A sex offender convicted in 1980 for an offense subject to lifetime registration under SORNA is released from imprisonment in 1990 but is not required to register at the time because the jurisdiction had not yet established a sex offender registration program. In 2010, following the jurisdiction’s implementation of SORNA, the sex offender reenters the system because of conviction for a robbery. The jurisdiction will need to require the sex offender to register based on his 1980 conviction for a sex offense when he is released from imprisonment for the robbery offense.

    SORNA does away with the risk-based Tier systems like the ones in place in New Jersey, which work. Interestingly, many offenders in New Jersey are tiered in the “low-risk” tier, and the N.J. Courts have found that re-tiering a person without a hearing violates due process rights.

    In its place, the conviction-based tiers will let the child predator with a good lawyer who got a great plea-deal off on low-risk Tier I, while many defendants who have took a chance at trial, but were not a big risk, look like monsters.

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  13. j.c.

    WHAT CAN WE DO ? This is a good place to air out your opinions, where can we go to change this, where do we start?

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  14. Jean Calip

    Just found your article – but better late than never to tell our story…
    My new husband was arrested 30 years ago for a sex offense. He was young and scared and admitted anything accused of (a lot now on the internet that is not true) so he didn’t have to drag the woman into court for more trauma. He committed the crime, he served his time, went through all you described for his parole.
    He married, had three beautiful children, became a Pastor and lived within a half mile from parks and schools all those years. He was a registered high school basketball referee. All that time with no sexual complaints of any kind. Living in LA deep in the heart of drugs, he succumbed when depressed – which got him arrested and he lost everything
    On release and again on parole (not probation) he found himself under Jessica’s Law which unbelievably is retroactive as described in the article. He started in community college and was doing wonderful looking forward to starting a new life as a counselor to help others.
    After we were married, the law went into affect and he had to register as a transient (LA has no where to legally live), had to wear a GPS – which is a nightmare, call his parole agent once a day, register at the Court House once a week (which took up to four to five hours every time) and jump whenever told to report to the parole office. All this lead him to lose his job. He had a minor non-victim violation of parole and is now back in prison.
    When released, the revolving door will begin all over again. What a waste of a life. Why aren’t drug dealers on the internet? Why don’t they have to live under Jessica’s Law? They harm dramatically more children, teens, and adults than any one-time sex offender ever has harmed.

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  15. Jean Calip

    PS: I found your article because of the latest article on “Hold your breath, Prison Desegregation to begin”. My husband landed in the first overcrowded CA state prison to be desegregated. For the last – almost three weeks, the blacks and Mexicans have been on lock down with no going out on the yard, no telephone to loved ones, no canteen, no visits. The newspapers are not covering the real story taking place at this moment. Which side of this desegregation ruling is asking for a boiling point of rebellion??

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  16. Mary

    Read my son’s story this is why the registry can no longer be used as a tool in this country to protect children as its too full of teen cases, children and cases where there is no victim. sking someone if they are a virgin is internet soliciting under many state laws now. http://www.rickyslife.com At 16 Ricky had consensual teen sex with a young lady who lied and now he is a aggravated lifetime offender. The real threats can hide among faces like his. some sites to check out http://www.soclear.org or http://www.rightsandlaw.net or http://www.cfciowa.org or http://www.sosen.us

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  17. Veronica

    My husband has been on probation for 3 years for a injury to a child which was reduced from indecency to a minor, holding a maximum sentence of 10 years and registering as a sex offender non expiring. There were witnesses to a allegation and all witness including the victim stated that it was not true, but the victim’s father pressed the charges and was put in prison after his daughter admitted to lying. The time passed and the state picked up the charges. My husband has been doing everything he is supposed to on probation but here in the last month, he was made to move out and could have no contact with our daughter which is daddy’s little girl. After 9 years of unsuccessful pregnancies and the one that did happen, now he is hurt in the worst way by being away from his angel. If anyone can help or has any advice to get thru this we are willing in any way, even retrying the case and paying what money we can if that is an option.

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    1. MW

      OMG… I’m so sorry to hear this. It angers me so much. Why can’t we seem to find anyone to respond in a helping way. I’m always trying to figure out where to look or go for help with seeing what could be done. I guess we could try our own counties legal board?? I’m going to see what i can come up with. I will let you know.

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  18. joe

    as the parent of a molested child i promise all that the abusers go though is nothing compared to the victims.two years later we are no better off wife and daughter are in and out of wellness centers. he plead guilty to first degree felony only got 6 months and 10 years probation. hes only been out a week and already violated 10 provisions and nothing has happend to him. i think about what happened everyday just dont see what you are complain about if these molesters never did this we wouldnt be suffering today either party. one thing i dont like is the 18-20 year olds on the sex offender list. the only people that should be on the list are the 30 year olds that molest 7 year olds.

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    1. MW

      I understand your frustration. I too was molested as a child by my grandfather and let me tell you he never paid the price for it. Well maybe? he ended up passing away not to long after it all came out. I guess what i’m upset about is teens being charged for such a crime. They are young and make stupid choices as we all do growing up. That’s how we learn. Not charging a KID/TEEN as an adult for sex, oral sex, or touching. Sorry to hear about your daughter. Yes it will last her a life time. SUCKS! Has taken a toll on myself and relationships but if she finds someone that is understanding and will listen she will be happy in the end,

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  19. Scott

    As I read through all this I have come to several conclusions One many if these laws where made not of protecting children but anger for what happen to a person child ie Jessica’s law Adam Walsh law while its unfortunate these things happen to these children I for one as a victim can tell you that contrary to what is put In to societies head bout the effects there’s Is no way to say how a person is gonna turn out I am ok I went through therements as a child not cause I was afraid of my father or the physical parts of what he did but cause of I didn’t understand why and to this day I still don’t know why my point is these the government has made this issue far worse then what I went I through I think it’s scaryer listening to what they say about then what I have been trough now because of my past and my poor choices of friends I have to register for life these laws do more harm then help why don’t they question victims ask them as adults how they feel now most will say yes I’m angry it happen yes I’m angry with that person yes i wish it never happen i dont understand why it happen and that is where its at not the act its self but over time we grow we learn to cope and get over it those who dont are those are those with out a strong family support and thats the ones we need to reach out too and ask are selfs why are they falling through the cracks maybe then we will be more successful in change and less sex offenses society does more damage to a person morel and personality am I’m blameimg society yes I am look at the TV movies the minipulation in laws by those who make and enforce them what kinda of society do you expect from that behavior I think we need to stop throwing stones and look at ourselfs for the sinners we are who as human being ever said one crime is worse than another is wrong God the creater of us all never distinguished in sins and he forgives all sin so as we try and play God is gonna be the downfall of humanity

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  20. Jessica

    If a person falsely admits to an extra sex offense during the polygraph test, can they be brought to trial for this extra sex offense? This is outrageous. Everybody knows that polygraph tests are a joke, and they’d consider it unconstitutional to force a murderer to do a polygraph. Of course, I guess the courts have ruled polygraph tests are regulatory and not punitive, just like sex offender registries supposedly are.

    Reply

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