obscene

Finally, my favorite subject: pornography. Everyone has to have heard of Justice Potter Stewart’s words which form the title of this post, written in a concurrence in Jacobellis v. Ohio, on the issue of “obscene” videos. And almost no one knows what it means. After a flurry of decisions in the 1960s and 70s (Stanley v. GA, Smith v. CA, Miller v. CA, Jenkins v. GA) attempting to define exactly what is obscene and what is protected and just who can be prosecuted with and ending up with a mess of a Constitutional doctrine, the Supreme Court – and the general American public – seem to have given up on pornography altogether. No one really cares anymore and there’s hardly ever a prosecution for the production, sale and possession of adult pornography.

Unless you’re a sex offender on probation, of course. Enter Robert Stephens. Stephens was convicted of possession of child pornography and as part of his sentence, was placed on probation. Some of his conditions were as follows:

One of the seven special conditions was that the defendant’s access to any computer must be approved by the office of adult probation. Among the special  sex offender conditions were that the defendant (1) not possess, or subscribe to, any sexually stimulating material deemed inappropriate by a probation  officer, (2) not possess a camera, DVD player, camcorder, videocassette recorder or other similar equipment without the approval of a probation officer, and  (3) submit to an examination and search of his computer or other similar equipment to verify that it was not being utilized in violation of his probation or  treatment.

Note that the condition isn’t “obscene” material, but rather “sexually stimulating material deemed inappropriate by a probation officer”. More on that later.

As is the natural course of events for sex offenders, he was found in violation of his probation for having a few nude photographs of his ex girlfriend and duly sentenced to 42 months in prison. He appealed, claiming that the condition:

was unconstitutionally overbroad and vague on its face and unconstitutionally vague as applied to him, and that the evidence was insufficient to support the  trial court’s finding that he had violated the condition.

The Court summarily dismisses his overbreadth argument, citing a long line of SCOTUS decisions (see Virginia v. Hicks) holding that such an analysis is appropriate only if First Amendment rights are implicated. And there’s the puzzling thing. In its decision, the Court takes great pains to point out – over and over again – that Stephens is not making a First Amendment challenge to the special condition of probation barring his possession of adult pornography. The only challenges made are under the Constitutional right to privacy, which are just as easily dispensed with:

For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. . . . [T]o prevail on his claim, the defendant must demonstrate beyond a  reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement.

The Court finds – as it should – that possessing nude photographs constitutes possessing sexually explicit material, but there is an important – and useful – holding when it comes to the second prong. Although the Court holds that the materials possessed by Stephens fall squarely within core meaning of the special condition, and thus there was no violation of his right to privacy, the condition itself may not pass constitutional muster in a different case:

[When] a statute provides insufficient general guidance, an as-applied vagueness challenge may nonetheless fail if the statute’s meaning has a clear core. . . . In that case the inquiry will involve determining whether the conduct at issue falls so squarely in the core of what is prohibited by the law that there is no  substantial concern about arbitrary enforcement because no reasonable enforcing officer could doubt the law’s application in the circumstances.’’ (Citations  omitted; internal quotation marks omitted.) Farrell v. Burke, 449 F.3d 470, 493–94 (2d Cir. 2006). Under the foregoing standard, we cannot conclude that the  special condition prohibiting the defendant from possessing ‘‘sexually stimulating material deemed inappropriate by a [p]robation [o]fficer’’ provided  sufficient, general guidance for law enforcement purposes.

Given the jurisprudence in this area and the Court’s proper application of it, it really bothers me that a First Amendment challenge was no raised, especially given the holding of Stanley v. Georgia:

He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

…

We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.

Without this First Amendment challenge, it is Connecticut law that conditions of probation that prohibit the mere possession of adult pornography by an adult are valid. And the materials don’t even have to be obscene.

Putting aside the Constitutional aspects of this case, it is worth pondering whether such conditions really have any value or are counter-productive? Would we rather have an adult male relieving his sexual tension while viewing adult pornography, or would we rather that this tension bottle up and percolate and perhaps dangerously spill over into action that may endanger those around him?

Are we at the point where we’re approving any and all restrictions on these modern-day witches without rational thought and forethought? There are legitimate reasons – whether you’re on probation or not – to prohibit the creation, possession and dissemination of child pornography. I can see that. The possession of adult pornography, in the words of Justice Stewart, is not that.

Whew. Made it through a porn post without a single mention of 2 Girls 1 Cu-dammit. Don’t Google that. It’s for your own good.

This week, the Washington Post published a lengthy, powerful article on the aftermath of such a (false) allegation against an elementary school teacher in Fairfax, VA.

This most recent iteration, which can be viewed on a screen near you, is also known by its working title of State v. Mark R., in which the court goes to great lengths to explain why it is perfectly legal for a psychiatric counselor to not only disclose suspected child abuse to authorities – as a mandated reporter – but also to testify as to the private communications between the counselor and patient.

The relevant facts are thusly: Man allegedly fondles step-daughter. Step-daughter and mother confront man with assistance of priest in priest’s office. Man reluctantly admits said fondling, apologizes. Priest then informs mother that either she or he will have to report said abuse to law enforcement within 24 hours, as he is also a mandated reporter (gotcha!).

Two weeks later, suffering emotional stress from the step-daughter’s accusations and impending criminal prosecution, the man goes to seek counseling at a clinic. During a confidential intake interview, man again (yes, I know) admits said fondling. Counselor has to report said suspected child abuse.

Both priest and counselor testify at man’s trial about his confessions. Man is convicted and spends many years in jail; appeal follows.

In Connecticut, the privilege statute is 52-146s, which states:

(b) Except as provided in subsection (c) of this section, a professional counselor shall not disclose any such communications unless the person or the authorized representative of such person consents to waive the privilege and allow such disclosure. The person or the authorized representative of such person may withdraw any consent given under the provisions of this section at any time in writing addressed to the individual with whom or the office in which the original consent was filed. The withdrawal of consent shall not affect communications disclosed prior to notice of the withdrawal.

(c) Consent of the person shall not be required for the disclosure of such person’s communications:

(6) If child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected;

So it is pretty clear that the counselor is permitted to violate the privilege in order to report the suspected child abuse. The question then becomes, does the privilege continue to not exist once the disclosure has been made? The court says yes:

Once a client makes such an admission to a counselor, there is no indication, in either the text of the statute or its legislative history, that the counselor must obtain his consent  for any subsequent disclosures.

The defendant in the present case contends that Orr controls the result here. He argues that, as with the social worker statute, the professional counselor statute only  contemplates an initial disclosure of a client’s admissions of child abuse, and only to the extent required by law and necessary to secure the safety of the child, and therefore  the statute does not permit a counselor subsequently to testify against her client at trial. We disagree.

The court then goes into a somewhat limited analysis of why they disagree, mostly revolving around the fact that some other statutes mention that reporters shall be immune from criminal prosecution and that their names shall be disclosed to all necessary parties in said prosecution. Thus, it concludes:

Taken together, these provisions demonstrate a clear legislative intent that any mandatory report of child sexual abuse be channeled simultaneously into: (1) a child protection  investigation, spearheaded by the department, to prevent future abuse; and (2) a criminal investigation, spearheaded by local law enforcement, to address past abuse. Unlike  the imminent risk exception in § 52-146q (c) (2), the child abuse exception contained in § 52-146s (c) (6) is in part remedial. Accordingly, we discern no basis for reading into §  52-146s an implied distinction between disclosure of confidential communications for purposes of child protection and criminal prosecution.

The court also dismisses the argument that this decision will have a chilling effect on people seeking therapeutic treatment because any disclosure results in a criminal investigation, so the prospect of having his statement admitted through his counselor isn’t much of a deterrent. I suppose it’s been a long time since any of the justices practiced in a criminal court – if at all – but I’d like to take this opportunity to remind them that the number one factor leading to convictions is a confession.

In addition, I think there’s a significant distinction between this case and any other hypothetical case involving the disclosure to a psychiatric counselor: the fact that the suspected child abuse had already been disclosed a few weeks prior, by the priest.

The reason he went to the clinic and spoke to the counselor in the first place was the stress he experienced following the accusations made against him by the step-daughter. I understand that we need to protect children and that is the main goal, but a subsidiary one has to be the rehabilitation of people who commit these crimes and the first step in that process starts with therapy.

Imagine the therapy session that starts: “I must warn you that I can’t help you unless you talk freely and honestly about what you did and why, but if you do that, I will have to report you and testify against you in court”.

Yeah, no chilling effect, for sure.

And almost everyone knows that there’s a second “secret” registry. A registry of a much smaller number of individuals, who are permitted to have their names removed from the aforementioned “public” registry (I put public in quotes because all conviction information, whether on the regular list or on the secret list, is still public and you can walk to your local courthouse or police department and get that information) for a variety of reasons – primarily to protect the identity of the victim. There are about 40 people on this “secret” registry. There are thousands on the “public” one.

In an important decision today, the CT Supreme Court reaffirmed that the “secret” registry must remain secret. In Dep’t of Public Safety v. FOI Commission (concurrence), a unanimous court held that “duh! do not disseminate means do not disseminate!” Of course, this all started not because Nosy Neighbor sought this information, but because a reporter did*.

A reporter for the Manchester Journal Inquirer wrote to the department of public safety and asked not for the name and address of the defendant, but basically everything else: the court of conviction, the name of the judge, the name of the prosecutor and the defense attorney. The department refused, the FOI commission ordered the department to turn it over and a trial court supported the commission’s ruling. Until the Supreme Court ruled. The question, boringly enough, turns on the meaning of the phrase “registration information”. Does that mean only the name and address of the registrant, as the newspaper argued, or everything that the department of public safety is required to catalog and maintain, as they argued?

There is no language in Megan’s Law that restricts the meaning of ‘‘registration information’’ to only some of the information in the registry.

The opinion makes the compelling point that for the “public” registry, all “registration information” is available to the public. One cannot then turn around and say that the same word, when applied to the “secret” registry means something different:

General Statutes § 54-258 (a) (1) provides in relevant part that ‘‘the registry maintained by the Department of Public Safety shall be a public record and shall be accessible to the public during normal business hours. . . .’’ There is no limiting language suggesting that only some of the information in the  registry shall be accessible to the public. Correspondingly, General Statutes § 54-258 (a) (4) provides that, ‘‘[n]otwithstanding the provisions of subdivisions  (1) and (2) of this subsection, registration information the dissemination of which has been restricted by court order pursuant to section 54- 255 and which  is not otherwise subject to disclosure, shall not be a public record . . . .’’

Because the boldface title of § 54-258 refers to the ‘‘[a]vailability of registration information,’’ we must assume that all of its subsections and subdivisions refer to the same information. Thus, we must conclude that, just as the statute provides that all of the information in the registry is accessible to the public with respect to the overwhelming majority of offenders, none of the information in the registry is accessible to the public in the very few cases in which the court determines that the information should be restricted pursuant to § 54-258  (a) (4).

Judiciary Committee co-chair Mike Lawlor, whose remark (no, that’s not a typo) during the debate on the bill is heavily relied upon by the newspaper in support of its argument, is quoted in this Courant report:

State Rep. Michal Lawlor, co-chairman of the judiciary committee and one of the architects of the online registry, said the restricted list is intended to protect victims from further trauma.

He recalled a case in which a child, under the age of 6, was molested by her father. The man went to prison; the child grew up. When the man got out, he rejoined the family and was receiving counseling. In 1998, when the Internet sex-offender registry was created, the man’s name was posted. The daughter was in high school. She was shunned from events for fear that the father would show up. His name was eventually removed from the public list.

Lawlor noted that conviction information remains available through other channels, “but our concern was to keep it off the Internet registry, where it is obviously more visible.”

(*By the way, given the amount of grief I give newspaper reports and their coverage of legal issues, it is only fair to point out that this Courant piece by Josh Kovner is concise, precise and accurate. Well done, Josh!)

It seems that the Court got the legislature’s intent right. And so the “secret” registry lives on, protecting the identities of 40 victims and allowing them and their families a fair chance at reintegrating into society and living productive lives. Now if we could only do something about those thousands others whose names and pictures are readily available at the click of a button.

But, as I wrote back in December, the State hasn’t taken any positive steps either. There’s still nowhere for sex offenders who need treatment to get it. And if the residents of Montville, CT have their way, there won’t be anywhere for a while.

Montville, already home to two correctional facilities, was identified by the State as the prime location for a sex offender residential treatment facility, with an allocation of 24 beds. Frankly, 24 beds is nothing. Me and the 5 other attorneys in my office could come up with a list of 24 people before you finish reading this sentence, never mind the 100 other attorneys in the public defender system and their clients from just this year alone. But it’s a start and we have to start somewhere.

Yet, just like there are peas in a pod and two of a kind and how Garfunkel needed Simon, “sex offender treatment facility” seems incomplete without “not in my town”. And that’s exactly what the residents of Montville are arguing. Today, the town committee voted to seek an injunction to block the building of said treatment facility.

The state Department of Correction plans to create a 24-bed facility at the Corrigan-Radgowski Correctional Center for sex offenders about to be released from prison and those who have already been released. Creation of a residential sex offender program was part of a 2008 criminal justice reform law passed after the 2007 Cheshire home invasion.

Oh wait, this facility was to be created at the two jails that already exist in your little town? Perhaps they don’t realize these are the very jails that these sex offenders come from. It’s like moving them from one wing of the jail to another. But then again, it’s called hysteria for a reason…

In all the objections to constructing treatment facilities or the arguments in support of residency restrictions, I haven’t heard a single legitimate reason for excluding these from a particular locality or any justification that acknowledges the realities of banishing an entire group of people. Folks, “not in my town” isn’t a reason, it’s a position. You should explain, logically, why.

And as if that wasn’t enough, the town committee also voted to set a public hearing to consider an ordinance that would create a “sex offender free zone”. Montville isn’t the only town considering such an ordinance in CT. Greenwich, that bastion of purity and wholesome values and more BMWs than all the dealerships in the state combined, is also considering such an ordinance to ban its five (count ‘em – 5) sex offenders from places that are “frequented” by children.

Yet it is town officials in Greenwich who have been debating since February whether to approve an ordinance that would prohibit sex offenders from being near schools, parks, playgrounds and other places children congregate. The ordinance would not limit where sex offenders can live, as similar laws in other states do, but it would impose a $100 fine on a registered offender caught in the wrong place for a second time.

After unanimous approval by the Board of Selectmen, the measure moved on to the Representative Town Meeting, the city’s 230-member legislative body, where it failed twice, most recently on Sept. 21.

The quote speaks for itself. What needs addressing, however, is the mindless repetition of what should properly be considered pure fabrication by the Republican members of the state legislature:

“Look, there is obviously an extremely delicate balance between protecting the public and the constitutional rights and freedoms of individuals, whether they are convicted sexual predators or not,” [State Senator McKinney] said. “The difficulty comes with the fact that this type of crime has an extraordinarily high recidivism rate, which justifies us in government taking greater steps toward protecting the public than we would with other crimes.”

As is noted in the article linked to above, and as I’ve cried myself hoarse on this blog, that’s just not true. McKinney knows that too, because he’s been on the Judiciary Committee when these residency restrictions have been proposed and he’s been given the studies that show it’s not true. But of course, acknowledging the truth doesn’t further the fearmongering agenda and so here we are. Again.

Coincidentally, and that’s how these things usually go, today’s episode of the local NPR program “Where We Live” was devoted to sex offenders in Connecticut and these “loitering ordinances”.

Here’s my question, that I wish these proponents of the Scarlet Laws would answer: do you believe that we can completely eradicate sex crimes against children? If your answer is yes, then you’re either a liar or you don’t understand anything about how crimes are committed and why. If you answer no, then I have a follow up question: What is the most effective use of resources? Police loitering around parks and schools and enforcing these possibly unconstitutional ordinances or creating facilities for offenders to reintegrate into society, in a productive manner, so as to prevent future occurrences?

The answer is clear. The only question that remains is whether you want to be honest with yourselves or lie to everyone in order to win a vote.

a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child

is guilty of “Risk of Injury to a Minor”. A conviction under subsection (1) is a Class C felony carrying a maximum prison term of 10 years and a conviction under subsection (2) is a Class B felony, carrying a maximum prison term of 20 years.

The motivation behind the enacting of this statute is noble:

The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.

State v. Payne, 240 Conn. 766. Yet the statute is so poorly worded and generally vague, that it has required years upon years of judicial interpretation and gloss to enable it to pass Constitutional muster:

We then proceeded to review the general features of § 53-21, noting that, “on its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of [Schriver was] permitted or prohibited. ‘Any act’ may violate the statute so long as it is ‘likely to impair’ a minor’s health or morals. Standing alone, the phrase ‘any act’ provides no guidance to potential violators, police officers or juries, particularly because specific intent is not an element of the offense as charged in this case. . . . Nor is the focus of the statute measurably narrowed by the phrase ‘likely to impair.’ In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.” (Citations omitted.) Id., 461-62. After observing that other jurisdictions had deemed similar statutes unconstitutional, we concluded that, “in like fashion, § 53-21 fails to manifest minimal guidelines by which innocent acts can be objectively and foreseeably distinguished from conduct that violates the statute. . . . [Consequently], the constitutionality of § 53-21 depends upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” (Citation omitted.) Id., 462.

Although the risk of injury statute was amended in 1995 to forbid expressly the sexual and indecent touching of intimate parts, the more general statutory language that proscribes an “act likely to impair the health or morals of . . . [a] child,” in subdivision (1) of § 53-21, has remained unchanged since this court’s decision in Schriver. Compare General Statutes § 53-21 (a) (1) with General Statutes (Rev. to 1987) § 53-21. The passage of time alone has not cured the facial vagueness of § 53-21 (1), nor has it altered the need to adhere to constitutional principles of due process of law in the application and enforcement of that statute. Cf. State v. Schriver, supra, 207 Conn. 459-61. Thus, the constitutionality of § 53-21 (1), as that statute is applied in any given case, continues to depend predominantly “upon a determination of the extent to which prior decisions of this court have supplied sufficient guidelines to save the statute from its facial invalidity.” Id., 462. In order to render § 53-21 (1) constitutionally viable, the decisions of this court must state with reasonable particularity the conduct that is proscribed by that statute.

State v. Robert H. The extent to which the Connecticut Supreme Court has gone to save an admittedly infirm statute is staggering. A statute that, upon fair reading, gives notice that a very limited set of actions are proscribed, has been judicially expanded to cover every perceived slight against a minor that a prosecutor with an infertile imagination can be counted upon to summon.

But that’s not my particular peeve with this statute and its judicially emboldened meaning. My grudge lies with the (lack of) meaning of the all-too-important phrase “likely to impair”.

For something that forms the crux of the criminality of actions in this statute, there is precious little guidance on the legal meaning of that phrase and the evidence that is required to sustain proof beyond a reasonable doubt on that element. The only explanation of “likely to impair” is as follows:

The term “likely” and the phrase “likely to impair” are defined neither in § 53-21 (a), nor in any related provision of our General Statutes. In the absence of statutory guidance as to the meaning of a particular term, it is appropriate to look to its dictionary definition in order to discern its meaning in a given context. Lombardo’s Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 232, 842 A.2d 1089 (2004). Our review of such sources reveals that, depending on the context, the term “likely” most commonly is understood as an adjective that denotes when particular subject matter will probably come to be or when its chances of realization are more probable than not. Oxford English Dictionary (2d Ed. 1989) (defining “likely” as something “that looks as if it [will] happen, be realized, or prove to be what is alleged or suggested”); The American Heritage Dictionary of the English Language (3d Ed. 1992) (defining “likely” as “possessing or displaying the qualities or characteristics that make something probable”).

In contrast, dictionary sources indicate that the term “possible,” again, depending on the context, primarily has a lower degree of probability or certitude of realization. Oxford English Dictionary, supra (defining “possible” as “that may be [i.e. is capable of being]; that may or can exist, be done, or happen”); The American Heritage Dictionary of the English Language, supra (defining “possible” as something that is “capable of happening, existing or being true” [emphasis added]). The common understanding of the term “likely” therefore ordinarily conveys a degree of certitude as to realization that is in conformity with a definition of “probable,” but that counsels against an understanding of its meaning as merely “possible.” Indeed, at oral argument before this court, the state conceded that it would be “hard-pressed” to contend that the term “likely” reasonably may be understood as meaning “possible.” Accordingly, with no persuasive argument to the contrary, the trial court’s jury instructions that the term “likely” was to be understood as meaning “in all probability or possibility” and “possible or probable,” were improper.

State v. Romero. Got that? Likely to impair means “more probable than not” and (heh) more likely than possible. And yet there is precious little on exactly how the State is to go about the business of proving that an act or situation is likely or more probable than not to impair the morals of a child. There, of course, is no requirement that the morals be actually impaired, merely the probability that they might be. This results in nothing more than that which the Supreme Court said it was avoiding in Robert H. above:

In its ordinary meaning, this phrase would seem to authorize police officers and jurors to determine culpability subjectively, on an ad hoc basis. Rather than providing objective certainty, this phrase compounds the vagueness of the statute because it invites jurors to base criminal liability on their own moral [predilections] and personal predictions of likely harm.

Take the court’s reasoning for its rejection of the defendant’s claims in Romero (and repeated verbatim in subsequent opinions):

Once the jury determined that the anal intercourse and mutual sexual touching took place, as described by D, it is difficult to imagine a finding that this conduct could not be deemed likely–in the context of probably–to impair D’s morals. Put another way, the defendant has made no claim, and we can conceive of no justification for one, that the defendant’s conduct in relation to his abuse of D, conduct which the jury found to have occurred, is not conduct that is “likely to impair” the health or morals of a child.

Leaving aside the obvious examples quoted involving “acts” as opposed to “situations” (for no one should reasonably argue that it should be legal to force a minor into sexual intercourse), consider the slightly more nuanced scenario where a defendant is charged with showing pornography to a 2 year old child, and thus is said to have violated the Risk of Injury statute. How can one, beyond a reasonable doubt, prove that such an act is likely to impair the morals of a minor? Isn’t this essentially taking for granted that any act involving sexual conduct or placing a child in any situation which has a hint of sexual innuendo is always likely to impair the morals?

What is the functional difference between my example of the 2-year old being exposed to pornography and an 8-year old who walks into his parents’ bedroom while they are engaged in intercourse? To those of you who’ve had the misfortune of experiencing the latter, would you say your morals were impaired?

My point isn’t that we should show pornography to 2-year olds, but rather that the State should be put to its burden of proving beyond a reasonable doubt that such acts or situations are likely to impair the morals, rather than simply taking it for granted.

Sex offenders and sex offenses aren’t popular people and crimes and we’re all a bit squeamish about the topics and the ideas. But this is the top of the very, very, slippery slope. If we can’t confront the inadequacies in the state of the law in this area, then how soon is it before the burden starts slipping in other areas of the law?

Or perhaps it is time to revisit the actual statute itself and rewrite it such that it doesn’t require 20-odd years of judicial gloss to make it Constitutionally acceptable.

And doesn’t this all oddly reek of the same logical fallacies underlying the obscenity laws? You’ll know when your morals are impaired, because my morals are the same as yours.

[For a fascinating read on obscenity trials, be sure to look at this article on the trial of Lady Chatterly's Lover.]

You can’t. It’s impossible. 44 years have passed since 1966 and 38 since 1972. Yet, for “G.R.H.” of Louisiana it is this lack of photographic memory and the inability to have the foresight to note and document his whereabouts on all those days in those 6 years decades ago that has landed him in jail for the rest of his life.

In 2006, GRH [opinion here] was accused of sexually assaulting a minor, as you may have guessed, between 1966 and 1972. The complainant, 44 at the time of the accusations, had an alleged clear memory of the assaults perpetrated by the defendant, some 40 years ago.

There was no corroboration, no contemporaneous disclosure, no other instances of sexual abuse by this defendant, nothing. Just the say-so of a 44 year old woman, almost an entire lifetime after it allegedly occurred.¹

Imagine, as Justice Douglas did, dissenting in United States v. Marion, that the 44 year delay occurred after GRH was arrested and not before. Certainly, none would argue that his right to a speedy trial was not violated. And the concerns with such a delay are certainly mitigated after the institution of a criminal prosecution: you know there is an action pending, so you hire an investigator, document your memories, speak to witnesses and firm up their recollections. When someone is not prosecuted and doesn’t sense one coming (having done nothing wrong), there is no reason why anyone would keep track of whatever alibis they might have had or whatever witnesses may have had to offer.

Justice Douglas, quoting Baron Alderson in 1844:

Baron Alderson said in Regina v. Robins, 1 Cox’s C. C. 114 (Somerset Winter Assizes 1844), where there was a two-year delay in making a charge of bestiality:

“It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the 329*329 charge be not preferred for a year or more, how can he clear himself? No man’s life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial.”

What would he have thought of a 44 year delay, I wonder.

Yet, the Louisiana Court of Appeals (not even their Supreme Court, mind you, who declined to review the case) squarely placed the burden on the defendant to prove that he suffered actual prejudice; that the 44 year delay did, in fact, somehow prejudice him. The treatment of this important issue by the Louisiana Court of Appeals is very telling: the actual discussion of the issue is limited to two pages at best and is as summarily dispensed with as one can without being called trite.

We find that P.B. did not have problems recalling the inappropriate acts committed by Defendant. However, she did not recall the dates on which these acts occurred. We further find that Defendant cannot prove he was prejudiced by the delay in this case.

This, in polite circles, is called getting f*cked over. The defendant cannot prove the very thing that would help him, because of the very thing that made him unable to prove it. Also known as legal fiction or “how to convict a sex offender in 2 easy steps”.

And some, like me, would argue that the there really needn’t even be a showing that the defendant was prejudiced. Rather, the burden should shift squarely to the State. If they wish to prosecute someone after as gargantuan a delay as in this case, let them prove good reason for waiting so long. Let them prove the reliability of the witnesses and the testimony. Let them prove that this is not some recently concocted scheme by an upset individual.

How easily does the court dispense with that argument? I’ll show you:

Defendant also asks this court to assume prejudice because of the forty-year delay. This has never been the law. and we decline to adopt such a rule. See  U.S. v. Beszborn, 21 F.3d 62 (5th Cir. 1994), cert. denied sub nom. Westmoreland v. U.S., 513 U.S. 934, 115 S.Ct. 330 (1994). Defendant further asks this court  to issue a bright-line rule that prohibits prosecutions for “offenses such as these” without both corroboration and contemporaneous report to the  authorities. We also decline to adopt such a bright-line rule based on the provisions of La.Code Crim.P. arts. 571 and 571.1.

No explanation, no rationale, nothing. A man, charged after a 44 year delay, about to spend the rest of his life in jail, deserves more than that. Our justice system deserves more than a dismissive, impatient wave of the hand.

I’m obviously not passing judgment on whether she was telling the truth or not. She may well be and he may well have done it. That’s not the point. The point is due process. And could this have happened to anyone but a “sex offender”?

That, really, is the rub here. He’s a sex offender. She must be believed and we, the courts, must do everything in our power to ensure that this man doesn’t get set free. Law and justice be damned. The witches shall burn and we shall light the fires.

GRH has filed a petition for writ of certiorari with the Supreme Court. The state did not deign to file a response.

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1. The court had to jump through other hoops to even get to this point. It reasoned that even though at the time of offenses, the death penalty was no longer applicable, it remained a capital offense and thus there is no applicable statute of limitations for rape. The court then also uses recently enacted statutes to justify its decision to not apply the due process clause. Judicial bullshit activism at its best.

What Comstock is, what it isn’t and what it might very well be.

First, what Comstock isn’t. Despite the ominous newspaper headlines, it is my opinion – however uninformed – that Comstock does not directly stand for the proposition that it is Constitutionally permissible to indefinitely commit sex offenders beyond the expiration of their criminal sentences.

Justice Breyer’s decision explicitly reserves that question for another day:

“We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved.”

As one commentator notes, there may very well be viable challenges to the Federal statute in the yet-to-come Comstock II or other cases.

What Comstock is: a decision that holds (however unpersuasively and problematically) that civil commitment by the Federal government is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws. What that “enumerated power” is, is never mentioned by the majority opinion (the best analogy I’ve seen of this legal trickery is in this post).

Justice Thomas explains this succinctly (yes, I know. Shut up.):

The Government identifies no specific enumerated power or powers as a constitutional predicate for § 4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpreted most expansively, [citation omitted] can justify federal civil detention of sex offenders.  Under the Court’s precedents, Congress may not regulate noneconomic activity (such as sexual violence) based solely on the effect such activity may have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).

What Comstock may very well be: the start of a line of cases that holds, one at a time, that it is perfectly okay for states and the federal government to indefinitely confine sex offenders, well beyond the expiration of their terms of incarceration.

Mixing sex offenders and public safety is a sure recipe for the evisceration of the rights guaranteed and protected by the Constitution. A court following in the footsteps of Comstock could easily hold that, as per the decisions in Alaska and Dept’ of Public Safety, civil commitment is a regulatory function undertaken for the safety of the general public, is not a punitive measure and justify it using the following language from Comstock:

2. This type of legislation is a long-standing Congressional practice: “the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades.”
3. The statute is merely an extension to persons already in federal custody  (“If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others).

Of course, both of the above arguments are a smoke-screen for the real purpose: sex offenders are bad and must be put away forever, even in the face of evidence suggesting that they are the lowest to reoffend. The above argument also ignores the basic distinction between civil commitment of sex offenders and those who are “quarantined” for health reasons: that the “disease” of being a sex offender is the very reason the individual is incarcerated in the first place, thus, in a sense, making civil commitment a second punishment.

But we are talking about sex offenders, so it’s open season. For a preview, see this brief analysis of the potential interplay between Comstock and Kansas v. Hendricks.

Finally, it must be noted that there is certainly something odd about the timing of the two criminal justice decisions issued today: Comstock and Graham v. Florida.

Reading them both on the same day certainly leaves one with the sense that there is no direction on the court on criminal justice issues.

[For links to far more detailed coverage of Comstock, see this post at SexCrimes.]

Aside from deportation, which the Court described as “long recognized [as] a particularly severe penalty”, there is one other “collateral” consequence that defense lawyers are in a constant battle against. And that is sex offender registration. So it was only a matter of time before some court in the country considered the severity of the consequence of sex offender registration in light of the principles of Padilla.

Thanks to Doc Berman, I came across this very recent New York Supreme Court Court of Appeals decision in NY v. Gravino, which addressed the question of whether sex offender registration is a collateral consequence. A divided court says yes.

While Padilla dealt explicitly with attorney performance, Gravino addressed the issue of whether a plea was knowing, intelligent and voluntary if the trial court did not inform the defendant of the registration requirement.

Despite acknowledging that sex offender registration (especially in New York) is a “severe penalty”, the majority recites the usual “it’s not a penal statute, but merely regulatory” bullshit in order to neatly classify registration as a collateral consequence as opposed to a direct consequence.

But here’s where Padilla comes in. As I mentioned before, Justice Stevens gave us a delicious quote to use and rely on:

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

The arguments in favor of requiring that defendants be aware of the deportation consequences apply just as forcefully to the sex offender registration context. From the dissent in Gravino:

Significantly, in determining whether the direct/collateral consequence dichotomy was useful to determine whether deportation advice was  required, the Court stated, “[a]lthough removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal  process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our  immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it most difficult to divorce the [civil] penalty from the conviction in the deportation context”.

While it is true that Padilla dealt with the duty of counsel, rather than the duty of the courts, to inform a criminal defendant about deportation, the  rationale employed by the Court in rejecting the direct/collateral consequence dichotomy applies with equal force in determining the voluntariness of a guilty plea where the court has failed to advise the defendant of SORA registration, which is also a civil penalty “difficult to  divorce . . . from [a] conviction”.

It is difficult for me to understand how the court can, on one hand, admit that “SORA registration and risk-level determinations are non-penal consequences that result from the fact of conviction for certain crimes” and on the other easily “divorce the consequence from the conviction”.

While we may not be there yet, the day is not far off when some court will force SCOTUS to revisit their terrible rulings in Smith v. Doe and Dep’t of Public Safety v. Doe, in light of Padilla and the lifting of the veil on direct and collateral consequences.

Gravino was not permitted to withdraw her plea, despite never really being told that she’d have to register for 20 years and she would be in violation of a criminal statute if she failed to do so. Collaterally, two days ago, the Connecticut Supreme Court decided a case in which the defendant was explicitly told on the record that he did not have to register as a sex offender.

In Connecticut, unlike New York, the trial court is required, pursuant to 54-251(a), to inform the defendant that he will be required to register as a sex offender at the time of the plea:

Prior to accepting a plea of guilty or nolo contendere from a person with respect to a criminal offense against a victim who is a minor or a nonviolent sexual offense, the court shall (1) inform the person that the entry of a finding of guilty after acceptance of the plea will subject the person to the registration requirements of this section, and (2) determine that the person fully understands the consequences of the plea.

The defendant in that case, however, didn’t seek to withdraw his plea. Instead, all he wanted was to be free of the requirement to register. I think the court more likely than not would have let him withdraw his plea if he so pleased.

Connecticut, of course, also treats sex offender registration as regulatory rather than a punitive measure (State v. Waterman). But eventually, some court will have to accept the fact that these registration requirements place an undeniably heavy burden on offenders – burdens that are created by society in general – and deal with them in an intellectually honest manner.

Right?

Tonya Craft, a former kindergarten teacher, charged with 22 counts of various sexual offenses involving 3 minor girls, was acquitted today. You may or may not have heard of her. I wrote a post recently about the trial and some of the outrageous antics engaged in by the prosecutors.

She was represented by Demosthenes Lorandos, who apparently has made a habit of successfully defending child sex cases across the country, and who hilariously said at the post-verdict press conference: “I do not lose”.

The media has been all over this trial, bringing it much needed attention. At first, the attention focused on the misbehavior of the prosecutors [see this for some very questionable comments during closing] and later the complete lack of qualification and training of the so-called “child sex experts”.

Twitter was set ablaze today as the jury was deliberating and the tweets of joy were abundant when the verdict was announced. Parties have been planned, interviews being given on the news and Ms. Craft will now fight to regain custody of her children.

All’s well that ends well. But this is not a happy post, nor is it a merely celebratory one. While Ms. Craft has the opportunity to return to her life, there are lessons for all of us. A fellow defense lawyer asked on Twitter: “Who is #tonyacraft and why [is she] any different from all of our other human tragedies?”

She is not. There are hundreds of Tonya Crafts out there in the criminal justice system, every single day, pleading to charges to avoid lengthy sentences or attempting to fight the false allegations and losing.

Any criminal defense lawyer (like yours truly) saw a stream of familiarity in the continuing coverage by news reporters of the direct and cross-examinations of the witnesses. The dissection of the forensic interviews by the defense experts was a veritable checklist of the problems associated with such after-the-fact divining: repeated questions, leading questions, suggestive questions. Pressuring children to answer a certain way; the worst form of confirmation bias. The prosecutors attempting to cast the defendant in general terms as a bad person, a person of loose moral character, thus equating foibles in their character with child molestation.

This. Happens. Every. Day.

Child sex assault allegations are the scariest of them all. The power to believe a child is overwhelming and the fear of disbelieving a child is even greater.

Will the media be there tomorrow when yet another Tonya Craft is hung out to dry by our criminal justice system and our courts that are so quick to label anyone merely accused of such a crime as a heinous monster? Will the public rise up in support every time there is a trial with questionable evidence and even shadier tactics employed by prosecutors and experts?

Or did Tonya Craft get attention because she’s white and she’s a woman?

There’s a well documented disparity between male and female sex offenders and the treatment they receive in our courts. Women are more likely to receive probation and less jail time than men. Women are more likely to have websites created which count down the “hottest” sex offenders.

Men are vilified and universally regarded as creepy and generally guilty.

Imagine if it weren’t Tonya Craft on trial, but Tony Craft. Would there be the same hubbub? Would anyone even bat an eyelid? Would the media’s treatment of the trial have been the same or diametrically opposed?

I don’t mean to demean the victory here, but this is a great opportunity for those who aren’t “in the know” in the system to realize several things:

1. People are falsely accused of crimes

2. Child Sex cases are the most difficult to defend against

3. Prosecutors routinely rely on questionable “experts” to get convictions

4. Just because a man is accused of molesting a child, doesn’t mean he’s guilty.

The next time you get asked to serve on a jury, think long and hard about these things and about Tonya Craft and about the witchhunts that go on every single day in all our courtrooms across the country.

Congratulations Tonya Craft. You board a plane and given an interview to NBC, it is your right. There will be some noise made about grieving the judge and the prosecutors, but if history is any guide, nothing will come of it. The town in Northwestern GA will return to normal and soon this will be talked about as a fairy-tale. But tomorrow, another Tony(a) Craft will be arrested and charged and will go on trial. Will he/she get justice? Will you be there to cover it? Will you know the difference? Will you turn a skeptical eye? Or will you join the mad rush of hysteria that has swept the nation in condemning the despicable child molester?

Your eyes have been opened. Whether to keep them open is up to you.