Category Archives: sex offenders

Prove the defendant’s bad character, not the crime

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Let’s play a game. I will give you two quotes, both on the same issue. One is from an erstwhile liberal northeast state, the other from a state in “flyover country”. You guess which is which.

Compare:

Nonetheless, we recognize that crimes of a sexual nature are unique and distinct from crimes of a nonsexual nature because they often are “committed surreptitiously, in the absence of any neutral witnesses” and exhibit an “unusually aberrant and pathological nature . . . .” State v. Merriam, [citation]. Accordingly, we conclude that evidence of uncharged misconduct properly may be admitted in sex crime cases under the liberal standard, provided its probative value outweighs its prejudicial effect, to establish that the defendant had a tendency or a propensity to engage in certain aberrant and compulsive sexual behavior.

with:

that which makes the evidence more probative—the similarity of the prior act to the charged act—also makes it more prejudicial. As we explained in Reynolds, where a prior bad act is “similar to the incident in question, ‘it would be extremely difficult for jurors to put out of their minds knowledge that the defendant had assaulted the victim in the past and not allow this information to consciously or subconsciously influence their decision.’ ” [citation] (quoting State v. Henderson, [citation]).  [Statute] violates the due process clause of the [State] Constitution as applied in this case because it permits admission of prior bad acts against an individual other than the victim in the case to demonstrate general propensity.

Continue reading →

A witchhunt by men who molest the law

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[Update: She's been acquitted.] Raise your hand if you’ve never heard of Tonya Craft. I hadn’t either, until I stumbled across this post at change.org. Tonya Craft is the latest lightning rod in that modern day witch-hunt: the sex offender.

But, from all accounts, this isn’t a normal case. This is a shining example of the lengths people will go to, in order to brand someone a villain. The word sham is inadequate to describe the sheer rape of the law that is currently underway in Northwest Georgia at Craft’s trial.

There’s little doubt that a guilty verdict will fail on appeal. Yet Arnt and his fellow prosecutor Len Gregor seem intent on achieving one anyway, no matter the cost. They’ve badgered witnesses with questions about Craft’s exercise and lawn-mowing habits, of all things. They’ve asked whether Craft is a narcissist, and if Craft ever passed out in a girlfriend’s bed after a night of drinking. These so-called “sordid revelations” that the kind that only a puritan (or an unhinged prosecutor) would connect to evidence of child molestation.

The case has gotten weirder and weirder. One defense witness, who let Craft watch her children every day for almost two years without incident, testified that one of Craft’s accusers — who is also a child actress — was “worldly for her age.” “Does that mean she’s a slut?” asked Gregor. When the witness uncomfortably denied the charge, Gregor wondered whether the child might be a “pre-slut.”

While change.org has two posts on the subject, much of the coverage is being done by this man (and this newspaper). The transgressions of the prosecutors in this case are numerous: from claiming that they didn’t have to obey the law, to employing the worst “experts”, to seeking to introduce dubious “prior bad acts”. I could really go on, but that wouldn’t do the story any justice. Instead, follow the yellow brick road from the ridiculous:

Craft’s trial has also seen a parade of so-called forensics experts act as effective cheerleaders for the prosecution. One expert who made an appearance, Holly Nave Kittle of the Children’s Advocacy Center, was openly hostile to questions about her lack of credentials and was unfamiliar with any relevant child abuse literature. Neither did she help her credibility as a witness after she “liked” a public Facebook post by Arnt, in which he wondered “if Tonya Craft’s Defense [sic] lawyers are really insane of [sic] just trying to jack up her defense bill?” (Both Arnt and Kittle’s conduct likely violate Georgia’s ethical rules.)

Another prosecution “expert” involved, Suzie Thorne, lacks a college degree, and her testimony seems highly suspect. When Thorne interviewed one of the children involved during a videotaped session, she asked the girl a whopping 16 times whether “anything else happened.” Each time, the child said no. However, Thorne testified that after she shut off the camera, the child left the room and then returned — suddenly remembering that yes, Craft had sexually abused her.

Fair enough. But then why didn’t Thorne record this statement, or press the child for more information on camera?

to the “what the fuck are you talking about?”:

“Do you know anything about a time that Ms. Craft came to the door of her home dressed only in a towel to meet a first-time date?” “No, I do not,” said the witness.

Mr. Gregor asked, “Do you know any narcissists?” “No, I do not.”

“Would a good person molest a child?” “No.” “Would a good person insert a finger or thumb in a vagina or rectum?” “No.”

As Noah Arenstein at Change puts it: the prosecutors were becoming increasingly unhinged. At least until the media showed up. But that’s not the worst of it. The man who seems to have defiled the purity and sanctity of the law the most is the judge presiding over the trial: Judge Brian House. Starting with declining (without explanation) to recuse himself from the trial, despite having represented Craft’s ex-husband in his divorce from her, to permitting completely irrelevant testimony about the defendant’s alleged affairs with adults, to not permitting the defense to present any character evidence of the defendant, after permitting irrelevant character-assassination testimony from the prosecution.

We all are aware that allegations of child sexual abuse inflame the passions of most people. But when a woman is so horribly being railroaded in a trial, where the singular aim seems to be to obtain a conviction in the face of damning evidence suggesting the contrary, where all independent observes agree that even if a conviction is obtained, it is sure to be reversed on appeal, do we know that we’ve crossed the line from hysteria into madness.

Prosecutors so abusing their power and a judge sanctioning the farce is a damning indictment of the lengths we will go to to demonize those that may be innocent so long as a child is involved. Whether Tonya Craft is guilty or not is irrelevant. That the trial is being permitted to be conducted in such an egregious manner casts a dark pall over all of us that hold the criminal justice system here in such high regard.

While this is the first I’ve read about Tonya Craft, this won’t be the last. I hope it’s the same for you.

[You can follow coverage of the trial by reporters on Twitter and use the #TonyaCraft hashtag.]

A few stray thoughts

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the metaphor, stupid

Monday was a marathon day at the state legislature, with several criminal justice bills being considered. Two of the most important, in my view, were the bills to eviscerate The Great Writ (see prior post here) and Connecticut’s first attempt at residency restrictions (see previous post here). For those who want to brave through the public hearing, the entire video is here and written testimony submitted can be read here.

[A warning: this post is long, repeats some arguments I've already made and is extremely rude and vitriolic. But if you don't read it, you support terrorists.]

The habeas corpus effective suspension and evisceration bill

Chief State’s Attorney Kevin Kane testified at length (almost an hour, I think) on the habeas corpus “reform” bill. There were many, many problems with his testimony, but a few things really stuck in my craw. The entire basis for the State’s “suggestions” in the habeas reform bill seemed to be premised on two things: 1) that there is a glut of “frivolous” petitions and courts are overburdened; and 2) by moving the restrictions on the filing of habeas corpus petitions to the “front end”, rather than during the process itself, there will be a lot of weeding out and the load will be lightened.

Both are unfounded. CSA Kane went on for the better part of an hour, trumpeting the vast number of “successive petitions”, before someone on the committee had the good sense to ask him for some numbers. Just what constitutes a successive petition and what does he consider frivolous? Certainly not all petitions that are denied are not frivolous and eventually he had to admit that. Later on, during the testimony of the Deputy Chief Public Defender, we heard that a meager 4 1/2 % of all petitions were “successive”, in that petitioners had filed a prior habeas corpus petition.

But the State’s argument was premised on this straw man (if not outright lie) that the courts were dealing with a deluge of repetitive, frivolous and time consuming merit-less habeas petitions where petitioners were on their 9th or 10th bite at the apple. From what I’ve been told, there is maybe one inmate who is on his 7th or 8th petition, but that’s about it.

The second premise of the state’s position is all the more confusing and confounding. Continue reading →

Sex-y times at the state lege

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It’s the middle of the legislative season and just like all of us, the state legislature has sex on their minds. Sex related bills, I mean. No, wait, not dollars bills that you – nevermind. This is a family-friendly blog.

During public hearings to be conducted tomorrow and on Monday, the judiciary committee will consider a slew of bills focusing on sex and sex offenders. I’m here to give you the rundown on what they are and why they’re all bad (except one).

S.B. No. 33 An act concerning the registration of sexual offenders

This is, of course, the State equivalent of the awful, awful federal Adam Walsh Act. For 7 reasons why this bill is evil and must be defeated, see here.

S.B. No. 34 An act concerning computer crimes against children

This bill amends the “Enticing a Minor” statute by making it a crime to not exactly entice a minor to do anything:

or (2) display such person’s intimate parts through the use of a digital camera capable of downloading still or video images to a computer for transmission over the Internet or through the use of other available technology, or engage in a sexual act through the Internet or by telephone.

In fact, I’m not even sure that subsection (2) requires that the minor view any of these, um, intimate parts.

S.B. No. 479 (RAISED) AAC the attendance of registered sexual offenders at school functions involving their children.

Registered sex offenders are permitted to enter school property to attending school functions and/or meet with school personnel regarding their own children. That this bill is needed is the perfect example of just how stupid our sex offender laws are getting.

H.B. No. 5486 (RAISED) AAC residency restrictions for registered sexual offenders.

That this bill has been introduced comes as no surprise. The only surprise (to me) is that it took until 2010 for our state legislature to consider residency restrictions. My battle against residency restrictions is well documented. This bill has bad parts and “oh look we’re learning from other states” parts.

The bad: There’s a 2000 feet buffer zone. Which means that sex offenders will be banned from living anywhere in the state.

The “oh look we’re learning”: Grandfather clauses for those who already live somewhere within 2000 feet of any place a child may conceivably one day dream of going and for those whose houses may one day in the future fall within a 2000 feet zone.

The “good, I guess”: A violation is only a Class A misdemeanor.

H.B. No. 5533 (RAISED) AAC sexting.

Yes, sexting. That venerable institution of teens everywhere. What we used to call, back in the day, a good old-fashioned game of “doctor”.

Except this is the good bill I mentioned earlier. Thanks to Norm’s post, I see that the bill actually reduces the penalties for “sexting” from a D felony to an A misdemeanor.

The Adam Walsh fearmongering and bleeding money Act

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I have been in somewhat of a blog slumber. I haven’t posted in a while (and frankly, since Scott returned from his vacation, there’s no more opportunity for me to sneak in and steal his readers). But what better way to get the blood pumping and the vituperative juices returning than the news that our state Republicans and lame-duck Governor are once again introducing the Adam Walsh “burn them at the stake” Act.

I wouldn’t recommend clicking on that link. The Act is long and is sure to get your delicates in a delicate twist (unless you’re a terrorist, in which case, you win).

I’ve already written about one nonsensical aspect of this “Act” before: on the requirement that travelers through the State notify public safety of their impending passage.

There are several more that merit attention and derision, so I’ll list them first and then take them on one by one:

  1. The Act creates a new “tiered” system of SORN (sex offender registration and notification), dividing defendants not on their chances of re-offending, or on the particular circumstances of their offenses, but simply on the offense of conviction itself: Tier A: 15 years, Tier B: 25 years, Tier C: life. Currently, in CT, there are only two “tiers”: 10 years and life. Risk assessment is simply not a factor in either equation and that’s a huge mistake.
  2. The current risk of injury statute, the go-to statute for dubious allegations involving minors, would be revamped and broken up into three different statutes, each more onerous than the previous. Sexual contact with a minor under thirteen would become a Class A felony, thus lumping it together with the burglaries home invasions and murders and sexual contact with someone between thirteen and sixteen would become a Class B felony.
  3. The rules for exemption from registration are putrid and hollow.
  4. The registration requirements place a burden that is far greater than was approved by SCOTUS in Alaska and CT Dept. of Pub Safety (as distinguished by Maine’s Supreme Court): once a year for Tier 1, every 6 months for Tier 2 and every 3 months for Tier 3, all in person.
  5. The requirements for “transients” are incredibly laughable and courts are taking notice of the fact that it is problematic to require homeless people to register and punish them for essentially not having a home.
  6. The retroactive application of the registration requirements, which are already being successfully challenged.
  7. The cost. Oh, the cost. It shall be staggering. It shall be wasteful. It shall be just what States need in this time of financial surplus.

The seventh point is the focus of this post, which is one more step toward a Big Brother/nanny state: Continue reading →

On the intersection of morality, child sex and law

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[THIS IS A BIG WARNING: The site I am about to link to is thought-provoking and unabashedly pornographic. Yes, I said pornographic. Be expected to be treated to pictures of naked women. Lots of them. And body parts. Lots of them. If you are under the age of 18, click here.

But on the flip side, you will be treated to articles on philosophy and morality. And in this particular case, law.

If you are sensitive to pornographic images, I would recommend using "Readability", which strips all images from pages and makes the text larger and more readable. That is how I read this page, despite no antagonism toward pornography. It just is easier to read.

It is undoubtedly, without reservation, NSFW. I will repeat: NSFW.]

Have you installed “Readability“? Why not? Go install it now. I’ll wait.

…

Done? You promise? Okay:

Roman Polanski and the Bounty of Childhood Sex is the article I am linking to here. It uses the case of Roman Polanski (both in its anecdotal and criminal case sense) as a springboard for a discussion and exploration of the immorality of child sex laws. Some excerpts:

So-called child molestation, which is actually just an abusive term for childhood sex is not a crime. The reason is simple. The act can be divided into two parts potentially. One is the sex, the other is physical (or excessive psychological – a vague and dubious concept) coercion. It is true that physical coercion can be criminal especially if it involves inflicting physical pain. However, coercion by itself is indifferent to the age of the victim. Coercing anyone to do anything against their will is at the very least immoral. Doing so at the point of a gun is often criminal (Coercing the perpetrator of a holdup to desist at the point of a gun is not considered criminal, but coercing a soldier into battle at the point of a gun may be considered criminal). However, proponents of so-called child molestation make clear that coercion is irrelevant to the supposed criminality of the act since even consensual sex with children is criminalized.

and:

If coercion and age are irrelevant in the spurious criminalization of childhood sex, that leaves the sex. The reason childhood sex is a criminal act must be the sex. But, if sex were the critical element, if sex were in itself damaging or evil, then all sex should be illegal. Apart from a few hysterics and other illiterates, no one would find this to be an acceptable conclusion. Sex is a pleasurable act and an enjoyable experience that, absent external and irrelevant disapproval, need have no deleterious consequences. This principle is as true for children as it is for adults. There is nothing identifiably specific in the child’s mental make-up that accounts for any special harm caused by this pleasurable experience. Of course, any physical activity runs some risk of physical harm, however small. Sexual activity in particular could result in vaginal or anal tearing, especially in a smaller body. But, if that were an applicable principle, the prohibition of sex should apply to dwarves but not to children above a certain physical stature. Indeed the potential for physical damage is an argument not to ban the activity, but to ensure is safe pursuit. Pee wee football is susceptible to far greater damage than mere fucking. But the potential for damage is no reason to ban the sport but rather to make sure the players wear safety equipment.

also: Continue reading →

Is a battle on sex offender registration brewing?

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Silly sex offender registration laws have long been a bone that I’ve been itching to pick. If you asked me to list the ten worst decisions by SCOTUS in the last decade, Smith v. Doe and Dept’ of Public Safety v. Doe would make the top 5 of that list.

But I’ve always had the nagging feeling that both those decisions didn’t preclude future challenges to sex offender registration laws and their retroactive applications as violations of the Ex Post Facto clause. Now, we may just find out, because Maine’s Supreme Court has held that its sex offender registration law (SORNA) does violate the EPF.

The Maine decision is State v. Letalien, in which the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. Interestingly, the ME court finds that the Federal and Maine Constitutions provide the same EPF protections and so the EPF violation is of the Federal Constitution.

Just like SCOTUS in Smith, the Letalien court concludes that SORNA is civil in nature and then engages in a discussion of the seven Mendoza-Martinez factors to determine if a statute that is intended to be civil will be found to be an ex post facto law. It will be so only if the “party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Kansas v. Hendricks. The factors are: Continue reading →