Sex Crimes

Irregular Blogging Schedule

I am headed out to a conference in Scotland to present a paper that has absolutely nothing to do with sex crime law, so I'm not sure what my blogging schedule will be like for the next week. I'll try to post, but I'm not sure what sort of Internet access I will have.

In the meantime, you probably already know some of the best places to find sex crime law posts:

Sentencing Law and Policy
Crime & Consequences
abyss2hope
CrimProf
Sex Offender Research
a public defender
Grits for Breakfast
Sex Offender Issues

Only Words?

The unusual prosecution for obscenity of a person based entirely upon writings has ended in a plea deal. From the WSJ Law Blog:

From the Pittsburgh Post-Gazette, we have news of an interesting obscenity case, long in the making, that reached a conclusion recently when the defendant, Karen Fletcher, agreed to a plea bargain that will keep her confined to her home for the first six months of a five-year probation.

Fletcher, 56, pleaded guilty to violating federal obscenity law based on several stories she wrote for her Web site, “Red Rose Stories,” which depicted the rape, murder and torture of children. According to the Post-Gazette, Fletcher, of Donora, Pa., began writing the stories as “a kind of self-imposed therapy” to help deal with her own sexual abuse, published them on a Web site and charged 29 members a $10-per-month subscription fee. (Click here for the plea agreement, which — be forewarned — contains graphic language.)

“The individuals willing to pay money to subscribe to this Web site clearly have a very strong sexual interest in children — not just a sexual interest, but a violent sexual interest,” said the prosecutor, Stephen Kaufman.

“In my stories, I have created new monsters,” wrote Fletcher in a 2007 affidavit. “[They] rise above the horror of the real life monsters. Somehow, making these monsters so much worse makes me feel better, and makes my life seem more bearable. . . .I may still be afraid of the monsters, but at least in the stories, they prey on someone else, not me.”

U.S. District Judge Joy Flowers Conti reportedly told Fletcher that she would have seriously considered a sentence of incarceration had the government not recommended against it. (The sentencing guidelines reportedly called for a range of 27 to 33 months in prison.) “If anyone would have read the story and acted upon it, a little child could have suffered devastation that you would have had to live with for the rest of your life,” Judge Conti said.

I was always troubled by the prosecution of Fletcher even though her stories, by all accounts, were truly horrific. Catherine MacKinnon famously argued against pornography by disputing the liberal idea that "only words" were not harmful enough to warrant regulation. However, MacKinnon's entire aim of her book was not "words", but was instead visual pornography. In the case where the defendant only uses words as a medium, the line between a thought crime and an actual crime is diminished. Fletcher certainly didn't help her case by charging for her stories and marketing them to pedophiles. For that reason, there is reason to think that a person who merely documented bizarre fantasies outside of some commercial enterprise might escape prosecution. However, the modern precedent is now set that prosecution for "only words" is viable.

On a completely unrelated note, I attempted to post this on Google's new browser, Chrome. Unfortunately, it doesn't look like Chrome is completely compatible with Typepad as several buttons and tabs were missing from the interface. I like Chrome overall, but it won't be my normal browser until I can use it for blogging.

Around the Web

The Associated Press is reporting that "[a] woman has sued a town that refused to allow her to open a dance studio that featured pole-dancing exercise classes on the grounds it was a sexually oriented business." A complaint filed by the ACLU in Pittsburgh alleges that township officials violated the woman's right to free expression by denying her an occupancy permit.  Although classes include "pole-dancing, power lap dance, strip tease and 'SeXXXercise,' they are all taught and performed fully clothed; [m]en can't take the classes, and no spectators are allowed."  You can view the complaint here. The Wall Street Journal blog has more.

CrimProf Blog reports that the California Supreme Court has unanimously ruled that a sexual assault which "leaves a victim pregnant may be punished more severely than one that does not result in pregnancy."  The California high court said a pregnancy may be considered a "great bodily injury."  The justices split 5 to 2 on whether to declare that every pregnancy stemming from sexual assault would amount to a great injury, with the majority noting that it was a question for juries to decide based on the facts of a case. The LA Times has more.

Virginia Davis and Kevin K. Washburn (National Congress of American Indians and University of Arizona - James E. Rogers College of Law) have posted: Sex Offender Registration in Indian Country (Ohio State Journal of Criminal Law, Forthcoming) on SSRN.

Monica C. Bell's article entitled Grassroots Death Sentences?: The Social Movement for Capital Child Rape appears in the Fall 2007 issue of Northwestern University's Journal of Criminal Law and Criminology. The article "examines recent changes in the death penalty law relating to States' authorization of capital punishment for child rape through the lens of social movements."

Makau W. Mutua (University at Buffalo Law School, SUNY) has posted: Transitional Justice in Sexual and Gender-Based Violence.  The article "explore[s] the reasons for the invisibility of women and gender in transitional justice vehicles such as truth commissions and judicial and other adjudicatory processes."

Dennis J. Baker (King's College London, School of Law) has posted: The Sense and Nonsense of Criminalizing Transfers of Obscene Material (Singapore Law Review, Vol. 26, 2008) on SSRN.  The article argues that "Hong Kong's laws prohibiting the transfer of obscene and indecent information and images between consenting adults are both under-inclusive and over-inclusive."

Filler on Sex Offenders

Dan Filler, at The Faculty Lounge, had two very interesting posts in the last week about sex offender issues in Pennsylvania. First up was a post about an odd effect of sex offender restrictions in volunteer efforts at public high schools:

Through  the Marshall-Brennan Constitutional Literacy Project, we are preparing to send a large cohort of our Drexel Law students into the Philadelphia public schools.  2L's and 3L's will teach high schoolers constitutional law and prepare them for a high school moot court competition.  But a small snag has come up: every one of the law students must receive an extensive background check prior to entering the classroom.  In particular, pursuant to state law, they have to have a PA state criminal background check, an FBI criminal background check, and a fingerprint background check.  The total cost: at least $70 per student, born by anyone but the school district....

When we talk about moral panics over sex offenses, students of criminal law usually focus on the macro-issues. Over-punishment.  Exclusion of individuals from communities.  Skewed social policy agendas.  But this example suggests that there are many smaller, less visible costs to such policies.  If there were substantial proof that these student tutoring/teaching programs introduced real dangers to the students, I could be convinced that the costs and hassle were worth it.  But the fact that Dateline Predator has made all of us deeply afraid of sex offenders doesn't seem like a good basis for these policies.  And we risk closing the door on a world of wonderful opportunities.

I used to volunteer with the Urban Debate League programs in New York City. I would imagine that the UDL would suffer immensely if external instructors were effectively barred from teaching because of the onerous background checks required. While the purpose of such checks is a good one, the results seem like a net negative. There is heated discussion by a few law profs in the comments to Filler's post. I would think there should be an easier, less costly way for schools to do a check on those who volunteer. At the very least, the cost should be born by the police or some other government entity.

In his second post, Filler writes about the former legislator that has taken in sex offenders. I previously blogged about the story here. These were some of Filler's thoughts:

This is Armstrong's faith based initiative, compelled in part by his own experience: his brother was arrested eight years ago for exposing himself.  The story is a little weird, but the background isn't.  Sex offenders are having a tough time finding a place to live in Lancaster County - and everywhere else, it seems.  Many communities are throwing up residential restrictions on individuals convicted of sex crimes.  And even where they don't adopt formal laws, communities rise up against individuals who find homes in the neighborhood.

I understand the impulse of the neighbors but, writ large, I suspect that this NIMBY approach will not reduce crime.  By detaching individuals from communities, by engaging in disintegrative rather than reintegrative shaming, we loose individuals from any remaining social structures that would rein in misbehavior.  And as for the deeper moral questions - WWJD, or the like - it seems to me that Tom Armstrong, odd as he may be, is worthy of some respect.  Every one of these people is a human being, a fact that often gets lost in the rhetoric.

I agree.

Strange Ending to Iowa Professor Story

Last week, I mentioned the story of Arthur Miller, a political science professor at the University of Iowa who was accused of groping female students in exchange for higher grades. The story has taken a sad turn after Miller went missing. The professor is dead from an apparent suicide (HT: TaxProf). For those who know Iowa City, his body was found in Hickory Hill park (where my wife and I used to walk our dog on a regular basis when we lived in Iowa City). From the Iowa City Press-Citizen:

An autopsy confirmed Tuesday what police and the family of Arthur Miller have suspected for nearly a week: the University of Iowa professor accused of asking for sexual favors in exchange for grades is dead.

Police said the body found Sunday in Hickory Hill Park was Miller, who was identified through dental records and the watch and wedding band he was wearing.

State Medical Examiner Julia Goodin, who performed the autopsy in Ankeny on Tuesday morning, declared Miller died from a self-inflicted gunshot wound to the head.

Miller, 66, of 1700 N. Dubuque Road, had been missing since Aug. 19, and police said the next day during a search of the park that they thought the political science professor had killed himself.

The autopsy closes the story of Miller and his apparent rapid fall from respected teacher and researcher to a man accused of offering four of his students better grades if they bared their breasts or let him fondle them.

As I said earlier, I never took a class with Miller, but I find this whole story almost impossible to believe. Truth is sometimes stranger than fiction.

Coverage of Judge Kent Indictment

How Appealing has a nice roundup of coverage of the indictment of Judge Samuel Kent. You can read the actual indictment here. Eugene Volokh also has a post on the story:

You don't see these often for sitting federal judges. I assume that, if Judge Kent doesn't resign, a criminal conviction would be followed promptly by impeachment by the House and then conviction and removal by the Senate. An interesting question is what would happen if Judge Kent is acquitted, but there is sufficient evidence to believe he was likely guilty (the Justice Department obviously believes this to be the case), but not guilty beyond a reasonable doubt to the satisfaction of a criminal jury. But that's all a hypothetical at this point.

UPDATE: Sorry; I should have made this clearer — certainly the Congress has the power to remove someone who has been acquitted, and I don't see anything wrong with it, if the Representatives and the Senators think he's guilty. As commenter David Nieporent pointed out, that of course is what happened to former Judge (now Congressman) Alcee Hastings. What I was wondering was what the Congress would (not may) do if they thought the accusation wasn't proven beyond a reasonable doubt, but was still likely true — not an implausible scenario if the case ends up mostly being a swearing contest between Judge Kent and the woman he is accused of attacking.

Given that this case has been building for months, I'm not sure that Kent is likely to resign. Certainly, he has known that this indictment was coming and could have stepped down. That he didn't implies that there could be a situation where a sitting federal judge is tried for serious crimes.

Above the Law is also covering the story here.

Around the Web

The Houston Chronicle is reporting that federal district Judge Samuel Kent was indicted today "on charges of abusive sexual contact and attempted aggravated sexual abuse, making him the first federal judge to be charged with federal sex crimes and the first in Texas to be indicted in recent history."  Judge Kent is alleged to have physically touched his former case manager under her clothing and and often made obscene suggestions during the period in which she worked for him. Judge Kent's attorney says Kent has no plans to resign or retire, "he's not guilty and we will go to trial."  H/T: How Appealing.

A North Carolina town has "banned a registered sex offender from the town's parks following reports he asked parents if he could push their children on swings."  The man, who was convicted in 1987 for taking indecent liberties with a minor, is not allowed on the grounds of any of the town's nine parks and recreational facilities.

A landlord in Washington state who rents rooms to sex offenders is "getting out of the business because of threats against him and his family."  In a letter to the city, the man blamed city and state officials "for not coming to his defense and for not educating the public about the need for sex-offender housing."  Property records show that the landlord rents to about 200 sex offenders in 24 houses.

Sentencing Law and Policy directs us to an article in the San Jose Mercury News entitled Feds push child-porn cases; penalty can be years in prison. The article discusses the fate of former KGO radio host Bernie Ward, who is scheduled to be sentenced federal court for distributing sexual images of young children. According to the article, "[t]he best the 57-year-old Ward can hope for is five years in prison."  The article also notes that child-porn is "becoming one of the U.S. Justice Department's fastest-growing areas of prosecution, ... with prosecutions jumping nationally from a scant 30 in 1995 to more than 2,100 last year."

Four-Year Sentence for SORNA Violation

SL&P has the story of a defendant who was sentenced to four years imprisonment following a trial for failing to register under SORNA:

A Tennessee man convicted earlier this year for failing to register as a sex offender under the Adam Walsh Act has been sentenced to 51 months in federal prison without parole.

Tommy Edward LeTourneau, 47, appeared before U.S. District Judge Andrew S. Hanen Tuesday morning where his sentenced was handed down.

His sentencing also includes a lifetime supervised release for failing to register as a sex offender. It also mandates that he register as a sex offender, attend mental and sex offender counseling and have no contact with minors, plus other sex offender conditions, according to a U.S. Attorney's Office press released.

LeTourneau's case was the first of its kind to go to trial in the Southern District of Texas under the revised Sex Offender Registration and Notification Act.

LeTourneau previously made constitutional objections to SORNA, but after failing in those arguments went to trial. I will be surprised if many of these cases actually go to trial because there rarely is much of a defense. The four year sentence provides a data point as to what other defendants might receive although predicting sentences under SORNA so far has been hard to do with any reliability.

Obscenity Prosecutions under the Bush Administration

One of the DOJ missions under the Bush administration was to prosecute pornographers under obscenity law. However, a lot of the cases have not gone as planned. How Appealing links to one such story that provides some context as what has happened in the Bush DOJ:

n August 2003, the U.S. attorney's office in Pittsburgh made national headlines by filing obscenity charges against a California company that makes graphic pornography.

At the time, many saw the case against Extreme Associates as a prelude of things to come under then-Attorney General John Ashcroft.

But in the five years since, the case has languished. There had been no entries in the case docket since Aug. 17, 2007, until a reporter called the judge's chambers last week to inquire about the case. Early yesterday morning, the docket was updated to show that a telephone status conference will be held Sept. 17....

Some experts now say that's indicative of obscenity prosecutions as a whole across the country.

"For all the sound and fury, what we saw was a handful of prosecutions," said Reed Lee, an attorney who specializes in the First Amendment. "There never was a grand onslaught people may have envisioned."

The number of obscenity cases filed during the first term of the Bush administration did double over the last Clinton term, but that still meant there were just 125 filings from 2002 to 2006.

I'm guessing that regardless of who is President next, there will be a return to using obscenity law in rare, mostly child pornography cases.

Adult Porn Does Not Create Probable Cause for Child Porn Search

FourthAmendment.com summarizes an Illinois court opinion that seems rather straightforward on the point. However, the probation requirements allowed the search anyway. From FourthAmendment:

Finding of adult porn in defendant's house is not reasonable suspicion to believe that child porn would be found on his computer. However, the computer use agreement he signed for probation permitted computer searches without reasonable suspicion, so the search was valid. People v. Thornburg, 2008 Ill. App. LEXIS 814 (2d Dist. August 12, 2008).

Cleric-Penitent Privilege in Child Molestation Case

EvidenceProf had a post about an interesting ruling in a New Jersey case. The court held that the cleric-penitent privilege did not apply to the facts at hand:

In its opinion yesterday in State v. J.G., 2008 WL 3850772 (N.J.Super.A.D. 2008), the Superior Court of New Jersey, Appellate Division reversed a trial court's decision to apply New Jersey's cleric-penitent privilege in the case of a man accused of sexually molesting his daughters.  I agree with the court's conclusion but not its reasoning....

  I think that the court was wrong on the first point because none of the professional privileges requires a request that the communication at issue be kept confidential.  Could you imagine if we required clients to tell their lawyers to keep their communications confidential before applying the attorney-client privilege or if we required patients to tell their psychiatrists to keep their communications confidential before applying the psychotherapist-patient privilege?  It seems to me that the court placed a burden on the defendant that does not exist under the law.

With regard to the second point, the court wrongfully focused on the state of mind of Brown -- the pastor/cleric -- not the state of mind of the defendant -- the alleged penitent.  In the professional privilege context, it is the state of mind of the possible client/patient/penitent that controls, not the state of mind of the attorney/psychotherapist/clergyperson.  If the former made statements to the latter for the purpose of retaining his services, the statements are covered by the relevant privilege, regardless of the state of mind of the latter.

There is, however, an exception to this general rule, and that is why the court's third point was correct.  When an attorney/psychotherapist/clergyperson affirmatively tells a prospective client/patient/penitent that he will not render him services, any subsequent conversation is not covered by the relevant privilege. See, e.g., People v. Gionis, 9 Cal. 4th 1196 (Cal.App.4th 1995).  And that's exactly what happened in J.G..  Brown told the defendant that he would not counsel him, and the defendant subsequently told him that he molested his daughters.

Even though I've included a lengthy excerpt, there is much more to Miller's post. I recommend checking the whole thing out for a detailed discussion of the scope of the privilege.

Around the Web

The LA Times has an interesting op-ed piece concerning Jessica's Law from the perspective of a California psychologist.  The editorial was written in response to another LA Times article entitled "Jessica’s Law pays dividend for some.”  The psychologist seeks to "clarify the several factors not mentioned in the article that may cause high billing amounts."

In Hawaii's first test of the civil commitment portions of the Adam Walsh Act, a federal judge has "denied the government's attempt to keep a convicted sexual offender in custody even after he completed his prison sentence." U.S. District Judge Helen Gillmor ordered the government to release the man from federal custody. The government has asked Judge Gillmor to stay her order while it considers an appeal.

Convicted sex offender Paul Gadd, better known as 1970s glam rocker Gary Glitter, must sign the UK sex offenders register.  The musician arrived in London last week after being "stuck in international limbo after unsuccessful attempts to travel to Hong Kong and Thailand where he was refused entry."  He originally left the UK in 2000 after serving a short prison term for possessing child pornography.  Time has more.

Sex, Law and Consent

A new book chapter by Robin L. West from Georgetown University entitled "Sex, Law and Consent," is now available on SSRN.  The article "defends the now fairly conventional liberal reform position that consent ought to be the demarcation between rape and non-criminal sex, responding to both radical feminist and modern queer theoretic arguments that problematize it." I highly recommend it!

Around the Web

Feminist Law Professors has an interesting post discussing the plight of Afghani women, some of whom have been jailed for being victims of rape.  The article mentioned in the post notes that convictions for escaping from home and illegal sexual relations carry maximum penalties of 10 years and 20 years respectively.  According to the article, "[t]hese are two of the most common accusations facing female prisoners in Afghanistan." 

One editorial in a Tennessee newspaper argues that the state "needs to get with the program and add juveniles to its public sex offender registry."  Tennessee's lack of an Adam Walsh Act-complaint law has been mentioned before.  The editorial calls the notion that a young person's entire life should not be ruined because of mistakes made when he was young, "an antiquated idea." 

Sentencing Law and Policy has an interesting post discussing sentencing in a child pornography downloading cases.  The opinion, which comes out of the Eastern District of Wisconsin, provides "the court's reasons for giving a sentence of five years' imprisonment rather than a much higher sentence recommended by guidelines."  You may view the opinion here.

The Green Bay Press Gazette is reporting that "lawmakers and college administrators are trying to shut paroled sex offenders out of ... student neighborhoods near major U.S. universities."  Although registered sex offenders are banned from living close to schools and other places frequented by children in more than 23 states, that protection does not extend to the areas surrounding college campuses.

Sex Crimes at my Alma Mater?

Unfortunately, the University of Iowa is in the news for all the wrong reasons. The football team is getting most of the headlines with allegations of sexual assault and the University's poor handling of the allegations. Here is the latest update on the ongoing story:

Attorneys conducting a second investigation into an alleged sexual assault by two former Iowa football players last fall said Wednesday they have interviewed the alleged victim and her family.

Former players Abeberell Satterfield and Cedric Everson, who have since left the university, have been charged with second-degree sexual abuse stemming from an alleged sexual assault on Oct. 14, 2007, in Hillcrest Residence Hall. Satterfield faces an additional charge of third-degree sexual abuse. Both have pleaded not guilty....

The victim and members of her family were not interviewed in an initial regent investigation. That investigation found no wrongdoing by UI, but it did not discover two letters sent by the mother of the alleged victim to UI that, among other allegations, suggested UI attempted to keep the case quiet.

UI officials have said they presented all options to the victim and her family and followed UI policies. UI President Sally Mason told the regents the university did not provide either of the letters to the board on the recommendation of UI general counsel Marcus Mills because he thought it would violate student privacy laws.

Meanwhile, a political science professor has been charged with bribery and subsequently gone missing because of allegations of a sexual nature (HT: Above the Law and TaxProf):

A University of Iowa professor accused of offering female students better grades in exchange for sexual favors is missing.

Iowa City Police Sgt. Mike Brotherton said UI political science professor Arthur Miller’s wife called the police before 7 a.m. Wednesday to report her husband was missing and that he had left a possible suicide note.

Miller, 66, of 1700 N. Dubuque Road, was arrested Aug. 8 on four counts of accepting a bribe. Criminal complaints allege Miller offered four female students a chance to better their grades in exchange for sexual favors.

Miller was released on his own recognizance Aug. 9.

Brotherton said Miller has been missing since Tuesday morning, according to his wife, Natasha Ivanova. Brotherton said he has not read the letter Miller allegedly left.

I was a political science major while I was at the U of I, but I never took a class with Miller. I've donated money to the political science department and owe a lot to what they taught me. I hope they handle the allegations a bit better than the football team may have done.

Regardless, it is not the best of times for my alma mater.

Around the Web

A New York Times blog is reporting that Gary Glitter, the British pop star who was convicted of sexually abusing two pre-pubescent girls in Vietnam, has "been hounded by the media, blackballed by immigration authorities, and ... told that he might be better off returning to Britain."  It has since been reported that Gary Glitter, real name Paul Gadd, is fighting an order that will require him to register as a sex offender in Great Britian.

The Seattle Times is reporting that "a new state law is making it easier for prosecutors to bring accused sexual offenders ... to trial."   The law, which went into effect in June, makes it much easier for alleged prior victims of a defendant to testify as witnesses in a current sexual-offense case.  The article discusses the first case to use the new law where prosecutors are using testimony from some of the more than a half-dozen relatives who say a man had sexually abused them in the past 40 years.

Eugene Volokh had a post about a California law that protected children against "virtually nothing." Even reading the text of the statute makes it ambiguous as to what conduct that the legislature was really targeting.

Sentencing Law and Policy has an article about a high school senior who sent a 17-year-old buddy a cell phone video of the senior fooling around with his teenage girlfriend.  The 18-year old senior has been charged with a sex crime, telephone dissemination of obscene material to a minor.  According to the article, the teen pled guilty to a lesser offense, but the implications of the original charge have "prompted some questions about the state's sex offender laws and may serve as a warning to teens." The Des Moines Register has more.

A new study from the University of California, Davis has found that while "[a]dults are easily fooled when a child denies that an actual event took place, [adults are] somewhat better at detecting when a child makes up information about something that never happened."  The article from ScienceDaily notes that this research has "important implications for forensic child sexual abuse evaluations."  According to the study's author and UC Davis professor Gail S. Goodman, "[t]he seriousness of abuse charges and the frequency with which children's testimony provides central prosecutorial evidence makes children's eyewitness memory abilities important considerations. Arguably even more important, however, are adults' abilities to evaluate children's reports."

A man, convicted of human trafficking, will get a new trial because of ex post facto issues.  The man was convicted in the Eastern District of New York of sex trafficking and forced labor under the Trafficking Victims Protection Act for forcing a woman into beatings, sex acts and working on his bondage web site.  The acts allegedly occurred between January 1999 and October 2001, however the law was not enacted until October 2000, and prosecutors presented evidence at trial of conduct for the entire period charged in the indictment. The 2nd U.S. Circuit Court of Appeals remanded the case for a new trial in a per curiam opinion.  The opinion may viewed here.

Welcome Back John Marshall Law School Students

Today is the beginning of a new semester at JMLS. So, if any of my 70 Criminal Law students stumble onto this blog, feel free to read along during the semester. For everyone else at JMLS, I hope you have a good semester. And if you have any special interest in the criminal laws regarding sexual violence, stop by my office some time.

Dilution of "Sex Offender"

A helpful reader sent me this editorial about the dilution of the label "sex offender":

The term "sex offender" has the tendency to, quite rightfully, strike fear in parents' hearts, cause countless Web sites to track registries (complete with searchable maps), and inspire the citizenry to distribute fliers and call public meetings....

This week, a court declined to downgrade the conviction of Rev. Robert Whipkey, 53, to a petty offense of public indecency. Whipkey, a Catholic priest who has been on administrative leave from the archdiocese since his arrest, was charged with indecent exposure after being caught running naked around the Frederick High School track last June.

It was 4:30 a.m. The witness was an off-duty police officer, who followed the man home, and confronted him there....

Whipkey will be sentenced in October. He faces possible jail time and registering as a sex offender....

When you hear the term "sex offender" do you immediately think there's a risk to area children -- or does your mind start to wander toward how the term applies to a broad base of crimes, including streaking and urinating in public?

That's not to say these things are not crimes, because they are. Running around in the buff is illegal, and so is statutory rape, even when it's consensual. Lumping all of these crimes into the sex offender registry is, however, offensive.

"Sex offenders" include an incredible array of unrelated crimes. A flasher is different than an adult rapist is different than a person who has sex with a dog is different than an obscene movie director is different than a statutory rapist is different than a street prostitute, etc. Treating all of these groups essentially the same has been a shortcoming of sex offender policy for some time. Sure, registries contain tiered structures, but the distinctions made are relatively slight and no "sex offender" avoids registry listing under SORNA. I'm glad to see a newspaper recognize that what "sex offender" means under the law is pretty different than the iconic image of a child molester lurking in the bushes.

More on May

Brooks Holland, posting at CrimProf, has more on the Eighth Circuit's decision in May. Unfortunately, the article that Holland links to is behind a subscription wall, but this is part of the post excerpted at CrimProf:

In what appears to be the first federal circuit court ruling addressing the constitutionality of the federal Sex Offender Registration and Notification Act, the U.S. Court of Appeals for the Eighth Circuit decided July 31 that the provision of the act that makes it a crime to travel interstate and fail to register as a sex offender does not constitute an ex post facto law as applied to those convicted of a sex crime prior to its enactment. Further, the statute does not exceed Congress's power under the commerce clause, the court held (United States v. May, 8th Cir., No. 07-3515, 7/31/08).

Along the way, the court rejected the defendant's statutory argument that SORNA did not apply to him because the interstate travel underlying the charge against him took place before the attorney general issued a directive making the act retroactively applicable....

The defendant argued that the statute did not apply to him because, although his interstate travel occurred after SORNA's enactment, it took place before the attorney general issued the rule applying the law's provisions to previously convicted offenders. The Eighth Circuit rejected that argument and affirmed his conviction in an opinion by Judge William Jay Riley.

Around the Web

Gary Glitter, the 70's glam-rocker whose real name is Paul Gadd, "will be on the sex offenders' register for the rest of his life once he returns to Britain [...] after his release from a Vietnamese jail."  Mr. Gadd has spent almost two and a half years in prison for molesting two girls aged 11 and 12.

A lawsuit filed in an Alabama federal court claims that the State's Community Notification Act has "resulted in poor people convicted of sex crimes remaining in prison too long."  According to the suit, this is happening because indigent prisoners cannot provide a valid address where they plan to live after their release.

Tennessee is looking to include sex offenses by juveniles on its public sex offender registry in order to avoid losing federal money.  According to Tennessee Bureau of Investigation spokeswoman Kristin Helm, the agency is going to push the Legislature to change the sex registry law to include offenses by juveniles.  The mandate is part of the AWA's inclusion of juvenile crimes in its mandate on the states.

A provision in the Higher Education Opportunity Act (H.R. 4137) introduced by Congressman Ric Keller (R-FL) makes certain sex offenders "ineligible for Pell Grants, the nation's premier financial aid program for low-income students, starting July 1, 2009." The law was signed into law by President Bush on August 14.  In March, the AP reported that dozens of rapists and child molesters have "taken higher education classes at taxpayer expense while confined to treatment centers." According to the article, "[c]ritics say the new measure will cut off the possibility of higher education for offenders who are trying to rehabilitate themselves."

It is strange when the Supreme Court's inaction is newsworthy.  SCOTUSblog reports that "no action was taken on a plea by the state of Louisiana to reconsider the June 25 decision in Kennedy v. Louisiana, striking down the death penalty for the crime of raping a child." Of course, the Court may act at any time. The next scheduled release of orders will be on September 5th