.SALT LAKE CITY The Utah Court of Appeals is upholding a judge's refusal to dismiss a sexual abuse allegation against a 13-year-old Ogden girl who became pregnant by her 12-year-old boyfriend. The appeals court on Friday ruled that the law's ``rigorous protections'' for younger minors include protecting them from each other. The decision leaves the teens in the position of each being both a victim and a perpetrator in the same offense.
Teen Mother Ruled A Sex Offender|
``The Legislature certainly may act to protect the health and safety of children, and may more vigorously protect those of more tender years,'' Judge Gregory Orme wrote for a three-member panel of the court, which made its decision ``with some reluctance.'' The girl's Ogden attorneys, Randall Richards and Dee Smith, are considering an appeal to the Utah Supreme Court. Richards pointed out that Utah law says minors under age 14 do not have the ability to consent to sexual activity.
``It's a paradox,'' he said. ``How can they be old enough to commit an offense if they're not old enough to consent to it?'' According to the court decision, the girl became pregnant after she and the boy had sex in October 2003. State authorities filed delinquency petitions in July 2004, alleging each committed sexual abuse of a child, a second-degree felony if committed by an adult. The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated.
Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime. Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor. For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex.
A juvenile court judge, although sympathetic to the situation, denied the motion. The girl then admitted to the offense while preserving her right to appeal to a higher court. The boy did not appeal. The judge ordered the young mother to write a report about the effect of her actions on herself and her baby, to obey the reasonable requests of her parents, to remain under the supervision of the state Division of Child and Family Services, to refrain from unsupervised contact with the baby's father and to provide a DNA sample.
If the girl commits a crime when she is an adult, her juvenile record will make it more likely that she will go to prison and could increase the length of her sentence, Richards said. There is also an emotional toll of knowing she has a sexual abuse conviction, he said. But the Court of Appeals said lawmakers can constitutionally give greater protection to younger juveniles. ``The Legislature is well within its rights to come down solidly against sexual activity with children of such tender years - anywhere, anytime, any place, and by anyone. . . . And we cannot say such strict treatment does not also rationally further those purposes by strongly discouraging any sexual conduct involving children.''
: by The Associated Press. Read court decision: Z.C. -v- Utah, Case: 20040941-CA, Utah Court of Appeals 12-30-2005.
.Fitzroy Barnaby said he had to swerve to avoid hitting the 14-year-old Des Plaines girl who walked in front of his car. She said he yelled, "Come here, little girl," before getting out of his car and grabbing her by the arm. He said he simply lectured her. She said she broke free and ran, fearful of what he'd do next. In a Thursday ruling, the Appellate Court of Illinois said the 28-year-old Evanston man must register as a sex offender.
He grabbed girl's arm -- now he's a sex offender|
While acknowledging it might be "unfair for [Barnaby] to suffer the stigmatization of being labeled a sex offender when his crime was not sexually motivated," the court said his actions are the type that are "often a precursor" to a child being abducted or molested. Though Barnaby was acquitted of attempted kidnapping and child abduction charges stemming from the November 2002 incident, he was convicted of unlawful restraint of a minor -- which is a sex offense.
'Most stupid ruling'
Now, he will have to tell local police where he lives and won't be able to live near a park or school. "This is the most stupid ruling the appellate court has rendered in years," said Barnaby's Chicago attorney, Frederick Cohn. "If you see a 15-year-old beating up your 8-year-old and you grab that kid's hand and are found guilty of unlawful restraint, do you now have to register as a sex offender?"
But Cook County state's attorney spokesman Tom Stanton said Barnaby should have to register "because of the proclivity of offenders who restrain children to also commit sex acts or other crimes against them." In the criminal case against him, Cook County Judge Patrick Morse said that "it's more likely than not" Barnaby planned only "to chastise the girl" when he grabbed her, but "I can't read his mind."
"I don't really see the purpose of registration in this case. I really don't," Morse said. "But I feel that I am constrained by the statute." Recognizing the stigma that comes with being labeled as a sex offender, the appellate court said "it is [Barnaby's] actions which have caused him to be stigmatized, not the courts."
: by STEVE PATTERSON Staff Reporter
.BANGOR — A former kitchen worker at the Penobscot County Jail has been ordered to spend 30 days behind bars for having sex with an inmate. Dawn Chambers, 44, pleaded guilty Thursday in Penobscot County Superior Court to one count of gross sexual assault. She admitted that she had sex on two occasions last winter with a 27-year-old inmate who was under her supervision in the kitchen.
Worker jailed for sex with inmate |
Accepting the prosecution's recommendation, Justice Kirk Studstrup sentenced Chambers to two years in prison with all but 30 days suspended, along with one year of probation following her release. Because it is a felony in Maine for jail or prison employees to have sex with inmates, even if the inmate consents, Chambers also will have to register as a sex offender for 10 years.
The victim, now serving nine months at the Maine Correctional Center for a probation violation, urged the judge to give Chambers a longer jail term. "She made advances to me and brought in drugs," he said. "The same drug I had used (before going back to jail)."
: by Associated Press
Featured Issue: 5-1-05
A case of "Gender" discrimination?
.They started "going together" the same day they met at the laundromat near her house. He was 15, an illegal immigrant who came from Mexico to pick oranges. She was 14 and lived with her mom and grandma. Before long, he moved into their run-down, gray house in Avon Park, sharing the girl's bed. That's where police and child-welfare workers found Noe Perez when he was arrested and charged a year ago this coming Friday with having sex with a person younger than 16. [snip]
Teen faces trial after having sex with girlfriend Noe Perez, now 16, has been in jail for nearly a year and could face 45 years behind bars.|
To Highlands prosecutors, Perez deserves to be tried as an adult because, when arrested, he carried a fake ID in his wallet that said he was 18. But to critics, his case underscores the inequities of a law that criminalizes consensual sex with anyone younger than 16, even when the accused -- who is almost always the boy -- is underage himself. It is a crime for which there is no defense. [snip]
Now, he said, prosecutors "are moving cautiously" because they question the validity of a birth certificate showing Perez to have been 15 at the time. Perez's lawyers insist the document is genuine, saying the Mexican Consulate tracked it down. And court records show that prosecutors moved quickly to keep Perez in adult court.
On. Feb. 24, Perez's lawyer, former Assistant Public Defender Jose Concepcion, gave the prosecutor a copy of Perez's birth certificate and a letter asking that his charges be dropped because he was not subject to the jurisdiction of the adult court. Prosecutors dropped the original charges the very same day but immediately filed new ones, this time charging Perez as a juvenile -- but still in adult court. Under Florida law, prosecutors have broad discretion in transferring juveniles to adult court. [snip]
Inside Perez's wallet, the officer found a fake resident-alien card and a fake Social Security Card, which Perez said his citrus-crew chief gave him. Next to his fake IDs, he carried a recent snapshot of the girl. "The bottom line here is that Noe Perez and this girl are just two teenagers who were doing what a lot of teenagers do," Concepcion said. "He shouldn't be treated as an adult."
: by Maya Bell | Miami Bureau
.Normally we hear about cases where the girl lied about her age and the boy being 16-17 is prosecuted for a sex crime. The prosecutor saying, the girl being under 16 cannot give her consent, and that where it ends. The girl is not prosecuted for anything.
Here we have the exact opposite, assuming the facts to be true, the boy lied about his age by having documents which said he is 18, even though he was actually 15 at the time of the crime. So what does the prosecutor do, prosecute the boy in adult court as a juvenile for a sex crime.
Again assuming facts show the boy is (or was at time of crime) 15, then why is it that he is not treated like a girl of the same age and circumstances.
And, to throw coal on the fire, the boy has been held in jail (punishment) for one-year awaiting disposition of his case. Clearly "gender" discrimination, and this point has not even been raised by anyone in the case.
Now, if neither party can give their consent, and a sex act has occurred, then logic tells me both parties should be prosecuted equally. To do otherwise is a violation of the equal protection clause?
Does anyone see where the girl is in court for anything?
eAdvocate (Copyright 2005 - All Rights Reserved)
MSU officials propose public urination ban
.University officials are aiming to lessen the punishment that comes with urinating in public by proposing an ordinance that bans it. The ban would bring the offense under a local ordinance specifically related to public urination. Currently, a state law places the act under disorderly conduct. A third violation of the state law would place an individual on the state's public sex offender list.
"This is a clear-cut need to do," MSU spokesman Terry Denbow said. "It's a recognition that without it, people would unfairly be on that list."
: by The State News
2-2-2005 West Virginia:
'Sex offender' at Concord was merely a streaker: Imprecise categories on Pa. registry causes misunderstanding
.Concord University has a registered sex offender on the faculty, college officials confirmed Tuesday — but he’s actually just a streaker. James Edward Parker, 58, is listed on the Pennsylvania sex offender registry as having committed “indecent assault,” defined as sexual touching of a child under 13. But when Concord officials started looking into the matter, they discovered that their new hire had actually streaked through a park more than a decade ago, said Dean Turner, Concord’s academic dean.
Parker later moved to Pennsylvania, and because of his streaker past was required to register as a sex offender. But the closest thing Pennsylvania’s registry had to “indecent exposure” was the much grimmer “indecent assault,” Turner said. “He tried to get that changed for a long period of time,” Turner said. “But the State Police weren’t willing to do that. His employment was, in at least one instance, impacted by that.”
Secrecy has surrounded the story at Concord. At first, when Parker was hired in August, university officials didn’t know he was listed as a sex offender. Concord’s faculty employment application doesn’t ask. But “when he arrived in our part of the country, he went to the State Police and registered” as a sex offender, “as he is supposed to do,” Turner said. “The State Police notified our security department.”
Concord officials still didn’t know they were dealing with a streaker rather than a child molester. Their lawyer advised them that since Parker hadn’t misrepresented himself, they had no cause to fire him. Turner is still cautious when he talks about the matter, because laws protect registered sex offenders from harassment. “From what we understood, he didn’t seem to be a threat to the community, and the appropriate people in the community had been notified,” Turner said. That was the end of that, for a while. But the story was getting around.
: by Tara Tuckwiller
11-1-2004 United Kingdom
Little girl forced to sign sex offenders' register
.A 14-year-old Midland schoolgirl was forced to sign the sex offenders' register after being wrongly convicted of indecently assaulting a young boy in a paddling pool. Magistrates found Shelly - who was 12 at the time of the allegations - guilty of abusing the nine year-old child last June.
But just six weeks later she was cleared on appeal at Crown Court. During this period she was forced to visit a police station and sign the same sex offenders' register as rapists and paedophiles. And although Shelly has now been found innocent, her ordeal of being wrongly labelled a sex offender is far from over.
Local youths have called her a rapist and she has been physically attacked, the windows of her home have been smashed and vile graffiti about her has been daubed around her council estate. Her family is now planning to move from the area so that the youngster can begin her life again and put the trauma behind her.
Her mother Maggie said: "Shelly is so young that she still sucks her thumb when no-one is looking - and she sometimes holds on to a rag for comfort. "We have no idea why this boy and his family would make these allegations. But I hate them for what they said about Shelly."
..more.. Sunday Mercury
Man will be breaking new sex offender law if he stays with wife, kids
A new law meant to protect children from sex offenders is forcing a Knoxville father to leave his family. If he doesn't move out, he will be committing a felony. ''We are in shock, and we're trying to figure out what to do,'' Christy Long said after a judge refused to make an exception for her husband, Lonnie Long.
''It's in no one's interest, especially not the state's, to break up this home,'' Assistant District Attorney General Zane Scarlett told the court, ''but I have to enforce'' the law. The law, approved earlier this year and taking effect tomorrow, made sweeping changes in the state's sex offender registration program. One of those changes makes it a felony for a convicted sex offender to live in a home where a child lives — if the child is not the offender's own.
Long, 33, lives with Christy, whom he married on Valentine's Day 2003 after a two-year courtship, as well as his 13-year-old son and 6-year-old stepdaughter. ''Lonnie is the only stable daddy she's had,'' Christy Long said of her daughter.
State Attorney General Paul Summers warned legislators in a March opinion that the residency law was flawed and ''would be subject to serious constitutional challenges.'' But it passed anyway, with several sponsors. Rep. Harry Brooks, R-Knoxville, said his intent in passing the law was to protect children from sex offenders who targeted children. ''It wouldn't be the first time'' a law had unintended consequences, Brooks said. ''We often have to go back to work to clarify the language.''
..more.. Associated Press
Public urination can require sex offender registration!
According to Michigan State Police Sgt. Troy Fellows, urinating in public is classified as indecent exposure, and requires sex offender registration after three convictions. Fellows said, however, judges have leeway to order registration after any number of convictions, providing the individual was convicted under state law.
State Police Sex Offender Registration Analyst Charlotte Marshall said county sheriff deputies, city and township police officers typically will not charge individuals under the state law. She said those officers generally charge people under a local ordinance, and if convicted, penalties outlined in the ordinance apply.
..more.. Oceana's Herald Journal
BRIAN DICKERSON: On Michigan's unfair digital scarlet letter!
Following the Supreme Court's lead in a similar Connecticut case, a U.S. Court of Appeals panel upheld the constitutionality of Michigan's sex offender registry last week. But the appellate court's ruling doesn't mean that Michigan's curious practice of branding promiscuous teenagers and other consensual offenders with the same digital scarlet letter reserved for violent sexual predators makes sense.
Nor does the ruling relieve state lawmakers of their moral obligation to fix Michigan's sex offender registry, which continues to victimize some of the young people it was created to protect. But unlike similar requirements in many other states, Michigan's registration requirement lumps teens convicted of having sex with underage partners and other consensual offenders with pedophiles and serial rapists.
This seems disingenuous at best. Michigan's registration requirement rests explicitly on the Legislature's assertion that sex offenders pose a uniquely "serious menace and danger to the safety, morals and welfare of the people." They face a lifetime of public stigmatization from which serial fraud artists, serial batterers and even serial murderers are exempt. The U.S. Court of Appeals may not require the Legislature to refine its shoddy work, but fairness and common decency still demand that it should.
..more.. BRIAN DICKERSON | DETROIT FREE PRESS COLUMNIST
7-24-2004 New York
Man Who Kidnapped Boy After Adoption Leaves Prison (Where is the sex offense?)
WARWICK, N.Y. -- A man who, with his wife, adopted an infant, then kidnapped him and raised him to adulthood after the adoption was declared invalid, was released from prison Friday after two years. Barry Smiley, who had admitted taking Matthew Propp to New Mexico to raise him in 1979, left the Mid-Orange Correctional Facility at 9:20 a.m. Smiley must add his name to the state's sex offender registry. By law, a person convicted of second-degree kidnapping when the child is younger than 17 and the offender is not the parent must register as a sex offender.
Propp's maternal grandfather had arranged for the Smileys to adopt the baby at birth. But in 1980, when the child was 15 months old, a judge ruled the adoption illegal because the boy's mother, Deborah Gardner, had not given her full consent and his father was never notified. The couple fled to Albuquerque, N.M., with the baby and lived under the aliases Bennett and Mary Propp. The couple surrendered in 2001, but argued that they had acted out of love for the child.
Smiley, now 58, served the minimum of a two-to-six year prison term after his plea to second-degree kidnapping. His wife, Judith Smiley, was sentenced to six months and 4 1/2 years of probation, having pleaded guilty to first-degree custodial interference. Before the Smileys were sentenced, the son, now 25, asked the judge to be lenient, pleading with him to consider the pain he would experience from losing his parents. "These are two people that I love very much," he said at the July 2002 sentencing.
..more.. The Associated Press
BRIAN DICKERSON: A plea deal thwarted, a life is ended!
Ernest Hemingway wrote that every true story ends in death. This is a true story.
It begins two years ago with a troubled 14-year-old girl who documented her sexual exploits in a diary. She called herself a predator. But Oakland County Prosecutor David Gorcyca was more interested in her slightly older sex partners. He charged four of them with criminal sexual conduct, a felony.
In May 2002, when what became known as the Bloomfield Sex Diary case broke, I argued that Gorcyca had overreacted by bringing criminal charges for what amounted to consensual sex between promiscuous teenagers. I noted that, if convicted, the defendants would be listed on Michigan's sex-offender registry until they reached middle age.
After a public uproar, Gorcyca relented. Under a plea agreement blessed by two sentencing judges, all four defendants were permitted to plead guilty to a lesser charge of seduction. The prosecutor and defense attorneys agreed that none of the defendants would be imprisoned or listed on the sex-offender registry.
It should have ended there -- a fiasco averted, a case of overzealous prosecution brought to a sane resolution. But it didn't. Last month, more than a year after the charges against them were resolved, all four defendants were notified they'd be registered as sex offenders after all.
One of them, 20-year-old Justin Fawcett of West Bloomfield, was particularly devastated. On Feb. 27, three days after Fawcett's probation officer broke the news that he'd be publicly branded for the next 23 years, Fawcett's father e-mailed me to express his fear that Justin would kill himself.
Judges, probation officers and defense attorneys I spoke to this week attributed Justin Fawcett's legal dilemma to new marching orders from Michigan Attorney General Mike Cox's office, which recently advised the Department of Corrections to place defendants like Fawcett on Michigan's sex-offender registry whether or not the offense they've been convicted of is specifically mentioned in the registration statute.
Cox's spokesman, Matt Davis, says the attorney general's advisory was designed to bring the Department of Corrections in line with a recent Michigan Court of Appeals ruling. The ruling, in a 2002 case called Michigan v. Meyers, says defendants may be listed on the registry for any crime "that by its nature constitutes a sexual offense against an individual who is less than 18 years of age."
So if you're a state legislator, pay attention. Because you enacted this indiscriminate law, and it's way past time for you to fix it. If you're a prosecutor, take heed. Because the criminalization of teenage promiscuity is destroying young lives. And if you're a parent, wake up. Because if you think this couldn't happen to your teenager, you've missed the whole point of Justin Fawcett's story.
..more.. Brian Dickerson | Detroit Free Press
These violate the principle of Megans' laws, in that, the law fails to protect children from themselves, actually punishes them for their own non-criminal acts!|
Hopefully those who laid the charges and the prosecutors who prosecuted the cases are judged just as strictly when their time comes!
.What happened, according to court documents: Combine unsupervised teenagers, digital cameras and e-mail, and, given sufficient time, you'll end up with risque photographs on a computer somewhere. There's a problem with that: Technically, those images constitute child pornography. That's what 16-year-old Amber and 17-year-old Jeremy, her boyfriend, both residents of the Tallahassee, Fla., area, learned firsthand. (Court documents include only their initials, A.H. and J.G.W., so we're using these pseudonyms to make this story a little easier to read.)
Teens prosecuted for racy photos|
On March 25, 2004, Amber and Jeremy took digital photos of themselves naked and engaged in unspecified "sexual behavior." The two sent the photos from a computer at Amber's house to Jeremy's personal e-mail address. Neither teen showed the photographs to anyone else.
: by Declan McCullagh. Read the courts decision: CLICK
.WAYLAND -- A Wayland Union High School student faces three felony charges for allegedly taking photographs of two juveniles having sex, posting them from the Internet and linking to them from the popular Xanga web site, allegedly prompting a student in the photos to attempt suicide. Ryan Andrew Zylstra, 17, has been arrested on charges of manufacturing child pornography, distributing child pornography and use of a computer for child pornography.
Teen put sex pics of friends online, police say |
Wayland Police say Zylstra took photos of a male teen and female teen "engaged in sexual activity" at Zylstra's home on New Year's Eve. Police say Zylstra linked to the photos from his blog site on Xanga, and students printed the photos and passed them out at school on Jan. 3, the day students returned after the holiday break. According to the police report, the mother of the girl in the photos said her daughter came home from school and attempted suicide because of her embarrassment.
The mother reported the incident to police Jan. 16, and police confiscated two computers from Zylstra's home. Police sought a warrant and Zylstra turned himself in Wednesday evening. He is to be arraigned March 6 in Allegan District Court. The Xanga site has been at the center of controversy recently elsewhere in West Michigan. Twenty East Grand Rapids High School students were suspended from extra-curricular activities for two weeks after photos of them drinking alcohol were posted on various Internet blog sites, including Xanga.
: by Jean Gallup, The Grand Rapids Press
16 Year Old Girls Charged with Disseminating their Own Brand of Child Porn
.Two Northside High School girls who took nude pictures of themselves and e-mailed them to their boyfriends last year said they only did it to be flirtatious. It wasn't long before they realized the consequences: loss of friends, no more school activities, seeing themselves on Internet sites and felony charges.
By the time the girls faced Roanoke County Juvenile and Domestic Relations Judge Philip Trompeter on Thursday, all joking was aside. "You were degrading and hurting yourselves doing this," Trompeter told them. Both 16-year-olds were charged with production and dissemination of child pornography.
..more.. Roanoke Times | See also blog discussions on this type of case: Another Child Self-Pornography Case down the page a bit; -AND- Once Again, It's On
Teen who posted own photo charged with child porn
.State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet. Police said the girl, whose identity they withheld, photographed herself in various states of undress and performing a variety of sexual acts. She then sent the photos to people she met in chat rooms. A police report did not say how police learned about the girl. They found dozens of pictures of her on her computer. She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography. Police said they are trying to identify all the people who receive photos from the girl.
: by Pittsburgh Post-Gazette
Teens who have sex charged with abuse: DAs are prosecuting even when both consent!
Wisconsin's child abuse law makes it a felony for anyone to engage in sexual activity with someone younger than 16. It applies to consensual sex, even between teens of the same age.
Last summer, when she was made pregnant by her boyfriend at age 15, Sarah, a shy girl with a pretty face, went to a clinic with her mother for consultation. As they left the Racine clinic with blankets and booties, neither had any idea that three weeks later, an investigator from Racine County Child Protective Services would show up on their doorstep.
The investigator's ruling: Sarah would be charged with sexual assault and prosecuted in juvenile court for having sex with a minor. Her boyfriend would be charged, too. "I didn't know what to say," Sarah, whose name has been changed because she's a minor, said in a recent interview as she sat on her living room couch clutching her newborn son. "I had no idea how this was happening."
A growing number of those teens are being prosecuted for sexual assault, though state and county statistics don't differentiate between sexual assaults involving consensual and non-consensual sex, the officials say. Among them are teenage girls who were once viewed only as victims.
..more.. MEGAN TWOHEY
DCS lists teen dad-to-be as sexual abuser because of age gap
.NASHVILLE, Tenn. An 18-year-old dad-to-be is being listed as a sexual abuser by the Department of Children's Services because his girlfriend was 13 when he married her out of state. Robert Benjamin Martin could be charged with statutory rape under Tennessee law because it is a crime for someone to have sex with a person under age 16 if there is at least a four-year age difference.
The children's protective agency views Martin as a sex offender and his girlfriend, Chastity Long, as a victim. The state claims the two began having sex when she was 12. Chastity's mother, Tonya Long, contends the couple are in love and it violates her religious rights as a Christian to prevent her from having them married. Chastity is now eight months' pregnant.
On October eighth, Long's husband took the couple to Mississippi, where minors can marry with their parents' permission, and they were wed. However, D-C-S said it took legal custody of Chastity on October sixth, and has questioned the validity of the marriage.
: by WVLT TV Tennessee
Teen pleads guilty to sexual assault charge (Who is the victim?)
A 15-year-old boy who lost his challenge of the state's sexual assault statutes pleaded guilty Tuesday to a reduced charge stemming from his kissing and touching with his then-girlfriend in her mother's bed. The boy told Children's Court Judge Thomas Donegan that he had learned his lesson and wanted to go home after spending two months in the Milwaukee County Juvenile Detention Center. "This is tearing me apart in here," the boy said during a brief court appearance.
Both the boy and the girl, also 15, appeared contrite and respectful in court Tuesday, which differed from the earlier attitudes that helped propel their sexual encounter into a 10-month legal affair. Court records say the girl challenged her mother to call police after she and the boy were caught half-naked in bed. The girl pleaded guilty to fourth-degree sexual assault and was ordered to undergo counseling and receive other services through the county Wraparound Program. She has a history of problems at home, including running away while on probation.
Linke (boys lawyer) sought to have the case dismissed, arguing that the state law was meant to protect children from being victimized by adults. The law was not meant to apply to teenagers having consensual sex, he said. Donegan, however, refused to dismiss the case last month, and was prepared to hold a trial on the juvenile felony charge Tuesday morning. Facing a possible guilty verdict and an extended stay in a juvenile correction center, the boy accepted a plea agreement and admitted to fourth-degree sexual assault.
..more.. TOM HELD
Man Loses Fight to Avoid Listing on Sex Offenders' Registry
Minnesota man must register as a sex offender even though he has not been convicted of a sex crime, the federal appeals court in St. Louis ruled yesterday. That ruling "turns reason and fairness on its head," wrote Judge C. Arlen Beam, who nonetheless concurred in the unanimous decision of the three-judge panel of the court.
The case arose from an encounter in a bar in 1998. Brian Gunderson went home with a woman he met there and, according to her, assaulted and raped her. He was charged two days later with sexual assault. But the physical evidence collected by the police did not support the woman's accusation of rape. Judge Beam wrote, "The police investigation clearly established a lack of sexual contact between Mr. Gunderson and the complaining woman."
The original criminal complaint was dropped, and Mr. Gunderson pleaded guilty to a new one charging him with assault. He received a 15-month suspended sentence and three years of probation. State officials later told Mr. Gunderson that he must register as a sex offender under a state law that requires it whenever someone is convicted of a sexual offense "or another offense arising out of the same set of circumstances."
The Eighth Circuit said it was bound by a 1999 decision by the Minnesota Supreme Court in which a defendant charged with a sex crime was required to register after pleading guilty to a lesser charge. The federal court also held that including people who are not sexual predators in a registry of sex offenders does not violate their fundamental constitutional rights.
..more.. ADAM LIPTAK | New York Times
Wrongly convicted man refuses bail!
FORT WORTH -- For more than a decade, even as prison cell doors clanged around him, John Michael Harvey's story has never changed: He did not molest a 3-year-old girl. When a judge last month concluded that the Bedford man had been wrongfully convicted, it looked like Harvey could finally go free, at least on bail.
But Harvey, 38, is so adamant about his innocence that he is refusing early release because he would be forced to register, temporarily, as a sex offender. "I came into jail innocent, and that is the way I want to leave," Harvey said in a recent interview at the Tarrant County Jail. "I don't want to leave a convicted child molester. ... My name was clean when I came in, and I want it clean when I leave."
State District Judge Sharen Wilson ruled last month that Harvey had been wrongfully convicted after the girl, now 18, recanted her testimony that identified Harvey as her attacker. The Texas Court of Criminal Appeals, the state's highest criminal court, will decide whether Harvey's conviction should be overturned. It typically takes about 90 days for the appeals court to consider such rulings by a trial court judge.
To gain release on bond while his case is being appealed, however, Harvey would be required to register as a sex offender, said his attorney, Sean Buckley of Houston. Harvey's picture would be posted on the Internet and published in the newspaper, and his neighbors would be told that a sexual predator is next door, Buckley said.
..more.. Fort Worth Star Telegram
Cases dismissed, but many still on list!
David Dockens is serving a life sentence, even though he’s never been convicted of a crime. It isn’t supposed to happen here; punishment without a finding of guilt is the sort of thing that occurs elsewhere. Still, it happened to Dockens, and he’s not alone.
A three-month review by The Galveston County Daily News of Department of Public Safety and county criminal justice records found thousands of people in the same situation.
Dockens is one of about 85 people in Galveston County and more than 6,000 statewide who, because of a 1997 change in the Texas Code of Criminal Procedure, must register as sex offenders even though charges against them were dismissed..
..more.. Ted Strueli | The Daily News, Galveston County
5-17-2004 South Carolina
Critics take issue with child abuse registry!
They argue barriers to list make it less effective; others say some names might not belong there.
South Carolina maintains a list of about 37,600 alleged child abusers, but most parents can’t use it to check out their neighbors, coaches or teachers. The registry tracks people who judges or social services investigators say probably abused or neglected a child. The list is maintained by the state Department of Social Services.
Parents and some child advocates are concerned that admitted offenders are “hiding” on the Central Registry for Child Abuse and Neglect. “The fact that it’s not public record just really bothered me because people have a right to know,” said Tricia Reese, a Columbia parent who said her daughter was neglected in a day-care center.
But there are barriers to granting public access, including concerns that individuals on the list have not necessarily been convicted of a crime. “It would be subject to constitutional challenges,” Denyse Williams, executive director of the American Civil Liberties Union of South Carolina, said of opening the list to public inspection.
Licensed day-care centers are required by the state to use the registry to screen applicants before determining whether they should be allowed to work with children. Prospective foster parents must be screened against the registry, and some school districts refer to it when hiring teachers and support staff. In all, the agency receives about 5,000 requests each month to check a person’s name against the registry, said Mary Williams, director of the division of human services at the department. Any person can check a name against the registry, but only with the written consent of the person they are checking.
..more.. JOHN C. DRAKE | Staff Writer
1-Hour Arrest: When does a snapshot of a mother breast-feeding her child become kiddie porn? Ask the Richardson police.
.The service was fast, the judgments even hastier. Never did Jacqueline Mercado imagine that four rolls of film dropped off at an Eckerd Drugs one-hour photo lab near her home would turn her life inside out, threaten to send her to jail and prompt the state to take away her kids. For Mercado and her family, last fall was a happy time, one they wanted to record and save in the venerable tradition of the family photo. Johnny Fernandez, Mercado's boyfriend, had just emigrated from Lima, Peru, ending a yearlong separation, and on top of that, it was their son's first birthday.
The photographs they took over several days in late October included pictures of Fernandez reunited with the family at their modest home in suburban Richardson. Others captured their 1-year-old son Rodrigo, and 4-year-old Pablizio, from Mercado's earlier marriage, playing in a neighborhood park. Using the camera's timer, they also took three snapshots of themselves, naked in their bed. They arranged their bodies in ways that showed less flesh than most freeway billboards.
A half-dozen others recorded the kids at bath time. Fernandez took several photos of the boys "playing around," naked and innocent, with the oldest flashing a big smile. Mercado, who says she often bathed with the kids, is in several of the shots unclothed from the waist up, holding her arm modestly across her bare chest. In one--the photo that would threaten to send Mercado and her boyfriend to prison--the infant Rodrigo is suckling her left breast.
: by THOMAS KOROSEC
11-21-2002 New Mexico
Court orders Zane Brothers to register even though he has no conviction!
State of New Mexico -v- Zane Brothers .... Most interesting in this case is, the appeals court recognizes that there is no law requiring Mr. Brothers to register, and in lieu of that, the court orders Mr. Brothers to register. The Supreme Court upheld that decision!