Monday, August 11, 2008

MA - Statutory rape law challenged

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08/09/2008

SPRINGFIELD - He was 17; she was 15½. His lawyers say the sex between the two was consensual.

And, the defense lawyers say he should be not be prosecuted under a law they argue is unconstitutional and archaic in this day and age.

A challenge to the state's statutory rape law is unfolding in Hampden Superior Court in the case of a Chicopee teen whose lawyers argue the law is out of date and should not be applied in cases in which the teens are close in age and engage in consensual sex.

A prosecutor and a legal expert contend, however, that the statutory rape law - non-forcible rape of a child - is in place to protect children and prosecution is pursued when there are aggravating circumstances.

Attorneys Linda J. and John M. Thompson argued last week to Judge Peter A. Velis that Raphael Rivera, now 18, should not be prosecuted in a case they said alleges he had consensual sex with another teen last November at the home in which he lives with his father.

Society has changed drastically since the statutory rape law was enacted, and the law has to change drastically too, John Thompson said. Since the state Legislature has not changed the law on its own to protect an accused person's constitutional rights, the judiciary must uphold the constitutional rights of the accused, he argued.

The Thompsons contend the closeness in age of the accused and the alleged victim presents "a question whether there is a rational basis to treat one as a victim and one as a perpetrator."

They also argue that a successful prosecution of Rivera would amount to cruel and unusual punishment. Under the tests determining cruel and unusual punishment, Linda Thompson said, a punishment for sexual activity between a 17-year-old high school senior and a classmate two years his junior that exposes him to the possibility of life in prison and the certainty of registration as a sex offender is "grossly disproportionate."

The arguments were presented to Velis on July 30. The judge asked for additional written arguments from the prosecution and defense.

In the state's written response, Assistant District Attorney Thomas H. Townsend wrote that the courts have reviewed the punishment for statutory rape and upheld the finding that it is not cruel and unusual. The courts, he said, have determined that the interests protected by the statutory rape law are compelling.

The modern purpose of the statutory rape law is to prevent the victimization of minors, Linda Thompson said, and that is not applicable in this case.

She said that collectively, 44 states and the District of Columbia don't criminalize consensual peer sex among teenagers. Thirty-three states employ age differentials requiring the defendant to be a certain number of years older than the victim in order for prosecution, some using four years as the time span, she added.

Rivera is also facing a second case involving a second girl in which he is charged with both statutory rape and forcible rape of a child. A motion to dismiss those charges is also pending. The charges stem from an incident in September.

Wendy J. Murphy, a lawyer specializing in child abuse and sex crimes cases and an adjunct professor at New England Law School in Boston, is a proponent of maintaining the statutory rape law.

She said in her experience "truly consensual" sex between, for instance, a 15-year-old girl and her 17-year-old boyfriend, is not prosecuted unless there are special circumstances.

Although different teens may have different levels of maturity at the same age, Murphy believes in the philosophy behind the law - that a child under 16 is not mature enough to make a choice to have sex.
- Well, with this mentality, we are going to have a lot of childrens lives ruined.  Have you checked out Jerry Springer and other shows?  Teens are having sex, it's a fact!

First Assistant District Attorney James C. Orenstein declined to discuss the specifics of the Rivera case, but said prosecutors consider a number of factors in deciding when to prosecute an allegation of statutory rape.

Among those are the age discrepancy between parties; the wishes of the alleged victim or his or her parents; and whether the offender has any other criminal record of pending case, particularly of a sexual nature.

Another factor is the presence - or absence - of aggravating factors such as if the sexual act resulted in an unwanted medical condition, such as pregnancy.

"I would say that the statutory rape statute is one of an array of statutes that have been enacted to protect children," Orenstein said. "Despite any change in social mores, we think this protection has continued viability."


CA - Jessica's Law bears unexpected results

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This is just the latest "Get Rich Quick" schemes.

08/11/2008

LOS ANGELES -- When California voters overwhelmingly approved Jessica's Law in the fall of 2006, many assumed it would lock away predatory child molesters and rapists who had slipped through the cracks of existing law.

But by key measures, Jessica's Law might be failing to deliver on its promise -- and in some respects producing the opposite of its intended effects.

The law has led far more sexual offenders to be evaluated and recommended for indefinite hospitalization after their prison terms end. But the number of commitments barely has budged.

In the 18 months after Jessica's Law took effect, just 42 of 67 defendants in civil commitment trials -- 63 percent -- were sent to hospitals, compared with 41 of 51 -- 80 percent -- before the law.

The finding is only the latest sign that the law, named for a 9-year-old rape and murder victim, is not working as intended, despite carrying costs that are expected to reach several hundred million dollars annually within a few years.
- And all the while, it's overflowing peoples pockets with tons of cash, see here.

Critics have cited problems with another key provision that banned registered sex offenders from living within 2,000 feet of a school or park, in some cases ruling out entire cities.

The limits were meant to keep children safe. But the California Sex Offender Management Board suggested in a January oversight report that strict parolee residency requirements might tend to increase, rather reduce new sex crimes. The panel said the number of offenders listing themselves as transient rose by 44 percent to nearly 2,900 in the first year after Jessica's Law passed.

"Current research concludes that suitable and stable housing for sex offenders is critical to reducing recidivism and increasing community safety," the panel noted.

John La Fond, a retired law professor and author of "Preventing Sexual Violence," put it this way : "We're locking up a small number, then releasing the rest and saying 'good luck, and you can't live anywhere.' " California state Sen. George Runner (Contact), a Republican from Lancaster who introduced Jessica's Law, said the concerns were strictly theoretical, unsupported by data showing an increase in sex crimes.
- So you endorse and help pass laws based on THEORY???

"We were prepared," he said, for increased transience among sex offenders. "That's why we require GPS."
- So he knew about the homelessness, and was OK with it?  This just proves he is an idiot.  By pushing people into homelessness, who have not much to lose, you are putting more people in danger, and I wonder if he has a lot of stock in the GPS market?  I would not doubt it.

He was referring to a provision of Jessica's Law that requires lifetime monitoring of many offenders using the global positioning system. But that part of the law has proved controversial as well, because local law enforcement agencies, which eventually would handle most of the monitoring, say they lack money for it.

"I'm not aware of any sheriff in the state doing GPS," said Jim Denney, director of the California Sherriffs Association. "There is no local funding tied to Jessica's Law."
- If there is any offender in California wearing GPS, then you might want to contact this man and clue him in to the real world!  If I remember right, there is a lot of people in California wearing GPS, but, I could be wrong.

Jerry Dyer, Fresno's police chief and president of the California Police Chiefs Association, said that most monitoring of sex offenders on GPS, for now, is handled by the state.

Runner has contended that Jessica's Law -- mandated by 70 percent of voters -- is sound, even if it could benefit from small adjustments."Our job is to implement what the voters have asked us to do," he said.
- This man is just clearly out of touch with reality!

To that end, Runner has sponsored Proposition 6 (PPT) on the November ballot, which would move money from the state general fund to crime control, including $15 million annually for GPS monitoring by local law enforcement of gang offenders, violent offenders and sex offenders.

The latest provision in Jessica's Law to come under question pertains to "sexually violent predators" -- a small minority of sex offenders believed to be committing crimes due to mental illness. They can be committed indefinitely to hospitals for treatment if a jury affirms the diagnosis of two psychologists or psychiatrists. A single sex crime can now lead to lifelong commitment.

The evaluations cost $31 million in the last fiscal year, including payments to contract evaluators.


OH - Judge frees convicted Ohio rapist after DNA test

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08/11/2008

COLUMBUS (AP) - An Ohio man is free after spending nearly 18 years in prison on a charge of raping a 10-year-old girl.

A judge ordered the release of 52-year-old Robert McClendon after a lab re-examining cases across Ohio showed that his DNA profile didn't match evidence from the crime scene.

A lawyer with the Ohio Innocence Project says she expects prosecutors to formally drop charges against McClendon within the next two weeks.

McClendon denied raping the girl but was convicted in 1991 and sentenced to 15 years to life in prison. In 2007, he was denied parole.

An Ohio DNA lab agreed to conduct tests on McClendon and other inmates for free as a public service after The Columbus Dispatch published a series in January featuring 30 inmates whose applications for new DNA testing had been stalled.


FL - A Child's Tragedy, A Parent's Character

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By Steven J. Milloy
Copyright 2000 CNSNews.com
February 28, 2000

One can scarcely imagine a worse event - the death or severe injury of your child.

For a parent, the grief may be compounded by the guilt associated with partial or even imagined responsibility for the harm occurring. How one deals with the challenge of guilt-on-grief provides unique insight into one's character. Consider the cases of Al Gore, Robert Sanders, and John and Reve Walsh.

Environmental Activism Sparked by Tragedy

On April 3, 1989, then-Sen. Albert Gore, Jr. and his son, Albert Gore III, were leaving the Baltimore Orioles opening day baseball game when, according to news reports, Albert III "let go of his father's hand" and darted into the street near Memorial Stadium. Albert III was hit by a car and injured severely with broken bones, ruptured spleen, bruised lung and concussion.

The driver of the car, Jasper McWilliams reportedly was not speeding and the police did not charge him at that time.

The accident was understandably distressing to Gore, but his behavior in its aftermath was curious. In his son's hospital room, the elder Gore began writing his well-known book and environmental call-to-arms "Earth in the Balance."

Gore wrote, "For me something changed in a fundamental way. I don't think my son's brush with death was solely responsible, although that was the catalyst. But I had also just lost a presidential campaign; moreover, I had just turned 40 years old. I was, in a sense, vulnerable to the change that sought me out in the middle of my life and gave me a new sense of urgency about those things I value the most."

Albert III's accident spurred Gore's now famous activism on the "rapidly deteriorating global environment," a battle which Gore wrote includes "completely eliminating the internal combustion engine over, say, a 25-year period" and "embarking on an all-out effort to use every policy and program, every law and institution, every treaty and alliance, every tactic and strategy, every plan and course of action -- to use, in short, every means to halt the destruction of the environment and to preserve and nurture our ecological system."

The fact that a car accident precipitated a call to eliminate the internal combustion engine is bizarre enough, but it's not the end of the unusual events following the accident.

A week after the accident, blame for the accident somehow got displaced. McWilliams was suddenly charged with speeding and failing to exercise proper precaution upon seeing a child in the road.

He was tried in Baltimore District Court in July 1989. McWilliams was acquitted of all charges, leaving Gore, as the parent holding his child's hand while crossing the road, with responsibility for the accident.

But why did Gore, a powerful Democrat, allow Baltimore City, a Democratic stronghold, to prosecute McWilliams at all?

Tragedy for Profit?

On October 15, 1995, Robert Sanders was driving with his three children in Baltimore City. His two sons were in the back of his 1995 Dodge Caravan. Alison, his 7-year-old daughter, was in the front seat. According to police reports, she was not wearing her shoulder safety belt.

Traveling southbound on Charles Street, Sanders failed to stop for a red light and broadsided a car going eastbound through a green light on the intersecting street. On impact, the passenger side air bag inflated, gravely injuring Alison who was pronounced dead at the hospital.

The police reported no fault on the part of the driver of the second vehicle. Sanders told the police, "It's my fault. God gave me that little girl to take care of and I ran the red light... I am guilty."

But that's not where Sanders ultimately placed responsibility. Sanders, a lawyer, is now suing automaker DaimlerChrysler for designing an allegedly faulty airbag.

He also started the group Parents for Safer Airbags and obtained funding for it from the New York State Trial Lawyers Association. He now participates in other airbag cases against automobile manufacturers; cases where the lawyers' payout can reach up to 40 percent of the recovery.

No doubt the air bag controversy is complex, the merits of which are not relevant here. But one thing is clear. The accident and the death of Alison are admittedly the responsibility of Sanders, regardless of his wanting to blame DaimlerChrysler and boost his legal career.

Using Tragedy to Help Others

In July 1981, 6-year-old Adam Walsh went to look at toys in a Sears department store while his mother shopped for lamps in another section of the store in Hollywood, Florida. He was not seen alive again.

Within three weeks, Adam's parents, John and Reve Walsh, called for a national computer system to aid in the search for missing children. A reward fund of more than $120,000 that was started to help locate their 6-year-old son was donated to a groups involved in finding missing youngsters.

The family also filed a wrongful death lawsuit against Sears. They claimed an untrained security guard's action contributed to Adam's abduction because he had chased away Adam and other children after an argument broke out near some video games.

Sears argued that Adam's abduction was caused by the "negligence of the mother." John and Reve Walsh later dropped their lawsuit with the promise of no further legal action.

When the lawsuit was dropped, John Walsh announced "I have to work for effective social change and keep making people aware," of tragedies like his and how to prevent them. To his credit, he has effectively created social change and awareness without threatening the liberty and property of others.
- Yeah right!  He has eroded many peoples liberty and much more.

Though he is perhaps best known for hosting the Fox program "America's Most Wanted," Walsh's efforts led to the establishment of the National Center for Missing and Exploited Children, a non-profit organization that to date has worked on 66,350 cases of missing children. The center has helped in the recovery of 47,284 children.
- So you see, this is why you cannot quote statistics from NCMEC!  They have an agenda, and always cite bogus statistics they have pulled from thin air.

Insights to Character

In the end, John and Reve Walsh decided not to blame others for their tragic circumstances or place fresh burdens on society. Instead they took action that has helped others with a life-and-death matter; the disappearance of their children.
- Another crock of BS!  It was never proven a sex offender killed their son, yet he passed laws to punish sex offenders, so don't give me this BS!

By contrast, innocent parties were blamed in the cases of Gore and Sanders. In Gore's case, he actually allowed an innocent man to be criminally prosecuted. Worse yet, Gore and Sanders exploited their tragedy to boost their public images and careers, and shape controversial public policy debates, despite the irrelevance to those debates of their personal experiences.

Gore and Sanders both failed to safeguard their children. They should not be judged too harshly as such momentary lapses can happen to anyone. But they should be judged harshly for displacing blame and exploiting personal tragedies.

When possible, we should work to make the best of personal tragedy. What that "best" is may provide unique insight into our characters.

Steven Milloy is a lawyer, biostatistician, publisher of Junkscience.com and adjunct scholar at the Cato Institute.


NV - Washoe County deputy arrested in child porn case

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08/10/2008

SPARKS -- A Washoe County sheriff's deputy has been arrested on suspicion of possessing child pornography, officers said.

Paul Kistner, 36, was booked Thursday night into the county jail, said Sparks police Cmdr. Gary Potter.

An independent party informed the sheriff's office Wednesday about allegations that the deputy was viewing child pornography, Potter said.

The investigation was turned over Thursday to Sparks police, who served a search warrant on Kistner's home.

The deputy, a 12-year department veteran, is accused of viewing child pornography Web sites.

Because Kistner was assigned as a detention officer at the jail, he was moved to another facility for safety and security reasons, said sheriff's spokeswoman Brooke Keast.