Saturday, July 2, 2011
Not sure when this was actually done, but it's the first time we've seen it.
Download the PDF slide deck - Six days before Graydon Comstock's completion of his 37-month sentence for possession of child pornography, Attorney General Alberto R. Gonzales certified that Mr. Comstock was a sexually dangerous person. The law that Attorney General Gonzales invoked was ruled unconstitutional by lower courts on the grounds that it exceeded Congress’ constitutional authority. Argued in January 2010 by Solicitor General Elena Kagan, the United States' position was that the "necessary and proper" clause gave Congress the power to enact the law.
Watch AMU's recorded webcast, which featured our esteemed panel as they analyzed the groundbreaking U.S. vs Comstock case, in which the Supreme Court ruled that the federal government has authority under the Necessary and Proper Clause to require the civil commitment of individuals already in Federal custody.
By Tom Hymes
ANCHORAGE - A federal judge has put a final nail into the coffin of SB 222, a state law passed in January 2010 that imposes criminal sanctions against people engaged in the "electronic distribution of indecent material to minors." The state has contened all along that the law is intended to target only sexual predators who use pornography to "groom" their victims, and would not be used to target adult speech. But a group of content producers, distributors and other affected parties, including the Alaska ACLU, filed suit in August of last year, alleging that the imprecise language of the statute would create an unconstitutional chill on adult speech.
After granting the plaintiffs' motion for a preliminary injunction last Oct., U.S. District Court Judge Ralph Beistline Thursday concluded the law was fatally flawed as written by failing to achieve two of the three prongs necessary to pass strict scrutiny; it was neither "narrowly tailored" enough to achieve the state's legitimate "compelling interest to protect minor children," nor was it the "least restrictive means" to meet the state's interest.
The language of AS 11.61.128 is, as follows:
Electronic Distribution of Indecent Material to Minors.
(a) A person commits the crime of electronic distribution of indecent material to minors if
(1) the person, being 18 years of age or older, knowingly distributes to another person by computer any material that depicts the following actual or simulated conduct:
(A) sexual penetration;
(B) the lewd touching of a person's genitals, anus, or female breast;
(E) the lewd exhibition of a person's genitals, anus, or female breast; or
(F) sexual masochism or sadism; and
(A) the other person is a child under 16 years of age; or
(B) the person believes that the other person is a child under 16 years of age.
(b) In this section, it is not a defense that the victim was not actually under 16 years of age.
(c) Except as provided in (d) of this section, electronic distribution of indecent material to minors is a class C felony.
(d) Electronic distribution of indecent material to minors is a class B felony if the defendant was, at the time of the offense, required to register as a sex offender or child kidnapper under AS 12.63 or a similar law of another jurisdiction.
The state argued that the "knowingly distributes" component of the law indicated its intent to target a narrow class of criminals, but the judge said that because of the inherently anonymous nature of the internet, the law as written would ensnare adults communicating with other adult online, and further, that the broad interpretation by the courts of "knowingly" would create "a chilling affect under the Alaska stature, even if 'knowing' is imputed to sections where the word is not included. Individuals who fear the possibility of a minor receiving speech intended for an adult may refrain from exercising their right to free speech at all—an unacceptable result."
According to the ruling, the state does not even contest the possible overreach of the statute. "The State of Alaska conceded that when the statute is interpreted at its broadest, it is unconstitutional," wrote Beistline. Any possible chilling effect was permissible, it argued, because without the law, "the State would actually have to wait until a child was actually sexually assaulted before intervening." No other statute, it claimed, "prohibits adults from giving adult pornography to children."
The judge found that argument wanting, as well, finding that not only was the claimed statutory deficiency easily fixable by the legislature, which could also amend the current stature to make it more narrowly tailored as other states, including Ohio had done, but in his October ruling granting a preliminary injunction, Beistline listed a number of statues on the books in Alaska that provided "clear alternative options for prosecuting sexual predators."
The ruling is so one-sided, in fact, that one wonders why it was passed as written in the first place. Ars Techinca wondered the same thing. "So why do legislatures keep passing these censorship bills," wrote Timothy B. Lee. "It's possible that their authors are simply ignorant of our nation's free speech jurisprudence. Or maybe passing broad censorship bills—even ones that will inevitably be struck down in court—is good politics. Either way, the whole charade seems like a waste of court time and taxpayer money."
The state is reportedly considering an appeal.
By Eva Ruth Moravec
A China Grove police officer is on unpaid administrative leave after he was arrested for failing to register as a sex offender, officials said.
- So was he a sex offender and police officer at the same time, and has now been put on administrative leave due to not registering? If so, should he be a police officer?
Daniel Casas, 48, turned himself in at the Bexar County satellite office on June 24, when he posted $10,000 bail and was immediately released, according to Detective Louis Antu, a spokesman for the Bexar County Sheriff's Office.
He was convicted of a 1991 sexual assault of a child with contact, Antu said, and received deferred adjudication. In the past, a sex offender registry law only required sex offenders convicted after 1997 to register, but a change in the past few years now requires offenders to register if convicted after 1970.
Casas has worked for the China Grove Police Department for a few years, officials said.
According to Antu, Bexar County investigators are combing through cases to ensure convicted offenders comply with the law. Casas' conviction slipped past Bexar County's investigation but was noticed by the Texas Department of Public Safety, which informed Bexar County and Casas of the offense.
“He refused to register,” Antu said. “We issued a warrant, couldn't find him, and then he turned himself in. He still hasn't resolved it — he had seven days to register after the 24th, and he has failed to do so.”
SALINAS - Former Salinas Police Officer Lance Mosher pled no contest on charges he committed lewd acts upon a child under the age of 14.
According to the Monterey County District Attorney's Office, Mosher will be required to register as a sex offender for the rest of his life. He will be required to undergo a psychological evaluation. He will be sentenced on September 23rd.
Under the agreed upon disposition, through which the victim was spared the trauma of going through a jury trial, the judge can sentence the defendant to up to a year in county jail.
He will also be placed on felony probation for a period of at least three years, and could be sent to state prison for up to eight years if he violates his probation.
Lance Mosher on placed on administrative leave from the Salinas Police Department in April after the allegations came out against him. The assault allegedly happened in 2007.
By Steve Kelso
'Adam Walsh Law' now in effect
GRAND RAPIDS (WOOD) - Routinely, convicted sex offenders had to report to a police station and verify their addresses. But a new law that took effect Friday requires much more information, causing the process to balloon from three minutes to as much as two hours.
The Adam Walsh Law helps bring Michigan in line with federal standards and is part of the reforms passed by the Michigan legislature earlier this year. Now, sex offenders and classified into three tiers and the so-called Romeo-and-Juliet cases among consenting teens has been eliminated.
The legislature took action shortly after a Target 8 investigation into the Michigan Sex Offender Registry.
Offenders who now report to verify their information will also be required to provide information on where they work, cell phone numbers, vehicle information, license plate numbers, the vehicle ID number, email address, Facebook and Twitter accounts.
"From an investigative standpoint, it will make things a whole lot easier to be able to start looking into things," Sgt. Steve Labrecque told 24 Hour News 8. But "today has been, (sigh) I knew it was going to be a nightmare and it's turned out to be a nightmare."
To help with the overwhelming number of people and the backlog in the station, two Michigan State Police troopers helped out.
In the city of Grand Rapids, there are an estimated 1,000 registered sex offenders. As many of them arrived, it didn't take long before "the system that we are required to put all of this information in dropped out of service."
Police were forced to ask the registering offenders to be patient and hope they would comply.
"They came in," Labrecque said. "I view it as our obligation to get what we can and we will work with it, because getting some info is better than not having them show back up."
Lengthy delays like this are not the new norm for reporting, police said, but there is one additional provision that will continue to tax police resources.
"Now that the law requires them to change everything within three days," he said, "I expect that our office is going to be much busier."
A teenage girl who brought a rape charge to court recently withdrew the matter and confessed to have framed the alleged rapist.
When it was time to give evidence, 18-year-old Bangu Balayi instead surprised the court by asking to be forgiven for wasting the court’s time.
She revealed that she had falsely accused her ex-boyfriend who is also the father of her two months old baby out of fear of what her mother could have done to her had she found out that she had voluntarily spent the night with the man on November 03 last year.
Tutume station commander,Vusumusi Jerome said that the young mother had confessed to the police before trial that the reason she falsely accused her ex-lover of rape was because she had overslept at the man’s house and therefore needed a reason to avoid her mother’s wrath.
She further revealed that the accused, a 25- year -old nurse who was suspended from work pending trial, was her boyfriend for one and a half years before the false rape accusations.
By Candie Beck
A Greenbrier girl soon will face charges in juvenile court stemming from an investigation that began in April, according to Cody Hiland, prosecuting attorney for the 20th Judicial District.
“We received the file from the Greenbrier Police Department, and after reviewing the case, we anticipate that charges will be filed next week,” he said.
The suspect, who is 11 years old, will face charges of filing a false police report after telling her family and members of the Greenbrier Police Department that she had been abducted and raped before managing to get away from her alleged attacker.
At the time of the incident, the girl told authorities that she had been walking in the Glenn Drive area when she was picked up by a man in a black vehicle. It wasn’t until Greenbrier authorities received notification from the Arkansas State crime lab that the girl’s story began to unravel.
In an earlier interview, Greenbrier Police Chief Lt. Gene Earnhart said that after authorities received tests results from the Arkansas State crime lab, they interviewed the girl again at which time she admitted that the incident did not happen.
“It was evident when we received the results from the samples we had sent to be tested that the incident did not occur,” he said. “When we asked the girl’s mother to bring her in to be interviewed, the little girl confessed that the incident did not occur.”
Earnhart confirmed that personnel had dedicated hundreds of hours to the case and said that the incident is unfortunate.
“In a way, I am glad that the incident did not happen because it means something horrible did not occur, but it was also a lot of wasted time and effort for the department,” he said.
Hiland confirmed that the girl will be charged in juvenile court with filing a false police report. If convicted, she could face sentences ranging from time in the Division of Youth Services for the State of Arkansas, community service or probation.