Saturday, March 10, 2012

CA - California transplant wins appeal in sex registry case

Original Article


By Milan Simonich

SANTA FE — Does a convicted sex offender in California have to register with the government if he moves to New Mexico?

The New Mexico Court of Appeals said one such man did not, setting the stage for another courtroom confrontation this month.

[name withheld], about to turn 65 years old, is the defendant in the middle of this storm over laws and protection of children.

[name withheld] is a marked man as a sex offender in California but, so far, not in New Mexico.

Court records show that [name withheld] in 1999 was convicted in California of "annoying or molesting children," a misdemeanor. An assistant attorney general in New Mexico stated in a brief that [name withheld] touched the genitals of three young boys.

[name withheld] moved to Las Cruces, but did not register as a sex offender. This led to his indictment in 2008 for violating New Mexico's Sex Offender Registration and Notification Act.

[name withheld] said that, despite his criminal record, he was not obligated to register as a sex offender. What he did in California was not a sex offense in New Mexico, he argued.

He said he could not be subjected to the registration law and asked that the charge against him be dismissed.

District Judge Douglas Driggers of Doña Ana County rejected [name withheld]'s motion. [name withheld] entered a conditional guilty plea, but preserved his right to appeal.

He did and last year he won his case before the state Court of Appeals. A three-member panel of judges found that California and New Mexico had similar laws on sex crimes, but still said [name withheld] was absolved from being listed as a sex offender in New Mexico.

"... The fact that both statutes may serve similar purposes is in no way controlling," Chief Judge Celia Foy Castillo wrote in the decision. "Because the statutes differ on the essential element of touching or application of force, we hold that they are not equivalent under the Sex Offender Registration and Notification Act."

"And the defendant is not required to register as a sex offender in New Mexico based on his California conviction for annoying or molesting a child."

The court also reversed [name withheld]'s felony conviction for failing to register.

State Attorney General Gary King has appealed the ruling. One of his assistants, Margaret McLean, writing a brief on behalf of the state, said the appeals court's decision in [name withheld]'s case could have wide and damaging consequences.

"The possibility that a safe haven for sex offenders in New Mexico is adopted cannot be overstated," she said.

King has asked the New Mexico Supreme Court to overturn the ruling and require [name withheld] to register as a sex offender. Oral arguments before the Supreme Court will be occur March 26.

[name withheld] is being represented by a public defender, who said in his brief that the appeals court ruled correctly.

In sum, [name withheld]'s lawyer argued that New Mexico has no statute against "annoying or molesting a child," so he cannot be a sex offender in this state.

But McLean said New Mexico has a comparable law to California's, giving it a ready means of prosecuting men who molest boys.

In her brief, she even offered this hypothetical example: A man at the New Mexico State Fair quickly pulls down the pants of three boys and touches their genitals. McLean said New Mexico would prosecute such a predator for "criminal sexual contact of a minor."

As for the particulars of the states' two statutes, they need not be exact matches to justify [name withheld] having to register as a sex offender, she said.

"Elements of the crime are different. This difference is not fatal" to New Mexico's sex registration law, McLean wrote in the brief.

Sen. Mary Jane Garcia, one of the state Legislature's leaders in writing laws to protect children, said she was alarmed at the appeals court's decision.

"I am going to be watching this case as it moves ahead. I don't want New Mexico being seen as a haven for those who prey on children," Garcia said.

She said Megan's Law, built from a California case, was a basis for certain New Mexico statutes approved in the 1990s to protect children from sexual predators.

Indeed, the California attorney general's website that lists sex offenders is called Megan's Law.

[name withheld] is still listed as a sex offender on the California site. But beside his photograph is a red check mark.

He has been in violation of his California registration requirements since March 29, 2006, according to the California attorney general. That coincides with the time he moved to New Mexico.

[name withheld] is not listed on New Mexico's website of sex offenders. The New Mexico Supreme Court will decide whether [name withheld] belongs there.

If the Suprme Court finds that [name withheld] does not fit the definition of a sex offender, Garcia and other legislators may take up the job of rewriting state laws.

Human Rights Watch Project - The harmful impact of sex offender registration and notification laws on children

This was posted elsewhere, and Human Rights watch is looking for people to do interviews.

Searching for Interview Subjects:

I am conducting a nationwide investigation for Human Rights Watch on the harmful impact of sex offender registration and notification laws on children. This project will focus on documenting and advocating against the human rights violations that stem from subjecting children to such laws. Three general concerns are:

  1. First, the laws can be overbroad in scope and overlong in duration, requiring child offenders to register who pose no safety risk.
  2. Second, given the easy public access to online sex offender registries, registrants may be subjected to public humiliation, harassment, and violence. In certain cultural or religious communities, the registration requirements can harm a young person’s ability to practice their religion or enjoy their cultural rights.
  3. Third, residency restrictions can have the effect of banishing registrants from entire geographical areas, forcing them to live far from their homes and families. The risk of public humiliation, family separation, and de facto community banishment can be particularly harmful for youth, including by harming the mental health and developmental progress of youth. The subjects I am looking to interview include, but are not limited to, persons with information relevant to the concerns outlined above who meet the following characteristics and categories;
    • Children (under the age of 18) who have been adjudicated delinquent or convicted as an adult of a sex offense that either;
      • Subjects (or subjected them) to sex offender registration and notification laws. This can include residency restrictions, zoning restrictions, housing restrictions, etc.
      • Were subjected to registration or notification laws but successfully petitioned to get off the registry
      • Were subject to registration and notification laws but aged out of the juvenile justice system and no longer are required to register.
    • Family Members affected by a child relative subject to registration and notification. Family members can also include siblings, cousins, grandparents, aunts/uncles, coaches, clergy, foster parents, teacher, principals, or anyone in a guardian/mentor-like position in the child’s life that was indirectly affected by the child’s registration status.
    • Attorneys representing children in underlying criminal proceedings or adjudications.
    • Government Officials A Government official in this case can be a probation officer, a judge, prosecutor, mandatory sex offender treatment provider, sex offender registration group treatment provider, police officer, interstate compact on juvenile official, etc.

Interviews with a wide variety of people from the above categories is essential to the success of this investigation and publication of findings. Every interviewee will have the right to refuse participation and / or to provide information confidentially.

Please contact me by email or phone with the name and contact information of the potential interviewees. If the subject is homeless or does not have access to email or phone, please contact me so we can discuss alternate ways to reach out to them.

Soros Senior Justice Advocacy Fellow
1441 Sansom Street #729
Philadelphia, Pennsylvania 19102
Tel: (267) 765-6766
Fax: (267) 765-6981

Criminal defense attorney Norm Pattis talks about how to defend someone who is being accused of rape