Wednesday, July 11, 2012

NY - Offender zones give false sense of security

Original Article

07/11/2012

The Village of Walden is about to learn a lesson that others have taken a while to understand. No matter what laws you put on the books regarding the places convicted sex offenders may live, the best way to keep children safe is to educate them and their parents to the dangers they face.

If children are taught at home and in school what to do should they be approached by a stranger, they will be better equipped to avoid trouble and find the help they need. If parents are aware of the presence of these offenders, something that laws requiring notification to police help publicize, then they, too, will be on guard.
- Most sexual crimes do not occur by strangers, but family or close friends.  So they need to be educated on "Good Touch / Bad Touch!"

As for the debate over the creation of zones where sex offenders may or may not live, there is little evidence that they have much of an effect on safety. If they are restrictive enough, they might be able to keep any offenders from trying to live in a community. But short of enacting a villagewide ban, something that the courts would not allow, these efforts are always going to be ineffective.

The Walden law would prohibit a registered offender from living within 500 feet of a school. But it is almost impossible for laws or law enforcement to keep the targets of the law from walking, driving, shopping or otherwise spending time in places where children will be.

That's why some have argued that these laws and the inevitable court challenges they bring, especially when they try to apply standards retroactively, as Walden is considering, do more harm than good.

They provide a false sense of security because the politicians who promote them make promises that they cannot keep and that their laws cannot ensure. In Walden, Mayor Brian Maher is just the latest to join the crowd, saying, "We are making every effort to ensure our children are protected, and we hope to pass this law as soon as possible."
- He's also running for the state assembly, so of course he's going to break out the sex offender fear-mongering tactics, it's how politics works.

That's not a promise a parent can trust; it's a campaign platform, which is understandable, since Maher is running for higher office.


TX - Former Brazoria Co. deputy (Joe Lee Garcia) charged with sexual assault

Joe Lee Garcia
Original Article

07/11/2012

BRAZORIA COUNTY - A former Brazoria County Sheriff's Deputy has been indicted after allegedly making sexual advances on a woman he was transporting.

Joe Lee Garcia, 37, is facing sexual assault and official oppression charges stemming from an incident on the night of March 30 outside of the city of Brazoria.

According to the Brazoria County Sheriff's Office, the victim had come up on an accident scene and was checking on the driver and passengers. Shortly after, deputies arrived and began conducting an investigation.

Deputies spoke with the woman and determined she wasn't involved in the wreck. They say the deputies also determined that she was unable to drive herself to her destination, so they gave her a courtesy transport.

The victim alleges that during that transport, that Garcia made sexual advances toward her and that sexual contact did occur.

The Brazoria County Sheriff's Office conducted an investigation and on April 12, Garcia was fired. The case was forwarded to the Brazoria County District Attorney's Office. A grand jury indicted Garcia on charges of sexual assault and official oppression.

Garcia turned himself in on Tuesday and was released after posting a $50,000 bond.


NY - De Blasio, Vallone Call For Law To Protect Children From Sex Offenders In Libraries

Bill de Blasio
Original Article

Stop the insanity! If someone commits a crime in a library, then the probation / parole officer can tell them to not go to libraries! Stop punishing all who wear the label for the sins of a couple!

07/11/2012

By James Arkin

NYC officials are calling on the state legislature to ban sex offenders from children's reading rooms in libraries.

Public Advocate Bill de Blasio and Council Member Peter Vallone Jr. wrote a letter to the state legislature urging for a new law to protect children. The actions come after a man was arrested Saturday for molesting two girls in a library in Flushing last month.

Laws are currently on the books banning sex offenders from entering children's playgrounds. According to the letter from de Blasio and Vallone, banning offenders from libraries entirely have been found unconstitutional.

"This problem is real, and it's happening where parents trust their kids will be safe," said de Blasio in a statement. "A children's reading rooms should be off limits for a sexual predator just like a playground."
- No matter how many draconian laws you pass, if a "predator" wants to harm a child, none of the laws will prevent that!

The letter suggested that these incidents often go unreported. Vallone has previously been outspoken on the issue, as he called for cameras in children's sections of libraries after an incident at an Astoria library last year.

"It is common sense that we keep sexual predators away from areas where young kids congregate," Vallone said. "Children's rooms in libraries are really indoor playgrounds for growing minds, and our kids need every protection we can give them."


KS - Kansas Law Treats Sex Offenders Too Harshly

Original Article

It's about time a court did what they are suppose to do, uphold the Constitution. Also, with all the registration fees that are being forced on people, wouldn't that also be a violation of the Eighth amendment?

07/11/2012

By JACK BOUBOUSHIAN

"Even murderers are not treated so harshly" as Kansas handles recidivist sex offenders, the state appeals court ruled (PDF), striking down a law that would impose a life sentence on a sex offender who committed a subsequent felony.

[name withheld] was a teenager when he had multiple sexual encounters with 12-year-old T.C. while staying with the boy's family in 2009.

"[name withheld] apparently cajoled T.C. into having manual and oral contact with [name withheld]'s penis," according to the court. "[name withheld] also had manual contact with T.C.'s penis, behind, and anus."

[name withheld] pleaded guilty in 2010 to aggravated indecent solicitation of a child, and lewd and lascivious behavior. The 19-year-old had no prior criminal history, and had indeed been the victim of sexual abuse some years earlier, so a judge in Saline County sentenced [name withheld] to 44 months probation, with prison time suspended.

[name withheld] entered a treatment program and faced lifetime post-release supervision if he violated probation.

Commission of a crime on post-release supervision would qualify [name withheld] for life sentence without parole.

After the judge rejected [name withheld]'s constitutional challenge to find the lifetime post-release supervision statute, the Kansas Court of Appeals found that law constitutes cruel and unusual punishment, in violation of the Eighth Amendment.

The court noted that the case is unusual because of its hypothetical nature.

"The thrust of [name withheld]'s argument for unconstitutionality, however, goes to the mandatory life-without-parole penalty that would accompany a conviction for a new felony," Judge G. Gordon Atcheson wrote for a three-judge panel.

Since [name withheld] would not have a certain procedural path to challenge the law "at a juncture when the essential historical facts will have become fixed rather than conjectural," the court proceeded under the assumption that [name withheld] violated his probation with some noncriminal action, such as drinking alcohol.

Assuming that the district court then ordered [name withheld] to serve his 44-month sentence, the court then hypothesized what would happen if [name withheld] later committed and pleaded guilty to a low-level felony, such as shoplifting a $1,100 ring, or writing a bad check.

"Although [name withheld] would be in line for probation on the bad check charge, the violation of his post-release supervision would mandate his return to prison for the rest of his life - conservatively, some 25 to 30 years," Atcheson wrote.

By combining two offenses that individually permit probation, the structure imposes lifetime incarceration without possible release, according to the court. "The United States Supreme Court has never upheld that sort of recidivist sentencing scheme," Atcheson wrote.

"The deviation between the customary punishment the legislature has adopted and the result here seems, at least on its face, startlingly anomalous," he added. "A defendant first committing a sexually based person felony and later a low-level nonperson felony, such as theft or forgery, may not be deserving of praise, but the conduct reflects a de-escalation of criminality and antisocial behavior. Why that should result in life behind bars begs an obvious explanation, particularly when the reverse behavior does not have anywhere near the same penal consequences."

Even accounting for the sexual nature of [name withheld]'s first crime does not warrant the punishment at hand, according to the court.

"Escalating punishment for repeat sex offenders culminating in life in prison reflects an orderly and understandable penological response to a serious social and criminal problem," Atcheson wrote. "But imposing the same sentence - the second harshest possible - for a single sex offense followed by any felony conviction looks to be unfocused, especially operating simultaneously with the recidivist statutes targeting repeat sex offenders."

Atcheson noted that "even murderers are not treated so harshly. A person committing successive second-degree murders could be released and then commit a low-level felony without spending the rest of his or her life in prison."

"We, therefore, find lifetime post-release supervision as applied to [name withheld] to be cruel and unusual punishment violating the Eighth Amendment," he concluded.

The decision comes on the heels of a important finding from the Supreme Court involving mandatory life sentences without the possibility of parole for juvenile murderers. A close majority held last month that such sentences constitute a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.


NY - No prison for ex-guard (Frederick Brenyah) convicted in attempted rape of inmate

Frederick Brenyah
Original Article

Of course not! If the average citizen attempted to rape someone, they'd be in jail or prison.

07/11/2012

By Erik Shilling

A 67-year-old former Taconic Correctional Facility guard who was convicted of attempted rape and a criminal sex act in May avoided jail time Tuesday when a state Supreme Court justice sentenced him to 10 years’ probation for the attack on a female inmate.

Frederick Brenyah of Yonkers had faced up to four years in prison, and continued to deny the charges up until his sentencing, a factor state Supreme Court Justice Lester B. Adler said he could not hold against him in imposing the sentence.

But Adler also said Brenyah abused his “position of trust” when he pulled the 57-year-old woman into officers’ bathroom at the Bedford prison on Sept. 19, 2010, and, prosecutors said, penetrated her from behind before forcing her into oral sex.

You used your position of power and your position of trust to satisfy your sexual desires,” Adler said.

Brenyah was fired last month after a more-than-two-decade career at the state Department of Corrections and Community Supervision. He was previously accused, and later acquitted, of rape charges in 2003.

The victim in the 2010 attack — a murderer and arsonist — wept on the witness stand when recounting the encounter in April, but prosecutors produced little in the way of physical evidence in the case, and no eyewitnesses were called to testify.

Instead, both sides appeared to rely heavily on written notes of a conversation Brenyah had with a state investigator shortly after the incident. In those notes, Brenyah apparently admitted to receiving oral sex in the encounter, but denied raping the woman, who he said tried to have sex with him.

He ‘froze’ because he didn’t want it,” the investigator wrote.

Angelo MacDonald, a lawyer for Brenyah, argued for probation, saying that prison would be particularly harsh for an ex-guard who has diabetes, hypertension and other ailments.

You just don’t sentence someone based on the crime they’ve committed,” MacDonald said. “You also consider the man in front of you.”


WA - City's power limited in banning sex offender housing near schools

Original Article

07/10/2012

By Halley Griffin

The City of Tacoma may not have many tools in its arsenal against a controversial proposed halfway house for sex offenders, but staff and councilmembers say they are committed to doing what they can to appease neighbors and keep the neighborhood safe.

The proposed halfway house, located in the 1600 block of South Grant Avenue, would be a place where criminals and sex offenders could get a fresh start.

The problem, according to Hilltop residents, is that Richard Garrett's proposed Second Chances halfway house would be located within 100 yards of a Boys and Girls Club and Stanley Elementary School.

Most shocking of all, say neighbors, is that there are no legal protections in place to keep sex offender housing away from schools and child care centers.

Garrett told KOMO News last month that he plans to house five to 10 people in the facility, and some of them could be level 2 or level 3 sex offenders.

Neighbor Michelle Bonds and her husband David both spoke up during a citizens' forum at Tuesday's regular city council meeting.

"If there are level 2 and level 3 sex offenders, what is stopping them from doing something to one of our kids? [My son] attended Stanley, he still goes to the Boys and Girls Club, his bus stop is still right in front of this house," she said. "I, too, thought, 'There must be a law. There's no way.' Everybody I told said, 'There's no way that can happen, there's got to be a law.'"

In fact, there is no law - and cities are restricted by state law from imposing very strict laws with regards to sex offender housing.

"It is quite clear and we understand that we are preempted from putting very restrictive rules where it relates to sex offender housing," City Manager T.C. Broadnax told the council Tuesday.

He added that city staff are committed finding some sort of solution to the problem.

"So I have committed and we will follow up with some efforts that address what we can do up to our legal limits within the city," he said.

Resident after concerned resident spoke up Tuesday, many of them echoing a deeper frustration.

"I'm trying to think of a word that will describe all of us here and the best I can come up with is just tired," said Hilltop resident Felicia Batchman. "We're tired of being the dumping ground of Tacoma."

Councilmembers didn't disagree with the sentiment.

"We take this seriously, regardless of ... where we live," said Councilman Jake Fey. "But I feel for the fact that it's happening too much in one place and that certain neighborhoods are feeling more of the pressure of these issues than others. So I hope that we can come up with something and if nothing else shed some light about a problem that may not be solvable here in these chambers, but may be solvable in the state legislature."


WI - Former sheriff's deputy (Michael Brayton) accused of sexual activity with teenage girls

Michael Brayton (right)
Original Article

07/10/2012

ANTIGO - A former Langlade County sheriff's deputy was arrested and charged with 22 felonies Tuesday for alleged sexual activity with teenage girls.

Bail was set at $50,000 for Michael Brayton, 25, of Gleason. A judge ordered that he have no contact with girls under age 18 if he makes bail.

Brayton remained in custody after his court appearance. Online court records do not list whether he has an attorney.

The charges include four counts of sexual assault of a child under 16, two counts of child enticement and 16 counts of exposing his genitals to children.

All are linked to incidents with four girls, ages 15 to 18, the Antigo Daily Journal reported. The 32-page complaint alleges a pattern of behavior with younger girls from Elcho High School and heavy use of social media including Facebook and text-messaging. It alleges Brayton and the girls became friendly and their relationships escalated to trading explicit photographs and several instances of physical contact with one girl.

In statements to investigators, the girls described Brayton as a "hot cop" with one saying she initially was flattered by the attention but later began to feel it was wrong.

According to the complaint, Brayton told investigators nothing happened while he was on duty, nor did any of the activity involve force or alcohol.

"Either way I'm an adult," Brayton was quoted as saying. "It's my fault, it's my decision and you live with the consequences. I'm 100 percent guilty."

Sheriff Bill Greening said in a statement that Brayton was a deputy from 2008 until June 11 this year. The statement did not say whether Brayton quit or was fired, and a dispatcher said the sheriff and his chief deputy were unavailable for comment.

The Marathon County district attorney's office is prosecuting the case.

See Also:


AUSTRALIA - Police service's dire warning over two-strike policy for child sex offenders

Original Article

07/11/2012

By Daniel Hurst

The Queensland Police Service has warned “an offender may consider killing the child victim to evade punishment" under changes to Queensland law passed last night.

The reforms will ensure those who commit sexual offences against children face a mandatory 20-year jail term if they commit a second serious offence, in line with a Liberal National Party election promise.

But the Labor opposition voted against the Newman government's measure, warning it could bring unintended consequences such as discouraging people from reporting offences, decreasing the number of guilty pleas and forcing victims to endure longer, gruelling criminal trials.

While government MPs said they were stunned the opposition had tried to block laws to protect children, Labor leader Annastacia Palaszczuk cited concerns raised by the Supreme Court, the Queensland Law Society, the Commission for Children and Young People and several other groups.
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The Queensland Police Service, meanwhile, warned that “an offender may consider killing the child victim to evade punishment under the rationale there is little incentive to leave a child witness alive”.

The government's bill (PDF) introduces a “two strikes” policy for child sex offenders.

An adult who is convicted of a serious child sex offence and then goes on to commit another such offence will face a mandatory life jail term or indefinite sentence, serving a minimum 20 years without eligibility for parole.

The types of offences covered under the bill include rape, sex with children under 16, unlawful sodomy, incest, sexual assault and maintaining a sexual relationship with a child.

Attorney-General Jarrod Bleijie said the state government was aware the law was “a significant departure from current sentencing practices”.

He said strong measures were needed to address community outrage over the adequacy of punishments imposed on those who sexually offend against children.

Ms Palaszczuk said children needed to be protected, but the opposition did not believe the proposed law was the best way to go about this.

She noted a submission by Supreme Court Chief Justice Paul de Jersey (PDF) who argued a mandatory sentence of life imprisonment would discourage people from pleading guilty, thereby increasing the number of criminal trials and creating a longer wait for justice.

The court is joined in this concern about the fact that the penalty of life imprisonment cannot be varied or mitigated in any circumstances by Protect All Children Today, Queensland Law Society, Prisoners' Legal Service, Catholic Prison Ministry, Queensland Public Interest Law Clearing House, Youth Affairs Network Queensland, Aboriginal and Torres Strait Islander Legal Service, Centre Against Sexual Violence, Commission for Children and Young People and Child Guardian, Amnesty International, Brisbane Rape and Incest Survivors Support Centre, Bar Association of Queensland and Potts Lawyers,” Ms Palaszczuk said.

A Queensland Police Service submission (PDF) said as the proposed 20 year non-parole period would apply for both murder and repeat child sex offences, an offender may consider killing the child victim to evade punishment under the rationale there is little incentive to leave a child witness alive.

The QPS also argued “there may be a reduction in reporting of child sex offences, particularly where a witness makes a complaint with the aim of seeking a stop to the offending conduct rather than have the offender facing mandatory punishment”.

The submission, by Deputy Commissioner Ross Barnett, said more matters were likely to be contested in court, leading to more child victims being required to submit to extensive cross-examination by the defence and a higher chance of traumatic appeals.

Research suggests approximately 90 per cent of child sex offences are committed by family members or people known to the child,” he wrote.

There is also extensive research that identifies child victims of sexual offences are ambivalent about reporting family or friends. There is also likely to be increased pressure on the child to not report the offence, or to recant the allegations.”

LNP MP Ray Hopper, who chaired the committee that examined the bill (PDF), said he noted the quality of submissions, but it was an LNP election promise to toughen sentences for repeat child sex offenders.

This is about getting tough on people who commit these vile acts on children. This was our election promise. We will not break our election promises,” he said.

Rockhampton Labor MP Bill Byrne accused the LNP of applying mandatory sentencing to child sex offences in a case of "deliberate opportunism".

"I understand the political reality that if I express any opposition to this bill, members opposite will try to brand me as some sort of paedophile sympathiser. Nothing could be further from the truth," he said.

Mr Bleijie said the government had considered the concerns around possible unintended consequences and would be “keeping a close eye” on the law's implementation.

The Queensland government's position is that the over-riding consideration must be the safety of the most vulnerable members of our community, our children,” he said.

Agencies involved in the criminal justice system will monitor the impact of these amendments.”

Labor tried to move an amendment to allow the 20-year non-parole period to be altered in “exceptional circumstances”, but this failed to gain support.

Mr Bleijie said he was saddened that Labor was voting against the laws and the party had for too long used judicial discretion as an excuse to avoid getting tough on crime.


TX - Registered Homeless Sex Offender Numbers Increase in Lubbock

Original Article

Click the link above to see the video.

07/10/2012

By Monica Yantosh

"For us, it actually is a little high, normally we don't see a number that high on a routine basis," said Sargent Jonathan Stewart with LPD. Officials at LPD said normally, there are about five or six homeless people registered as sex offenders, but this year is different. "We do have a fairly large homeless population so it's one of those things, but like I said I don't really have an explanation. Normally it's not that high, we're just seeing a spike for a little while, maybe and hopefully something that will change quickly," said Stewart.
- Maybe it's due to the draconian residency laws and online hit-list?

Homeless sex offenders are still required to register with police. "Even when registering as homeless, they do have to give a location where they will be staying -- of course they may not have a street address to give us, but they do have to give us a location they will be at so we can check," said Stewart. They are also expected to update police with any location changes, just like sex offenders with a permanent physical address. "Homeless people are required to check in more often than those who can provide us a physical address in most cases," said Stewart.


TX - En Banc Circuit Says Sex Offender Rules Erred

Original Article

07/10/2012

By CAMERON LANGFORD

After a sex offender is unconditionally released from prison, the U.S. government cannot make him register in-state address changes, the full 5th Circuit ruled (PDF).

[name withheld] had consensual sex with a 15-year-old girl when he was a 21-year-old member of the U.S. military.

He was sentenced to three months in prison in 1999 for the crime, and the government then cut all ties with him after he served the sentence.

But when [name withheld] recently moved from San Antonio to El Paso and failed to update his state sex offender registration within three days, the government charged him with violating the Sex Offender Registration and Notification Act, or SORNA.

He was convicted and sentenced to one year and one day in prison.

A three-judge panel of the 5th Circuit affirmed in 2011, but the court then vacated its decision to rehear the case en banc.

A majority of the New Orleans-based federal appeals court reversed and dismissed [name withheld]'s conviction Friday.

The case hinges on the 2006 passage by Congress of SORNA, which states that a sex offender must register in each jurisdiction where he lives, works and studies. Offenders are also required to keep their registration current, but [name withheld] argued that the government applied SORNA's registration requirements to him unconstitutionally because the government had unconditionally released him before SORNA became law.

The government, however, claimed its power to criminalize sex offenses includes the authority to regulate his movement even after his sentence expired, and he has been unconditionally released.

Judge Jerry Smith and his colleagues in the majority rejected this argument.

"To say that Congress continues to have a 'direct supervisory interest' over such persons like - [name withheld] - is to announce that it has an eternal supervisory interest over anyone who ever committed a federal sex crime," Smith wrote. "And that is no different from saying that Congress has such an interest over anyone who ever committed any federal crime, because there is nothing that is constitutionally special about sex crimes."

SORNA's registration requirements are "merely an effort to protect the public from those who may be dangerous because they once were convicted of a sex offense," the 35-pager lead opinion states.

"By that logic, Congress would have never-ending jurisdiction to regulate anyone who was ever convicted of a federal crime of any sort, no matter how long ago he served his sentence, because he may pose a risk of re-offending," Smith added. "Indeed, that logic could easily be extended beyond federal crimes: Congress could regulate a person who once engaged in interstate commerce (and was thereby subject to federal jurisdiction) on the ground that he now poses a risk of engaging in interstate commerce again." (Parentheses in original.)

Judge James Dennis, who was a member of the panel majority that upheld [name withheld]'s conviction, disagreed with the majority in an 11-page dissent.

"The majority opinion offers no valid reason that SORNA is not a reasonable adaptation of Congress' spending power, commerce power, and power to enact criminal laws to further and protect its enumerated powers, for the legitimate end of establishing a comprehensive national sex offender registration and notification system. Accordingly, in my view, SORNA is not unconstitutional as applied to [name withheld]," Dennis wrote, joined by Judge Carolyn Dineen King.

King and three others also joined a dissent authored by Judge Catharina Haynes.

Pointing to sex-offender registry laws Congress had enacted before SORNA passed in 2006, these judges said [name withheld] was subject to these laws even when he was released from prison.

"It makes little sense to contend that Congress lost its power or 'jurisdictional hook' over [name withheld] simply because it updated the national sex-offender registration system laws," Haynes wrote.

Judge Priscilla Owen authored a concurring opinion in which she disputed "the majority's analysis of [name withheld]'s obligations under federal law to register as a sex offender at the time he completed his sentence."

There were 16 judges who heard the case en banc.


PA - Statute of limitations on child sex abuse: 'It will inevitably increase the possibility of fraudulent claims'

Daniel M. Filler
Original Article

07/10/2012

Daniel M. Filler, professor at Drexel University law school, Philadelphia.

Q: What are the ramifications if the statute of limitations were eliminated in child sex-abuse cases in criminal proceedings?

A: The whole problem with the issue is that child sexual abuse is a hair-trigger issue in our society, and that fact has led to some real miscarriages of justice. That doesn't mean that there really aren't ugly things that happened to people who wait to report. Increasing or eliminating the statute of limitations might lead to more justice, but it also might increase more injustice. The question is how much injustice are we willing to tolerate to get more justice.

Q: What do you mean by more injustice?

A: These kinds of cases make people particularly anxious. I think when it comes to these cases, the worry is that, on one hand, memories are sometimes repressed. But it is also true that a person can be nudged toward remembering things that might not have occurred. Given that, people feel a statute of limitations is needed. It's the only way a defendant has a chance to disprove such allegations. It's impossible to find an alibi so long after the event is said to have occurred. The older the memories are, the fear is that it's more brittle and more likely a person is to create mis-remembrances.

Q: What are the ramifications if the statute of limitations were eliminated in child sex-abuse cases in civil proceedings?

A: It will inevitably increase the possibility of fraudulent claims because of all the noise around the Sandusky case and the Catholic Church. It has raised the anxiety in these matters. A fraudulent claim may succeed because the jury is more sympathetic. Defendants may be more likely to settle quickly.

Q: Advocates say child abuse victims routinely don't go to authorities for decades after the crime because they don't feel empowered enough or out of the control of the abuser, often someone in a position of authority. Wouldn't that be reason to extend the statute?

A: People understood this when they created the statute of limitations to extend to 30. In a society, we have to draw the line somewhere. We say 18-year-olds are fully adults for purposes of voting and becoming a criminal defendant. We say when you're 21, you're an adult if you want to drink. The Pennsylvania Legislature made a tough call and said, for the purposes of reporting child sex abuse, you can report it up until age 30. This recognizes that it's tough to report — but by 30 many people are out from under the thumb of an authority figure, and we've given them much longer ... [for] criminal liability and voting rights.