Wednesday, December 30, 2009

Hysteria 101

"When planning a purchase to buy or build a new home, the first place a parent needs to research is the registered sex offender registry site provided by the government. It is free. The following link will show you detailed information on sex offenders who reside in your neighborhood. Be sure to check this site monthly. See"

Wow. When my kids were young and we were on the market for a home, the first thing we researched was the school system. But we hadn't made a vocation of hysteria. Times have changed. Read more here:

Tuesday, December 29, 2009

"Fiddle About" at the Super Bowl?

If there is a God, and if that God has a wicked sense of humor, the following lyrics will be sung at this year's half-time performance at the Super Bowl.

"I'm your wicked Uncle Ernie
I'm glad you won't see or hear me
As I fiddle about ....

"Your mother left me here to mind you
Now I'm doing what I want to
As I fiddle about ....

"Down with the bedclothes
Up with the nightshirt....

"You won't shout as I fiddle about."

The lyrics come from a song named, appropriately enough, "Fiddle About." The song is part of a rock opera called Tommy, performed by The Who, who have, as you have no doubt heard by now, been invited to perform at the half-time show in this year's Super Bowl.

Only there is a hitch. Pete Townsend, guitarist and chief song writer for the Who, was required for a time to register as a sex offender in Great Britain. It turns out that he once accessed child pornography. And although he is now off the the British sex offender registry, Florida law -- the Super Bowl will be played in Miami this year -- requires that he present himself to law enforcement to register upon arrival in the Sunshine State.

Townsend was convicted of accessing a child porn site in 2003. He claims he was viewing material for research. From 2003 to 2008 he was registered as a sex offender in Britain. In Florida, he is still regarded as such.

Child Abuse Watch and Protect Our Children are raising Hell with the NFL, the state of Florida and the Immigration and Naturalization Service, and anyone else who will listen. How was a pervert permitted entry to the US? Shouldn't Florida take Townsend into custody immediately upon his entry into the state? How could the NFL so undermine family values?

This is all hysterical gibberish. Even if Townsend looked at some pictures, it does not make him a danger. The law prohibits viewing these pictures for two reasons: first, the fear that viewing them encourages a market for new images, thereby placing children at risk; and, second, the fear, unproven, that looking at pictures is but a prelude to greater harm. I suppose there will soon come a day in which acts of violence cannot be shown on the silver screen, either, for fear that will inspire others to copy the violence, therefore causing harm to others.

Pete Townsend viewed prohibited images. He was convicted of a crime. Deterrence was served. But he is not a moral leper, any more than are the thousands of other folks who now bear a scarlet SO on their foreheads. The NFL had the good sense to see through the hysteria. It invited a talented musician to play at the Super Bowl.

Tommy has sold millions of records and CDS. Fiddle About is known to most Americans over the age of 50. I'd love to see The Who perform that piece at the Super Bowl. It might just help pop the bubble of hysteria that suffocates each person convicted of a so-called sex crime in the United States. Performing the piece would certainly go a long way toward demonstrating our sexophrenia: when it comes to sex, we just can't decide whether to love it or hate it.

Monday, December 28, 2009

Night of the Living Dead, Maryland Style ...

The murder of 11-year-old Sarah Haley Foxwell in Maryland is already the stuff of legend. Two days before Christmas, the child turned up missing. Her aunt, with whom she lived, had briefly dated a sex offender. As the frantic residents of Salisbury searched for her, panic spread: 3,000 people combed through neighboring fields and forests. She was found dead on Christmas day.

A report in the Baltimore Sun two days after the murder was almost as disturbing as the murder itself. Outraged citizens demand immediate action; exhausted law men forego sleep as they stalk every lead. Lawmakers are quick to demand new laws. No one seems willing to stop to think about the obvious: rage, grief and fear are not the stuff of sound public policy.

Ms. Foxwell is believed to have been murdered by Thomas James Leggs Jr. But as of the day the Sun wrote, Leggs had not been charged with the killing. He was being held without bail. Leggs was convicted of third degree sexual assault in 1998 and, according to the Sun, was designated a "high risk" sex offender for the "rape of a minor" in 2001.

His record is troubling, but it is hard to know just how bad it is. Legg is now 30; in 2001, he would have been 21. The "rape" of a minor may well have been sexual contact with a child too young as a matter of law to give consent. The Sun simply doesn't give any report about the man's sexual history beyond mere incantation.

Legg's reord is enough to for the likes of Jerry Norton, who heads Citizens for Jessica's Law in Maryland. Norton was pestering lawmakers by telephone on Saturday.

"My heart goes out to the friends and family of this 11-year-old child," he said. "We need to make it clear to citizens of Maryland that we are not going to let these pedophiles molest our children with just a slap on wrist. We're tired of these watered-down sentences -- they come out and do it again."

"What . . . is he doing back out on the street, and what is he doing having contact with this child?" he said. "I think the problem is with these guys going through a revolving door."

Maryland lawmakers are already behaving as though they have won a libidinal lottery ticket. State Sen. Nancy Jacobs (R-Harford) is screaming for blood. She intends to "go ... as far we can" in tough new laws to crack down on sex offenders. Jacobs co-sponsored Maryland's version of Jessica's Law, a bill passed in 2006 that set sentencing guidelines for child sex offenders. The legistation was named for another child martyr, a 9-year-old Florida girl who was kidnapped, sexually abused and killed by a convicted child sex offender. On the legislative docket: abandoning parole of sex offenders, limitations on plea bargaining and permitting wiretapping of suspected sex offenders.

This is not responsible lawmaking. It is pandering to the lowest common denominator in a community torn asunder by grief. In the wake of the great pain and grief caused by the murder of young Miss Foxwell, it is understandable that folks want to rush to do something, anything, to make sure such a crime never happens again. But mass hysteria isn't a reasoned response to evil. Maryland lawmakers resemble nothing so much today as cast members of the old horror film, "Night of the Living Dead." They stumbled along in a twilight of grief, blindly lashing out at phantoms.

Every time the murder of a child becomes national news, we get harsh new laws. There's Megan's Law, Jessica's Law, the Adam Walsh Act, and still Sarah Haley Foxwell was murdered. When will lawmakers learn that throwing printer's ink in the form of new laws at recent grief merely yields a different sort of grief, one visited upon countless others dragged within in the hideous net of overbroad laws passed by folks behaving as though they were at a wake, and not attending to the serious business of passing law.

More and tougher laws about sex offenders will not prevent the abuse of children. Another tragic death is always a heart beat away. The grim logic of those who think we can legislate our way to safety forget the obvious truth that laws are only as good as the people who make them. When hysterics make the rules, everyone gets hurt.

Mourn Sarah Haley Foxwell. Weep over the loss of her life and our lost innocence. But before we pass another law on sex offenders won't someone please stop to think about whether the laws already on the books are doing more harm than good.

Saturday, December 26, 2009

When Even Your Adversaries Agree ...

A week or so ago, I wrote about a child sex case I had recently tried and lost. The case was terrifying. A girl claimed her uncle had fondled her when she was between the ages of 7 and 10. She first made these allegations when she was a teenager. She testified against my client when she was seventeen.

My client denied the conduct, and there was no corroboration of the girl's claims. Indeed, by the time the case went to trial, my client was unable even to recall many of the events surrounding the allegations. Small wonder. Who among us recalls all our contacts with nieces and nephews? Is it time to carry a webcam to record each and every moment we spend with a young person so as to have proof later in life that we never erred?

At trial, the state spent hours corroborating the inessential. Yes, Virginia, there was a living room, and a bed room, and a house with doors and windows, and family gatherings. The state did a masterful job of setting the scene for the allegations.

But bringing such claims a decade after the fact is simply wrong. And so is relying upon such evidentiary swill as "expert" testimony on so-called delayed disclosure and incremental disclosure of childhood memories. There is something wishy-washy about the testimony of an expert that explains away all inconsistencies. Indeed, a theory capable of explaining everything typically explains nothing much at all.

I wrote about that here and then moved on to another case.

Last week I was in several courthouses around the state meeting with prosecutors to discuss pending criminal cases. Two of them mentioned they had read my recent column, and, making sure that no one was looking, they told me they agreed. They are reluctant to use the so-called experts in these cases and they find fundamentally odd and unfair treating child sex cases as some sort of special phenomenon requiring new and relaxed rules of proof.

Neither prosecutor worked with the other. Both were in separate cities. And in neither instance did I bring up the topic, the loss and its consequences for my client are painful.

I find it hopeful that prosecutors harbor doubts about the virtual suspension of statutes of limitations in allegations of child sex. Hopeful, too, is the recognition that the recent tendency to credit virtually any such claim works a disservice to defendants, many of whom are literally blindsided a decade or so after an alleged event and have no idea what the complaining witness is talking about.

Child sex abuse is a serious issue, to be sure. No one denies that it occurs. But the latest bandwagon resembles the hysteria in Salem in the 1600s when it took but little to be accused, convicted and killed for being a witch. Too often, I suspect, child sex abuse claims are the tip of a larger iceberg. Submerged just beneath the surface are chaotic familial structures begging for release. That these forces erupt at the expense of often innocence defendants is a national tragedy we will be talking about in decades to come.

There is not a remedy for every wrong. Equity teaches that. Somehow trying to make the world safe for the fantasies of children has become a waking nightmare for many adults. I am glad that even adversaries in the courts are beginning to see this.

Sunday, December 13, 2009

Oh, What A Difference A Continent Makes

Patrons at Berlin's Maison d'Envie (House of Desire) can take advantage of a unique discount when engaging the services of a prostitute. Present a bicycle helmet, padlock or bus ticket to the cashier, and get a near 15 percent discount off the full price of, et, um, well, you know.

Like most businesses in tough times, Germany's near 400,000 sex workers have been hit hard by the recession. Harried business owners are trying to find a way to keep business booming. This eco discount seems just the trick.

"The environment is on everyone's lips around here and it's pretty hard to find a parking space, so we came with the idea of an eco-discount," recports Regina Goetz, the matron in charge of the Maison d'Envie. She reports that the discount is so popular with clients that business is holding even despite the recession.

What a different a continent makes. In the United States all these folks would probably be rounded up and labelled sex offenders.

Monday, November 30, 2009

Oedipus Rex: Drama or Docudrama?

This week's trial is a nightmare, and I've had trouble sleeping for days.

A couple of years ago, two parents confronted their teenage daughter with the contents of text messages on her cell phone. A peer was writing to the girl in tones too salacious to be repeated even here. He wanted her, in the most carnal of ways.

The fifteen year old girl was outraged. How could the parents so violate her privacy, she demanded, tearfully.

"We just want you to be safe," the mother replied.

"If you want me to be safe, then you should know what Uncle X did to me," the teenager responded. Her mother and father sat dumbfounded as she relayed an account of touching her "privates." In a flash, the salacious messages were forgotten. Law enforcement was contacted, an investigation begun, and my client, Uncle X, was charged with serious felonies. Since that initial claim, the state calls it a "disclosure," the child has now come forward with a new claim. My clients is now also alleged to have engaged in cunnilingus. This late disclosure the state described as consistent with traumatic "incremental disclosure."

There are no other witnesses, and no physical corroboration to any of the teenager's claims. Even so, the state has some two dozen people on its witness list. My client denies any wrongdoing.

How to defend such a case? Attacking a child is never wise. The most difficult thing a criminal defense lawyers ever does is to cross examine children. The worst moment in my professional career was cross examining a nine year old about what her father's most intimate part looked like. The jury acquitted of that count, but I felt so bad for the child I wanted to adopt her and protect her from more nightmares.

In child sex cases, lawmakers have virtually abandoned any concern with statutes of limitations. The theory goes that the trauma of child sexual abuse is so severe that the events are often not disclosed until later in life. To punish and deter these crimes, we create special rules for these special cases. You can be accused of a crime that allegedly took place decades ago. It seems wrong to me to me create special rules that depend almost entirely on the reliability of childhood memory.

Lawmakers rush to pass new laws protecting victims of sexual assault. But do these same lawmakers ever really pause to consider the harm done to those wrongfully accused?

The alleged victim in my case this week will testify about events that she claims occured ten years ago, when she was seven. Just how capable is a seven year old of recalling fact from fancy? And how much of what we call memory even in adults is really a creation of fancy?

I am reminded of the sensation Freud caused a century ago when he published essays of infantile sexuality. Neuroses, he claimed, were almost all a product of inappropriate sexual contact. It seemed child abuse was rampant in the Nineteenth Century. But as his thinking evolved, Freed realized that many of the reports of sexual contact were mere fantasy. Paradoxically, some were mere wishes that were sublimated and transformed into waking thoughts that looked like memories. Psychoanalysts are well aware of the power of unconscious that the force of hidden drives. How many wicked uncles are really just loving men whom a child wishes were his real parents? How often are memories of touches really fantasies too dangerous to own?

We will never know, unfortunately. Indeed, we cannot know in cases brought long after the fact.

Instead of challenging these memories, an entire industry has been created. So-called experts if "forensic child abuse interviewing" take the field to describe how best to create safe environemnts in which children can "disclose" ancient trauma. In no other type of criminal case is the requirement for corroborating physical evidence so easily forgotten. A child abused is a gem to be burnished by patient listening. Enourage the child to disclose what happened, the theory goes. But what if this merely results in a better articulated and supported fantasy? Are we so tone deaf that we read Oedipus Rex as docudrama?

In these week's case, the state has experts on delayed disclosure, incremental disclosure and how sexual predators groom young children (note to all: treat all children as miserable little savages capable of anything or face the consequences; the love, hug and lap you offer today is tomorrow's alleged snare). Photographs will be offered to show that the home in which the alleged fondling took place actually exists, as though this were in doubt. Days will be spent explaining how all this could really be true.

But we will never really know if any of it is true, or whether the expert's opinions bear real weight. The reason for this is we have no evidence that all these theories can be verified. When a child complains a decade after the event there is no way to confirm what is said. And so the nightmare of this week's case. My client faces decades behind bars if the jury believes his accuser.

Why would a child lie about something like this? That's the state's best evidence. Freud know first-hand: Children often wish for things they cannot have. Sometimes it is to be rescued from a home in which the parents are at war. Sometimes they wish an uncle or aunt would save them. But they cannot admit this wish; it is too terrible. So the uncle becomes a demon, and, in time is cloaked in accusations that can destroy.

The state's experts will deny this, of course. Because admitting it will then lead to the question they cannot answer: How can a jury tell the difference between an accusation based on fact and one based on fancy?

Sunday, November 29, 2009

Dunn v. The State: A Picayune Ruling

Derrick Todd Dunn can't catch a break, and the good people of Georgia will make sure he never does.

Dunn was convicted of statutory rape in 1996. In other words, he had sexual contact with a person deemed unable to give consent. This can mean any number of things. Did he make love to the girl next door? Or was the act sinister? The reported decision, Dunn v. The State, Georgia, Supreme Court, S09A1369, doesn't say. It simply reports that he is a sex offender, and, in Georgia, that means he might be guilty of no more than a criminal offense with a minor.

Don't be offended when I say "no more than a criminal offense with a minor." I am not in favor of child molestation. But it does pay to recall a little history. Laws currently on the books reflecting the age at which a person can give consent to sexual contact are comparatively recent. It was not until the late 1880s that the Women Christian Temperance Union began to agitate for laws raising the age of consent from 10, which was current in many states, to 18. By 1920, the age of consent was 16 to 18 years old in nearly every state.

We simply do not know why Derrick Todd Dunn is required to register. I am willing to bet that it was due to consensual contact with a woman near the age of consent, however. I say this because he is out of prison now. A truly shocking crime would have carried a far greater penalty.

Mr. Dunn must register as a sex offender wherever he lives in Georgia. If he moves, he must register anew with local law enforcement within 72 hours.

On January 17, 2009, Mr. Dunn lived a certain address and was registered. That very day, he left that residence and went to a hotel, the Calhoun Lodge, where he stayed for fice or six days. He moved to a new permanent address on January 23, 2009. He duly appeared at law enforcement's door on January 26, 2009 to report the new address.

He was met with handcuffs, apparently. You see, he failed to report his temporary address at the Calhoun Lodge. Georgia prosecutors filed a motion to revoke his probation and return him to prison. Mr. Dunn's counsel responded that the law did not require notification of temporary addresses.

The Georgia Supreme Court ruled that the law requires registration of temporary addresses as well. There is no due process violation because the law is not vague; the law's terms are clear enough for any person to understand them. Never mind that the law is unreasonable; it is clear. That is enough.

The case saddens. Reading between the lines, Mr. Dunn is still struggling 13 years after his conviction to find solid ground. He is itinerant and struggling. Rather than lend a helping hand, Georgia prosecutors have adopted a zero tolerance policy for what appears to be even technical violations of the sex offender registration laws. Is Mr. Dunn really that bad, or is Georgia simply unreasonable?

Saturday, November 28, 2009

John's Story: A Midwestern Marine

This story found its way to my inbox during the past few days. It is another example of a young man's promise destrpyed by a criminal justice system gripped by hysteria.

John's Story: A Marine No More

"An act of kindness, naiveté, and poor judgment nearly destroyed the life of a Marine. There are over 675,000 Registered Sex Offenders in the United States and not finding a public restroom has landed a young man on the registry.

"John grew up in a military family and always wanted to follow in his dad’s footsteps. Like his father, he wanted to serve his country with pride and dedication. Immediately after graduating high school, he went off to the Marines and like most enlistees he struggled to complete boot camp, but each day he reminded himself that this was his childhood dream and that failure was not an option.

"After successfully completing the basic training and enjoying a brief moment of euphoria, John learned that his dad was diagnosed with cancer. His dad had withheld this secret for months, so that John could concentrate on completing his military training. Subsequently, the young soldier was granted a leave to spend some time back home celebrating his dad’s birthday.

"He was so elated about being a Marine at the young age of 20 and was equally proud to return home and visit with family and friends. He spoke to strangers and offered people rides, if they were willing. To us city folks, this kind of behavior seems suspect and alarming, this wasn’t anything unusual for John because of his extroverted and social nature. Yes, there are still people in rural and small town America that still speak to strangers, wave, and offer unsolicited assistance. – Damn these kind folks.

"September 11, 2001 was a memorable and emotionally disturbing day for all Americans and John received a notice that he would need to shorten his leave and return back to the military base.

"Four days later, John was waiting for a friend to meet him at a local park and he decided to run a few laps to get back in military shape. While jogging, his bladder was about to betray him, so he made for a beeline towards a patch of trees. After relieving himself, he then resumed jogging around the park.

"As he was about to drive off, he offered some teenagers a ride. They passed up on his offer and he drove off to visit family.

"It is now September 17, 2001 and John is pulled over by two police officers. They escort him back to the police station and began to question him about the day he was in the park. He was puzzled by their questioning but was fully cooperative. The police informed him that he will need to stay around the station to speak with a detective and hours later the detective informed him that he was being charged with three counts of Attempted Child Abduction....

"As a result of his arrest, John was discharged from his military duties. His career as a Marine was abruptly cut short. He began to battle with depression and thoughts of suicide because he felt that he had let his family, community, and his country down. Fortunately, he sought psychological treatment by a well-respected local psychiatrist who attributed John’s mental decline to his legal troubles. Not only was he struggling mentally but later he was diagnosed with shingles, acute colitis, proctitis with chronic diarrhea & abdominal pain.

"But John did not want to give up on his life so he found a job and returned to college, while hoping that this nightmare would come to an end. He was described by friends, family, and psychiatrists as naïve, and it was very apparent throughout the legal process. Mistakenly, he believed that someone would recognize that this was all a mistake and would rectify the situation. But that day never came.

"Repeatedly he was worried if he would have to register as a sex offender and was told by his attorney that he would not. At the advice of his attorney he accepted a plea deal of 18 months on probation. To his surprise, his probation officer told him that he had to register as a sex offender. Seeking to withdraw his plea, he found a new attorney and was told that it is best for him not to withdraw the plea because that was as good of a plea that he would expect to receive – and there was a chance that he could get some prison time if he went back before the judge.

"Years have passed and John began dating a divorcee. He was in school full-time and worked part-time. He told the police that occasionally he would spend the evening with his girlfriend. Well days later the police arrested him for Failure to Register a New Address. Again the Justice system got it wrong! He had no change of clothes at his girlfriend’s house and all of his belongings were still in the home of his mom (where he was registered. After paying more money on attorney fees, the latest criminal charge was dismissed.

"John struggles today. He is a student, but a marked man. He has written letters to the governor of his state asking for a pardon so that he can return to the military and live-out his childhood dream. He wants to defend America during this time of war. As John says, “No Marine wants to go war, but no warrior wants to be left behind.” For Achilles, it was an arrow in the foot that defeated him, but for John it was a false accusation in a biased courtroom."

Corey MacDonald's Perversion Of Justice

Press accounts of criminal convictions and their consequences make for painful reading, especially for practicing lawyers and their clients. I've had more than one family say in exasperation something along the following lines: "I've seen murderers get less time. What can we do?"

I sometimes respond to such a comment by saying the following: "You should go hire the lawyer who got that deal."

They never do. The fact of the matter is that the press rarely gets the nuances of sentencing right. That's why we have judges and sentencing hearings. That's why defendants are subjected to evaluations and interviews by court officers and sometimes specialists before sentencing. That's why, in other words, it is hazardous to try cases in the press and then decry the results when they don't suit your agenda.

Law enforcement officers in New Hampshire are pouting this week about the sentence imposed on a man named Patrick Roddy, who pleaded guilty to possession of child pornography. He was arrested in February 2007. He plead guilty to two felony counts of possession of child pornography. The state sought a prison sentence of three to six years; the Court imposed a sentence of 142 days, with stringent conditions, including treatment as a sex offender, and, I presume, registration as a sex offender. Those 142 days were already spent behind bars as a pre-trial detainee when sentence was imposed. So Mr. Roddy walked out the courthouse door, although he is far from a free man.

Foster's Daily Democrat, a paper serving Southeastern New Hampshire and Southern Maine, plastered Mr. Roddy's picture in the paper and on its website. And lest anyone miss the point, the paper also published the last known addresses of the man. It also served as shill for local law enforcement.

"Mr. Roddy received a time-served jail sentence and a suspended prison sentence for his crimes against children," said Corey MacDonald of the New Hampshire Internet Crimes Against Children Task Force. "This sends a clear message that we have yet to make the connection between child sexual abuse images and real child victims in our community." MacDonald claimed to speaking on behalf of some 33 law-enforcement affiliates.

That's is just stupid, and Mad, Mad MacDonald knows it.

Was MacDonald at the sentencing? Did he read presentence reports? Did he determine whether Mr. Roddy was a risk of re-offending? Or did MacDonald succumb to the sort of silliness than once inspired the film "Reefer Madness?" Why look at a picture and all hope is lost: it's a slippery and irrevocable slope from fantasy to rape!

The criminal justice system serves four goals as to any offender: specific deterrence, general deterrence, rehabilitation and punishment. Presumably, the judge in Mr. Roddy's case determined both that the man was deterred from similar misconduct in the future and that he was well on the way to rehabilitation. Spending five months in jail might not seem like punishment to Mr. MacDonald, but most of us would shudder at the loss of liberty, not to mention the stigmatization that comes of being labelled a sex offender in any community to which you might relocate.

The only conceivable reason to impose a longer sentence on Mr. Roddy is general deterrence. And that is Mad MacDonald's point: Crush a person with errant desire. But tell me, truly, will that change the desire, or simply make it harder to detect? I wonder whether folks defer the decision to seek treatment or help for fear of the consequences of honest.

Don't get me wrong. I do not favor the use of children in pornography. The images in Mr. Roddy's possession were shocking and repugnant. There is nothing about a seven- year-old's being forced to engage in sexual conduct of which any right-thinking person can approve. But I am as appalled by a one-size-fits-all-meat-cleaver type of justice. Whereas child pornography bespeaks of a perversion of desire, the sort of rage-inspired passion displayed by Corey MacDonald reflects a perversion of justice.

Who will hold Corey MacDonald accountable for his perversion?

Thursday, November 26, 2009

Rob Sanders: Sexophrenic Tool?

When common sense fails, claim some variant of exceptionalism. That's what Kenton Commonwealth’s Attorney Rob Sanders in Ohio has done. You see, he wanted to convict Nicole Howell, a teacher in her mid-twenties, of first degree sexual assault. He wanted her in prison. He wanted her registered for life as a sex offender. He wanted to destroy her because he believed she had consensual sex with a sixteen-year-old student at Dayton High School.

It took a jury little more than an hour to acquit Ms. Howell. And now the former teacher has sued Sanders. Sanders' defense?

"Sex crimes are not like bank robberies. They typically do not take place on security cameras in front of a room full of witnesses. Ifg prosecutors ignored cases like this, few, if any sex crimes would ever get prosecuted."

Maybe that's what the jury was trying to tell the the Ohio prosecutor: Too many cases like this are being prosecuted, and for no good end.

I don't know whether the jury nullified the law in the Howell case. The defense was not not consent but denial. Apparently, prosecutors ignored exculpatory evidence, including a polygraph exam than Ms. Howell had passed. The state ignored the fact that it was Howell who reported rumors of the contact to school officials. The state ignored the fact that the so-called victim at first denied the rumors. Ther state ignored the fact that the alleged victim could not identify prominent features of Ms. Howell's, features any but a blind lover would recognized.

The prosecution ignored all that it did not want to see and focused on what it wanted: Ms. Howell's hide. And it did so because sex crimes are "oh-so different." This swill is unworthy of a serious professional.

Ms. Howell has filed suit against the state's attorney, claiming damages for her ruined career and reputation. She is unlikely to enjoy relief. Prosecutorial immunity is virtually impenetrable. And Rob Sanders, the prosecutor, is far from chastened by this defeat; he is defiant, and is taunting Ms. Howell's lawyer, baiting him as a showboat in the press.

Prosecutors make great show at closing argument of holding accused person's accountable for their alleged crimes. But when a prosecutor errs, he hides behind immunity. And then, as does Mr. Sanders, he tells the world he'd do the same thing all over again. These cases are special, you see. There is often but a single witness, and why would that witness lie? We need to protect the world against sexual predators.

Ms. Howell was no predator. The predator in this instance was the state. It stalked this woman and sought her destruction. And when it failed and someone tries to hold it accountable, it claims immunity from accountability.

Penetrating prosecutorial immunity is hard. I try it once every couple of years. But the law is harsh. A prsoecutor performing as an advocate can do almost anything so long as what he does is consonant with his function as an advocate. I wonder why ministers of justice get carte blanche to destroy lives, however?

There simply needs to be some corroboration requirement in single witnesses cases. Under Mosaic law, prosecution for murder was only possible on the testimony of two witnesses. This rule bled into the common law, and was eventually swallowed whole. One witness is enough for most crimes these days.

One witness was almost too much for Ms. Howell. How many other defendants have sat in courtrooms, sometimes many years after the events complained of, and been unable to mount a defense to ancient allegations because, quite frankly, the allegations weren't true, and so much time had passed that there was no reasonable possibility of recalling an alibi?

We'll never know. What we do know is that prosecutors regard these cases as special. We permit them to do so because hysterical governs our response to allegations of sexual misconduct. We're sexophrenic, all right. Sex sells by mesmerizing a consumer; and when it doesn't sell, it terrifies. We become strangers to ourselves and to the truth and few seem to care.

Wednesday, November 25, 2009

Paul's Story: No More Victims!

Note: An anguished mother sent me this today, and I have obtained her permission to post this. I am told it has appeared elsewhere.

Thank you, Sue.

Paul's Story

"In the eyes of the law, my son is a registered sex offender in Illinois. This is the furthest thing from the truth, a truth nobody has wanted to hear.

"Paul at the age of 18 was very close to his 2nd cousin, Heather who was 12. Paul is ADHD and learning disabled. (All documented; report dated just weeks before his arrest show his comprehension level at the 4th grade, 7th month. This was an evaluation for special education paid for by the state to determine goals for life after high school). The cousins were together everyday due to Heather’s Mom being a caregiver for my mother.

"On Memorial weekend, 2003, Heather’s family went on a camping trip which included Paul. Heather’s Mom noticed them sitting close and wanted to know what was going on between the two of them. Both children denied anything was going on and yet she insisted that the children were lying.

"Upon returning home from camping on Sunday, Heather’s mother grounded her to her room, with no books, TV or games. She was not allowed out of the room except to use the bathroom until she told the “truth”. Regardless of what either child said, Heather’s mother refused to let her out of her room until the truth was told. Heather’s mom went so far as to take Heather to the emergency room on Tuesday to see if she had been having sex. Finally on Thursday Heather told her Mom that Paul had touched her and was allowed out of her room for telling the “truth”. Heather couldn’t say exactly when this happened, only that it happened twice; once in February and once in March at my house. I know for a fact that it couldn’t have happened in March, because Heather was grounded the entire month for hooking up with a 23 year old on the internet, lying about her age, saying she was 18 and having him call my house so that they could set up a location to meet.

"Heather’s parents went to the police to file a complaint. Until Paul’s arrest, Heather continually called him and told him to just tell the police he did it and everything would be over with.

"One Sunday in June Paul was stopped by the neighborhood police while driving one of his other cousins home. My husband and I were at the police station within minutes of the police bringing him there. They refused to let me see him since he was 18. I knew because of his low comprehension that he would not understand what was going on.

"Paul was kept there, booked and arraigned the next morning because he “confessed”. He told the police “Whatever Heather said I did, I did”.

"After Paul was arraigned and we brought him home we talked at great length about what happened. When I asked him why he didn’t ask for a lawyer when the police asked him he told me that he was never asked if he wanted an attorney. I told Paul that they had to have asked him and he said “no, they didn’t”! I said, Paul, did they say “you have the right to remain silent, you have the right to an attorney” and he said “yes”. I pointed out to him that that was the way of them asking if he wanted an attorney. He started to sob and told me he didn’t know that’s what it meant. He also told me that the police officer told him to just say he did it and he’d be out of there and home in to time at all. I know my son did not understand what was happening; even the police knew he had a disability. The very first thing on the police report is that Paul is ADHD. Someone should have intervened and explained to him. Upon reading Paul’s “confession” I knew that a large part of it had been dictated to him.

"As the months went by and we went back and forth to court, nobody wanted to listen or hear the truth. No matter the motions our lawyer filed, nobody wanted to listen. At one point, Heather’s mother (related through my sister, the grandmother of Heather) that if we gave them $2500 they would see what they could do about dropping the charges. This was brought to the attention of the state’s attorney and again nobody cared. This was all for money.

"Paul was 5’ 2” and weighed 105. We knew we risked prison time for him if we went to trial and lost because of his “confession”; so when the state’s attorney offered a plea bargain in June of 2004 of 2 years probation we took it knowing he would never survive in prison being as small is he was, having low comprehension, and the maturity of a 12 year old. God, I am so sorry that we didn’t fight then. Had we known what a “sex offender” label was, we would gladly have even paid the $2500 to the mother to end this.

"For 5-1/2 years we have been in a nightmare and it has now come to a head. Paul has had much difficulty in gaining employment, not only because of his “sex offender” status, but due to his disabilities. He finally gained employment, delivering pizzas and he was the happiest I had seen him since this nightmare started. When his boss found out he was an offender and couldn’t deliver to schools he was fired from his job and has not been able to gain employment since.

"I am now watching my son slowly die emotionally because of this label. He is appalled that this label has been put on him, knowing he would never touch or hurt anyone in his life and that nobody wants to hear the truth. He’s been accused of “touching” Heather and to think that he is now labeled with others who have viscously attacked children. I, and my family have lost ALL faith in our system. Where is justice? When this all started I had faith and believed in our system, that the truth would prevail, that others would see he didn’t understand when he “confessed” because Heather and the police told him to just admit he did it. Now I see that it’s actor against actor, state’s attorney against defense lawyer; the best actor wins.

"My son was released from a state mental health facility in mid-February after five weeks diagnosed as bipolar, brought on by the stress of being labeled a sex offender. He will receive services from a mental health provider and their goal was to have him moved to a respite program for 21 days when he was released to help with the transition to home. We were devastated to find out that it was not possible because it is across the street from a school and sex offenders can’t be within 500 feet of it."

"My son has lost much due to these allegations and his “confession”. And now he has paid the ultimate price by loosing his sanity. The diagnosis of bipolar is a lifetime sentence and because of his sex offender status resources will be limited to him.

"Yes, I’m a distraught mother and I wonder why he just wasn’t executed back when he took his plea; these laws are killing him anyway, only in a slow manner.

"And to know that there are so many more on the registry just like him is appalling! What has happened to society when so many lives can be destroyed by laws created from mass hysteria, confusion, panic, and the media do little or nothing to make the public safer. They are nothing more than feel good laws designed for the appearance of being tough on crime - especially during election years.

"When looking at the registry within my own neighborhood, I can no longer differentiate between the teenager who had consensual sex with his younger girlfriend or who is the violent predator that is capable of committing such a heinous crime.

"The broad definition of the term 'sex offender' has devastated so many individuals who are only guilty of a one time lapse of good judgement. Contrary to popular belief, many of these individuals are of no risk to the communities where they live and work.

"It is only through education, understanding and the assistance from you - our lawmakers -that we may be able to say 'NO MORE VICTIMS.'"

"Is there anyone out there who cares enough to help bring justice to this young man? Does anyone care enough to help fight a wrong."

Warehousing Sex Offenders

Hartford is home to 10 percent of Connecticut's registered sex offenders, and the city doesn't like it one bit. A recent news story reports that 537 sex offenders live within the city's 18 square mile. With all those sex offenders you'd expect a libidinal tidal wave to overtake the city. Here's the story as reported in the New Haven Advocate:

I am not sure what to make of this reporting, and, am, frankly, disappointed in the Advocate. It simply went surfing on the surface of statistical date without asking what the data meant.

How many of the folks on the list are registered for consensual status offenses such as statutory rape? How many of the folks on the list are present for crimes of violence? The ratio would shed light on whether Hartford residents at risk.

But of course we get no such statistics. A sex offender, is a sex offender, is a sex offender. The same scarlet brush paints them all with the same hysterical exclamation point. And, what's worse, Connecticut just passed a new law requiring enhanced notification of neighbors when an offender takes up residence. Why is it unlawful to cry "fire" in a movie house, but permissible to fan even more dangerous hysteria by screaming "sex offender"?

There are hidden gems in the story. For example, probationers are typically forbidden to live near children. Where, exactly, is such a place to be found in a crowded city? Many sex offenders resort to living in homeless shelters. And if such a shelter cannot be found, or will not take the person in, then the probationer is deemed in violation of the law. I've had clients who slept on factory floors or under a bridge because of their designation as a sex offender. A separate arrest and incarceration follows those with no fixed addresses in some jurisdictions. (I am told, however, that in some states reason prevails: An offender with no place to go can simply list a park bench. I'd like confirmation of this anecdote from someone with specific knowledge.)

The public fears recidivism. Yet we create conditions in which recidivism is encouraged. Studies indicate that the key to avoiding repeat offending is reintegration in the community and elimination of the sort of asocial and anti-social that prompt some folks to deviate from lawful norms.

So what do we do? We crowd sex offenders in what amounts to substandard ghettos, where they huddle with one another, scorned and rejected by a culture whipped into an undiscriminating frenzy. One shelter in Hartford is home to 29 registered offenders. Do you think cramming these poor souls together yields reintegration? Or might it just reinforce deviance?

I am puzzled by the great rush to classify ever more Americans as sex offenders. Until recently, there was no such epidemic of misplaced desire. We are now either criminalizing what has always been present, and creating new outcasts, or there is something astir that yields new levels of deviance as yet unforeseen. Whatever the cause of these new arrests, it is clear that the criminal justice system and social service system is failing.

Several years ago, Connecticut allocated $3 million to create housing for released sex offenders. That money disappeared in a bad economy. But the sex offenders did not. So where are these folks going? Wherever they can.

It's a national disgrace.

Tuesday, November 24, 2009

A Texas Nightmare

Check out this post on one family's nightmare with the sex offender registry.

hat tip: R

Underground Railroad For Sex Offenders?

During the years preceding the civil war, a netword of abolitionists developed in the United States. These folks helped spirit African-Americans to slavery by forming an underground railroad. It appears that something similar is taking place today, although the goal is far different.

Inclusion on a list of sex offenders is intended to serve as a means of making the unsuspecting public aware of the risk of harm in their neighborhood. The theory goes something like this: If a violent sex offenders moves next door, a person should know about it so that they can avoid the risk of vicitimization. We have a few isolated acts of horrible violence to thank for these laws.

The problem with such laws is that these laws are undiscriminating. We fail to distinguish the dangerous from the benign. It is far too easy to be make your way onto one of these lists. It is almost impossible to have your name removed. The courts, frankly, fail to take responsibility for the havoc these lists cause: registration, we are told, is not punishment.

Tell that to a person on the list who is shunned by neighbors, denied employment and treated as a social pariah. Registration is social damnation, and it often comes with other conditions, too. Sex offenders are often forbidden to live near or with other children. Failing to register, or failing to abide by the conditional liberty they enjoy, can result in fresh prosecution and significant prison.

It is no suprise, then, that something like an underground railroad is emerging in the United States. Ordinary citizens opposed to the madness of treating all sex offenders alike are opening their homes and hearts to those stigmatized, knowing full well that in so doing the sex offender breaks the law. Offenders drop off the radar to live with family and friends who assess them to be no threat at all.

Expect fresh prosecutions for aiding and abetting a felony as law enforcement officers discover these networks. Unforunately, there really is no where to send these poor souls for freedom. At least not in the United States. We're on another moralistic toot that is more hypocritical than ever: We use desire to market everything, but once desire overs steps a boundary, whether in a manner that causes harm or not, we brand the offender.

Lawmakers will soon have a choice. Will they create a separate crime: harboring a sex offender, and require that those found guilty also register by some theory of guilt by association? Or will lawmakers realize that when it comes to justice, one size does not fit all? I am not betting on restraint, at least not yet.

Perhaps when some politicians son is branded for life and treated like a pariah things will change. We're not there yet, so underground shelters will continue to emerge.

Monday, November 23, 2009

A Sex Offender In Santa's Shop?

The following was reported today on Wierd World News. It is a perfect illustration of the sort of silliness than comes of branding folks as sex offenders.

Apparently one of the folks volunteering to answer letters to Santa Claus is a registered sex offender. Hence, the United States Postal Service will no longer deliver mail a program called "Operation Santa."

The news report does not reflect why the person is registered. Is he a violent predator? A child molestor? Or is he one of the growing numbers of Americans trapped in the double binds of a sexophrenic culture? For all we know, the Good Samaritan writing to children was required to registering for consensual activity.

Bah, Humbug, said Scrooge. Our new Scrooge utters something similar: Bah, Humbuggery!

Can anyone shed more light on this silliness?

Here's the news report:

"Alaska — American children writing to Santa may not get a response, according to the Metro, a U.K. newspaper.

"Prior to this holiday season, the U.S. Postal Service (USPS) had been delivering any mail addressed to “Santa Claus, North Pole,” to an Alaskan town called North Pole where volunteers write personal responses. This year, the USPS has stopped Operation Santa after it was discovered that one of the program’s volunteers was a registered sex offender.

"Until tighter restrictions are placed on the volunteer force, the program will not operate, and local officials report it “unfeasible” for these actions to take place in time for this year’s holiday.

"Letters not addressed to the North Pole specifically may continue to see response, as these letters may be forwarded to other outposts of Operation Santa."

Sioux City's Sexual Gulag

In the 1950s Sioux City and the good people of Iowa snapped. Two grisly murders of children, one still unsolved fifty years later, unhinged common folks. And hence a tragedy was born of the neccesity to do something, anything, to displace the anxiety that comes of confronting evil.

Laws were passed to round up and detain sexual psychopaths and to remand them for treatment until such time as they were "cured."

On its face, the law sounds like a good idea. If you can identify a sexual predator before he strikes, then, the argument goes, proactive detention saves lives. But just who is a predator?

In mid-twentieth century Sioux City gay men were regarded as perverts, and, hence, ready to snap. The city's children needed protection from what right-minded people thought the men might do to children. A new wing was opened at Mount Pleasant. Ward 15 was open for business. So Sioux City police officers raided men's rooms and resorted to the usual trickery of interrogating the frightened with veiled threats and subtle promises of hope. Lists were created, and kept. The different were targeted and some two dozen of more men were taken to a psychiatric facility and held for months while the mental health professionals tried to figure out why the men were there and what to do with them.

Neil Miller's Sex-Crime Panic: A Journey To The Paranoid Heart of the 1950s tells the tale with elegant and compelling prose. Although the book was written in 2002, it bears reading today. We are no less prone to the sort of moral panic that yields bad law now than folks were in the 1950s. We still resort to undiscriminating fear when confronted with a sex crime. All that has changed is the name of the victims.

"Despite their good intentions, sexual psychopath laws invariably took a catch-all approach to sex offenders. The intended targets may have been rapists and murdereds, but in almost every state with a sexual psychopath law, little or no distinction was made between nonviolent and violent offenses, between consensual and nonconsensual behavior, or between harmless 'sexual deviates' and dangeours sex criminals," Miller writes of the 1950s.

We struggle with the same sense of panic today. Hence, Megan's Law, requiring registration of an ever-expanding class of so-called sex offenders, ranging from Romeo and Juliet couplings, to folks who urinate in public, to folks who look at the wrong sort of pictures. Paranoia runs deep in American culture; fear of the other reflects and gnawing uncertainty about just how deep the currents run in the mainstream of American life.

"[S]ex crime panics -- and panics of all sorts -- are very much in the American grain, from the Salem witch trials down to our own time.... Public fears and anxieties can lead to the enactment of bad laws, and laws enacted in an atmosphere of fear and anxiety can lead to even worse consequences."

Miller tells a story about Iowa in the 1950s, but it requires little to see that the same tale is today unfolding before our eyes. There's something wrong when a society makes a celebrity of the surviving family of a crime. What's worse is taking a shocking crime and treating it as somehow reflecting the norm in deviance. Adam Walsh's father is a celebrity, recognized for no accomplishment of his own save his very public grief and anger. And yet, Congress passed a law to extend sex offender registration because of the pressure Mr. Walsh brought to bear. I wonder what a social historian will make of this pathology in the decades to come, and how many lives will be destroyed.

Sunday, November 22, 2009

A Sexophrenic Culture

Let's face it, we are a sexophrenic culture. On the one hand, we celebrate and market sexuality: Turn on the television, look at a magazine advertisement, walk down a street: Sex sells everything from toothpaste to automobiles. We manipulate and cultivate desire.

Yet at the same time that we do this we also criminalize desire. We register sex offenders, charge folks with crimes for engaging in sometimes consensual behavior and fail to draw a line between fantasy and reality. Looking at the wrong photographs can land you in prison. Being mistaken about the age of a consenting partner can land you in prison. Engaging in the wrong kind of chat on line can land you in prison.

We're sexophrenic to the core.

A significant portion of my law practice is devoted to the defense of so-called sex crimes. Sometimes it is obvious that the behavior alleged should be a crime. There is nothing about a violent rape that does not offend. But often the conduct is more subtle: A 19 year-old man responds to a fifteen year old girl's overtures. It is a crime likely to land the man in prison.

How did we become sexophrenic? What impulse leads us to punish the very thing we encourage? I don't have many answers, but I have seen many lives undone in ways that defy reason and sound social policy. This page is dedicated to the defense of folks charged with sex crimes; it is not an endorsement of sex crimes.

Last week, I read a new book on sex crimes and offenders, entitled Reconsidering Sex Crimes and Offenders: Prosecution or Persecution? (Praeger, 2009)by Zilney and Zilney. The book confirmed many things I already knew. "Currenbtly," the authors write, "everything is related to sex: advertisers use sex to sell virtually every productm and society is inundated with sexual images and connotations on a daily basis." Lawmakers reacting to this sexual saturation often act in reponse to isolated harms, creating overbroad legislation that reaches far more broadly than the harm inspiring the new law.

Legislative momentum for enhanced sex offender registration. Thus, the 1994 rape and murder Megan Kanka helped inspire sex offender registries. Adam Walsh's murder helped strengthen registration requirements. But is the public protected from harm when folks engaged in consensual activity are required to register? Is public urination a sex offense? The media whips up moral panic when a stranger commits an act of sexual violence, yet most sex offenses are intrafamilial affairs. Does it make sense to criminalize errant desire in every form?

Zilney and Zilney argue persuasively that increased registration and stigmatization of sex offenders may actually frustrate efforts to rehabilitate folks who make mistakes. While recidivism rates for sex offenders are lower than rates for all criminal offenses, there is persuasive evidence that isolating exclusion of sex offenders from normal society and from employment opportunities increases the very stressors that encourage re-offending.

Of course, labeling a person a sex offender is the kiss of death. No one wants to come to the aid of a "pervert." So lawmakers pass ever more inclusive and resitrictive legislation, drawing more and more people in what amounts to virtual planatations. We fail to distinhuish serious crimes from petty crimes. In the rush to create a one-size-fits-all system, we tax overburdened services to the breaking point: is it any wonder that dangerous folks slip through the cracks?

I encourage folks to send me stories and anecdotes about our sexophrenic criminal justice system. Perhaps by focusing on failures in the form of over-reaching we will be able to learn enough to make intelligent requests for reform of the legal system.
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