California court blocks requirement of sex-offenders to report changes of Internet providers

11-18-2014 California:

Doe, Roe, CA-RSOL -v- Harris

A federal appeals court has continued to block a voter-approved measure requiring registered sex offenders to give authorities a list of their Internet providers and screen names.

The 9th U.S. Circuit Court of Appeals on Tuesday said the requirement violates free speech rights. The ruling upholds a lower court decision in 2013 that put the requirements on hold.

The reporting provision was part of Proposition 35, which 81 percent of voters passed in 2012 and toughened penalties for human trafficking. The harsher prison sentences remain in effect.

But the appeals court said the requirement of sex offenders to report on their Internet activity is too vague and that offenders' anonymity is insufficiently protected. The court also said requiring offenders to report to authorities with 24 hours was too onerous. ..Source.. by The Republic see also

US v Bear

This is an excellent instructive case as to when a special condition restricting access to one's own children is appropriate and when it is not appropriate. Mr Bear's circumstances show NO REASON to restrict him from his own children; court agrees. Unfortunately his loses on his other issues.

10-31-2014 Iowa:

US v Bear

Defendant, Wesley A. Bear, pled guilty to one count of failing to register or update a registration as a sex offender in violation of 18 U.S.C. § 2250. At sentencing, the district court imposed certain special sex offender conditions of supervised release in addition to its standard conditions of supervised release.

Mr. Bear objected to the conditions restricting his contact with children and requiring him to submit to sex offender mental health assessment and treatment. The district court overruled his objections, and Mr. Bear now appeals.

This case requires us to resolve three disputes. First, Mr. Bear argues it was an abuse of discretion for the district court to impose sex offender conditions where his conviction of the prior sex offense occurred twelve years before this conviction.

Second, Mr. Bear contends the conditions involve a greater deprivation of liberty than reasonably necessary to achieve the purposes of sentencing.

Third, Mr. Bear claims the special conditions are not consistent with pertinent policy statements issued by the Sentencing Commission.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part, VACATE in part, and REMAND to the district court for further proceedings consistent with this opinion.

---

1. Restrictions on Mr. Bear's Contact with Children

Mr. Bear argues the restrictions on his contact with children are improper because they prevent him from being alone with his own children. When a defendant has committed a sex offense against children or other vulnerable victims, general restrictions on contact with children ordinarily do not involve a greater deprivation of liberty than reasonably necessary. United States v. Smith, 606 F.3d 1270, 1282-83 (10th Cir. 2010).

But restrictions on a defendant's contact with his own children are subject to stricter scrutiny. "[T]he relationship between parent and child is constitutionally protected," and "a father has a fundamental liberty interest in maintaining his familial relationship with his [children]." United States v. Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996).

Given the importance of this liberty interest, "special conditions that interfere with the right of familial association can do so only in compelling circumstances," Smith, 606 F.3d at 1284, and it is imperative that any such restriction "be especially fine-tuned" to achieve the statutory purposes of sentencing. Edgin, 92 F.3d at 1049.

The present record does not provide compelling evidence that could support restrictions on Mr. Bear's contact with his own children. The government presented no evidence that in the twelve years since Mr. Bear's sex offense conviction he has committed any sexual offense, displayed a propensity to commit future sexual offenses, or exhibited a proclivity toward sexual violence. Nor is there any evidence in the record that Mr. Bear has continuing deviant sexual tendencies, fantasizes about having sex with children, or has otherwise displayed a danger to his own three children.

Under these circumstances, Mr. Bear's 2001 conviction for sex offenses is simply too remote in time, standing alone, to provide compelling evidence justifying infringement upon Mr. Bear's right of familial association. Thus we vacate the conditions limiting Mr. Bear's ability to be at his children's residence and his ability to be alone with his children without supervision.

---

...

IN RE: DETENTION OF John NEW, Jr

11-20-2014 Illinois:

IN RE: DETENTION OF John NEW, Jr. The People of the State of Illinois, Appellant, v. John New, Jr., Appellee.

At issue in this case is whether the circuit court of Cook County erred in admitting certain expert testimony regarding a diagnosis of hebephilia at respondent's civil commitment trial without first conducting an evidentiary hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (“Frye hearing”) to determine whether the diagnosis had been generally accepted as a valid mental disorder in the relevant scientific community. For the reasons that follow, we hold that the diagnosis of hebephilia is subject to the Frye standards for the admissibility of novel scientific evidence, and that a hearing is necessary in this case to determine its general acceptance.

Johnson v Indiana

11-24-2014 Indiana:

Johnson -v- Indiana

Michael E. Johnson (“Johnson”) was convicted of Failure to Register as a Sex Offender, as a Class C felony. He now appeals, contending that the State failed to adduce sufficient evidence to support his conviction; the State concedes a failure of proof as to Johnson’s duty to register.

Facts and Procedural History
On November 17, 1994, when he was eighteen years old, Johnson was convicted of Rape, as a Class B felony, for an offense he committed while he was seventeen years old.

On January 6, 2012, while investigating other matters, police attempted to make contact with Johnson at several addresses in Indianapolis. Among these was an address he had provided on a registration form in 2011. Police officers visited this location, but Johnson did not reside at that address. The occupant of the home did not know Johnson and was unable to provide police with any information as to Johnson’s whereabouts.

Police eventually located Johnson at another location. Johnson was arrested.

On January 10, 2012, Johnson was charged with two counts of Failure to Register as a Sex Offender, as Class D felonies enhanced to Class C felonies as a result of prior convictions, and with one count of Failure of a Sex or Violent Offender to Possess Identification, as a Class A misdemeanor.

...

Conclusion:

Accordingly, as Johnson’s brief notes, his age at the time he committed Rape is dispositive. Based upon the evidence submitted at trial, Johnson was not under any duty to register as a sex offender, and we accordingly reverse the judgment of the trial court and remand with instructions to vacate Johnson’s conviction in this matter.

Reversed and remanded.

Convicted sex offenders, Jehovah’s Witnesses, and the First Amendment

11-20-2014 California:

Beginning in the 1930s, shortly after the Supreme Court had “incorporated” the First Amendment into the due process clause (thereby making it an enforceable constraint not only on the federal government ["Congress shall make no law . . ."] but on State and municipal governments as well) the Jehovah’s Witnesses went on a campaign to attack, in court, restrictions on their ability to proselytize door-to-door and to give voice to unpopular views. During one particular 8 year period (1938 to 1946) they brought no fewer than 23 separate First Amendment actions to the Supreme Court (prompting Justice Stone to quip that they “ought to have an endowment in view of the aid they give in solving the legal problems of civil liberties”). They won some spectacularly important victories – West Virginia Board of Ed. v Barnette (1943) (children cannot be forced to recite the Pledge of Allegiance or salute the flag), Chaplinsky v New Hampshire (19420 (establishing the “fighting words” doctrine, and overturning conviction of a Jehovah’s Witness who called a local official a “damned racketeer” and a “fascist”), Watchtower Society v. Village of Stratton (2002) (overturning municipal ordinance requiring government permits for all door-to-door advocacy).***

California court blocks requirement of sex-offenders to report changes of Internet providers

11-18-2014 California:

A federal appeals court has continued to block a voter-approved measure requiring registered sex offenders to give authorities a list of their Internet providers and screen names.

The 9th U.S. Circuit Court of Appeals on Tuesday said the requirement violates free speech rights. The ruling upholds a lower court decision in 2013 that put the requirements on hold.

The reporting provision was part of Proposition 35, which 81 percent of voters passed in 2012 and toughened penalties for human trafficking. The harsher prison sentences remain in effect.

But the appeals court said the requirement of sex offenders to report on their Internet activity is too vague and that offenders' anonymity is insufficiently protected. The court also said requiring offenders to report to authorities with 24 hours was too onerous. ..Source.. by The Republic

Troubling Interpretation of Sex Offender Registration Statute

11-7-2014 New York:

by Lorca Morello, New York Law Journal

In Eugene Ionesco's absurdist play "The Bald Soprano" a character talks about a husband and wife named Bobby and Bobby Watson whom no one could tell apart because they had the same name. In People v. Gillotti, the Court of Appeals has applied similar logic to hold that "victim" under the Sex Offender Registration Act (SORA) is identical to "victim" in tort cases where persons depicted in child pornography can seek damages from mere viewers.1 Gillotti accordingly holds that anyone convicted of possessing multiple images of child pornography has multiple "victims" and therefore presents the same future risk to public safety as someone who has sexually assaulted multiple children.

The majority sees no absurdity in this. Rather, it asserts that any other result would violate the "plain language" of SORA. But plain language interpretation does not mean that just because two things have the same name they cannot be told apart.

Gillotti also conflates two meanings of the word "presumptive." In everyday speech, presumptive means less than definitive, as in "Dr. Livingston, I presume." As a legal term, a presumption allocates the burden of proof, as in "the presumption of innocence." In SORA hearings, the Board of Examiners of Sex Offenders (BESO) offers what its guidelines call a "presumptively correct" recommendation about the defendant's risk level. The guidelines use the word "presumptively" in the everyday sense of "not definitive."

Gillotti, however, interprets "presumptively correct" as a legal presumption that shifts the burden of proof to the defendant. This is inconsistent with the statute and the court's own precedents. Under SORA it is the state's burden to prove by clear and convincing evidence that the defendant deserves the deprivation of liberty interests entailed in being classified as a high or moderate risk.2 However strong the state's evidence, the burden of proof never shifts.

The effect of Gillotti will be to inflate the number of persons permanently stigmatized as dangerous "sex offenders" who probably present no more risk to public safety than any other ex-offender.