WASHINGTON, Jan. 14, 2016 — This past week, President Obama signed a criminal justice reform bill. Many convicted sex offenders and others feel part of it is overly broad and unfair, and that it violates privacy rights. The provision in question requires convicted child molesters to carry a special passport that clearly identifies their status as a registered sex offender.
Proponents offer that it is intended to prevent sex tourism by people who have abused children in the U.S., and that other countries are entitled to know that potentially dangerous people are entering their country.
Virginia Representative Bobby Scott, on the other hand, offers this opinion:
… the failure of this provision to allow for the individualized consideration of the facts and circumstances surrounding the traveler’s criminal history, including how much time has elapsed since his last offense, underscores how this provision is overbroad.
Details such as whether the traveler is a serial child rapist versus someone with a decades-old conviction from when he was 19-years-old and his girlfriend was 14 are significant, and would allow law enforcement to more appropriately prioritize their finite resources.
The Department of Justice defines sexual assault as any type of contact or behavior that occurs without the explicit consent of the recipient. It includes sexual intercourse, forcible sodomy, child molestation, incest, fondling and attempted rape.
In 1994, Congress passed “The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act,” following the abduction of Jacob, age 11. (Jacob was never found.) The law requires sex offenders to register with local law enforcement agencies.
In 1996, an addition to the “Wetterling Act” was brought about by what happened to Megan Kanka, age 7. She was taken by a neighbor, raped and murdered. The resulting Megan’s Law now requires law enforcement agencies to make information available to the public regarding registered sex offenders. The information includes where offenders live. Megan’s parents said they never would have allowed her to wander outside if they had known a neighbor was a sex offender.
These two laws together require registration and community notification.
The new “passport” law has been called the “International Megan’s Law” because it now provides notification to the world.
Every state has a different definition of sexual assault. For most convicted criminals, after their sentence, excepting a possible probation term, the law is finished with them. Not so for convicted sex offenders. There are laws aplenty that keep those convicted of sex crimes tied to the system. Perhaps these are good laws, but many will debate that the often-devastating effects of having the sex offender label permanently tied to offenders is too harsh.
However, sex offenders have had little success in overturning such laws. A Wisconsin man, Michael Belleau, 72, sued to have his for-life ankle bracelet monitor removed. He claimed it violated his constitutional privacy rights. The court said “no,” regarding the bracelet as a minor intrusion into his privacy.
There are few limits on lawmakers when it comes to this legal arena. Constitutional challenges to sex offender laws are almost always rejected. The reason is that sex crimes strike the very core of our human spirit. Thus, courts are reluctant to make changes in this area. Sex crimes are uniquely different. Victims can be shattered for life, families are disrupted and entire communities are frightened. People believe “it can happen to them.”
State by state, laws differ in what is a sex crime, how it is punished and even how long a prosecution should be allowed after the crime occurs. Distinctions are made if the victim is a minor or an adult; and then, by definition, whether the crime against the victim would be classified as a misdemeanor or a felony.
State statutes of limitations also vary, such that eight states have no time limit for prosecutions. In other states, limits extend for five, eight or 10 years for adult victims. But when the victim is a minor, some states allow up to 30 years after the minor victim reaches the age of majority to prosecute the accused. Additionally, 27 states extend their deadline for prosecution when the discovery of DNA can identify the perpetrator. A listing of the different state laws may be found at this link.
The issue of deadlines for a sex crime prosecutions has been in the national news for the last few years. Who among us was not truly deeply saddened and disgusted when sex crime allegations against Bill Cosby were made public?
In many instances, victims feel they have also suffered a violation of trust. The widely known and previously much admired Cosby is now viewed as having violated America’s trust. To date, more than 50 women have accused Cosby, once called “America’s Dad,” of sexual misconduct. But only one criminal prosecution has resulted, primarily because time deadlines have barred all the others.
Andrea Constand, the victim in that case, has accused Cosby of drugging her with multiple pills and assaulting her at his home in Pennsylvania in 2004. Cosby’s attorneys tried to get the charges dismissed, arguing he was protected under a 2005 agreement with prosecutors that he would “never” be prosecuted in exchange for his giving deposition testimony about the case. Cosby admitted in that deposition that he gave Quaaludes to Constand. The motion to dismiss the case on the immunity defense was rejected.
Judy Huth has filed the only civil lawsuit against Cosby, claiming he gave her alcohol and then molested her. Huth’s attorney, Gloria Allred, says she has 29 clients who are Cosby victims.
Some Cosby fans believe he is now in the clear because a recent court ruling dismissed a case against him. Not so. He’s still in trouble. A Pennsylvania judge dismissed a civil defamation lawsuit filed by Renita Hill. Hill says that from the time she was 16, Cosby had drugged and raped her over a four-year period. Hill sued Cosby for civil defamation damages, but her case was dismissed due to insufficient evidence of defamation.
Issues of offender’s rights, privacy and safety will clash, even as laws involving convicted sexual offenders continue to be debated. One thing is certain, however. These cases are different.
When dealing with such crimes, erring on the side of the victims and the community is much easier for the public to swallow than it might be otherwise. For that reason, if even one child, somewhere in the world, is spared because of the recent passport law, its value will have been realized. Too bad if the tagged passport causes a problem for all the other prior offenders.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.