I spent the weekend in Las Vegas not having fun, but taking a CLE on how to defend sex assault cases, particularly those involving Internet child porn.
Lawyers came from all over the country, even states with populations as small as Wyoming, where there are more cows than people.
Why? Because Internet porn is the latest bugaboo of local and federal enforcement agencies, especially in remote areas where the Internet is the only game in town. Money is being pumped into these investigations and arrests, and excuses like I didn’t know it was on my computer, or I was hacked, or I never looked at it, even if these excuses may be true, will not save the target from humiliation, expense, and likely jail.
And beware, even if it’s just your 14-year-old kid fooling around on peer-to-peer sites in his “experimentation” phase — he’s liable, and could be marked a sex offender for life.
I’m not defending child porn or sex crimes (although I do defend people accused of these crimes), but try to get a fair jury in one of these cases and then a fair sentence if the person is found guilty — it’s almost impossible. Of all the crimes to pull, this is the one that taints the most.
In the good ol’ days, film director Roman Polanski could be offered a sentence of probation for unlawful sexual intercourse with a minor (the alleged victim was 13!). Nowadays, he’d not only be denied a plea offer, but he’d be doing 40 to life in prison.
Here’s the other thing I learned at the conference — it’s not only the jail sentence that punishes the defendant, it’s the very real repercussions of sex registration that, for many, last for life, and that stigmatizes not only the accused, but his entire family. The new Scarlet Letter.
Take the case of Josh. He was accused of having child pornography on his computer while in the military. He didn’t produce it, distribute it, or have illegal sex with anyone. It’s what we call in the business a non-contact, non-violent computer offense. He was 18 at the time.
Although he had a defense, he chose not to assert it in fear of the much harsher sentence he’d receive if he were to be found guilty after trial.
The conditions of his plea required four years in jail and that he register as a sex offender for life. Sex registry is complicated. There are federal, state, and even local rules that the registrant must comply with and they change from locale to locale. Even if the ex-sex offender is on the lowest registrant level (there are three levels), a lot of restrictions trail him. He must alert the local police department regarding his address and with whom he lives. Often he can’t live in neighborhoods within a certain distance of schools, churches, day care centers, and sometimes even public parks. He’s forbidden from taking certain jobs; he’s not allowed in any elementary through high school (this sometimes includes universities), even to attend his own child’s graduation; and of course his face, name, and address are known to the public.
A lawyer from Brattleboro, Vermont, told me her small town has a tent city mostly made up of ex-sex offenders because they can’t find housing elsewhere. These people could be on the registry for crimes such as having had consensual sex with a 15-year-old when they were 19. Because the registry lists the employment of the ex-sex offenders, people on witch hunts often target that person’s business as well.
No business wants that kind of notoriety.
A group of women at the conference (mostly moms) started a nationwide group called, Women Against Registry (WAR). They aim to publicize the continuing stigma that follows anyone (and his family) on a sexual offender registry. They regaled me with stories I thought could only be fiction. (Check out John Grisham’s latest book, Rogue Lawyer.) One couple spoke of SWAT teams bursting into their home to seize all computers because police believed they contained child porn. Others spoke of slaughtered pigs being left on their driveways and houses being burnt down — vigilante stuff that should have no place in modern society.
One of the organizers of WAR, Vicki Henry, the mother of Josh, told me he has finally regained some balance in his life, now 13 years following his conviction. He found a job and was involved in a serious relationship where both wanted to marry. Unfortunately, because the woman has children, they’ve been told if they live together, child protection agencies could take the woman’s children from her.
I represented a very talented dancer who taught children ballet. In helping them find the right posture for the class, he was accused of touching a child’s chest — a misdemeanor, but none the less one that carried years of sexual registry. He chose to leave the country rather than face the stigma.
The other thing I learned in the conference is that sex offenders can be treated and helped. Research shows a very low level of recidivism among sex-offenders, particularly those convicted of only minor offenses. According to statistics from the Bureau of Justice Statistics cited in materials published by WAR, only 5.3% of people imprisoned for sex crimes were rearrested for a subsequent sex offense.
The rearrest rate dropped to 3.3% where a child was involved, and the sexual reoffense rate was 2.2% when the initial offense involved adults.
Research also shows that rather than stranger danger, people should be most wary of friend danger — the neighbor who always wants to babysit the children, the over-attentive coach, the weird uncle. So rather than torment the guy down the street who is listed on a sex-offender registry for a crime he committed (or pleaded guilty to) 15 years ago, watch out for people much nearer and dearer.
Sex registry is important, but it’s far too blunt an instrument to deal with alerting and protecting the public from former offenders. It condemns many people and their families to a lifetime of living on the periphery based largely on prejudice and misinformation about the likelihood of recidivism.
(For more information on the movement for sexual registry reform go to: womenagainstregistry.com, cautionclick.com, and NationalRSOL.org.)
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.
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