Don’t criminalize the selfie generation

Warning: To anyone considering Selfie Sexting in Tennessee – if you take an explicit photograph of yourself and you’re under 18 years old, you’ve committed a serious criminal offense that can place you on the Tennessee Sex Offender Registry for life.

Lawyers are fighting to stop sexting teens being branded ‘sex offenders’

A group of lawyers is fighting to defend teenage sexters who are over the age of consent from being labelled as sex offenders.

Sexting teens have a problem. If you take an explicit photograph of yourself and you’re under 18 years old, you’ve committed the serious criminal offense of creating an indecent photograph of a child – even if you’re over the age of consent.

Despite being over 16 and exchanging sexts with a consensual partner, you could be cautioned, fined and put on the sex offenders register for your acts.

Selfie generation

Backlash, an action group formed of concerned lawyers, provides legal help to teens caught out by the legislation that causes this disparity, and aims to have it changed. The group warned that government policies are misguidedly criminalizing the ‘selfie generation’ because politicians don’t understand how technology – or teens’ brains – work.

“By criminalizing young people between the ages of sixteen and eighteen, our political and justice systems show how disconnected they are from technological change and social values,” obscenity law expert and Backlash’s legal adviser Myles Jackson explained.

After a girl was investigated for sending her boyfriend a topless photo in Nottingham last year, Detective Inspector Martin Hillier wrote to school officials to highlight the risks:

“I have grave concerns over the amount of referrals Nottinghamshire police are receiving on a daily basis in relation to naked images being sent between teenagers via either social networking, texts or mobile phone apps. It is crucial that children (under 18 years) understand that every internet site and social networking site is monitored by an administrator,” he wrote.

“When photographs that fall within the category of an indecent image (even if taken with consent) are uploaded, reports are made by the administrators to the police. If a person is aged over 10yrs and distributes (shares – even to friends) an indecent image then they can be arrested, charged and dealt with for this offense. If they are found guilty they must then register as a sex offender.”

This article can be found here.

Civil Punishment Begins When the Criminal Punishment Ends

Civil Punishment for Tennessee sex offenders follows even after the criminal charges have ceased, and the offender has paid his or her dues to society. Must these individuals simply crawl in a hole and die before people are satisfied? I don’t want to minimize their offenses or the pain that they have caused others, but even murderers are treated better upon release. Sending defendants to prison is simply no longer sufficient — we have to send them a message that they are never to be welcomed back into society, potentially making him or her more dangerous and/or more likely to re-offend.

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New law gives neighborhood associations teeth, says The Commercial Appeal

Read the story here about the Neighborhood Protection Act, approved April 20 by the Tennessee General Assembly.

Excerpt:

“Once Gov. Bill Haslam signs the bill into law, neighborhood and condominium associations, neighborhood watch groups and similar organizations will be able to file restraining orders against someone who commits three or more thefts, burglaries, rapes or murders in the area defined in the group’s charter.

The law, which was carried in the House by Rep. Antonio “2 Shay” Parkinson, D-Memphis, will not apply to crimes committed before the law’s approval and the orders — unless extended by a judge — end after a year.” (The Commercial Appeal, May 3, 2015).


Does this remind anyone of the movie Minority Report, when “PreCrime” would arrest individuals before they committed a future crime? Why else would we need to ban them from their neighborhood for their past behavior, unless we’re certain that they can never be rehabilitated?

Or how about the failed “Three Strikes Policies” that most people have now acknowledged to be wrong-headed and a complete policy failure? Does Rep. Parkinson not know that the Tennessee Sentencing Scheme already increases the penalties for an individual who continues to commit further felonies?

If a person breaks the law and is convicted, then he or she should be punished in accordance with the sentence for that particular statute. But when was jail not sufficient? Why now, must we continue to pursue the person after he or she has completed a jail sentence and now plans to return home? When is the debt to society paid?

It began with sex offenders, then meth users, animal abusers, and other convicted felons, but now it could be a person who has committed three misdemeanor thefts under $500. Instead of trying to find ways to push these individuals away from family, social structure, and their home, a better policy than the Neighborhood Protection Act would be this one: hate the sin and love the sinner.

Even as the nation begins to question economically-burdensome and non-reformative massive incarceration — especially given its unequal application of those sentences to African American males, there is a dangerous trend of greater registration, greater public shaming, and greater collateral consequences of criminal conviction in the civil arena. It seems that sending defendants to prison is simply no longer sufficient — we have to send them a message that they are never to be welcomed back into society.

Though various civil remedies, we now seize their assets, declare them a habitual this-and-that, compel them to pay penalties to various social causes, take away their ability to run for office or vote, and create additional criminal statutes or violate their probation if they fail in regard to any of these civil measures.

We must ask ourselves what will become of the individual who believes he or she can never carve a life out by integrating back into society and respecting its norms, and what will become of the community that insists on advancing such measures.

J. Jeffrey Lee Serves as Featured Speaker

Forensic Interviews in Sex Offense Cases in Tennessee

On April 8, 2015, Memphis Sex Crime Attorney J. Jeffrey Lee will serve as a featured speaker to a national audience regarding “Litigation Tools to Combat the Use of Forensic Interviews in Sex Offense Cases.” He will discuss the recent Herron case, which was addressed the Tennessee Supreme Court.

To learn more the nonprofit organization sponsoring this event, please visit Reform Sex Offender Laws, Inc.

State of Tennessee v. Frederick Herron
W2012-01195-SC-R11-CD

The defendant was charged with and convicted of rape of a child, and he received a twenty five-year sentence. The defendant appealed, raising seven issues. The Court of Criminal Appeals held that the trial court erred by(1) allowing the prosecution to introduce the child’s prior consistent statement, a recorded forensic interview, during its case-in-chief before the child’s credibility had been challenged; and (2) ruling that if the defendant chose to testify the prosecution would be permitted to ask him whether he had been previously arrested or convicted of an unnamed felony. Nevertheless, in a divided decision, two judges of the Court of Criminal Appeals concluded that these errors were neither individually nor cumulatively prejudicial. The dissenting judge opined that the second error alone was prejudicial and entitled the defendant to a new trial. We affirm the Court of Criminal Appeals’ conclusions that the evidence is sufficient to support the conviction and that the election is sufficiently specific and definite. We hold that the cumulative effect of the two conceded trial errors is prejudicial and entitles the defendant to a new trial. Because of the remand for a new trial, we do not address the defendant’s other allegations of evidentiary errors. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part; the defendant’s conviction is vacated; and this matter is remanded to the trial court for a new trial, consistent with this decision.

Taken from http://www.tsc.state.tn.us/courts/supreme-court/opinions/2015/03/26/state-tennessee-v-frederick-herron
The entire case can be downloaded here.

Rushing to Judgment in Sex Offender Cases

Rushing to Judgment in Sex Offender Cases is a real problem affecting innocent defendants in courtrooms across the country every day. Urban myths such as ‘children would never lie about something like this,’ ‘I would never tell a victim that I don’t believe them,’ or ‘he/she must be guilty of something‘ is wrong-headed thinking and it keeps jurors distracted from the actual facts of the case.

“The more sensational the allegation, the more scrupulously it needs to be investigated. And if the original tip doesn’t survive scrutiny, so be it.”

‘Rolling Stone’ report leaves trail of damage

Hopefully this Rolling Stone fiasco will serve as a teachable moment for everyone who rushed to (the wrong) judgment – but even if this was a rare journalistic failure, it happens in courtrooms across America every day.

Rushing to Judgment in Sex Offender Cases is the rule, not the exception. I’ve stood next to individuals who committed no crime more serious than being in the wrong place at the wrong time – placing themselves in a situation where an allegation could be made against them that could not be ‘dis-proven.’ (And yes, the burden does seem to shift in these cases, although it isn’t supposed to.) After those cases concluded – many in a “Not Guilty” verdict, they were still never welcomed back into society, even as their names were cleared.

Call your local criminal defense attorney and say thank you, and remember that he or she stood by you when everyone else was so outraged by the sensational allegations that they never bothered to investigate.

This is what uncorroborated child testimony looks like

Uncorroborated child testimony in Sex Offender cases is an especially dangerous problem, given the stakes when the child is confused/mistaken/lying. Jurors can and should demand more to make sure that they get the right result, whether guilty or not guilty.

Two men have now been exonerated from a case in which there was no physical evidence; only the testimony of one child who said that that he felt extreme pressure from detectives to describe a crime he never saw.

This case is a troubling example of what can happen when police detectives pressure a child to provide testimony, overlook the fact that the testimony is not credible, and then rabidly prosecute the case even when the testimony is not corroborated with physical evidence. In many sex crime cases, detectives will pressure a child to describe a crime that might not have even occurred, and they often taint the witness through repeated leading questions and fact suggestion.

Jurors can prevent similar misguided results such as in the case below by avoiding reactionary emotional responses to horrific but unproven allegations, and use well-reasoned judgment in rendering a verdict.

Kudos to the child in this case who took the brave step of coming forward and admitting the truth so that a wrong could be made right.

Two Men Wrongly Convicted Set Free After 39 Years

 

Court Helps Rehabilitate Rather than Punish Prostitutes

Punishing Prostitutes in Tennessee

I’ve just learned about the WINGS (Women in Need of Gender Specific Services) court, and I’m thinking how wonderful this program could be for Memphis, Tennessee. Instead, we charge them for being too close to a church or school with a completely arbitrary distance requirement (as the crow flies) so that we can lock them up in jail for a week for each offense. They spend so much time going in and out of jail, and coming on and off drug binges, that we’re making rehabilitation nearly impossible for them.

(From the original Chicago Talks article)

Associate Judge Rosemary Higgins on Monday discussed a Cook County court program that helps convicted prostitutes into treatment instead of sending them to jail.

Higgins, 58, said WINGS (Women in Need of Gender Specific Services) court was looking for money from the county, state and federal governments to support the program. The program operates with the help of volunteers and non-profit organizations.

The court was launched in January 2011 with support from the Chicago Coalition for the Homeless, the Chicago Dream Center and other organizations. It is one of only two courts in the nation that serves women convicted of felony prostitution. Also, the program in Cook County is the largest in the nation.

“This is the most interesting thing I do,” Higgins said. “It’s the most important work I’ve done as a judge.”

Click here to read the rest of the story.

 

Why Kids Sext

This is a national article, but I can tell you as the Memphis Sex Crime Attorney that Teen Sexting in Tennessee can land you in prison and on the Sex Offender Registry for the rest of your life.

The Atlantic magazine has an interesting article into the rise of teen sexting  An inquiry into one recent scandal reveals how kids think about sexting — and what parents and police should do about it.

This anecdote addresses the overwhelming prevalence of teen sexting: “After just a couple of days, the deputies had filled multiple evidence bins with phones, and they couldn’t see an end to it. Fears of a cabal got replaced by a more mundane concern: what to do with “hundreds of damned phones. I told the deputies, ‘We got to draw the line somewhere or we’re going to end up talking to every teenager in the damned county!’”

In this case, the prosecutors recognized that applying the law and making each of these youth a sex offender would be an inappropriate response. Also, because many of the teens had taken photos of themselves and proudly texted them to others, it was difficult to see them as victims in the way the statute imagines them to be.

As the Tennessee statute is currently written, a child taking a photo of himself or herself and sending it to a boyfriend or girlfriend is creating and distributing child pornography. If this case had occurred in Tennessee, these youth could receive up to twelve years in prison at 100%, be included on the sexual offender registry, and be on community supervision for life. We can only hope that law enforcement would also question the vague and overly broad statutes here also.

Here is the article: Why Kids Sext

 

J. Jeffrey Lee Joins Public Interest Group to Reform Sex Offender Laws

Learn More about RSOL

RSOL (Reform Sex Offender Laws)


I am pleased to join Reform Sex Offender Laws, Inc. (RSOL) to work toward their vision of “effective, fact-based sexual offense laws and policies which promote public safety, safeguard civil liberties, honor human dignity, and offer holistic prevention, healing, and restoration.” Learn more about the group and the their Vision, Mission and Goals here.


Mission:

RSOL will promote laws and programs:

  • limiting registry access strictly to law enforcement agencies;
  • terminating registry requirements upon completion of a court-imposed sentence;
  • reversing retroactively applied restrictions;
  • reforming civil commitment processes;
  • rehumanizing, rehabilitating, and reintegrating former offenders;
  • increasing public safety by reducing sexual offenses; and
  • reducing acts of discrimination, hatred, and violence directed at sexual offenders.

Goals:

RSOL will:

  • promote laws targeting harmful acts rather than entire classes of people;
  • promote limiting registry access to law enforcement agencies only;
  • support removal of residency and proximity restrictions against registrants after their court-imposed sentence is satisfied;
  • support litigation and legislation which remove or prevent retroactive increases in registration requirements and restrictions;
  • advocate to limit post-prison civil commitment strictly to extraordinary cases where the state proves that the person presents a danger to the community;
  • promote treatment of civilly committed persons with the goal of reintegration back into society;
  • advocate for review and removal of currently committed persons who do not meet the dangerousness criteria, without imposing an additional financial burden on those persons;
  • promote laws which replace lifetime supervision/parole with a system that includes ongoing assessments for termination of supervision;
  • encourage fair and balanced trials, proportional sentencing, reasonable statutes of limitation, and the elimination of mandatory minimum sentencing;
  • discourage discrimination, violence, and vigilantism toward those accused or convicted of a sexual offense;
  • seek out and support programs which effectively reintegrate and rehabilitate former offenders;
  • seek out and support programs which effectively prevent new sexual offenses through intervention and community education; and
  • promote healthy, trusting human interaction by replacing fear and panic with solid facts and reason.

Assertions:

  • Sex offender registries were originally presented as a means for tracking persons convicted of the most heinous offenses, but their reach has expanded exponentially to include even teen sexting and consensual relations between young people;
  • Public registries provide no measurable protection for children or the general public yet endanger the well being of children and family members of registrants;
  • Public registration, proximity restrictions, and residency restrictions that are extended beyond an individual’s sentence are punitive and thereby violate protected constitutional rights;
  • Evidence-based policies and programs can reliably reduce new sexual offenses and thus make our communities safer.
  • The misinformation and stigmatization used to justify harsh sexual offense laws undermine the welfare of society, creating unnecessary panic and distrust;
  • Choosing to set apart any group of people and deny them civil, constitutional, and human rights threatens the rights of every person in our nation.

John Grisham: We’ve gone nuts with locking up sex offenders

Even though the ‘shame police’ have quickly beaten John Grisham into submission, kudos to him for taking a stand on an unpopular idea whose time has come – distinguishing between “real-world abusers” and “those who downloaded content, accidentally or otherwise.”

Under the crimes of Tennessee, he would be making a distinction between “real-world abuser crimes” like rape, statutory rape, statutory rape by an authority figure, aggravated sexual battery, sexual battery by an authority figure, and sexual battery over “downloader” offenses like Sexual Exploitation of a Minor.

We can only hope that in the future, public policies and criminal sentencing guidelines in these cases will be ruled by reason and logic, rather than pseudo-science, political grandstanding, and scaremongering.


Article reprinted here with link to the original below:

America is wrongly jailing far too many people for viewing child pornography, the best-selling legal novelist John Grisham has told The Telegraph in a wide-ranging attack on the US judicial system and the country’s sky-high prison rates.

Mr Grisham, 59, argued America’s judges had “gone crazy” over the past 30 years, locking up far too many people, from white collar criminals like the businesswoman Martha Stewart, to black teenagers on minor drugs charges and – he added – those who had viewed child porn online.

“We have prisons now filled with guys my age. Sixty-year-old white men in prison who’ve never harmed anybody, would never touch a child,” he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.

“But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn.”

The author of legal thrillers such as The Firm and A Time to Kill who has sold more than 275m books during his 25-year career, cited the case of a “good buddy from law school” who was caught up in a Canadian child porn sting operation a decade ago as an example of excessive sentencing.

“His drinking was out of control, and he went to a website. It was labelled ‘sixteen year old wannabee hookers or something like that’. And it said ’16-year-old girls’. So he went there. Downloaded some stuff – it was 16 year old girls who looked 30.

“He shouldn’t ’a done it. It was stupid, but it wasn’t 10-year-old boys. He didn’t touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people – sex offenders – and he went to prison for three years.”

“There’s so many of them now. There’s so many ‘sex offenders’ – that’s what they’re called – that they put them in the same prison. Like they’re a bunch of perverts, or something; thousands of ’em. We’ve gone nuts with this incarceration,” he added in his loft-office in Charlottesville, Virginia.

Asked about the argument that viewing child pornography fuelled the industry of abuse needed to create the pictures, Mr Grisham said that current sentencing policies failed to draw a distinction between real-world abusers and those who downloaded content, accidentally or otherwise.

“I have no sympathy for real paedophiles,” he said, “God, please lock those people up. But so many of these guys do not deserve harsh prison sentences, and that’s what they’re getting,” adding sentencing disparities between blacks and whites was likely to be the subject of his next book.

There are currently some 2.2m people in jail in the US – or more than 750 per 100,000 population – which makes the US by far the heaviest user of prison sentences in the world. By contrast, Britain imprisons just 154 per 100,000 population.

However Mr Grisham’s remarks are likely to anger child-rights campaigners that over the past decade have successfully lobbied the US Congress to demand tougher sentences for those who access child pornography online.

Since 2004 average sentences for those who possess – but do not produce – child pornography have nearly doubled in the US, from 54 months in 2004 to 95 months in 2010, according to a 2012 report by the U.S. Sentencing Commission.

However the issue of sex-offender sentencing has sparked some debate in the US legal community after it emerged that in some cases those who viewed child porn online were at risk of receiving harsher sentences than those who committed physical acts against children.

A provocative article in the libertarian magazine Reason headlined “Looking v Touching” argued last February that something was “seriously wrong with a justice system in which people who look at images of child rape can be punished more severely than people who rape children”.

And in January this year the US Supreme Court was unable to resolve a debate over whether a man who viewed images of a child rape should be as liable to pay the same financial compensation to the victim as the original perpetrator of the crime.

Mr Grisham, who earned $17m (£10.7) from his work last year according to Forbes, is still one of America’s highest paid novelists and is a self-declared Democrat who supported Hillary Clinton in her failed 2008 bid to win the White House.

He has waded into political issues in the past, writing newspaper columns against the Guantanamo Bay prison camp, the death penalty as well as serving on the board of the Innocence Project, a campaign group that uses DNA analysis to end miscarriages of justice.

In the interview to promote Gray Mountain, a fast-paced thriller in which a young lawyer takes on ‘Big Coal’ as it destroys the rural landscape of Virginia, Mr Grisham spoke freely on a range of subjects from politics to publishing.

Among the highlights were his contention that Barack Obama had presided over “amateur hour” at the White House during his six years as president, and that Amazon.com was seeking to establish an effective online monopoly that could ultimately destroy the paperback books business.

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11165656/John-Grisham-men-who-watch-child-porn-are-not-all-paedophiles.html

Swedish Man Acquitted of Rape Due to ‘Sexomnia’

Is Sexomnia a real thing?

Although this sounds like a silly legal argument for people who don’t know much about it, courts and juries are starting to realize that this can be a real phenomenon, especially with the use of sleep aids.

“A Swedish man who was convicted of rape had his charges overturned after an appeals court found the man could have been asleep during the attack and cited ‘sexomnia’ as a reason he should be released.” More information here.

Article also posted here:

A Swedish man who was convicted of rape had his charges overturned after an appeals court found the man could have been asleep during the attack and cited “sexomnia” as a reason he should be released.

Mikael Halvarsson was acquitted of rape this month after experts said he was asleep during the attack and had no memory of the incident, according to a translated court ruling from the Sundsvall appeals court in Sweden.

Halvarsson was accused after the victim woke up as Halvarsson allegedly assaulted her on April 2, 2014. They had been sleeping in the same bed, but they each had their own blanket, according to the translated court documents, which also noted that she called the police the next morning, and they found Halvarsson still asleep in her bed when they arrived.

In the appeal, Halvarsson’s previous girlfriend testified that he had previously tried once to have sex with her when she was sleeping. When she stopped him, he then acted confused and asked what had happened.

His mother also confirmed that he had disturbed sleeping patterns before.

While the term sexomnia may seem made up for the purposes of getting away with a crime, Dr. Kingman Strohl, a professor of medicine and director of research at the Sleep Center at Case Medical Center in Cleveland, confirmed it’s an actual medical diagnosis that includes unintentional sexual behaviors during sleep.