Sex Crime Registration

Brock Turner sentenced to Felony Probation and Life Time Registration as Sex Offender (CA PC 290)

The uproar over Judge Persky’s lenient sentencing has resurfaced with his otherwise standard sentence in a routine domestic violence case.  The mob now appears to put this fine judicial officer under the microscope in hope of generating more ridiculous headlines and over the top demands for a pound of flesh.  It is yet another instance of society’s passions lead to out of whack sentencing guidelines and an overpopulated prisons.

It is worth while to examine the sentence in the Brock Turner matter.  A judge is obligated to consider several factors in deciding a sentence.  The first, obviously, is the conduct itself.  What is important is that the sentence falls in line with other sentences for similar criminal offenses.  Judge Persky did just that.  Mr. Turner was sentenced to Felony probation and the automatic life time registration as a sex offender pursuant to CA PC 290.  Judge Persky sentenced Mr. Turner to six months in county jail, in line with the recommendation from the probation department.  What is CRUCIAL to understand is the probation department interviewed both Mr. Turner and the complaining witness in this case.  They have assessed his risk factors and determined that he poses a very slight risk of reoffending.

The second factor that a sentencing court must look at is the defendant himself.  Mr. Turner was, by all accounts, a very accomplished and decent young man.  A Stanford student with Olympic aspirations, Mr. Turner was, indeed, a promising young man.  His conduct does not completely negate that.

Still, the reaction from the public has been one of mindless emotional and one that seeks revenge rather than any sort of justice.  Judge Persky is exactly the sort of judge we want on the bench.  Anyone who tells you otherwise, is selling fear.

Debate Concerning Jessica’s Law Continues

When “Jessica’s Law” [the “Sexual Predator Punishment and Control Act”] was originally sent successfully through the California legislature in 2006, its consequences for registered sex offenders were felt statewide.  In particular, demanding restrictions were placed on where registered sex offenders can maintain a residency.  While this movement was meant to prevent persons convicted of sex crimes involving children from being near them at school, parks, and playgrounds, what it effectually meant was that anyone on the California sex offender registry, whether their crime involved children or not, had a difficult time finding an affordable place to live that fit within the geographical restrictions of the law (2,000 feet from any place where children can be found to gather).

Last month, however, marked the California Supreme Court’s decision that such rules are unconstitutional.  Although the case was specific to San Diego County, the decision sets a precedent for other counties in the state.  Now, the portion of Jessica’s Law that pertains to residency restrictions will only pertain to offenders who have committed a crime directly related to children.  According to the new rule, parole officers will have the power to determine whether or not restrictions should be placed on an individual offender.  This is good news for many ‘sex offenders’ who have been forced to register simply because they were arrested for public urination or some other minor offense.  However, debate amongst members of the public continues and various counties in the state will soon have to determine how they will respond to this new precedent.

Possible Tier Sex Offender Registration (CA Penal Code 290-294)

CARSOL (California Reform Sex Offender Laws) is currently in the process of lobbying state legislators in Sacramento on behalf of a new plan that promises to offer some relief to those citizens who have been forced to register as sex offenders in California (CA Penal Code 290-294).  However, while there is a good deal of support for this kind of thinking, others claim that the entire process is unconstitutional and should be abolished, not retooled.

As for the constitutionality of the current laws, there is at least one crucial point to remember, the United States government is not allowed to place citizens under ‘contract’ (as a registry does) unless this measure is punitive.  Additionally, although this is not constitutional in and of itself, state legislatures (including that of California) have made it legal as far as each individual state is concerned.  Think of it as similar to state marijuana laws, voters in each state can vote to make use of marijuana legal, but that does not prevent federal law enforcement agents from acting to uphold federal laws against the use and possession of marijuana, which supersede state laws.  In the case of sex offender registries, the opposite seems to be true, state laws seems to supersede their constitutionality as far as the entire nation is concerned.

What supporters of a ‘tiered’ system argue for is a compromise.  They believe that the California sex offender registry will never be abolished and so seek to at least mitigate some of the extraordinarily detrimental effects being placed on the registry can mean for convicted offenders, or for many who believe that they were forced into a guilty plea by foolish public defenders and overzealous members of law enforcement.  Detractors of the tiered system worry that placing sex offenders into different strata according to carefully constructed criteria that would determine the seriousness of their crime is beside the point.  They would rather the system were abolished entirely.


Proposition 35: Sex Offender Registration Requirements in California (CA Penal Code 290)

81% of the voting public agreed with California’s Prop. 35 (“Californians Against Sexual Exploitation Act”) and, with such overwhelming support, it was passed in 2012.  However, since then there has been a great deal of debate concerning whether or not portions of this initiative are far too burdensome for those who are affected.  For example, not only did Prop. 35 mean that prison terms were increased and victim restitution mandated for those proved to be involved in human trafficking, but it also required that all sex offenders (CA Penal Code 290) (including traffickers) disclose all information pertaining to their Internet usage.  It is this last bit that has stirred up controversy and, just recently, the Ninth Circuit Court of Appeals determined that this measure is, indeed, unfair and difficult.

Now, this part of Prop. 35 can no longer be enforced.  In fact, it was resolved that asking for such detailed and intimate details of a person’s online presence is a violation of any citizen’s 1st Amendment rights.  Furthermore, the proposition lacked a certain amount of clarity as to what information, exactly, was meant to be reported.  Lastly, it forced registered offenders of any ilk and who had been convicted of any crime that counts as a sexual offense (the list of which is quite lengthy) to report changes in their online presence, including switching providers or changing their usernames, within a mere 24-hour period.

While the case may be that human trafficking is a problematic issue, especially in the Bay Area, many people believe that creating laws that are geared toward one group of people may require a lighter hand.  Certainly, as the appellate court seems to agree, when it comes to nearly impossible requirements, the law ought to bend a bit, at least when it bends toward the U.S. Constitution.


Halloween Sex Offender Laws (CA Penal Code 290-294)

As you head out this evening to help with trick or treating or to attend that fabulous party, you should keep in mind that certain activities are restricted in the state of California during Halloween.  Some of the laws that are currently on the books are downright ridiculous, while some may help to keep everyone safe on this, the spookiest night of the year.

For example, Halloween sex offender laws can be particularly limiting.  These laws may prevent sex offenders from doing everything from driving after dark that one particular evening to being forced to leave their lights off.  One law that has recently been repealed forced registered sex offenders (CA Penal Code 290-294) to place signs in their windows that alerted children to the fact that they were not giving out candy.  What all of this adds up to is one part of a culture of fear that has developed over recent decades, especially when it comes to the safety of children.  While safety is important, it may be time for citizens to wonder whether or not the law has gone too far.

Just this morning, the South Pasadena Patch published public service announcement assuring everyone that law enforcement’s 21st Annual “Operation Boo” would be conducted again this year.  What exactly is Operation Boo?  It is an all-night system of compliance checks for registered sex offenders and is conducted by the LAPD, California Department of Corrections and Rehabilitation, and the Registration Enforcement and Compliance Team (REACT).  Considering that  not all persons registered as sex offenders were arrested for child molestation, some may have only urinated in public, the “special instructions” and compliance patrolling seem harsh.  In face, according to the CDCR website, “special instructions” for sex offenders on Halloween include:

“A 5 am curfew during which parolees must remain indoors; All exterior lights of their homes must be turned off so that it looks as if no one is home, which discourages children from approaching; No offering of Halloween candy and no Halloween decorations are allowed; During the curfew, sex offender parolees can only open the door to respond to law enforcement , such as parole agents who are patrolling their caseload to ensure compliance.”


Man Accused of Racketeering and Conspiracy of Sex Offenders (CA Penal Code 290)

Not long ago, a California jury handed down a 3.4 million dollar verdict to 3 complainants in what has come to be known as the “Offendex” case.  John Doe (name withheld in order to protect the privacy) was accused as someone who had used public information concerning sex offenders (CA Penal Code 290) to extort monies from them.  What did the 3 victims pay for?  They paid not to have their photographs, names, and other personal, identifying information published all over the web.  These were people who had never actually had to register as a sex offender in any state.  Now, it looks like Arizona, and perhaps several other states, will file federal cases against him and one other involved party before the year is out.  Certain victims of sex offenders have expressed their relief at being able to breathe a bit easier because they do not have to encounter their offenders’ photographs, etc. online.

He stood accused of 2 things in both lawsuits: of violating R.I.C.O. (The Racketeer Influenced and Corrupt Organizations law) and conspiracy (to extort money). When someone creates a ‘racket,’ in the legal sense, it means that they try to offer fake services in exchange for taking care of some issue that is nonexistent.  In this case, he threatened to post personal information and photos and took money for the ‘service’ of never putting them up.

If convicted of a violation of R.I.C.O., an individual could spend up to 20 years in federal prison for each count.  Additionally, the fines that he or she would pay could amount to at least double the amount of money that was illegally made.  Finally, assets (property, cars, etc.) can be seized and forfeited to the U.S. Government, with little hope of ever having them returned, even if he or she is found to be not guilty.


Public Policy Efforts Aim at Changing Opinion of Sex Offender Registrants (CA Penal Code 290)

The sex offender registry has been in existence since 1994, when Congress determined that the laws concerning sex crimes needed to be stricter.  One of the most serious problems with the current way in which the sex offender registry is perceived is the stereotypes concerning registrants.  In the mind of the public, any one person who is listed as a sex offender on the registry must be a highly dangerous person.  Lately, however, much has been done to change that stereotype and its influence on public policy.

In California, the sex offender registry (CA Penal Code 290) is particularly difficult to contend with.  Because everyone on the registry is treated the same (everyone convicted of such a crime has to deal with mandatory minimum lifetime registry), there is no way for law enforcement officials to determine who is actually a potential danger to public safety and who is not.  Most folks believe that anyone who is on the sex offender registry must be there for a reason, they must be a pedophile, or a rapist, or at least someone who presents enough of a danger to the community that they ought to be kept track of so that they do not harm others.  Right?

Yet, this is incorrect.  There are some individuals who have been required, for their lifetime, to register as a sex offender for some pretty shocking things.  For example, if you are a minor and take a nude or racy selfie, you could end up on the sex offender registry for distributing child pornography.  Prosecutors would only have to prove that you sent, posted, printed, etc. the photo.  In some states, you could end up on the sex offender registry for public urination.  In California, a woman who flashes her chest could end up as a registered sex offender.  Most disturbingly, children have sometimes been required to register as sex offenders for giving other kids a hug.  The argument is this, sex offender registries are not working in the way that they were meant to, so the debate rages on.


Riverside Board of Supervisors Seek to Revise Sex Offender Registry Laws (CA Penal Code 290 and ‘Megan’s Law’)

You don’t have to live in Riverside in order to have a strong opinion concerning the Board of Supervisors plan to change the way that registered sex offenders are treated in that county.  In Riverside, the current law was created out of a reaction to one sex offender (a child molester) petitioning to live in a halfway house very close to an elementary school.  If the proposal passes, some similar restrictions will be lifted.

To be fair, there is an ongoing debate concerning the sex offender registry, and not just in California, but nationwide.  According to Steve Blow (“We can do better on sex offender laws”) , the movement began with worried parents and law enforcement officials.  Police officers, and rightly so, thought it would be a good idea (and an easy sell to the public) to make sure that they knew the locations of sex offenders, especially those who had committed offenses against children.  This action seemed reasonable to most folks.

However, when parents and others wanted access to that information, things may have gotten a bit out of hand.  Now, Blow says, at least in his home state of Texas, there are any number of offenses that could land you a spot on the sex offender registry, even public urination.  Blow and others ask whether it isn’t time to take another look at sex offender registry laws.

Perhaps the most convincing of Blow’s arguments is that sex offender registries don’t work and its costing taxpayers a bundle (in California, Blow reports that $24 million is necessary each year for the sex offender registry to remain up and running).  It may be time to renew the discussion about sex offender registry (CA Penal Code 290 and ‘Megan’s Law’).


Support for Proposed Changes to the Sex Offender Registration Requirements (CA Penal Code 290)

The California Sex Offender Management Board has recently proposed changes to sex offender registration requirements (CA Penal Code 290), bringing into question the rationale behind, and the efficacy of, the sex offender registration system. California has the biggest population of registered sex offenders in the country, in Santa Clara County alone there are 2469 registered sex offenders and it’s constantly growing. Management of the registry, and the monitoring of people on it, is difficult and puts a drain on law enforcement resources.

There are two main assumptions behind the existence of the sex offender registry:

  1. That sex offenders are likely to re-offend
  2. That monitoring of sex offenders in the community will increase public safety by decreasing the risk of re-offending.

Ultimately, the rationale of a sex offender registry is that the public, especially children will be protected from sexual predators.

However, when we look at the evidence, these assumptions are proved very wrong. People have an image of child sex offenders as men lurking in the bushes at a playground, or in a shopping mall. But overwhelmingly, Department of Justice figures show us that sex offenses are committed by someone a child knows, in 93% of cases, an acquaintance or family member. In the case of sex offenses committed against adults, the same is true in around 90% of cases.

As Summit Defense attorney Steve Davidson notes,

“Family members and acquaintances are the people most likely to be sex offenders, not strangers. And at the end of the day, there is nothing that any sex offender registry can do to protect children from their uncles, step-fathers, family friends, and so on.”

Despite these shocking figures, myths about sex offenders remain. This maintains a ‘witch hunt’ mentality in the public sphere and also means that trying to change the rules around sex offender registration is a difficult task.

The most recent report of the Board argues for a ‘tiering’ system, where certain sex offenders who are assessed as low risk register for only 10-20 years, and not for life. There are compelling arguments to be made in favor of this proposal:

  • The current registry does not make useful distinctions between different types of sex offenders, so it does not help law enforcement or the public identify which offenders are the most dangerous.
  • The chance of a person re-offending diminishes over time , studies show that the longer a sex offender remains in the community without offending, the lower their risk of re-offending.
  • There is NO evidence that shows that having a registry leads to a decrease in sex crimes.
  • About 95% of solved sex crimes are committed by people who have not been identified as sex offenders, so have not been on the registry.[1]

One further consideration that is often left out of the debate, however, are the dramatic and negative effects that registration has on someone’s life. Unlike any other person that commits an offense, sex offenders in California continue to be monitored for the rest of their lives, long after they have served their sentence. This is really a form of life-long punishment, and it presents significant barriers to their being a productive member of the community.

Summit Defense Attorneys have worked with many clients who have faced disastrous consequences after being required to register, including people who were convicted of low-level offenses over a decade ago, and who have not re-offended in any way since then. These people have been denied housing and are unable to find employment because of their details appearing on the sex offender registry. Attorney Steve Davidson says, “Clients come to us absolutely frustrated. They committed an offense ten or twenty years ago, sometimes more. They’ve served their sentence, and they haven’t even received a speeding ticket since then. But they still can’t move on with their lives, get a job, pay their taxes.” He believes that the proposed changes to the sex offender registry make a lot of sense.

“A lot of these people are not dangerous, they should be able move on with their lives, and do so without being a burden to anyone else. And the police should focus their resources where they’re really needed.”

– Steve Davidson

[1] California Sex Offender Management Board, ‘ Tiering Background Paper’, page 2, available at Background Paper FINAL FINAL 4-2-14.pdf

Proposition 35 Seeks to Extend The Reach of Current Sex Offender Registration Law (CA Penal Code 290)

Prop 35 is a recent ballot measure in the state of California that attempts to require all registered sex offenders to make information like their Internet identities, user names, and even their Internet provider.  However, there are those who have argued against this action on at least two counts. First, such a measure would go directly against the Constitutionally guaranteed right to free speech. Second, such a law would increase the already Draconian requirements for sex offenders. Some of whom have only been accused of minor infractions like indecent exposure in the state.

California already has current laws in place, which makes registration as a sex offender mandatory (CA Penal Code 290) and this is a hefty price to pay indeed.  What it really means is that the general public, and not just law enforcement officials, have access to your home address, a description of the type of crime that you have committed, and other personal information.  Clearly, this may lead to vigilantism and other breaches of privacy from fellow citizens.

District Judge of San Francisco recently blocked a request to enforce the Internet identity portion of Prop 35 on similar principles.  He reasoned that it would mark a direct violation of free speech (offenders could no longer post even anonymous comments on websites) and at the same time, would not effectively work to prevent the rise of sex-related crime rates.