Thursday, June 25, 2015

Janine Reyes of WFTV finds her sweeps week story at a yard sale. I bet her brain was bought there, too.

Any time a reporter makes a story this asinine, the Shiitake Awards will make room for her. So the big story of the day is shelter that houses registered citizens sells toys at a yard sale (among other things). So what's the big deal, especially if none of the shelter residents interact with the yard-salers. And kids don't go to yard sales alone, parents go. 

Reyes made problems for a shelter doing good work for the community. Why? For ratings, obviously. Next week, Reyes could run a story on sex offenders using public bathrooms. She can get exclusive footage of me dropping a valigator all over this Shiitake-Worthy story.

It isn't enough she ran this story, but her Twitter page suggests she's hoping some residents are violated.

[By the way, it seems "The Dirty" has an article about Janine Reyes.]

Posted: 6:38 p.m. Saturday, June 20, 2015
Apopka sex offender facility sells children’s toys at yard sale

APOPKA, Fla. — An Apopka complex that houses nearly 30 sex offenders has been having yard sales for years, but some of the items are tailored to children, worrying neighbors.
Channel 9’s Janine Reyes found stuffed animals, baby toys, Legos and other items for children during a yard sale Saturday at The Lighthouse Mission.
Reyes found out the yard sale will be the last at the facility for a while, due to a violation of city code that allows yard sales only twice a year.
“It doesn’t say anywhere you’re entering a premise where there (are) 26 registered sex offenders,” Reyes said.  “Why should it? I don’t have it in front of my house that I’m on disability,” said Gloria Hoffpauir, who helps run The Lighthouse Mission with her mother.
Hoffpauir said the sex offenders who live in the complex are not identified as predators, but some residents said the complex should prominently display who lives there during a yard sale.
Hoffpauir said the sex offenders do not sell the items, but they do help set up the sale and move items.
“So they could be out here while there are children here?” Reyes asked Hoffpauir.
“Kids don’t come up here by themselves. Their parents are with them,” Hoffpauir said.
Nearby residents said it’s not right.
“I just don’t want kids to be around violators,” said Stephen Vasquez.
“It doesn’t say anywhere you’re entering a premise where there (are) 26 registered sex offenders,” Reyes said.  “Why should it? I don’t have it in front of my house that I’m on disability,” said Gloria Hoffpauir, who helps run The Lighthouse Mission with her mother.
 Hoffpauir said the sex offenders do not sell the items, but they do help set up the sale and move items

Saturday, June 20, 2015

NH State Rep Dick(head) Marston derails relief plan against aggressive collection of registry fees

This guy's name is "Dick," but his last name should be "Head" after derailing a bill that would have abolished the $50 annual fee the state forces registered persons to pay. Of course, it wasn't enough to vote against the bill-- Dickhead Marston claimed if this bill passed, the registry would eliminate the registry. If that is true, then I see no reason NOT to pass this bill. The money saved from eliminating the registry could increase his salary, which means better glasses and some Hair Club for Men.

Dornin: Pay $50 a Year Forever ... Or Maybe Not

HB 587 would have abolished the annual fee former sex offenders pay to be listed in the state's online database.

By Chris Dornin, Founder, CCJR

Lawmakers killed a good crime bill this year.

Citizens for Criminal Justice Reform wrote and recruited sponsors for HB 587, which would have abolished the $50 annual “fee” the state charges citizens to register as former sexual offenders, often for the rest of their lives. The charge buys them the privilege of being publicly shamed on the State Police website. Failure to pay can get them arrested and theoretically sent to prison.

Our bill died on the House floor based in part on misinformation by state Rep. Dick Marston, R-Manchester, who posted the following blurb in the House calendar before the vote:

“There is a provision in the law that would currently allow the fee to be waived if the offender was unable to afford it. The (House Criminal Justice) committee determined that repealing the fee would have resulted in virtually eliminating the registry, which would be a disservice to the citizens of NH.”

Marston misled lawmakers, perhaps intentionally. Yes, eliminating the fee would cost the state the $93,400 a year it squeezes from registrants to pay for their scarlet letter. But the registry costs state and local government far more than that. The State Police testified they employ seven people full time to keep the registry up to date. The Manchester Police say they assign two full-time officers to track their 440 registrants on the State Police website. If that is a best practice, the rest of New Hampshire needs another eight or 10 officers full time to handle the remaining 2100 registrants. The total cost easily exceeds ten times what the state collects from registrants.

We would submit the state has no right to make registrants pay anything for being pilloried on the Department of Safety’s website. They have already paid for their crimes. Registration is not voluntary and being on the registry is not a privilege. Why should registered citizens have to pay for it? Good evidence suggests sex offender registries do nothing to protect the public anyway, despite what lawmakers say.

Former offenders have every legal and moral right to challenge the fee under state law. Sex offender registration already has crippling effects on registered citizens’ financial viability. Once a potential employer finds out a person is a registered sex offender, the door of opportunity closes. We know of many registrants who are unemployed or under employed because of their registrant status. But, if they don’t pay the state $50 every year, they can be charged with yet another crime.

As far as CCJR knows, no one has actually been arrested for not paying the registry fee, though some have been threatened with arrest if they didn’t cough up the money. The point of the fee is to raise money for the State, of course, so it’s not in the state’s interest to arrest non-payers. Putting just a few registrants in prison for failing to pay a $50 charge would soon use up all the money the State hopes to collect.

As Rep. Marston suggested, the law is not entirely heartless. It provides a way for the indigent to be excused from paying. Registered citizens can ask for a hearing before the Commissioner of Safety to decide if they are unable to pay. As you can imagine, these hearings are like having a friendly talk with the fictional Don Corleone, who famously said, “Let me make you an offer you can’t refuse.”

States normally determine indigence based strictly upon income and assets. But the Department of Safety wants to know how impoverished registrants spend their limited resources. We know of registrants who have been asked if they smoke. If so, they should smoke less and pay the fee. The same goes for cell phones and cars. The threat is always the same, pay up or get arrested.

We believe this is no way to run a free state. So we’re encouraging all registrants making less than 125% of federal poverty levels to apply for a waiver of the fee. We have posted on our website clear instructions on how to do so and, if denied, how to appeal that decision into the Superior Courts. Just follow the link

Our hope is that many registrants will exercise their rights this way. But, even if just a few end up appealing to the Courts, the State will soon spend all the money it hopes to collect through this extortionist scheme, and somebody in power will finally figure out the registry fee is not a good idea.

“If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being.” ― Aleksandr Solzhenitsyn, The Gulag Archipelago 1918-1956

Chris Dornin is the founder of Citizens for Criminal Justice Reform.

Wednesday, June 17, 2015

Judge Dennis "The Menace" Wiley proves Sen. Rick Jones lied when he claimed R&J cases aren't prosecuted in Michigan

This is Dennis "The Menace" Wiley, judge in Berrien Co., MI. He is not exactly an ethical judge, and is apparently no stranger to controversy, including being censured by the Michigan Bar. Now, he has ruined the life of a 19-year-old just because he can.

This is a rather long read, but is a very comprehensive article on this case. So much for Sen. Rick Jones's bogus claim that Romeo and Juliet cases don't get registry time in Michigan.

Was justice served after teen's encounter with girl?

Posted: Wednesday, May 20, 2015 9:30 am | Updated: 5:04 pm, Tue May 26, 2015.
By Virginia Black South Bend Tribune

When the Niles girl came down the stairs early one December evening all made up and her hair looking especially nice, her mother said, "Dang! Where are you going?"
The girl, who struggles with epilepsy, didn't answer. Her mother assumed she was merely heading down the street, so the mother decided to give her daughter space.
Outside the house, the girl climbed into a car with 19-year-old Zachery Anderson.
The two first met on the Facebook-hosted Hot or Not website, in the over-18 section. When they were communicating online and in text messages, she told him she was 17. They went to a nearby school and talked a while before having sex. Zach recalls dropping her back at home later, where he gave her a hug before he drove back to his parents' Elkhart home.
But the girl was only 14, on the cusp of 15.
After she had not quickly returned, her mother worried about her daughter missing a dose of her medicine and possibly having a seizure, so she called police. Officers were at the house when the girl returned, not even an hour after the girl left.
The next time the teens would see each other was in a Niles courtroom, where Zach would ultimately be ordered to spend 90 days in the county jail, five years on probation and 25 years on Michigan's sex offender registry. He would lose the work he'd completed toward a computer-related degree this semester and be forced to give up his field of study — and, as part of his sentence, even the use of a smartphone or being around anyone else with one.
A longtime Michigan law often applies in cases like Zach's, calling for lenient sentences and, perhaps more importantly, allowing first-time offenders to avoid the sex offender registry. The victim and her mother even pleaded for leniency. But the judge in Zach's case chose to not give the first offender a break, even after false information about the 19-year-old in a pre-sentence report was flagged. The judge's sentence came with a lecture about the dangers of the Internet.
And, critics say, cases like Zach's raise questions about sex-offender laws that are meant to protect the public but sometimes have unintended consequences.

'How old are you really?'

Zach Anderson is wearing dark green scrubs now, in a dorm of the Berrien County Jail in St. Joseph.
The girl was the first he met in person through Hot or Not, he said. The Tribune is not identifying the girl or her mother to protect the girl's identity as a sex crime victim.
Anderson doesn't remember which of them proposed sex, although he said he wasn't pressing the girl. She also had not mentioned having epilepsy, he said.
Shortly after their Dec. 19 meeting, he traveled with his family to Florida and, he said, the first he knew trouble was brewing was when the girl sent him a message saying "something like, 'Oh, we're in a lot of trouble.' "
Why, he asked?
"I asked, 'How old are you really?' and then she told me," Anderson said.
In early January, two detectives visited him while he was working as a lube tech at Auto Village Service Center in Goshen. He cooperated. They confiscated his phone.
He turned himself in Feb. 24, posted bond and was released on house arrest, living in his parents' home. Anderson began to work for their small business as he attended his first semester on scholarship at Ivy Tech Community College in Elkhart.
He was aiming for a computer-related degree, because "I've been building computers and stuff since I was 12," he said. "I'm a technology-type guy."
His defense attorney, John Gardiner, had advised that if he pleaded guilty to criminal sexual conduct 4th degree — a "high-court misdemeanor," according to Michigan law — he would be a suitable candidate for Holmes Youthful Trainee Act status. HYTA is meant for first-time offenders older than 17 but not yet 21. It allows a defendant to avoid harsher penalties and, in the case of more minor sex crimes, not be subject to a state-mandated 25-year listing on the sex offender registry.
But Berrien County District Court Judge Dennis Wiley decided against leniency.

'Out of whole cloth?'

At Anderson's original sentencing hearing on April 13, the girl and her mother pleaded with Wiley in his Niles courtroom.
"I feel that nothing should happen to Zach," the girl said, according to transcripts of the hearing.
Her mother elaborated, telling the judge the girl's emotional state over her epilepsy "plays a role in what she has done, and she feels guilty about what happened and she says, 'Why can't I be in trouble for what happened?' ... I hope you'll really consider the fact of just dropping the case."
Gardiner took issue in open court with the pre-sentence investigation, which a document a judge considers when issuing a sentence. Gardiner pointed out what he called incorrect information that was not attributed to any source.
The April 7 report describes, for instance, a police investigation about a suspect named Zach who had been targeting underage girls on the site.
"Zach was asking victims sexual questions, asking if they were virgins, asking for them to show him pictures of their private parts and indicating to them if they don't play his games or show him naked pictures of themselves, he will send naked pictures of them to all of his contacts," wrote the pre-sentence investigator, Joseph Tourangeau, recommending against HYTA consideration. "This information strongly suggests that this defendant has engaged in pre-offense, predatory conduct."
Police later said they determined Zach Anderson was not that perpetrator.
Tourangeau also wrote that Anderson had mental health and substance abuse problems and recommended a long list of suggested sentencing conditions "to punish the defendant, deter others from committing like offenses and for the protection of the community."
When Gardiner, the defense attorney, challenged the accuracy of the report on April 13, Wiley responded, "You mean what you're saying is that Mr. Tourangeau created this out of whole cloth?"
The investigator was summoned to the courtroom, and, according to the transcript of the hearing, Wiley postponed the sentencing "until we get additional information."
On April 27, Tourangeau did not attend the rescheduled hearing, nor had Gardiner or Assistant Prosecutor Jerry Vigansky received a new or amended report.
"Apparently the DOC (Department of Corrections) is not prepared to meet that challenge, so it'll be stricken," Wiley said, according to a video recording of the hearing. "Apparently there was some report somewhere that (the investigator) received, but apparently it has disappeared from the face of the earth, so ..." The judge did not finish the thought.
Vigansky clarified during the hearing that police told him Anderson was not a suspect in any other crimes.
Officials in Berrien County's probation office did not respond to requests for comment last week, but DOC spokesman Chris Gautz acknowledged a section of the pre-sentence report — particularly the part about Zach Anderson having a history of seeking out 10- to 14-year-olds and threatening them — came from an incorrect reference to another case in a police report.
Gautz said a regional administrator will meet with the judge as soon as Monday, to see what, if anything, a corrected pre-sentence report would have on his decisions in the case.
The DOC spokesman also said he was told the information in the report was "upheld by the prosecutor and the judge" during the April 27 hearing. Yet the court recording of that hearing shows differently.

'No excuse for this, whatsoever'

Gardiner recommended the judge grant his client "youthful training" status under HYTA, citing Anderson's clean record, the fact the girl had lied about her age and even that the girl and her mother had asked for leniency. The young man had cooperated with authorities and had been engaging in weekly counseling with a pastor of Granger Community Church, where the family attends.
Gardiner pointed out the 4th degree offense to which he pleaded guilty is not eligible for expungement should the court deny his recommendation for leniency.
Vigansky did not recommend against using HYTA but reminded the judge of other cases just this year with the same factors in play, and that Anderson's sentence should be similar.
Those "two or three" other cases, Vigansky told a reporter later, also involved men between 17 and 21 who met younger girls who had lied about their ages on Hot or Not, also had sex with them and and also had previously clean records.
"I apologize sincerely and this won't happen again," Anderson told the judge. "In the last couple of months, I've changed a lot."
But Wiley, without giving a reason, said, "I'm not going to place you on Holmes Youthful Training status...And Mr. Gardiner, contrary to your belief, it is an expungeable conviction..So we shall see how he does."
But the judge was apparently wrong. Michigan lawmakers recently passed legislation that, as of Jan. 12, now includes Anderson's offense among those that are never expungeable.
The judge did not respond to a request for comment.
"The Internet's wonderful, thank you, Al Gore. But it also is a danger," Wiley told Anderson, according to the recording of the sentencing. "You went online, to use a fisherman's expression, trolling for women to meet and have sex with. That seems to be part of our culture now: meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this, whatsoever."
Then the judge, despite having thrown out the earlier pre-sentence report, read his sentencing conditions, which appeared to be the same as those recommended by the pre-sentence investigator.
Despite Gardiner's appeal, Wiley refused to reconsider the ban on computer usage. Anderson was two weeks away from finals for his semester's classwork at Ivy Tech, but the judge ordered him to serve his 90 days immediately.
As deputies escorted Anderson out of the courtroom, the girl wiped tears from her eyes, and her mother gasped and was so overcome with emotion she left the courtroom.

'I don't think they're pedophiles'

Anderson's parents say they will appeal the case.
"I can't think of a better case for (HYTA) than Zach's," Gardiner, the defense attorney, said last week. "He will forever in current Michigan law have this on his record, the rest of his life."
The attorney said most pre-sentence reports he has seen include a victim impact statement or information from an interview with a victim, and refer to specific police reports.
And Gardiner is still puzzled by some of the terms, such as forcing Anderson to change his college major: "What did happen was the punishment so grossly outweighed the crime."
Miriam Aukerman, an attorney with ACLU Michigan, said legislators have reacted out of "fear and not facts" when it comes to sex-offender laws. She is involved with a case where a federal judge recently ruled that many of the stringent requirements for those on the state's sex offender registry are unconstitutional.
"Whenever we make legislation in response to horrible crimes, we run the risk of making bad law," Aukerman said of increasing requirements for listing offenders on the registry, which is now the fourth-largest in the country and includes nearly 42,000 offenders. "We don't think about all of the other people who are caught up in these laws."
That includes cases like Zach Anderson's, she said.
"HYTA recognizes you don't want to tar somebody for life because of the stupid things we do at that age," Aukerman said.
Legislators have argued that stringent sex-offender laws and registries are meant to protect children and the community. After the recent ruling on Michigan's sex offender registry, State Sen. Rick Jones, R-Grand Ledge, chair of the Senate Judiciary Committee, was quoted in the Detroit Free Press last month saying, "This is one judge's ruling and the law will soon be changed." He told the newspaper he is already drafting a legislative fix to "protect our children from sex predators."
Vigansky, the assistant prosecutor, was involved in all three recent Berrien County cases involving young men meeting underage girls on Hot or Not. He said HYTA was not invoked in any of them, all plea agreements, although he did not recommend one way or the other.
He wouldn't comment specifically on the cases or the judge's decision, although when pressed a bit, he acknowledged, "I don't think they're pedophiles."

'It's hurt our families greatly'

Zach's parents, Lester and Amanda Anderson, acknowledge their son made a mistake. They recalled always teaching their four boys that sex is for marriage.
"But he's only been on earth 19 years, and his punishment is longer than he's been alive," his father said.
Amanda called the judge's comments in court "vicious."
" 'Learn from it' — that's what he should have said. Is the law supposed to cripple people, or is it supposed to correct people and rehabilitate their lives?" she said. "This really did no justice to anybody."
The girl's mother is still distraught over the ruling and says her whole family has sought counseling.
Anderson, the mother has learned, is "very nice. He's concerned about you. He's just different. He's not a jerk."
She's still outraged that neither the prosecutor nor judge took into account her daughter's wishes in pressing forward with the case. "It's hurt our families greatly," she said.
Meanwhile, Anderson is spending his time in jail sleeping, playing cards or watching TV. He's hoping for a successful appeal.
He says he's grown closer to God in the last few months and is grateful for his family's support.
"I wouldn't use any of those different apps at all," he would tell other young people. "They're not safe."

Mass. State Sen. Bruce Tarr should be tarred and feathered for this stupid quote

Mass. Sen. Bruce Tarr, apparently overestimating the size of his brain
Thanks to the public registry, the majority of registered citizens are unemployed. Even if they have jobs, it is unlikely many have jobs that pay a livable wage. Thus, the idea of registry fees is stupid. But Bruce Tarr, Mass. State Senator, thinks if you can't pay your fees, you are on the slippery slope to re-offense. What in TARRnation is this clown thinking?

When convicted sex offenders register each year in Massachusetts, they are required to pay an annual $75 registration fee, but necn has found hundreds are failing to pay that fee and the state is doing little about it.
"It's completely unacceptable and it's a sign of a system that is dysfunctional and needs to change," began Sen. Bruce Tarr.

Since 2012, the Sex Offender Registry Board has collected $1.1 million in fees from men and women convicted of sex crimes, but the board has left even more money on the table- failing to collect another $1.2 million in fees.

"If we were in private industry and you were basically saying, 'hey, 40 percent of what you think your revenue should be is not being collected,' management would say, 'this isn't working right,'" Rep. Bradley Jones added.

The state already waives fees for sex offenders deemed too poor to pay. According to state data, last year the board waived the $75 fee for about a third of the more than 11,000 offenders in the system. That money is not counted in this 1.2 million in uncollected fees.

Paul Craney heads the non-profit, non-partisan Massachusetts Fiscal Alliance. He points out that the money collected goes back into SORB's annual $3.8 million dollar budget- and ultimately taxpayers are left holding the bag.

"Massachusetts is continually ranked as one of the most expensive states to do business in, to live in and here we are passing over a group of people who owe money," Craney said.

Under the current system, if an offender fails to pay the registration fee, the board sends them a letter warning them that they are breaking the law. If the offender still doesn't pay, SORB sends another letter, but the agency claims the statute doesn't give them the power to do anything else.

"What are they gonna think about- 'I don't have to pay the fee? Maybe I can be lax on the registration.' We cannot afford to go down that slippery slope with folks that are being required to register for a reason," Sen. Tarr continued.

Tarr, the Senate Minority leader, and Senator Bradley Jones, House Minority Leader, filed similar budget amendments to put more teeth in the law. Jones' amendment would require the board to notify the departments of Revenue and Transitional Assistance if an offender fails to pay along with the Registry of Motor Vehicles.

"Just like if you have unpaid parking tickets or you have tolls or things like that, you're not going to get your car registered until you resolve these issues," Rep. Jones added.

Jones' amendment passed in the House. Tarr's failed in the Senate, but it can still make it onto the Governor's desk through conference committee. Asked if he would support or veto the measure, Governor Baker declined to weigh in.

"We'll take a look at the legislation and make our decisions going forward from there," Baker said.

Published at 10:44 PM EDT on Jun 16, 2015

Tuesday, June 16, 2015

Two possibly sexless professors wants to make it damn near impossible for the rest of us to have sex without landing on the registry

Apparently, there is a duo of college professors trying to make California's asinine "affirmative consent" law the law of the entire USA.

I think the headline needs a little fixing.

The question is NOT if the federal government has had sex (screwing the people regularly for generations counts as sex, right?), it is whether these two professors have engaged in sex in, well, EVER. The consensus view of the posters at the Washington Examiner suggest that is a likely improbability.

If their diabolical scheme somehow passes, these two will go down as the two biggest cockblockers in American history.

Has the federal government ever had sex?
BY ASHE SCHOW | JUNE 15, 2015 | 12:01 AM 

The act of sex is not illegal. But if two members of the American Law Institute have their way, it will be — unless you follow their rules.

Law professors Stephen J. Schulhofer and Erin Murphy are trying to update the criminal code when it comes to sex offenses, believing current definitions of rape and sexual assault are antiquated. The focus of their draft is on what constitutes consent. It adopts the "yes means yes," or "affirmative consent" model that was passed in California last year.

The California law applies only to college campuses, however. Schulhofer and Murphy aim to take that definition of consent — which says that before every escalation of a sexual encounter, clear and convincing consent must be given — to the state or federal level. No one actually has sex this way, requesting permission and having it granted perhaps a dozen times in a single encounter.

But the theory that millions of Americans are having sex wrongly has gained currency among campus activists. This new attempt to alter the American Law Institute's Model Penal Code, a highly influential document that has been adopted in whole or in part by many states' legislatures, is part of a push to bring authoritarianism into the bedroom.

Schulhofer and Murphy do not intend to make sexual intercourse impossible to construe as an innocent act. But this would be the consequence of their draft. Any act of sex in which permission is not repeatedly requested and granted would put at least one of the parties, usually men, in legal jeopardy. Absent the repeated "May I…?" and affirmative responses, any woman could later have her partner locked up over unexpressed mental reservations. Men could make the same accusations.

No one who opposes this legal change argues that consent is unnecessary. But the "yes means yes" standard is so stringent that it would criminalize millions of Americans overnight unless no one reports them.

Schulhofer, a New York University law professor, has been on a crusade against rape since the 1990s. He told the Washington Examiner that when he began teaching criminal law, rape law was not part of the agenda. He was shocked that law students were not being taught such a crucial category of the criminal code.

"So I made a concerted effort to bring it into the classroom," Schulhofer said. "It was very controversial at the time. A lot of teachers did not want to get into it because it was too much of a minefield."

In 1998, he wrote Unwanted Sex: The Culture of Intimidation and the Failure of Law. In it, he challenged existing rape law and proposed a massive expansion of the legal system to address systemic flaws. One involved the issue of consent and ambiguity. Part of his solution was to use the legal system to engineer social change.

"But cultural change proceeds slowly, and porous legal standards leave many women at risk in the meantime," Schulhofer wrote in his book. "Legal reform can play a crucial part in the effort to raise public awareness and alter social assumptions about when sexual assertiveness should be considered abusive."

Using such a method to change how people have sex was also included in Schulhofer's draft of a model penal code.

"[A] vitally important function of the criminal law is to identify and seek to deter behaviors that pose unjustifiable risks, even when those risks are not yet universally understood," reads the draft. "[The criminal law] must often be called upon to help shape those norms by communicating effectively the conditions under which commonplace or seemingly innocuous behavior can be unacceptably abusive or dangerous."

Murphy is also an NYU law professor and Schulhofer's associate reporter for the draft. She told the Examiner that she joined the project because, as a woman, she "thinks deeply about these offenses on a day-to-day basis and sees both in my community and in the scholarly literature a real wrong that is going on unrecognized and un-remediated."

But Murphy also sees the other side of the equation. She was a public defender for five years and saw abuse of sex crime prosecutions including "overly harsh collateral consequences and penalties" and evidentiary rules that have "gone too far against protecting the rights of the accused."

She, too, mentioned using the criminal justice system to enact social change.

"It's interesting to me to see how quickly the mores have changed and to consider where they're going, where they're headed, what that might mean," Murphy said, adding that she and Schulhofer "wanted to bring some clarity to the system."

The American Law Institute was founded in 1923 "to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work," according to its charter. It is a consequential organization. The Institute's Model Penal Code of 1962 was adopted almost entirely in New Jersey, New York and Oregon, with nearly two-thirds of the states using at least some portion of it.

So, Schulhofer and Murphy want to change an important document.

The two presented their first draft of a new model penal code for sexual offenses to the Institute's 2014 annual meeting. Members discussed the draft vigorously. Because the discussion ran out of time, the draft was referred back to Schulhofer and Murphy for reworking.

They presented a reworked draft at ALI's 2015 annual meeting in Washington, D.C. It was dated April 28, just three weeks before the meeting on May 19. Schulhofer and Murphy were criticized for providing the draft so close to the meeting, giving lawyers limited time to read and analyze its 250 pages. But the "reworked" draft is actually just a reorganized version of the 2014 draft, with hardly any changes.

This made it easy for opponents to produce an opposition letter with 22 co-signers to pick the document apart. It also showed that Schulhofer and Murphy did not allow the feedback received in 2014 to affect their views.

Opponents say the draft would further burden an already over-criminalized and over-incarcerated American public.

The opponents' letter provides this common and hypothetical encounter: "Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B's hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint."

Under Schulhofer and Murphy's new rules, according to the opposition letter, Person A is guilty of "criminal sexual contact." That's because Section 213.0(5) of the draft "defines 'sexual contact' expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched."

Person A would be guilty of the act only if Person B filed a complaint, but therein lies a profound problem with Schulhofer and Murphy's draft. Everything is potentially a sexual assault unless done strictly according to their rules about obtaining prior consent to every action, no matter how innocuous, of every sexual encounter. There is no need to say "no." Without the presence of a prior "yes," the act is already an assault.

By this definition, millions of Americans — perhaps almost all sexually active people — become offenders. Previously, it was not thought necessary to ask verbally, "May I hold your hand?" or "May I kiss you now?," if a couple had been together for a while, or for months or years. It was recognized that either previous requests or implicit indications had given permission for a touch or a kiss. Men and women can and often do misread signals coming from someone to whom they are attracted, but it has not been thought appropriate to criminalize a touch or a kiss attempted in light of what seemed to be implicit assent.

Proponents of "affirmative consent" rules might argue that an explicit question is not necessary if there are proper social cues. But given the scope of the proposed definitions, the only safe way to be sure a person is consenting is to ask explicitly at every step of the sexual process. Thinking that a person "seemed into you" during a date would not be a strong enough social cue to presume the person wanted his or her hand held.

The law wouldn't apply only to first dates or similar new encounters, but would apply even in committed relationships. This means affirmative consent would be mandated for every sexual encounter, even to married couples. Given that divorce and custody cases frequently produce false accusations of child abuse, it's easy to imagine false accusations of sexual abuse proliferating if Schulhofer and Murphy's rules aren't followed every time a couple has sex.

Schulhofer and Murphy's draft makes clear "that when a complainant's behavior has been passive — neither expressly inviting nor rebuking the defendant's sexual advances, that behavior cannot be considered sufficient to show affirmative permission."

Silence and passivity could automatically be construed as unwillingness, and would make a "guilty" verdict far more likely. Indeed, Schulhofer and Murphy say this is what they want, writing in their draft that "the appropriate default position clearly is to err in the direction of protecting individuals against unwanted sexual imposition."

In other words, when in doubt, convict.

When confronted with the idea that many innocent people would be wrongly accused and punished, Schulhofer falls back on extreme examples that all reasonable people agree amount to rape or sexual assault.

Talking to the Examiner, he described the example of a woman drinking heavily at a party and passing out on a couch, after which a man penetrates her with his finger while she is unconscious. Schulhofer says this is "not a crime under current law."

But actually, it is. The FBI definition of rape describes the crime as "penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim."

Schulhofer's scenario clearly fits that category.

For her part, Murphy told an ALI audience, "Obviously, no one ... would want to criminalize someone who reaches out to, you know, grab a hand or go in for the kiss," adding, "The problem is, of course, that it's not just people on dates to whom the sexual assault code applies, it also applies to people riding on the subway or walking down the street."

The acts that Schulhofer and Murphy set out to make illegal, which are actually already illegal, represent just a small number of the actions that their draft would make illegal.

When Schulhofer and Murphy presented their ideas in May, it at first appeared that they might win majority support. The first few comments from people were supportive, offering helpful tips about grammar and organization to strengthen the draft. One of the first comments, from a female lawyer from New York, addressed the issue of over-incarceration, but said opponents of the draft shouldn't be concerned with such matters since rape is an under-reported crime.

But after a couple of supportive comments, the tide turned, and speaker after speaker questioned the extreme lengths to which the two lawyers went to expand the definition of rape.

Some of the most articulate and persuasive critics were women. The most prominent and outspoken was feminist and former federal judge Nancy Gertner, who this year wrote for the American Prospect denouncing the way sexual assault accusations have created a hostile environment on college campuses. Gertner, one of the co-signers of the opposition letter, thought the draft should focus on areas of complete agreement instead of trying to use the ALI as a vehicle for social change.

"There's a very striking ... lax concern for false positives, the wrongful accusation of sexual misconduct that is inconsistent with the criminal law," Gertner said. "Like it or not, criminal law and criminal procedure are all about erring on the side of — erring against false positives."

Another woman, a former prosecutor who specialized in sex offenses, called the draft "really disturbing" and explained that Schulhofer's and Murphy's proposed rules were not in line with "how the world works."

"I look at this and say it feels like intellectually it makes sense, but we are criminalizing something and moving way past where our mores are," she said.

She added that she was able to prosecute crimes in which the victim was too drunk to give consent. "I have to prove more than if she said 'no,' but I can prosecute those cases and win those cases now."

When she returned to her seat, the lawyers sitting around her reached out to praise her for her comments.

One of the main concerns for those who oppose "affirmative consent" policies is how an accused person is supposed to prove they obtained consent when the only evidence is an accusation. Schulhofer and Murphy's draft shifts the burden of proof from the accuser to the accused, who would now have to show he — it is usually he — obtained consent in order to prove there was no assault.

This, according to the opposition letter, would make prosecutors' jobs incredibly easy. They could merely tell juries that they must find someone guilty because no evidence could be produced that consent was obtained. The prosecutor would need no evidence beyond the accusation, and could tell the accused: "Prove me wrong."

Asked about what evidence would be needed to prove that consent was obtained, Schulhofer raised the issue of credibility in a he said/she said situation, but said "that's not an issue that this draft really addresses."

But the draft explains that the "default position" should be to err on the side of the prosecution.

Murphy's answer was simply that "hopefully" there would be enough evidence to say one way or the other.

For now, their draft is going nowhere at ALI as long as members continue to oppose it as they did this year. The next chance for comment, and to see if Schulhofer and Murphy listened to criticism and updated their draft, will be in October.

Even though "yes means yes" has failed to gain traction in most states where it's been introduced, with the continued focus on sexual assault in the media and academia, Schulhofer and Murphy will not be the only ones to propose expanding California's policy across the nation. Unless more people take notice of the proposals, we could be just a few years away from having the government tell us how to have sex.

Friday, June 12, 2015

Nevada Gov. Brian Sandoval proves he has sand for brains by vetoing juvenile registry relief bill

Nevada has a lot of sand- so much so, in fact, that you will find sand even in the head of the Governor of Nevada, apply-named Brian SANDoval.

Sand-for-brains vetoed a bill that would have granted some juveniles relief from the social death of the registry. Sand-for-brains claims that this bill would have undermined the CONTROVERSIAL Adam Walsh Act, something Sand-for-brains actually believes works.

Once again, hysteria trumps sound research and facts. Whoever voted for this idiot obvious has sand in their brains as well.

Posted June 11, 2015 - 7:20pmUpdated June 12, 2015 - 9:20am
Veto of juvenile sex offender law changes shocks advocates


Juvenile justice advocates sounded an alarm Thursday after Gov. Brian Sandoval vetoed a bill that would have revised the state’s controversial sex offender registration law regarding juveniles.

The changes would have granted courts wider discretion in deciding whether registration and community notification were necessary in cases of young sex offenders.

“This is horrific. I’m just devastated,” said Susan Roske, an attorney with Clark County’s juvenile public defender’s office. “I just pray that Gov. Sandoval holds a special session to fix this.”

Sandoval vetoed Senate Bill 99 Wednesday, citing concerns that the legislation would remove a prohibition in the state’s version of the federal Adam Walsh Act that states Tier III sex offenders cannot be within 500 feet of a place where children are.

“While Senate Bill 99 proposes amendments to the Adam Walsh Act, which have merit, the removal of this important prohibition undermines confidence that this legislation will ensure greater protection of Nevada’s children,” Sandoval said in his veto letter to the Nevada secretary of state’s office.

The measure would have revised provisions governing registration and community notification of juveniles who commit sex offenses. It would give courts the option to decide on a case-by-case basis if registration and community notification are appropriate for juveniles, said Nevada Sen. Tick Segerblom, D-Las Vegas, the bill’s main sponsor.

The changes also would have given the courts discretion to relieve the obligation of registration and community notification when juveniles reach the age of 21 and can prove to the satisfaction of the court that they have been rehabilitated.

Other changes would have addressed the supervision of adult offenders released from prison.

“This was a well-thought-out proposal and this is very disconcerting,” Segerblom said of Sandoval’s decision to veto the bill. “It really was just a shocker.”

Donna Coleman, a member of the committee that has been evaluating the law for the past eight years for the state attorney general’s office, was shocked when she learned of the veto through a reporter.

“Obviously, he didn’t understand what he did,” she said. “He just condemned juveniles who are low-level sex offenders with a ‘Scarlet Letter’ on their head.”

The existing law, which hasn’t been enforced, would require many offenders judges have deemed not dangerous — including some as young as 14 when they committed a sex crime — to make their names, photos and addresses available to the public. Since Nevada legislators approved the law in 2007, pieces of it have gone before courts from the district to federal levels.

The measure was to take effect Feb. 1, 2014, but the Nevada Supreme Court put a temporary stop to it after a lawsuit filed by Las Vegas firm Langford McLetchie on behalf of 24 unnamed clients. The suit was filed Jan. 16, 2014 in Clark County District Court to stop enforcement of the law, but the request was rejected 12 days later by Judge Douglas Smith. So the matter went to the state’s high court.

Maggie McLetchie, one of the lawyers for the plaintiffs, said they are waiting for an oral argument to be scheduled. It’s unknown when that could be scheduled. The the court would then issue a decision. McLetchie also represents the Review-Journal in public records issues.

Among the questions to be considered are whether it is constitutional for sex offenders who already have served their court-ordered time to have the rules changed retroactively and whether Nevada legislators overlooked public safety in passing this law.

The law applies to anyone convicted of a felony sex crime or crimes involving children since 1956.

“The state of Nevada is in a terrible position,” she said Thursday. “If the state of Nevada has to enforce this, the real loss is going to be for the public at large because they are not going to be safer.”