Archive for May 13, 2009

Commerce Clause Rulings

May 13, 2009 Comments off

Sentencing Law & Policy : Two significant sex offender rulings on constitutional issues from the Eighth Circuit.

As noted on this official opinion page the Eighth Circuit has released two significant sex offender rulings today. Here are the basic detail (and links) from the unofficial summaries on that page:

United States v. Roger Dean Tom, No: 08-2345 — District court erred in finding 18 U.S.C. Sec. 4248 (the “Adam Walsh Act”) was an unconstitutional exercise of Congress’s powers under the Commerce Clause; Congress, having been empowered by the Commerce Clause to criminalize and punish the conduct of which defendant is guilty, has the ancillary authority under the Necessary and Proper Clause to provide for his civil commitment so that he may be prevented from its commission in the first place; 18 U.S.C. Sec. 4248 does not upset the delicate federal state balance mandated by the Constitution.

United States v. Scott Hacker, No: 08-2427 — SORNA’s registration and penalty provisions are valid exercises of Congress’ authority under the Commerce Clause; Hacker lacks standing to raise a Tenth Amendment challenge to SORNA; Hacker lacks standing to assert an argument that Congress impermissibly delegated to the Attorney General the authority to determine SORNA’s retroactive effect; Hacker lacks standing to challenge the interim rule on APA grounds.

More Places to Ban Sex Offenders

May 13, 2009 Comments off (Asheville, N.C.) – Sex offender bill gets specific.

Legislators moved today to reverse what they say could be unconstitutional limitations on sex offenders’ movements. They want to scale back a law they passed last year that now is keeping some sex offenders from church, and could also ban them from some restaurants, libraries and stores.

Trying to avoid further unintended consequences, lawmakers this time are getting more specific about where they don’t want sex offenders to go, including:
• amusement parks.
• arcades.
• toy stores or toy departments.
(want to shop for a Christmas gift for your nephew? The government will arrest you)
• movie theaters that are showing G-rated or PG-rated films.
(want to go to a cinema with a friend? The government will arrest you)
• colleges, unless the offender is a student there.
(want to attend an art exhibit or concert at the local college? The government will arrest you)
• gyms and fitness centers.
(want to get fit and live a healthy life? The government will arrest you)

• state and county fairs.
• school bus stops.
• libraries during children’s programs.

These add to existing restrictions on schools, children’s museums, child care centers and nurseries.

The proposal by Rep. Rick Glazier, D-Cumberland, specifically allows offenders to attend places of worship, as long as religious leaders know about their status and give them permission.
(want to go to church? The government will arrest you if you don’t tell your pastor you’re legal history)

The proposal was unveiled and endorsed by a House committee today. It could receive a House vote this afternoon.

We urge all readers in North Carolina to contact this idiot legislator, Rick Glazier at:
Phone: 919-733-5601
Legislative Mailing Address: NC House of Representatives
16 W. Jones Street, Room 2215
Raleigh, NC 27601-1096

Sex Offenders Just Like Us

May 13, 2009 Comments off : Criminologist says : Sex offenders are just like us.

Sex offenders are just like the rest of us, according to criminologist and researcher Philip Birch.
Birch, who has come from the United Kingdom to take up a position at the University of New South Wales (UNSW), challenges the notion that sex offenders are psychologically damaged, lonely, insecure or dysfunctional.

Instead, he says we are more likely to find offenders in our homes, workplaces and neighborhoods than lurking behind a bush in a dirty trenchcoat.

“It serves us well to construct the sex offender as the `other’, (to believe) they’re not like us, that there’s something pathologically wrong with them,” Birch says. “It serves us to have these theories that give us grand explanations why they commit such offenses, when actually it’s a little bit more complex.

“The attacker is usually known to the victim. They are our fathers, they are our brothers, they are our uncles, they are our family members. They are our next door neighbours that we invite around for a barbecue and a beer.”

Birch, who recently delivered a seminar entitled The Making of a Sex Offender at UNSW, bases his conclusions on a study he conducted two years ago that later became the book Sex as Crime?, published in 2008.

Birch set out to test previous research linking sex offenders to so-called “insecure attachment styles”.
Attachment styles are developed with a main caregiver between the ages of six and 24 months and act as a “blueprint” for our relationships in later life, he says. A child who has an uncaring parent is likely to develop an insecure attachment style, he says.

“Research indicates these insecure attachment styles are mapped into sexual offending,” he says. “Sexual offenders demonstrate high levels of insecure attachment styles.” But when Birch compared attachment styles among sexual offenders and non-offenders, he found no evidence that offenders were more insecure than the non-offending population. “My non-sex offending population sample actually demonstrated higher levels of insecure attachment styles than the sex offenders,” he says.

What this implies, Birch says, is that rather than a person being destined to become a sex offender, it’s something we all have the capacity for, given the right circumstances.

“I argue that attachment styles. . . change and develop and will always map on to the environment we find ourselves in,” he says. “That would imply that any one of us at any given time. . . could be a sex offender.”

He says this is consistent with what is known about sexual crimes: “(They are) more likely to take place in the home, more likely to be committed by someone we know, it’s our fathers, our brothers, our uncles.”

Birch says the portrayal of sex offenders in the media and films, such as the troll-like pedophile played by Jackie Earle Haley in the movie Little Children, fuels the stereotypes his research challenges.
“That sends out the message that they’re a homogeneous group, and we know they’re not,” he says.

Birch says his research also has implications for getting a realistic image of sexual offenders and understanding where potential victims are most likely to be at risk. “We construct the sex offender as `the other’ but they’re not, they’re living amongst us, with us, between us.

“The likelihood of knowing one is probably high.”