Monday, January 10, 2011

VA - A Place on the Sex-Offender Registry for a Crime That May Be Off the Books

Original Article

01/10/2011

By ADAM LIPTAK

[name withheld] has been living in a homeless shelter and in his truck in Asheville, N.C. He would rather be with his wife, [name withheld], who has a place nearby, but the couple says he has been hounded from their last several homes because he is a registered sex offender.

It is often hard for sex offenders to find a place to live. But Mr. [name withheld], 54, says his case is particularly galling.

I was charged with a crime that is not on the books anymore,” he said.

Mr. [name withheld]’s crime was having oral sex, which is a violation of a Virginia law forbidding “crimes against nature.” Such statutes, which criminalize oral and anal sex, are also called sodomy laws.

The Supreme Court struck down Texas’s sodomy law in 2003 in Lawrence v. Texas, and most people understood that ruling to apply to the 12 other states, including Virginia, that still had sodomy laws on their books.

Among those people was Virginia’s attorney general, Jerry W. Kilgore. In an interview with The Washington Post the day the Lawrence decision was issued, the paper said, Mr. Kilgore “expressed disappointment with the ruling, which he said invalidates a state statute banning oral and anal sex between consenting gay and heterosexual couples.”

Last month, Mr. [name withheld]’s lawyers asked (PDF) the United States Supreme Court to hear his case and decide whether the Virginia law still stands after Lawrence.

The details of Mr. [name withheld]’s case are icky, which may explain why prosecutors pursued it.

From 2002 to 2004, Mr. [name withheld] had oral and vaginal sex with two young women, one 16 and the other 17, prosecutors alleged. He was in his mid-40s. All three worked at a volunteer fire department, and to hear Mr. [name withheld] and his wife tell it, the charges were false and the product of a complicated vendetta.

The women, though, described a number of encounters in detail. They said all of the sex was consensual.

A judge convicted Mr. [name withheld] in 2005 of four violations of the sodomy law and sentenced him to 20 years, with 17 of them suspended.

The factual dispute over whether the sexual activities occurred no longer matters. If Mr. [name withheld] is to get help from the courts, it will not be because he did not do what he was convicted of doing. It will be because what he did was not a crime.

The age of consent in Virginia is 15, and any sort of sex with someone under that age is statutory rape, a felony. It can also be a crime, but only a misdemeanor, for an adult to have intercourse with someone 15 to 17, if it “contributes to the delinquency of a minor.”

Mr. [name withheld] was sentenced to an additional year on that last misdemeanor charge, based on vaginal sex. He is not challenging that law, which is surely constitutional and does not require sex-offender registration.

Even though he has served his time, Mr. [name withheld] is challenging his felony convictions under the sodomy law, and he has lost in every court so far. The judges who ruled against him said the law survived the Lawrence decision at least in part. They pointed to a sentence in the decision that said “the present case does not involve minors.”

The legal question in Mr. [name withheld]’s appeal to the Supreme Court is whether that sentence means Virginia may continue using its general sodomy law in cases involving minors or whether it must enact a new, focused law if it wants to punish sex between adults and minors.

There is little question that the Virginia could address conduct like Mr. [name withheld]’s directly. It could, for instance, raise the age of consent from 15, forbidding all kinds of sexual activity between adults and minors.

It is less clear that it could single out oral sex between adults and minors for harsher punishment than vaginal sex. The California Supreme Court in 2006 said that raised equal protection problems.

As things stand now in Virginia, its general sodomy law, which says nothing about minors, may apply only to sex involving minors. Under the law as interpreted by the Virginia courts, moreover, it seems to be a felony in Virginia for two teenagers to engage in common sexual activities. Gay teenagers would appear to be particularly vulnerable to prosecution.

The possibility of prosecuting teenagers is not fanciful. In 2007, the North Carolina Supreme Court upheld the conviction of a teenager for having oral sex with his girlfriend under a general sodomy law barring what it called “the crime against nature, with mankind or beast.” The couple had also had intercourse, but that was legal.

This bifurcation leads to a seemingly absurd result,” Daniel Allender wrote in The Duke Law Journal in 2009. “Two minors may lawfully have vaginal intercourse, but they are felons if they have oral sex until reaching maturity.”

That means, Mr. Allender wrote, based on studies of teenage sexual activity, that “nearly half of the teenagers in North Carolina and Virginia are felons.”

[name withheld] met her future husband in 1999. They are both military veterans, with 47 years of service between them.

She has stood by him through the prosecution, the prison time and the aftermath, and she has learned some law along the way. She said she had some early doubts about her husband’s innocence but is now convinced he was set up.

Regardless, however,” she said, “the statute is invalid. In June of 2003, all sodomy laws were invalidated on their face.”


Grants Made to the Police to Arrest RSOs

Here is some information that explains why the U.S. Marshal is going around knocking on doors with some police departments. The U.S. Dept. of Justice gave away $10 million dollars to help local law enforcement enforce SORNA and to allow the U.S. Marshal to play cowboys and Indians.

These are 2 year grants so of course right before they expire the police will step up their action. The most any jurisdiction can receive is $500K but keep in mind this is just one of MANY grants they can request. I highly recommend you look at the last link.

Child Sexual Predator Program
Protecting Communities and America’s Children from Predators
http://www.cops.usdoj.gov/pdf/CSPP/e090929240-CSPP-FactSheet.pdf

2009 COPS Child Sexual Predator Program (CSPP) Grant Owner's Manual
http://www.cops.usdoj.gov/pdf/e1009-CSPP.pdf

2010 COPS Award List
http://www.cops.usdoj.gov/pdf/2010AwardLists/2010-COPS-Child-Sexual-Predator-Program-(CSPP).pdf

2009 COPS Award List
http://www.cops.usdoj.gov/pdf/2009CSPPGrantRecipients.pdf

2008 COPS Award List by State (A MUST Read)
http://www.cops.usdoj.gov/Default.asp?Item=1082


Sexual Sin - John Piper