Polygraphs in Sex Offender Treatment

Posted on April 21, 2012 by B Free

When individuals are convicted of a sexual offense in Pennsylvania and are placed on probation or parole, they are often required to enroll in a sex offender treatment program. A component of the program often requires individuals to take polygraph examinations. Many concerns have been raised regarding this requirement including:

  1. What happens if I refuse to take the polygraph?
  2. What happens if I refuse to answer specific questions?
  3. What happens if they ask me questions that are not related to the case for which I am on probation?
  4. I accepted a nolo contendere plea and therefore did not have to admit guilt – do I have to admit guilt during the polygraph exam?

It is extremely important to know your rights if you will be subjected to such testing. The precedential legal case that governs this topic is COMMONWEALTH v. KNOBLE which was decided March 28, 2012.  Please carefully read the case which has been posted below.

COMMONWEALTH v. KNOBLE

COMMONWEALTH of Pennsylvania, Appellant v. David S. KNOBLE, Appellee.

No. 2 MAP 2010.

Argued Sept. 14, 2010. — March     28, 2012

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

In February, 2005, appellee David Knoble entered an open guilty plea to charges of endangering the welfare of a child, corruption of minors, and criminal conspiracy to commit statutory assault, admitting he conspired with his then-wife for her to engage in sexual intercourse with his 14–year–old son while he observed. He was sentenced to an aggregate term of one to two years imprisonment followed by four years probation and was ordered to comply with any special probation conditions imposed by the Pennsylvania Board of Probation and Parole.

After serving the sentence of imprisonment, Knoble was placed on probation; he signed an Acceptance for State Supervision form agreeing to abide by the special probation conditions imposed by the court and the supervising probation staff. One condition required successful completion of a sex offender outpatient program; Knoble was advised that termination from or unsuccessful completion of the program would constitute a probation violation. He underwent a sex offender intake assessment with the treatment facility and began attending a specialized high-risk weekly counseling group. Six months into his probationary term, Knoble was terminated from the program for dishonesty during his sexual history therapeutic polygraph tests and was arrested for violating his probation.

At Knoble’s Gagnon II hearing, Jon Welsh, a certified sex offender treatment specialist in charge of Knoble’s sexual counseling group, testified that one of the primary stages of sex offender treatment is for an individual to take a sexual history therapeutic polygraph in order to objectively assess a participant’s self-reported sexual history. After failing the polygraph, Knoble admitted during group treatment that he had been dishonest about his sexual history. Knoble took a second polygraph, and again disclosed during a subsequent group therapy session that he had been deceptive about essential aspects of his sexual history. Knoble admitted he had victimized other minors, and accepted responsibility for a sexual offense against a minor for which he had previously been acquitted. Due to his continued dishonesty, Knoble was released from the program.

Following the hearing, the court revoked Knoble’s probation, determining the sex offender treatment was a reasonable special probation condition which Knoble violated by not completing the program; the court sentenced Knoble on his underlying offenses.

The Superior Court reversed, concluding the questions posed during the polygraph tests improperly required Knoble to answer incriminating questions that would result in the divulgence of previously unreported criminal behavior. Commonwealth v. Knoble, No. 1883 EDA 2008, unpublished memorandum at 12 (Pa.Super. filed June 24, 2009). The court relied on Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa.Super.2007), which determined therapeutic polygraph tests were a proper element in sex offender treatment programs and did not violate the Fifth Amendment protection against self-incrimination so long as the inquiries related to the underlying sentenced offense and did not compel the participant to provide information which could be used against him in a subsequent criminal trial. The court also noted Shrawder’s holding that if a probationer is asked to answer incriminating polygraph questions, he remains free to assert his Fifth Amendment privilege against self-incrimination. Knoble, at 9–10 (citing Shrawder, at 443).

The Superior Court found Knoble was repetitively asked about and often told to provide information regarding his sexual history and conduct unrelated to the underlying offense, and Knoble was discharged from the program when he admitted his dishonesty in answering those questions. Id., at 12. Applying Shrawder, the Superior Court held such inquiries violated Knoble’s Fifth Amendment rights, and the trial court erred in finding Knoble violated his probation. Id., at 12–13.

We granted allocatur to determine “whether the Superior Court erred in concluding a probationer may invoke his Fifth Amendment right against self-incrimination for an unrelated offense, regardless of whether the information will be used in subsequent criminal proceedings, and whether such invocation must be made at the time of interrogation.” Commonwealth v. Knoble, 605 Pa. 256, 988 A.2d 1288 (Pa.2010) (per curiam ). As this issue involves a pure question of law, our standard of review is de novo and our review is plenary. Commonwealth v. Patton, 604 Pa. 307, 985 A.2d 1283, 1286 (Pa.2009).

The Fifth Amendment provides “no person ․ shall be compelled in any criminal case to be a witness against himself.” U .S. Const. amend. V. This prohibition not only permits the refusal to testify against one’s self when a defendant in a criminal trial, but “in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [the speaker] in future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (citation omitted).2

The Fifth Amendment privilege is not self-executing, and answers are generally not considered compelled “within the meaning of the Fifth Amendment unless the witness is required to answer over his valid claim of the privilege.” Id., at 427. “In the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not ‘compelled’ him to incriminate himself.” Id. (quoting Garner v. United States, 424 U.S. 648, 654, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976)).

The Commonwealth contends there was no Fifth Amendment violation because Knoble’s statements were not used against him at the probation revocation hearing or in any subsequent criminal case. It argues the constitutional right against self-incrimination only occurs if one has been compelled to act as a witness against himself in a criminal proceeding, and a probation revocation hearing does not constitute such a proceeding. See Gagnon, at 782 (probation revocation not part of criminal prosecution). The Commonwealth concedes Knoble may dispute the statement’s use in subsequent criminal proceedings other than those for which he has been convicted, but claims he has no constitutional right to preclude their use at the revocation hearing.

The Commonwealth also argues no Fifth Amendment violation occurred because Knoble failed to invoke his rights during sex offender therapy. It contends the right against self-incrimination is not self-executing, and Knoble’s failure to raise the privilege during the polygraph examinations and interviews precludes his challenge to the statements at the revocation hearing. Thus, no Fifth Amendment violation occurred because Knoble was not compelled to answer over a valid claim of privilege.

Knoble contends the polygraph examinations should be deemed per se unconstitutional because the questions sought information regarding uncharged criminal conduct, which is impermissible under Shrawder.He argues he was compelled to answer the polygraph questions within the meaning of the Fifth Amendment because his probation would be revoked if he did not participate and pass the examination. He believes his failure to raise the privilege should be excused due to his belief that he would be returned to prison if he did not answer the questions.

Knoble argues the information obtained from the examination need not be used against him in order for the polygraph to be considered unconstitutional, as the information sought could lead to the disclosure of facts that would establish guilt or provide an essential link by which guilt could be established. See Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 303 (Pa.2005) (Fifth Amendment privilege applies not only to disclosure of facts which would alone establish guilt, but to any fact which may provide essential evidentiary link by which guilt could be established). He also claims the information gained from the polygraph examination has been used against him as a means of probation violation, as a basis for new criminal charges raised against him, and could be used to establish a modus operandi permitting his prosecution in cases where he did not even know the victim.

The United States Supreme Court addressed the issue of Fifth Amendment application to probationers in Murphy, a factually similar case to the one before us. As part of his probation, Murphy was required to participate in a sex offender treatment program, report to his probation officer as required, and be completely honest with the officer in all matters. Murphy, at 422. At some point, the probation officer was advised that during the course of treatment, Murphy admitted to a previous rape and murder. Id., at 423. The officer set up a meeting with Murphy, and Murphy admitted to the previous rape and murder. Id., at 424. The officer informed Murphy she had a duty to inform the authorities of the conduct; Murphy was eventually arrested and charged with first degree murder. Id., at 424–25.

The Court granted certiorari to consider whether “a statement made by a probationer to his probation officer without prior warnings is admissible in a subsequent criminal proceeding.” Id., at 425. The Court noted the Fifth Amendment privilege speaks to compulsion and does not preclude voluntary testimony regarding incriminatory matters; therefore, if a speaker desires the privilege’s protection, he must claim it, or his statement will not be considered “compelled” within the meaning of the Constitution. Id., at 427 (citing United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943)). The Court believed the general requirement to appear and truthfully answer questions did not convert otherwise voluntary statements into compelled ones unless one is required to answer over a valid claim of privilege. Id. Thus, if a speaker is confronted with questions the government should reasonably expect to elicit incriminating evidence, he must generally assert the privilege rather than answer the question if he wishes to avoid self-incrimination. Id., at 429.

The Court noted, while there are well-defined exceptions to this general rule, the exceptions involve some “identifiable factor” which effectively denies the witness the option to admit, deny, or refuse to answer. Id. (citing Garner, at 657). The Court found no such factor present, and specifically found Murphy’s meeting with his probation officer did not amount to a custodial interrogation requiring Miranda warnings. Id., at 429–30; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thus, as Murphy did not assert his privilege, the probation officer’s testimony regarding the incriminating statements was admissible. Murphy, at 440.

The current situation appears to us even less imposing than that in Murphy. Knoble agreed to enter and regularly attend outpatient sex offender treatment. Special Conditions of Parole, 5/23/07, at 2. He acknowledged by signature that he would be required to take polygraph examinations as part of the treatment to determine his involvement in criminal sexual activity and that unsuccessful completion of the program would constitute a direct probation violation, which could result in probation revocation. Id. Importantly, he was aware he could challenge the special conditions if he felt them inappropriate or a violation of his rights. Id., at 3; see also Conditions Governing Special Probation/Parole, 11/26/06, at 2.

Knoble was clearly not in custody at the time of the polygraph so as to warrant Miranda warnings. There was no police supervision during his therapy; the treatment was out-patient in nature, and Knoble arrived and attended the sessions independently. Knoble knew he was able to challenge the conditions of his probation; thus, he was aware he could challenge the polygraph test, which he knew he would have to submit to as a probation condition. Knoble cannot pretend he never expected to be asked about his past criminal endeavors while on probation as “the nature of probation is such that probationers should expect to be questioned on a wide range of topics relating to their past criminality.” Murphy, at 432. There is no suggestion Knoble was in some way misled by any expectation of confidentiality at any point, as he knew his probation officer would be privy to the information disclosed and in fact signed a limited confidentiality waiver, consenting to unrestricted communication between the program staff and his probation officer. Acknowledgment of Limited Confidentiality and Waiver, 5/29/07, at 1; Sexual Offender Treatment Contract, 5/29/07, at 1–2. In sum, one can hardly suggest Knoble was “compelled” within the meaning of the Fifth Amendment, when he knew the terms of his probation, was aware of his ability to challenge the terms prior to beginning his treatment, and failed to raise any such challenge either before or during questioning.

Knoble argues he was compelled to answer the questions within the meaning of the Fifth Amendment, because his probation would be revoked if he did not pass the polygraph, and his failure to raise the privilege should be excused due to his belief he would be returned to prison if he did not fully participate. Essentially, Knoble argues his situation falls within an exception to the general rule requiring a witness to raise his Fifth Amendment privilege, such that the protection against self-incrimination is self-executing.

The Murphy Court addressed and rejected a similar argument. The Court noted an exception to the general requirement of raising the privilege exists if assertion of the privilege is penalized, such that it precludes the witness’s free choice to maintain his silence. Murphy, at 434; see Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (“when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution.”). The Court found a probation condition requiring a defendant to appear and be completely honest with his probation officer or face revocation did not imply he would be punished with revocation for invoking his right against self-incrimination. Murphy, at 436–37. If, however, the government in any way asserts that a probationer’s claiming of the privilege would lead to probation revocation, the privilege is self-executing, and the incriminating statements are deemed compelled and excluded from a criminal trial. Id., at 435.

The Court noted Murphy was only required to be truthful, and no probation condition indicated his probation was conditional upon his waiving his Fifth Amendment rights with respect to future prosecution. Id., at 437. Accordingly, because the probation conditions did not require Murphy to choose between making incriminating statements and jeopardizing his conditional liberty, the Court found the Fifth Amendment privilege was not self-executing.  Id., at 436.

Here, as in Murphy, nothing in the record suggests Knoble’s probation would have been revoked if he raised his Fifth Amendment privilege, either in challenging the terms of his probation or during the polygraph examination itself. In fact, the option of challenging the terms was clearly open and available to him. Furthermore, if his probation was revoked, his probation violation would result in a hearing, at which point he could argue the probation condition was unreasonable, the violation was excusable, and the need for confinement did not outweigh governing probation policies. See 42 Pa.C.S. 9771 (revocation of probation order requires hearing and proof of violation). In short, the probation condition did not require Knoble to choose between incriminating himself and jeopardizing his liberty. Therefore, the privilege was not self-executing, and Knoble’s failure to raise his Fifth Amendment protection cannot be excused.

In any event, Knoble’s admissions were not the basis for the eventual revocation; rather, he was dismissed for his continued dishonesty in the program. See Discharge Letter, 11/30/07, at 1 (“Knoble’s unsuccessful discharge is secondary to a pattern of deceit in his treatment, which he himself has acknowledged ․ in direct violation of his signed sexual offender treatment contract ․, which states that he will ‘actively and honestly participate in the therapy process, self-disclose․’ ”). At Knoble’s resentencing, the court stated he was being sentenced for the technical probation violation, not being sentenced for prior sexual offenses․ That conduct was before he was initially sentenced and is not a violation of probation and is not charged as such ․ Further, perjury is not a violation of probation, it was not listed as a violation of probation, and he has not been convicted of perjury. As I have indicated, he is being sentenced for failing to complete the sex offender treatment program.

N.T. Sentencing, 5/29/08, at 44 (emphasis added). As the revocation was independent of the incriminating content of Knoble’s admissions, and would have occurred regardless of whether his incriminating statements were revealed at the hearing, the Fifth Amendment is not implicated.

With these facts in mind, we find therapeutic polygraphs containing inquiries asking a participant to provide information that could be used against him in a subsequent criminal trial do not inherently violate the Fifth Amendment. Participation in a therapeutic polygraph examination does not fall within the exception to the general rule that the Fifth Amendment protection must be raised or waived. Accordingly, a probationer who agrees to submit to such an exam as a condition of his probation may raise his Fifth Amendment privilege prior to submitting to the examination or when answering polygraph questions regarding uncharged criminal actions; however, the probationer waives his right to such protection if he does not invoke it upon questioning.

As Knoble failed to raise his Fifth Amendment privilege, his statements given during his therapy may be used against him. Moreover, as his probation was revoked, not for admission of his prior behavior, but because he violated his special probation conditions, no Fifth Amendment violation occurred.

The Superior Court’s order is reversed, and the case is remanded for reinstatement of the trial court’s sentencing order.

Jurisdiction relinquished.

Justice EAKIN.

Chief Justice CASTILLE, SAYLOR and BAER, Justice TODD, Justice McCAFFERY and Justice ORIE MELVIN join the opinion.

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New Pennsylvania Sex Offender Laws – Final Provisions

Posted on February 8, 2012 by B Free

On December 20, 2011 Pennsylvania governor Tom Corbett signed into law senate bill 1183 pertaining to sex offender registration. This bill was driven by the federal Sex Offender Registration and Notification Act (SORNA), which is Title I of the Adam Walsh Child Protection and Safety Act of 2006. SORNA requires all states to adopt its new legal provisions into their current law, or else face losing 10 percent of their funding under a program called the Byrne Justice Assistance Grant.

Some states such as Texas and North Carolina have not implemented the Act, primarily because 1) the costs to implement would greatly exceed the loss in funding, 2) the Act takes a “one size fits all” approach, and 3) the retroactive elements of the Act have been deemed unconstitutional in Ohio, after this state spent millions of dollars in appellate cases.

Nevertheless Pennsylvania has adopted the provisions.

WHO WILL HAVE TO REGISTER?

§ 9799.13 (takes effect approximately December 20, 2012)

1) Anyone who, on or after the effective date of the law, commits a “sexually violent offense” and resides in, goes to school in, or is employed in Pennsylvania.

(1)  An individual who, on or after the effective date of this section, has been convicted of a sexually violent offense and who has a residence within this Commonwealth or is a transient.

(1.1)  An individual who, on or after the effective date of this section, has been convicted of a sexually violent offense in this Commonwealth and does not have a residence in this Commonwealth and:

(i)  is employed in this Commonwealth; or
(ii)  is a student in this Commonwealth.

2) Anyone who, on or after the effective date of the law, is in state prison, on probation or under intermediate punishment as a result of being found guilty and sentenced for a sexually violent offense. (translation verified by Representative Deesy’s office).

(2)  An individual who, on or after the effective date of this section, is an inmate in a State or county correctional institution of this Commonwealth, including a community corrections center or a community contract facility, is being supervised by the Pennsylvania Board of Probation and Parole or county probation or parole or is subject to a sentence of intermediate punishment and has committed been convicted of a sexually violent offense.

3) Anyone who, on or after the effective date of the law, is in federal prison or is being supervised by a federal probation authority as a result of being found guilty and sentenced for a sexually violent offense.

(2.1)  An individual who, on or after the effective date of this section, is an inmate in a Federal correctional institution or is supervised by Federal probation authorities and has committed a sexually violent offense.

4) Anyone who was previously required to register in Pennsylvania and has not completed his or her registration period. When this provision takes effect, one’s NEW registration period will be determined by the NEW time frames for sexually violent offenses. This means that even if one has completed 7 of 10 years, his or her registration period will increase to 15, 25 or life.

(3)  An individual who is required to register with the Pennsylvania State Police under this subchapter prior to the effective date of this section who has not fulfilled the period of registration as of the effective date of this section.

5) Any individual who was previously required to register in Pennsylvania but has been removed from the registry will be required to once again register if he or she, on or after the effective date of the law, is convicted of ANY felony or sexually violent offense.

(4)  An individual who was required to register with the Pennsylvania State Police pursuant to former section 9795.1 and:

(i)  has fulfilled the period of registration provided in former section 9795.1(a) (relating to registration) or has been removed from the registry under former section 9795.5 (relating to exemption from certain notifications); and

(ii)  on or after the effective date of this section, is convicted of a sexually violent offense or convicted of an offense graded as a felony.

(4.1)  An individual who was required to register under this subchapter and has fulfilled the period of registration provided in this subchapter and who, on or after the effective date of this section, is convicted of a sexually violent offense or of an offense graded as a felony.

(5)  An individual who, on or after the effective date of this section, was required to register with the Pennsylvania State Police pursuant to this subchapter and:

(i)  has fulfilled the period of registration provided in this subchapter; and

(ii)  on or after the effective date of this section, is convicted of an offense graded as a felony.

(6)  An individual who, on or after the effective date of this section, was required to register with the Pennsylvania State Police pursuant to this subchapter and:

(i)  has been removed from the registry pursuant to section 9799.17 (relating to reduction termination of period of registration) for juvenile offenders; and

(ii)  is subsequently convicted of an offense graded as a felony.

6) Any individual who is required to register in any other jurisdiction or foreign country and resides in, goes to school in, or works in Pennsylvania shall register in Pennsylvania.

(7)  An individual who, on or after the effective date of this section, is required to register in a sexual offender registry in another jurisdiction or in a foreign country based upon a conviction for a sexually violent offense or under a sexual offender statute in the jurisdiction where the individual is convicted and:

(i)  has a residence in this Commonwealth or is a transient;
(ii)  is employed within this Commonwealth; or
(iii)  is a student within this Commonwealth.

(7.1)  An individual who, on or after the effective date of this section, is required to register in a sexual offender registry in another jurisdiction or foreign country based upon a conviction of a sexual offense which is not classified as a sexually violent offense and:

(i)  has a residence in this Commonwealth;
(ii)  is employed within this Commonwealth; or
(iii)  is a student within this Commonwealth.

7) Any “juvenile offender” who, on or after the effective date of the law, is adjudicated delinquent or is under court supervision for being adjudicated delinquent in PA or in any other jurisdiction or foreign country and resides in, goes to school in, or works in Pennsylvania shall register in Pennsylvania.

A juvenile offender is defined in § 9799.12 as a person who is at least 14 years of age and:

a) is adjudicated delinquent for 18 Pa.C.S. § 3121 (relating to rape), 3123 (relating to involuntary deviate sexual intercourse) or 3125 (relating to aggravated indecent assault) or an attempt, solicitation or conspiracy to commit an offense under 18 Pa.C.S § 3121, 3123 or 3125.

OR

b)  committed an offense similar to an offense under 18 Pa.C.S. § 3121, 3123 or 3125 or an attempt, solicitation or conspiracy to commit an offense similar to an offense under 18
Pa.C.S. § 3121, 3123 or 3125 under the laws of the United States, another jurisdiction or a
foreign country and was adjudicated delinquent for such an offense.

(8)  An individual who, on or after the effective date of this section, is a juvenile offender who was adjudicated delinquent within this Commonwealth or was adjudicated delinquent in another jurisdiction or a foreign country and:

(i)  has a residence within this Commonwealth;
(ii)  is employed within this Commonwealth; or
(iii)  is a student within this Commonwealth.

“Juvenile offender.”  One of the following:

(1)  An individual who was 14 years of age or older at the time the individual committed an offense which, if committed by an adult, would be classified as an offense under 18 Pa.C.S. § 3121 (relating to rape), 3123 (relating to involuntary deviate sexual intercourse) or 3125 (relating to aggravated indecent
assault) or an attempt, solicitation or conspiracy to commit an offense under 18 Pa.C.S § 3121, 3123 or 3125 and either:

(i)  is adjudicated delinquent for such offense on or after the effective date of this section; or

(ii)  has been adjudicated delinquent for such offense and, on the effective date of this section, is subject to the jurisdiction of the court, including commitment to an institution or facility set forth in section 6352(a)(3) (relating to a disposition of delinquent child).

(2)  An individual who was 14 years of age or older at the time the individual committed an offense similar to an offense under 18 Pa.C.S. § 3121, 3123 or 3125 or an attempt, solicitation or conspiracy to commit an offense similar to an offense under 18 Pa.C.S. § 3121, 3123 or 3125 under the laws of the United States, another jurisdiction or a foreign country and was adjudicated delinquent for such an offense.

WHAT WILL BE PA’S “SEXUALLY VIOLENT OFFENSES”

§ 9799.14 (takes effect approximately December 20, 2012)

Sexual offenses shall be classified in a three-tiered system composed of Tier I sexual offenses, Tier II sexual offenses and Tier III sexual offenses.

Tier I sexual offenses

(1)  18 Pa.C.S. § 2902(b) (relating to unlawful restraint).
(2)  18 Pa.C.S. § 2903(b) (relating to false imprisonment).
(3)  18 Pa.C.S. § 2904 (relating to interference with custody of children).
(4)  18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle or structure).
(5)  18 Pa.C.S. § 3124.2(a) (relating to institutional sexual assault).
(6)  18 Pa.C.S. § 3126(a)(1) (relating to indecent assault).
(7)  (Reserved).
(8)  18 Pa.C.S. § 6301(a)(1)(ii) (relating to corruption of minors).
(9)  18 Pa.C.S. § 6312(d) (relating to sexual abuse of children).
(10)  18 Pa.C.S. § 7507.1. (relating to invasion of privacy).
(11)  18 U.S.C. § 1801 (relating to video voyeurism).
(12)  18 U.S.C. § 2252 (relating to certain activities relating to material involving the sexual exploitation of minors).
(13)  18 U.S.C. § 2252A (relating to certain activities relating to material constituting or containing child pornography).
(14)  18 U.S.C. § 2252B (relating to misleading domain names on the Internet).
(15)  18 U.S.C. § 2252C (relating to misleading words or digital images on the Internet).
(16)  18 U.S.C. § 2422(a) (relating to coercion and enticement).
(17)  18 U.S.C. § 2423(b) (relating to transportation of minors).
(18)  18 U.S.C. § 2423(c).
(19)  18 U.S.C. § 2424 (relating to filing factual statement about alien individual).
(20)  18 U.S.C. § 2425 (relating to use of interstate facilities to transmit information about a minor).
(21)  A comparable military offense or similar offense under the laws of another jurisdiction or foreign country.
(22)  An attempt, conspiracy or solicitation to commit an offense listed in paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19), (20) or (21).

Tier II sexual offenses

(1)  18 Pa.C.S. § 3122.1(a)(2) (relating to statutory sexual assault).
(1.1)  18 Pa.C.S. § 3124.2(a.2) and (a.3) (relating to institutional sexual assault).
(1.2)  18 Pa.C.S. § 3126(a)(2), (3), (4), (5), (6) or (8).
(2)  18 Pa.C.S. § 5902(b.1) (relating to prostitution and related offenses)
(3)  18 Pa.C.S. § 5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) (relating to obscene and other sexual materials and performances).
(4)  18 Pa.C.S. § 6312(b) and (c) (relating to sexual abuse of children).
(5)  18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
(6)  18 Pa.C.S. § 6320 (relating to sexual exploitation of children).
(7)  18 U.S.C. § 1591 (relating to sex trafficking of children by force, fraud, or coercion).
(8)  18 U.S.C. § 2243 (relating to sexual abuse of a minor or ward).
(9)  18 U.S.C. § 2244 (relating to abusive sexual contact).
(10)  18 U.S.C. § 2251 (relating to sexual exploitation of children).
(11)  18 U.S.C. § 2251A (relating to selling or buying of children).
(12)  18 U.S.C. § 2252.
(13)  18 U.S.C. § 2260 (relating to production of sexually explicit depictions of a minor for importation into the United States).
(14)  18 U.S.C. § 2421 (relating to transportation generally).
(15)  18 U.S.C. § 2422(b).
(16)  18 U.S.C. § 2423(a).
(17)  A comparable military offense or similar offense under the laws of another jurisdiction or foreign country.
(18)  An attempt, conspiracy or solicitation to commit an offense listed in paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16) or (17).

Tier III sexual offenses

(1)  18 Pa.C.S. § 2901(a.1) (relating to kidnapping).
(2)  18 Pa.C.S. § 3121 (relating to rape).
(3)  18 Pa.C.S. § 3122.1(b) (relating to statutory sexual assault).
(4)  18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).
(5)  18 Pa.C.S. § 3124.1 (relating to sexual assault).
(6)  18 Pa.C.S. § 3124.2(a.1).
(7)  18 Pa.C.S. § 3125 (relating to aggravated indecent assault).
(8)  18 Pa.C.S. § 3126(a)(7) (relating to indecent assault).
(9)  18 Pa.C.S. § 4302(b) (relating to incest).
(10)  18 U.S.C. § 2241 (relating to aggravated sexual abuse).
(11)  18 U.S.C. § 2242 (relating to sexual abuse).
(12)  18 U.S.C. § 2244.
(13)  A comparable military offense or similar offense under the laws of another jurisdiction or country.
(14)  An attempt, conspiracy or solicitation to commit an offense listed in paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or (13).
(15)  An offense listed as a Tier II sexual offense where there is a subsequent conviction for an offense graded as a felony.
(16)  Two or more convictions of offenses listed as Tier I or Tier II sexual offenses.

HOW LONG WILL ONE HAVE TO REGISTER?

§ 9799.15 (takes effect approximately December 20, 2012)

(1)  An individual convicted of a Tier I sexual offense shall register for a period of 15 years.

(2)  An individual convicted of a Tier II sexual offense shall register for a period of 25 years.

(3)  An individual convicted of a Tier III sexual offense shall register for the life of the individual.

(4)  A juvenile offender shall register for the life of the individual. Note that juveniles only have to register if they are adjudicated delinquent for certain tier III offenses – this is why they would have to register for life.  If certain requirements are met, a juvenile may petition the court to be removed from the registry after 25 years (see § 9799.17)

(5)  A sexually violent delinquent child shall register for the life of the individual.

(6)  A sexually violent predator shall register for the life of the individual.

(7)  An individual subject to registration under section 9799.13 shall register for the period of time equal to the time for which the individual was required to register in another jurisdiction or foreign country.

HOW OFTEN WILL ONE HAVE TO REPORT IN PERSON?

§ 9799.15(e) (takes effect approximately December 20, 2012)

(1)  An individual convicted of a Tier I sexual offense shall appear annually.

(2)  An individual convicted of a Tier II sexual offense shall appear semiannually.

(3)  An individual convicted of a Tier III sexual offense shall appear quarterly.

(4)  An individual required to register pursuant to section 9799.13(7.1) shall appear annually.

 STATUTORY SEXUAL ASSAULT (a) versus (b)?

§3122.1.  Statutory sexual assault.

(a) Felony of the second degree.–Except as provided in section 3121 (relating  to rape), a person commits a felony of the second degree when that person  engages in sexual intercourse with a complainant to whom the person is not  married who is under the age of 16 years and that person is either:

(1) four years older but less than eight years older than the complainant; or
(2) eight years older but less than 11 years older than the complainant.

(b) Felony of the first degree.–A person commits a felony of the first degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is 11 or more years older than the complainant and the complainant and the person are not married to each other.

CONCLUSION
Undoubtedly there will be appeals to fight this new law, as there should be. Our law practice does not handle these types of cases; however, please contact the Pennsylvania chapter of RSOL (reform sex offender laws) to join the fight.

If you or a loved on has been falsely accused of a sex crime and has not been convicted, please do not hesitate to contact our attorneys so that we may protect you from the unfair laws that face you.

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

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Who is the Sexual Predator – The Accused or the Lying Teen?

Posted on December 16, 2011 by B Free

We’ve encountered many instances where a man has been lured into the web of a deceptive, promiscuous teenager.  Quite often these men are of good nature, and have developed successful lives after overcoming the obstacles that life offers. With one swift drop of the gavel, however, everything these men have worked for is gone forever.

The question to be asked is who is the predator: the man that has sexual relations with a teen who lies about her age, or the teen who ruin a mans life by lying about her age?  In many states, mistake as to age is not a defense in the criminal justice system.  Therefore, even if an underage teen posts a false age on Facebook, tells a man that she is of a legal age, and has consensual sex with the man, he is held criminally liable.

If the goal of laws are to prevent these types of relationships, why not punish the teen for lying about her age?  What is currently being done to the teens in these situations?  Nothing.  What is being done to prevent these teens from ruining the life of another man?  Nothing.  No one will truly understand how unfair and unreasonable the laws are when it comes to sex crimes until they or a loved on are accused of such a crime.  Hopefully this will never happen, but meanwhile citizens should be open-minded and not be afraid of being labeled as a sex offender supporter simply for standing up to laws that are unfair.

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Maryland Age of Consent

Posted on December 8, 2011 by B Free

The age of consent in Maryland is 16. An exception is made when the actor is less than four years older than the victim.

  • If the victim is 14 or 15 and actor 21 or older, the actor is guilty of a sexual offense in the third degree if they engage in vaginal intercourse or other sex acts (including oral sex). If the actor is under 21 years old, but still more than 4 years older, the crime is lowered to sexual offense in the fourth degree.
  • If the victim is 13 or younger and the actor more than 4 years older, and they engage in a sex act (which includes oral, and other acts but not intercourse) they are guilty of a sexual offense in the second degree. If they engage in vaginal intercourse, the crime is elevated to rape in the second degree.

One notable exception is if someone in a “position of authority” engages in a sexual act with a minor (defined as under the age of 18 in state law), he or she may be guilty of sexual offense in the fourth degree as specified by Maryland Code, Criminal Law Article, § 3-308.

Another unusual exception is the crime of “Sexual solicitation of minor.” (§ 3-324). In this law, it is illegal to solicit a person under 18 (or a law enforcement officer posing as such) via various communication methods to violate the aforementioned statutes on minimum age, or for purposes of prostitution. In the case of the later, the minor can be 16 or 17 (over the age of consent) but the actor would still be in violation of this statute.

SOURCE

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Pennsylvania Age of Consent

Posted on December 8, 2011 by B Free

The age of consent in Pennsylvania is 16 years of age for statutory sexual assault and 18 years for corruption of minors.

Teenagers aged 13, 14 and 15 may or may not be able to legally engage in sexual activity with partners who are less than 4 years older. Such partners could not be prosecuted under statutory rape laws, but may be liable for other offenses, even when the sexual activity is consensual.

Under Pennsylvania law, a defendant is strictly liable for the offense of rape, a felony of the first degree, when the complainant is 12 or younger. Pennsylvania has enacted several other strict liability sexual offenses when the complainant is under 16, but 13 years old or older.

§ 3122.1. Statutory sexual assault.
Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and the person are not married to each other.

§ 3125 Aggravated indecent assault
(7) the complainant is less than 13 years of age; or (8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other. (b) Aggravated indecent assault of a child.–A person commits aggravated indecent assault of a child when the person violates subsection (a)(1), (2), (3), (4), (5) or (6) and the complainant is less than 13 years of age.

§ 3123 Involuntary deviate sexual intercourse
(7) who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other.

When the alleged victim is 16 or older and less than 18 years of age, and the alleged offender is over the age of 18, the Commonwealth may charge the offense of corruption of minors or unlawful contact with a minor, even if the activity was consensual:

§ 6301 Corruption of minors.
(a) Offense defined.– (1) Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.

The crime of corruption of minors is usually a crime that accompanies another “more serious” crime such as statutory rape or involuntary deviate sexual intercourse or accompanies some drug or alcohol use, possession or sale. Tending to corrupt like contributing to delinquency is a broad term involving conduct toward a child in an unlimited variety of ways which tends to produce or to encourage or to continue conduct of the child which would amount to delinquent conduct.”

The question of whether consensual intercourse with a minor 16 years or older tends to corrupt the morals of that minor is a jury question to be decided by the “common sense of the community.”

§ 6318. Unlawful contact with minor.
(a) Offense defined.–A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth: (1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses). (2) Open lewdness as defined in section 5901 (relating to open lewdness). (3) Prostitution as defined in section 5902 (relating to prostitution and related offenses). (4) Obscene and other sexual materials and performances as defined in section 5903 (relating to obscene and other sexual materials and performances). (5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children). (6) Sexual exploitation of children as defined in section 6320 (relating to sexual exploitation of children).

SOURCE

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Pennsylvania Sex Offender Bill Flying Under the Radar

Posted on November 27, 2011 by B Free

There has been little media coverage regarding the negative effects that Pennsylvania senate bill 1183 and house bill 1958 will have on families across the state.  This bill is intended to put PA in conformity with the federal Sex Offender Registration and Notification Act, which will set national standards for sex offense laws.

The little media publicity this issue has been given has focused primarily upon two issues: 1) the bill will close loopholes that preclude certain out-of-state offenders, as well as homeless offenders from registering, and 2) the passage of the bill will prevent PA from losing 10% of its federal funding.

The truth, however, is that 1) the loophole issue is a fractional component of the bill, and 2) other states that have implemented SORNA provisions have determined that the amount of money they would have lost by not implementing SORNA would have been substantially less than the costs they incurred by implementing it.  Some states, such as Texas, have outright stated that they will not implement the provisions.  Texas called the AWA “one-size-fits-all” legislation that would cost 30 times the amount of federal funds that will be withheld if the state does not comply.

What are the real issues of the bill?  1) Hundreds of  Pennsylvania’s will be forced to register as sex offenders (retroactively) even though they were not previously required to; and 2) individuals that have fulfilled their Megan’s Law obligations will once again be “re-captured” and required to re-register.  The broader issue at hand perhaps is that the misinformed public wants to unconditionally eradicate sex offenders, and officials are more than happy to comply if it means more votes.

These new potential changes bring with them both ethical and constitutional issues.  First, the Megan’s Law website will be flooded with individuals who do not pose a risk to our children.  For example, PA is considering adding “indecent exposure” and “corruption of a minor” as registrable offenses.  This means someone who was seen urinating in public by a child will be placed on the website next to serial child rapists and labeled as sex offender for at least 10 years.  Are these the types of people we want on the list?  What about the children of these people, who will be unnecessarily teased and bullied at school?

Secondly, the PA and US Constitutions have provisions that prevent an enhanced punishment for a crime from applying to individuals that committed the crime in the past, which is exactly what this new bill will do.  This issue has been raised in several states, and some of these states have declared the provisions of SORNA to be unconstitutional.  Tens of millions of tax payers’ dollars were spent on appellate issues before the ruling occurred.  Some states, however, have ruled that sex offender registration is not punishment, and therefore the provisions of SORNA were constitutional.  It’s hard to imagine anyone being able to say that being labeled as a sex offender and humiliated is not punishment.  There are many instances where individuals have committed suicide in lieu of having to register.

The take home message is that not all sex crimes are the same, and not all individuals that commit a sex crime are a threat to our children.  The public needs to be educated about these issues instead of being spoon fed myths and sensationalized stories by the media.  Many of the people that will be affected by these new laws have learned from their mistake, and have moved forward in creating a healthy and successful life for them and their families.  Applying these laws to these people will undoubtedly break their spirit and derail their future.  Most people are quick to judge anyone who has been convicted of a sex crime, until they or a loved one are accused and subjected to the draconian laws regarding these issues.

State v. Williams, Slip Opinion No. 2011-Ohio-3374
Ohio – “We conclude that S.B. 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws”.

John Doe v Supreme Court of Alaska No. 6290 – July 25, 2008
Alaska – “We conclude that it does because ASORA imposes burdens that have the
effect of adding punishment beyond what could be imposed when the crime was
committed.”

http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf
If Virginia chose to comply with SORNA, the state would spend $12,097,000 more than it would if it chose not to implement SORNA and forfeit 10 percent of its yearly Byrne grant, a loss totaling approximately $400,000.

http://www.dispatch.com/content/stories/local/2011/07/31/ohio-sex-offender-registry-a-mess.html
1) Ohio’s law has twice been declared unconstitutional, which opponents had warned would happen.
2) The funding the state stood to lose if it did not conform — typically hundreds of
thousands of dollars a year — has been offset by millions spent complying with the law and defending against thousands of lawsuits.

http://bangordailynews.com/2011/07/29/politics/maine-one-of-many-states-failing-to-comply-with-federal-sex-offender-laws/
1) Other states have voiced concerns about the federal act’s requirements, including how it addresses retroactive punishment and that it seeks to include juveniles on the national registry.   Rep. Anne Haskell, D-Portland, a member of the Legislature’s Criminal Justice and Public Safety Committee, said her problem with the Adam Walsh Act is that it treats all states the same.  “There is no flexibility built into it,” she said. “I understand that a percentage of [federal] grant money could be withheld, but full compliance would be much more expensive for Maine.”

http://www.ketv.com/r/28655792/detail.html
For the three plaintiffs, the fallout has been substantial.

Plaintiff No. 1 said he’s had people call his boss. “They were trying to get me fired in hopes of making me homeless,” he said. He also said his wife has been harassed. People have asked her how she could be married to a sexual predator. He said his daughter has also been the target of verbal abuse.

Plaintiff No. 2 said he’s lost his job. “After LB 285, I was let go from the job that I had,” he said. “I’ve not been able to find work because I’m on the registry.”

Plaintiff No. 3 said his family is paying the price. “My children are taunted at school,” he said.  “Strangers, not even from the neighborhood, are approaching my house. My
wife was traumatized.”

All three plaintiffs said the registry’s rules are making them pay twice for their crimes and they said that’s unconstitutional.

http://articles.cnn.com/2011-07-28/justice/sex.offender.adam.walsh.act_1_adam-walsh-act-offender-law-registry?_s=PM:CRIME
1) Many states don’t want to change their laws; others believe the legislation’s cost outweighs its predicted benefits, she said. Texas has put the estimated federal funding cuts at $1.4 million, compared to a cost of $38.7 million.

2) The California Sex Offender Management Board also recommended against implementing the provisions of the Adam Walsh Act, stating, “California state law and practice related to offender risk assessment, juvenile registration and sex offender monitoring is more consistent with evidence-based practice that can demonstrate real public safety outcomes.”

3) The number of offenders on Wyoming’s registry increased from 125 to 1,450 after the state moved from risk-based assessment to a tier system for registration, said Kevin R. Smith, deputy director of the state’s Criminal Justice Information Services.

4) Critics say that using offense-based registration instead of an approach based on risk-assessment — favored by states like Texas and California — pulls too many offenders onto the registry and overburdens law enforcement, preventing police from keeping a close eye on the worst of the worst.

5) Some people would rather die than face a lifetime on the registry. One of those people, Roy Martin, hanged himself in his garage after learning he would be reclassified under Ohio’s SB 10.

See also: Nebraska eyes impact of changes to sex offender registry

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Child Pornography Sentences Too Harsh

Posted on November 3, 2011 by B Free

Anyone rational individual who is familiar with our country’s sex crime laws knows that the punishments for these types of crimes are disproportionate, and unfair. Below is a link to an article that describes exactly this problem, in which case a man was sentenced to life in prison for possessing child pornography. With so many individuals’ lives being shattered by these excessive punishments, the question is when will our lawmakers stop being driven by public outcries, and instead make level-headed decisions?

http://www.naplesnews.com/news/2011/nov/03/east-naples-mans-life-sentence-for-child-porn/

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New Changes to Pennsylvania Bill 1183 (SORNA)

Posted on October 28, 2011 by B Free

Pennsylvania bill 1183 will implement certain provisions of SORNA (Sex Offender Registration and Notification Act), which is Title I of the Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248).

Recent changes (October 2011) have been made to the proposed bill, and some of the more significant changes are outlined below. A full viewing of the draft can be found at http://e-lobbyist.com/gaits/text/355463.

1) Pg. 134-135
§ 3126 Indecent Assault

In the original bill, § 3126 was graded as a Class 1 sexual offense if it was a misdemeanor in the 1st degree or higher and the punishment was less than one year; a Class 2 sexual offense if it was a misdemeanor in the 1st degree or higher and the punishment was more than one year; and a Class 3 sexual offense if it was a misdemeanor in the 1st degree or higher, the punishment was more than one year, and the victim was under the age of 13.

In the new bill, § 3126 is graded as a Class 1 sexual offense if it was a misdemeanor in the 1st degree or higher; a Class 2 sexual offense if it was § 3126 (a)(2), (3), (4), (5), (6) or (8); and a Class 3 sexual offense  if it was § 3126 (a)(7).

(1)  the person does so without the complainant’s consent;
(2)  the person does so by forcible compulsion;
(3)  the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(4)  the complainant is unconscious or the person knows that the complainant is unaware that the indecent contact is occurring;
(5)  the person has substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance;
(6)  the complainant suffers from a mental disability which renders the complainant incapable of consent;
(7)  the complainant is less than 13 years of age; or
(8)  the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.

2) Pg. 135
§ 3122.1. Statutory sexual assault.

Statutory sexual assault was divided into subsections: (a) (1) and (2); and (b)
§ 3122.1. Statutory sexual assault.
(a) Felony of the second degree.–Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years and that person is either:
(1) four [or more] years older but not more than seven years older than the complainant [and the complainant and the person are not married to each other.]; or
(2) eight years older but not more than ten years older than the complainant.
(b) Felony of the first degree.–A person commits a felony of the first degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is 11 or more years older than the complainant and  the complainant and the person are not married to each other.

In the original bill, statutory sexual assault was considered a Class 3 sexual offense.  In the new bill, it is divided by subsection:
§ 3122.1(a)(2) is graded as a Class 2 sexual offense;
§ 3122.1(b) is graded as a Class 3 sexual offense.

3) Pg. 135
§ 3124.2 Institutional Sexual Assault

In the original bill, institutional sexual assault was graded as a Class 1 sexual offense if the victim was not a minor, and as a Class 3 sexual offense if the victim was a minor.

In the new bill, a new sub-section was added:
§ 3124.2 (a1):
(a.1) Institutional sexual assault of a minor.–If the inmate, detainee, patient or resident is a person under 18 years of age, a person who is an employee or agent of the Department of Corrections or a county correctional authority, youth development center, youth forestry camp, State or county juvenile detention facility, other licensed residential facility serving children and youth or a mental health or a mental retardation facility or institution commits a felony of the third degree when that person engages in sexual intercourse, deviate sexual intercourse or indecent contact with an inmate, detainee, patient or resident.

In the new bill, § 3124.2 is graded as a Class 1 sexual offense, and § 3124.2 (a1) is graded as a Class 3 sexual offense.

4) Pg. 78 (of old bill)
The ability to be removed from the registry after meeting certain conditions has been stricken and is no longer included in the new bill.  This is because PA has adopted a tiered approach as compared to the last bill version, where every sex offender had to register for life.

5)  Pg. 164
How long must one register?
In the original bill, anyone convicted of a Class 1, 2, or 3 sexual offense was required to register for life.
Under the new bill,
(1) Class 1 offenders and Class 1 out-of-State offenders shall register for 15 years.
(2) Class 2 offenders, Class 2 out-of-State offenders and juvenile offenders shall register for 25 years.
(3) Class 3 offenders, Class 3 out-of-State offenders and sexually violent predators shall register for life.

6) Pg. 143
Who must register?
In the old bill, anyone who was convicted of or incarcerated, serving a sentence of intermediate punishment or under the supervision of the Pennsylvania Board of Probation and Parole or any county probation and parole office for any offense punishable by more than one year had to register if the individual was previously convicted at any time of a Class 1, Class 2 or Class 3 sexual offense or a similar offense.

In the new bill, “for any offense punishable by more than one year” was changed to “for any felony offense“, if the individual:
(i) was previously convicted at any time of a Class 1, Class 2 or Class 3 sexual offense or a similar offense, regardless of whether the offense was designated as a Class 1, Class 2 or Class 3 offense at the time of the conviction;
(ii) was convicted of an offense enumerated in 42 U.S.C. § 16911(5)(A)(iii), (iv) and (v); or
(iii) was previously required to register under a sexual offender statute in another jurisdiction and his or her registration obligation in that jurisdiction had expired prior to the effective date of this section.

7) ***Note*** “Natural disaster” – The occurrence of a natural disaster or other event requiring evacuation of residences shall not relieve an individual of the duty to register or any other duty imposed by this chapter.”

If you will be negatively and unfairly affected by this bill, please leave a comment  at http://e-lobbyist.com/bills/pa-sb1183-2011-2012-regular-session. If you have further questions, please speak to one of our sex crime attorneys.

Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Romeo and Juliet Law Takes Effect in Texas

Posted on October 19, 2011 by B Free

Until the implementation of this new in Texas, a 17-year old that was convicted for having consensual sexual relations with someone under the age of seventeen was required to register as a sex offender.

This meant that a consensual sexual relationship between a 16 year-old and a 17-year old was illegal, and would result in the 17-year old registering.  Although it is still illegal, recent changes to Texas law now exempts the actor from registering.

This exemption only applies if a consensual sexual relation is had between a teenager or young adult over the age of 17 and a teenager under the age of 17, but there is no more than a four-year age difference between the two young people. Additionally, the so-called “victim” of the sexual encounter must be at least 15 years of age for the Romeo and Juliet law to apply.

Those individuals that are currently required to register due to a past transaction of this nature may now petition the court to be removed from the registry.  The questions still remains why it is still a sex crime for a 17-year old to have consensual sex with a 16-year old.  What are your thoughts?

If you or someone you know has been charged with this type of crime, please consult with our sex crime lawyers before speaking to anyone.

 Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Analingus and Involuntary Deviate Sexual Intercourse in Pennsylvania

Posted on October 17, 2011 by B Free

A while back one of our Pennsylvania clients was falsely accused of having committed analingus on a minor.  He was originally charged with aggravated indecent assault, but later was additionally charged with Involuntary Deviate Sexual Intercourse.  The fact that the magistrate dropped the latter charge but it was reinstated in the information will be discussed in another blog.

Upon close examination of Pennsylvania statute, we determined that the charge of IDSI was not the appropriate charge for the alleged event.  Deviate sexual intercourse is defined as “intercourse per os or per anus“.  In PA v Kelley 2002, the court stated that the plain meaning of “intercourse” as used in 3101 is “physical sexual contact between individuals that involves the genitalia of at least one person”.  Obviously the anus is not genitalia, or a sexual organ as so defined.

We never had an opportunity to make the argument in front of the judge because a plea agreement was reached.  However, our client painstakingly composed an analysis of the charge of IDSI, where he makes the above technical argument.  Additionally, he argues why the charge of aggravated indecent assault also does not apply to analingus.  We have included his analysis below.  We are not certain as to its merit, but it is quite compelling.  If you have been charged with this offense please contact one of our sex crime attorneys.

ORAL CONTACT WITH THE ANUS DOES NOT CONSTITUTE THE CRIME OF INVOLUNTARY DEVIATE SEXUAL INTERCOURSE.

§ 3123.  “Involuntary deviate sexual intercourse”. (a)  Offense defined.–A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant.

Deviate sexual intercourse is “sexual intercourse per os or per anus between human beings and any form of sexual intercourse with an animal.  The term also includes penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical, hygienic or law enforcement procedures” (Kelley 2002 Pa Supreme Court).

§ 3101 “Sexual intercourse.”  In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required

The Pa Supreme Court in Kelley 2002 stated that digital penetration of the vagina does not constitute 1) sexual intercourse in its ordinary meaning (penis/vagina), 2) sexual intercourse with an animal, nor 3) penetration with a foreign object.  The court reasoned that the only way that digital penetration could only be classified as sexual intercourse or deviate sexual intercourse is if it were “intercourse per os or per anus”.

The above court stated that because the General Assembly did not define “intercourse per os or per anus”, that these words must be construed according to their ordinary usage, and that the plain meaning of “intercourse” as used in 3101 is “physical sexual contact between individuals that involves the genitalia of at least one person”. Therefore, alleged contact with the anus by one’s mouth or finger does not constitute “intercourse per or per anus”, i.e., oral or anal intercourse1, because there would be no genitalia involved – neither the anus, tongue or finger are genitalia (Dewalt 2000 Pa Super. 149).  It should be noted that the case of Kelley 2002 is cited in the Pennsylvania Sexual Violence Benchbook (2007) when the authors refer to the crime of IDSI and the definition of “intercourse”; the author’s write “Per Os or Per Anus: these terms describe oral and anal sex, i.e., intercourse ‘through or by means of the mouth or posterior opening of the alimentary canal’.”

Furthermore, the above finding has been applied by several PA Superior Courts which have ruled digital penetration of the anus constitutes the crime of aggravated indecent assault, not involuntary deviate sexual intercourse, i.e., it is an act of assault, not an act of “intercourse” (e.g., S.R. 2007 Pa Super. 79; Castelhun 2005 Pa Super. 415; Delbridge 2001 Pa Super 75; L.N 2001 Pa Super. 352).  When making this ruling, the court in Castelhun 2005 specifically cites the case of Kelley 2002.  Therefore, these courts have determined that “intercourse per anus” must involve the genitalia of at least one person.  By analogy, “intercourse per os” must involve the genitalia of at least one person.  In support of this, if “intercourse per os” did not require genital contact, then licking one’s arm pit or feet (for example) would constitute “intercourse per os”.

1 “Therefore, in order to sustain a conviction for involuntary deviate sexual intercourse, the Commonwealth must establish the perpetrator engaged in acts of oral or anal intercourse, which involved penetration however slight”. Wilson 2003 Pa Super. 205 citing Poindexter 1994 Pa Super; L.N. 2001 Pa Super. 252 citing Poindexter 1994 Pa Super.

Although the following definitions do not apply to Pennsylvania, they do show at least that other states have similarly interpreted the meaning of deviate sexual intercourse:

Alabama – Deviate sexual intercourse – Any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.

Texas – Deviate sexual intercourse means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.

New York – “Deviate sexual intercourse means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva”.

ORAL AND/OR DIGITAL CONTACT WITH THE “ANUS” DOES NOT ESTABLISH PENETRATION IN REGARDS TO AGGRAVATED INDECENT ASSAULT.

Brief
It is clear from the case of Kelley 2002 that oral and/or digital contact with the “anus” constitutes an act of assault, not oral or anal intercourse whereby genitalia must be involved. The fact that some courts have stated that some form of oral contact is sufficient to establish the penetration requirement for IDSI cannot by analogy be used to say that any oral contact with the “anus” constitutes penetration for the purposes of aggravated indecent assault.  This finding must be viewed in proper context.  *It is not the penetration requirement that differs between the crimes of aggravated indecent assault and IDSI: it is what the statutes prohibit from being penetrated.  For the purposes of aggravated indecent assault, the penetration requirement involving oral contact is no different than the penetration requirement involving digital contact; the anus itself must be penetrated.  However, the statute regarding IDSI does not specify what is prohibited from being penetrated, but instead simply requires proof that a person engaged in acts of oral or anal intercourse, “which involved penetration however slight”.1  To apply this by example: touching one’s penis with a finger does not establish penetration necessary to sustain the crime of aggravated indecent assault; however, touching one’s penis with the tongue or lips does establish penetration necessary to sustain the crime of IDSI because courts have determined that the statute prohibits the mouth from being penetrated.  Moreover, an exhaustive list of case law at the end of this document firmly illustrates that there must be explicit proof of penetration to sustain the crime of aggravated indecent assault; if there is not, the lesser crime of indecent assault is appropriate, provided there is proof of sexual gratification.

Analysis
The finding that some form of oral contact with genitalia is all that is necessary to establish penetration was held solely for the charge of IDSI, which prohibits oral intercourse which involved “penetration however slight”.  The court in Wilson 2003 Pa Super. 205 wrote “….in order to sustain a conviction for involuntary deviate sexual intercourse, the Commonwealth must establish the perpetrator engaged in acts of oral or anal intercourse, which involved penetration however slight. ……finding actual penetration of the vagina is not necessary; some form of oral contact with the genitalia is all that is required”. Of most importance to this analysis is the origin of this language, and the reasoning behind the language.

All courts including the one above that have stated, in varying words, that some form of oral contact is all that is necessary to establish the penetration requirement for IDSI ultimately refer  to the cases of Trimble 1992 Pa Super 419a and/or McIlvaine 1989 Pa Super. 385b. In Trimble 1992, the court stated “It has been held that oral contact with the female genitalia is sufficient to support the penetration requirement for IDSI”, while referring to Zeigler Pa Super 1988. The court in Zeigler referred to Ortiz 1983 Pa Super., wherein the court held that “It is quite clear, however, that the definition of ‘sexual intercourse’ found at Section 3101 does not specify ‘penetration of the vagina,’ but instead specifies ‘some penetration however slight.’”  This court also relied on the findings of Bowes 1950 Pa Super which held that “entrance in the labia is sufficient”.  In conclusion, the court in Ortiz held that penetration of the vagina, in essence the farther reaches of the female genitalia, is not necessary to find penetration under Section 3101. In essence, these courts held that oral intercourse with the female genitalia would lead to at least the plane of the labia being penetrated.

In McIlvaine 1989, the court stated “Appellant first argues that judgment should have been arrested on the IDSI count because penetration was not proven. We disagree. 18 Pa.C.S. §§ 3123 and 3101 require ‛some penetration however slight.’ The testimony of the victim that appellant …….pushed her head down until she kissed his penis is sufficiently descriptive to warrant the inference by the jury that appellant penetrated, ‘however slight,’ the mouth of the victim”.  The court in Wilson 2003, while referring to McIlvaine 1989, held that the penetration element of IDSI was established because the defendant inserted his testicles into the victim’s mouth.  The court in L.N. 2001 took the analysis a step further by finding that the because the court in McIlvaine found that the appellant penetrated, however slight, the MOUTH of the victim when he made her kiss his penis, that the act of licking the penis with the tongue, where the tongue is an internal part of the mouth, should be held no differently.

In summary, the courts have found that the word “penetration” as used in the definition of sexual intercourse and/or deviate sexual intercourse does not specify what must be penetrated, i.e., whether the vagina, the vulva, the labia, the anal area, or the mouth, but instead simply requires proof of acts of oral or anal intercourse which involved “penetration however slight” (Wilson 2003; McIlvaine 1989; Zeigler 1988; Ortiz 1983).  Furthermore, because the crime of IDSI prohibits intercourse “per os” (“by the means or agency of: by way of: THROUGH.” (Kelley 2002) the mouth), penetration of the mouth by the genitals constitutes the crime of IDSI and fulfills the penetration requirement for this crime.

First, unlike the female genitalia (pertaining to the vagina as discussed in Trimble 1992), the anus does not have protruding components that constitute the anus nor an open cavity formed……….

a (cited in:Wall 2008 PA Super 151; Trippett 2007 Pa Super 260; Wilson 2003 Pa Super. 205; In the Interests of A.D.2001 Pa Super 99; L.N. 2001 Pa Super. 352)
b (cited in:Castelhun 2005 Pa Super 415; Wilson 2003
Pa Super. 205; L.N. 2001 Pa Super. 352
3Aggravated Indecent Assault – “Except as provided in sections 3121 (relating to rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and 3124.1 (relating to sexual assault), a person
who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person’s body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault, a felony of the second degree, if…”

by protruding components that constitute the anus that could be penetrated simply by placing one’s tongue, lip, or finger on it. In order to sustain the crime of aggravated
indecent assault, the anus itself must be penetrated3.  The anus is defined as “The opening at the end of the alimentary canal through which solid waste is eliminated from the
body” (American Heritage Dictionary of the English Language, 3rd Edition).  The opening is closed by external sphincter muscles. External sphincter is a layer of voluntary (striated) muscle encircling the outside wall of the anal canal and anal opening – its function
is to close the anus.  Therefore mere contact with this area could not result in penetration, however slight of the anus.  Mere contact constitutes the crime of Indecent Assault.  In Pa v Riggle 2008, the “jury found the Appellant guilty of Count 1, Involuntary Deviate Sexual intercourse for placing his mouth on M.B.’s penis; Count 5, Aggravated Indecent Assault, for placing his finger into the anus of M.B.; Count 6, Indecent Assault, for touching M.B’s anus with his finger, Count 7, Indecent assault, for touching M.B’s anus with his penis, Count 15, Indecent Assault, for touching M.B’s. anus with a dildo.

Secondly, penetration of the mouth (lips or tongue) by the genitalia fulfills the penetration requirement of IDSI because either the genitalia or mouth can be
penetrated in accordance with the statute (intercourse per os or per anus, with some penetration however slight) (Wilson 2003; L.N. 2001; Poindexter 1994; McIlvaine 1989).   However, the charge of aggravated indecent assault requires that the anus or genitals be penetrated, not the mouth3.  Therefore, although by analogy the placing of ones tongue on the anus of another would (as applied by McIlvaine 1989 and L.N. 2001) lead to the mouth being penetrated by the anus, it does not lead to the anus being penetrated which is required to sustain a conviction for aggravated indecent assault. Therefore, unless there is proof of penetration of the anus, the act of placing one’s lips, tongue, or finger on the anal area constitutes indecent assault, provided that the act was committed for sexual gratification.

Precedent cases in which defendants have been convicted of aggravated indecent assault have involved detailed testimony that penetration, not mere contact, had in fact occurred.

Burns 2009 Pa Super. 260 – The victim woke upon feeling a “poke” in her vagina. (Id. at 53-54.) When asked to be more specific, she described the sensation as “slight penetration.”

Page 2009 Pa Super 20. . . [and] he would put his fingers inside of [her].”

Williams 2008 Pa Super 257 – (defendant touched the inside of her vagina)

 In the Interest of S.R. 2007 Pa Super. 79 – “Later, B.K. testified that L.K. told her more of the details, describing how S.R. used hair gel and put his fingers in her butt.

Kerrigan 2007 Pa Super 63 – A.R. also told Detective Rentko that Kerrigan had “put his private inside where she pees and poops.” N.T. (Trial), 12/08/04, at 261. A.R. further told Detective Rentko that Kerrigan “mov[ed] up and down” when he was inside of her.

Castelhun 2005 Pa Super. 415– ‘J.T. testified at trial, that Castelhun both digitally penetrated her vagina and inserted his penis into her vagina”.

Hunzer 2005 Pa Super. 13 – She further testified that the victim told her appellant had “stuck his finger in my hole and then he licked me down there.”

Filer 2004 Pa Super.70 – “put his one hand down my pants and started fingering me”.  Question – He inserted his fingers into your vagina?”  Answer – Yes.

W.L. 2004 Pa Super 402 – She told Ms. Walker that she had been disciplined by being struck with a belt buckle and that Father had touched her underneath her clothing, “that it hurt, [and] that it happened many times.” Id. at 20. When asked why it hurt, C.B. responded that Father placed his hands “inside of her.”

Delbridge 2001 Pa Super 75 and Delbridge 2002 Pa Supreme – “stuck a finger in LD’s butt”.

In the Interests of A.D. 2001 Pa Super 99. – Further, the statements of the victim indicating that Appellant had done “the same thing as my brother,” who she stated put his “wiener” “in my pee-pee,” was sufficient to establish penetration. Penetration need not reach the vagina or farther reaches of female genitalia. Commonwealth v. Trimble, 615 A.2d 48 (Pa. Super. 1992) (where testimony of five-year old victim that defendant placed his “wiener” in her “tooter” was sufficient to establish
penetration and support a rape conviction).

Kelley 2002 Pa Supreme Court – “Kelley inserted his fingers into her vagina and moved them up and down”.

L.N. 2001 Pa Super. 352 – The Appellant then rolled the victim on his side and put his finger deep inside the child’s anus, causing the victim pain.

Bishop 1999 Pa Super. 292 – “Further, M.B. testified that Appellant put his finger inside her “coo-coo” and “digged down” in it and it hurt.

Fischer 1998 Pa Super. 721 – “According to the victim, appellant forced his hands inside a hole in her jeans and penetrated her with his fingers”.

Knaub 1996 Pa Supreme Court – J.K. testified that Appellant had put his fingers into her vagina while she was in bed. J.K. testified that it hurt her when her father did this, and that it happened every time she visited with Appellant at either his grandmother’s or his sister’s home.

 Precedent cases wherein defendants have been convicted of Indecent Assault – mere contact does not establish penetration.

§3126 Indecent Assault – A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if: (1) the person does so without the complainant’s consent.

§3101 defines indecent contact as “any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.”

Young 2010 Pa Super. 2 – appellant admitted, at the very least, that he permitted the fondling (of genitals) to continue for 30 seconds, and that he was aware that the fondling was for the purpose of arousing the sexual desire of the child complainant. Simply stated, this is a confession to indecent assault, which prohibits indecent contact for the purpose of arousing the sexual desire of either the defendant or the complainant.

Pa v Haught 2008 – “Therefore, the issue at trial would appear to be whether the touching went beyond indecent assault into a penetration of the victim’s vagina required for aggravated indecent assault.”

Pa v Riggle 2008 - The jury found the Appellant guilty of Count 1, Involuntary Deviate Sexual intercourse for placing his mouth on M.B.’s penis; Count 5, Aggravated Indecent Assault, for placing his finger into the anus of M.B.; Count 6, Indecent Assault, for touching M.B’s anus with his finger; Count 7, Indecent assault, for touching M.B’s anus with his penis; Count 8, Indecent Assault, for touching M.B’s. penis with his mouth; Count 10, Corruption of a Minor, for showing M.B. pornographic videos; and Count 15, Indecent Assault, for touching M.B’s. anus with a dildo.

Walker 2008 PA Super. 182 – Upon the conclusion of I.B.’s direct testimony, the trial judge called both counsel to sidebar and stated that I.B. did not testify that penetration occurred during the incident.

In the Interest of M.G. 2007 Pa Super. 27 - R.J. told C.S. that Appellant had touched
R.J.’s pee-pee while they were in the basement.  Appellant reached under D.M.’s towel and touched her “private area.”  Appellant was convicted of indecent assault, not aggravated indecent assault.

Charlton 2006 Pa Super. 149 – In this case, the victim, appellant’s daughter, testified that appellant rubbed his penis against her, touched her vagina, and had sexual intercourse with her on multiple occasions when she was approximately 4½ years old. Appellant was convicted of indecent assault, not aggravated indecent assault.

Lemon 2002 Pa Super. 234 – Appellant photographed her in sexually explicit
positions and touched her breast and vaginal area. Appellant was convicted of
indecent assault, not aggravated indecent assault.

Fisher 2001 Pa Super. 327 – Specifically, at the time of sentencing, the trial court stated that “the facts which are the predicate for the indecent assault charge are the facts which indicate that [Appellant] admitted he rubbed his penis on the buttocks area of [Victim]in this case . . . .”

Ricco 1994 Pa Super. 437 – “Indecent assault” of ten-year-old victim occurred when 41-year-old defendant placed victim’s hand on his genitals.

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