Attorneys decry child molester law

9-16-2007 South Carolina:

AIKEN - It seemed like a good idea: a law that would harshly punish child molesters, especially repeat offenders.

But prosecutors in Aiken County say that since Jessie's Law went into effect last year, the tougher penalties have made getting convictions harder.

Before, accused child molesters would plead guilty more easily, Assistant Solicitor Brenda Brisbin said. That saved victims - often very young children - from having to testify, she said.

But now, defendants often force a trial rather than accept a minimum, mandatory sentence that could put them in prison for 25 years, force them to be tracked by GPS monitoring devices for life or send them to death row.

"When legislators pass these laws, they think they're getting tough on child molesters," Ms. Brisbin said. "That's what they say. But in reality, they're making it more difficult to get convictions on child molesters. We don't want them passing these laws."

In effect since July 1, 2006, Jessie's Law was named for Jessica Lunsford, who was murdered in 2005 in Florida by a convicted sex offender.

It increased the minimum sentence for someone convicted of raping a child younger than 11 to 25 years to life in prison, up from at most 30 years behind bars. Offenders convicted more than once of raping a child younger than 11 can face the death penalty.

People convicted of committing lewd acts on a minor are monitored by GPS for the rest of their lives, and sex offenders have to register twice a year.

Ms. Brisbin said her proof of how the law has affected her cases comes from what defense attorneys tell her.

"I don't have any record of people who say, 'I'm not going to plea because I don't want to wear a GPS device for life.' But we hear that all the time from defense attorneys," she said.

It's the same for people facing a minimum of 25 years in prison or the death penalty, she said.

Even defense attorneys don't like that provision.

"It's a bad thing," said Aiken's chief public defender, Wallis Alves.

If a client was accused of criminal sexual conduct with a minor before, she said, defense attorneys could work out a plea deal with prosecutors to get the charges dropped to committing a lewd act on a minor.

That would be difficult now that the client would have to wear a GPS tracking device for life, she said.

"The clients may not be willing to do that," Ms. Alves said.

She said she's OK with other provisions in Jessie's Law - the mistake of age section and the "Romeo" clause, which is meant to protect teens having sex with other teens.

She said she hasn't had one of her cases reach the point where Jessie's Law will affect her defense. But when that happens, she said, it will likely cause her some heartburn.

"Victims didn't have to come to court and testify" with plea bargains, she said. "Not everybody was happy, but now we can't do that."

Ms. Brisbin said that ideally, she would always have enough evidence to guarantee a conviction. But she says it often comes down to what the child says and what the accused says.

"People seldom molest children in front of witnesses," she said. "That is the reality of child molestation. Fondling a child does not result in physical evidence. All you've got is a 5-year-old's word for it. And juries will not convict based on a 5-year-old's word."

Ms. Brisbin said that instead of increasing penalties for sex crimes, legislators should ask prosecutors what would really help them secure convictions: the ability to tell the jury when someone has a prior sexual assault conviction.

That's not permissible in South Carolina, she said, though other states allow it and it's a federal rule of evidence that hasn't been adopted by South Carolina.

Ms. Brisbin isn't convinced the harsher penalties will deter child molesters.

Statistics show most children don't report the abuse right away, if at all, she said, and most children are abused by family members.

That's why she also doesn't put much faith in sex offender registries.

"It provides a very false sense of security for people," she said, "because the fact is, few children are molested by the stranger down the street." ..more.. by Sandi Martin| South Carolina Bureau Chief