5-18-2009 Rhode Island:
More than 90 convicted sex offenders listed on Rhode Island’s public notification Web site are considered a high risk to re-offend.
Those who are now monitored using a global positioning system that tracks movements with regular updates by satellite signal? One.
State law authorizes the state Sex Offender Review Board to decide if and how to supervise high-risk offenders. But the board’s options are governed by when the crimes were committed, leaving offenders who committed similar crimes monitored by different systems.
The issue of how offenders are monitored has gotten renewed focus this legislative session as lawmakers have attempted to increase GPS monitoring for offenders who are appealing their risk classification.
Most offenders are supervised by means other than GPS — such as an ankle bracelet that verifies through a radio-frequency system that an offender stays in an authorized location, usually on home confinement, but, if the offender leaves, the GPS does not track that person. Instead, it issues an alert to authorities if the person is in violation.
Still others are watched through in-person monitoring by corrections authorities that is meant to be intensive though not constant.
But the list of high-risk offenders also includes those whose crimes predate the law, requiring no supervision if their sentences have ended.
Meanwhile, with the state’s passage of a version of the national Jessica Lunsford Act, offenders convicted on or after Jan. 1, 2007, of first-degree child molestation are required to be monitored for the rest of their lives by GPS once their sentences end.
Those on the public notification Web site listed as high risk include 30 offenders who have second-degree child molestation convictions, 18 with first-degree child molestation convictions, 20 with first-degree sexual assault convictions and 20 with second-degree sexual assault convictions. Some have more than one of those convictions.
The only high-risk offender now monitored by GPS is Richard Smith, of Providence, according to Department of Corrections spokeswoman Ellen Evans Alexander. According to the state court system Web site, Smith, 43, was convicted of second-degree child molestation in 1990 and again in 2002. His probation sentence for the second conviction expired in October.
Under his second conviction, Smith was subject to community supervision and authorities decided on GPS monitoring.
The state ranks registered sex offenders in three tiers. Level III is for those considered the highest risk of re-offense and requires public notifications. Level II also requires public notification. Level I offenders are deemed low risk and there is no public notification.
To assess risk level, the Sex Offender Board of Review looks at each case, assessing an “actuarial risk score,” degree of violence, “degree of sexual intrusion,” characteristics of their victims such as number, age, vulnerability and prior history of crime and sexual aggression.
Many of the most serious offenders are appealing in Superior Court to lower their classification and therefore not meet the public notification requirement, former state Parole Board Chairwoman Lisa S. Holley testified before the House Judiciary Committee in April. During the appeals process, offenders, even those considered Level III, are exempt from community notification, including appearing on the Web site. Holley testified that some appeals have taken up to two years.
Rep. Peter Palumbo, D-Cranston, has sponsored a bill to require sex offenders to wear GPS devices while appealing their risk level. The proposal drew objections from the Rhode Island Affiliate of the American Civil Liberties Union, which testified in legislative committee hearings.
Palumbo’s bill and similar legislation have been tabled in committee.
Even as policymakers debate to whom GPS monitoring should apply, the state is in the midst of choosing the company that will provide the monitoring technology. Eight companies submitted bids. BI Inc., a Colorado-based company, currently supplies the GPS service to the state Corrections Department. BI is one of the bidders.
The choice may prove important as the list of those monitored by GPS is expected to grow significantly in the Jessica Lunsford Act era. ..News Source.. by Michael P. McKinney
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May 18, 2009
5-18-2009 Rhode Island:
AUSTIN — Some state lawmakers want to tweak how Texas deals with sex offenders, sparking a thorny debate over how to strike the right balance between protecting children and allowing low-risk offenders to avoid a lifetime of shame.
Bills this session would regulate how sex offenders use the Internet, bar them from certain jobs and require homeless offenders to report regularly to law enforcement agencies.
There is also a pushback of sorts from those who feel that the current laws may go too far.
Rep. Todd Smith, R-Euless, filed what he has called his "teenage lovers bill" in March. The bill would let defendants petition a judge to exempt them as a registered sex offender under a strict set of circumstances: the age-based offense was consensual, the victim is at least 13 years old and the defendant is no more than four years older than the victim.
Smith’s bill first met some resistance. After he and other supporters made it clear that it would not stop convicted offenders from being punished for their crimes, the bill passed the House nearly unanimously and is now awaiting a vote in the Senate.
Democratic Rep. Chris Turner of Arlington was among a handful of members who voted against the bill.
"If a 17-year-old has an inappropriate relationship with a 13-year-old, I was concerned about the consequences of relaxing those restrictions," Turner said.
The overall impact of Smith’s bill would likely be minimal, said Sgt. Cheryl Johnson, head of the Fort Worth Police Department sex crimes unit. About 1,400 people in Fort Worth are on the sex offender registry. Smith’s bill would likely allow fewer than 10 of them to petition to get off the list, she said.
"A lot of the cases that we see that are truly 'Romeo and Juliet,’ there’s usually more than a four-year difference," said Johnson, who added that she wasn’t opposed to the bill.
Texas began requiring sex offenders to register in 1991. In recent years, lawmakers have beefed up the restrictions and surveillance.
Phillip Taylor, a Dallas therapist who has treated sex offenders, questions the value of closely monitoring low-risk sex offenders.
"The assumption seems to be that there’s a zero-sum game and any law that makes things more difficult for someone who is labeled a sex offender somehow benefits society or benefits the victim," Taylor said. "It’s an odd notion."
This legislative session, groups such as San Antonio-based Texas Voices, which supports Smith’s bill, have been out in force at committee hearings advocating for changing the laws to put less of a burden on low-risk offenders.
Allison Taylor, executive director of the Council on Sex Offender Treatment, has said that she would like to see the state switch to "risk-based registration" that takes into account that not everyone on the registry is a child predator.
A Parker County woman is among many relatives of registered sex offenders watching how the Legislature alters the offender tracking system. She asked that her name not be used to avoid drawing attention to her son’s placement on the registry. Under current law, he will be on the registry for life after being convicted of two counts of indecency with a child for relationships he had with two teenage girls when he was 19.
She said the burden of having a relative on the registry, especially the distance requirements from places children gather, falls on the whole family.
"If he’s with me, I have to stop and think about everything I do," she said. "He can’t go to McDonald’s."
She said she hopes lawmakers consider whether everyone on the list should be treated as a threat to children.
"I’m not proud of what he did, but for him to pay the rest of his life is ridiculous," she said. "He’s not a child molester."
Tom Gaylor with the Texas Municipal Police Association said the support for Smith’s bill has affected the debate on some bills focused on high-risk offenders.
"From a law enforcement standpoint, I think the message is getting a little muddied," Gaylor he said. "Law enforcement isn’t interested in tracking someone who is a Romeo and Juliet case. We want to know about the predators."
Gaylor pointed to an effort by Rep. Tan Parker, R-Flower Mound, to require sex offenders with victims 14 or younger to have RSO (short for "Registered Sex Offender") printed on the back of their driver’s license for 20 years.
He said it would help police in various situations when they cannot easily look up whether a person is on the registry.
Parker proposed the measure as an amendment to another bill last week. Some lawmakers questioned whether the bill would improve public safety or make life more difficult for sex offenders.
"One of the next steps I suppose is maybe we ought to tattoo these people," said Rep. Harold Dutton, D-Houston. "Therefore everyone would know who they are, and that’s what frightens me about this. Sometimes I think government reaches too far, and I think this is one of those times."
The amendment failed. Parker said he wasn’t sure whether all members understood whom the bill targeted and how it would aid police and other groups.
"The bill would specifically focus on the child predators, not the Romeo-and-Juliet-type cases," Parker said. "It’s certainly a critical issue."
Sex offender bills SB 492: Would ban sex offenders from working as emergency medical service personnel. From Sen. Jane Nelson, R-Flower Mound
Status: Passed Senate, in House
SB 689: Would require sex offenders to register their e-mail addresses, Internet accounts and cellphone numbers with law enforcement. From Sen. Florence Shapiro, R-Plano
Status: Passed Senate, in House
SB 1181: Would bar amusement parks from hiring anyone convicted of a sexual offense. From Sen. Dan Patrick, R-Houston
Status: Passed Senate, in House
HB 2153: Would require sex offenders who are homeless to provide a geographic location for their address and report to local law enforcement every two weeks. From Rep. Chris Turner, D-Arlington
Status: Passed House, in Senate
Source: www.legis.state.tx.us ..News Source.. by AMAN BATHEJA
Your family photos could get you arrested. Just ask one New Jersey grandmother.
Three-year-old Sarah M. is either a toddler in her birthday suit playing in the garden, or a nude temptress with a sultry look who requires protection from the culprits who took this photograph -- her doting parents.
This is the fix we're in, now that computers have opened the barn door on kiddie porn. The FBI has issued blanket requests to photo processing labs and computer repair shops in some cities to be on the lookout for pictures of kids in compromising positions, urging them to call the authorities whether they're sure or not about a picture's legality. The big national chains that have photo processing labs -- Costco, CVS, Rite-Aid, and Wal-Mart -- have company policies that compel them to notify the police about any criminal activity they see in customers' photos. And when children are involved, they're more than willing to err on the side of caution.
"You can't have a blanket set of guidelines because pictures are subject to interpretation based on community standards," says Mike DeAngelis, a spokesman for CVS Pharmacy, with about 5,400 outlets nationwide. "But the store managers know it's up to law enforcement to decide what's criminal."
Tragically for a number of people all over the country, innocent family photos turned over to the police have led to financial ruin, divorce, debt, public humiliation, and lifelong scorn as a registered sex offender for mothers and fathers.
Some cases involved pictures much less provocative than Sarah M.'s. Based on the way prosecutors interpreted photos in a few of those cases -- Marian Rubin, a New Jersey grandmother charged for taking nude photos of her granddaughters, then aged 3 and 8; and Jeffrey B., a New York father who lost custody of his two daughters after he shot pictures of them mooning him -- it's possible to spot red flags where our innocence used to be.
Here's how a zealous prosecutor could view Sarah M.'s picture: Smoldering eyes; styled, tousled blond tresses; pouty, parted lips; splayed legs; an engorged navel. And that viscous liquid dripping from the wand onto her thigh? Money shot.
A blurry line
Just because they didn't shoot the picture for the purpose of sexual stimulation doesn't mean parents who just want to document their child's garden years can't get stuck in the sordid world of pedophilia.
Since there have been documented instances where photo lab employees have kept copies of sexually explicit pictures that were dropped off for development or printing, including from digital sources, imaginative authorities believe that it's possible for child pornography to be inadvertently made and unknowingly distributed. (Adult porn isn't illegal unless it's found to be obscene.)
This has led to a more proactive, better-safe-than-sorry approach to snooping into people's photo archives, which gives civil libertarians the jitters.
The claim has been made that we all have to view innocent photos through the eyes of a pedophile, for the good of the children. But, attorney Andrew McCullough argued before the Utah Supreme Court in a case involving allegedly arousing pictures of underage children, "lots of things are innocent enough and can be misused, but you can't be responsible for everybody's thoughts."
And in Honolulu, after the local FBI office started contacting computer repair shops about what they should be on the lookout for inside customers' computers, the ACLU Hawaii's executive director, Vanessa Chong, was quoted as saying that the G-men's fishing expedition "needlessly violates the privacy rights of honest consumers to find the guilty few."
The question of whether you surrender privacy rights when you hand over a computer full of personal information to a repair shop is still open. Cops say they're sensitive to these issues. Photo labs and computer repair shops "haven't sent us anything that wasn't clearly child pornography, or could reasonably be suspected," remarks Lt. C.L. Williams, in charge of the Crimes Against Children unit of the Dallas, TX, police department.
Lt. Williams acknowledges that there's a gray area when it comes to interpreting photos of children, and often the kids are taking pictures of each other without their parents' knowledge. His unit frequently determines that pictures referred to them are innocent artistic or family photos, "but there's very little artistic value in a crotch shot of a 6-year-old girl." He says his investigators are now seeing pictures of penetration on 2-year-olds.
"We're not trying to pry into people's lives," he says. "I wouldn't want the government sticking its nose into my photography, and I don't want to be the one doing it to someone else. But when a picture crosses the line into child abuse, then it's my business." ..News Source.. by Neal Matthews
WV- 'Sex offender' at Concord was merely a streaker: Imprecise categories on Pennsylvania Registry causes misunderstanding
Concord University has a registered sex offender on the faculty, college officials confirmed Tuesday — but he’s actually just a streaker. James Edward Parker, 58, is listed on the Pennsylvania sex offender registry as having committed “indecent assault,” defined as sexual touching of a child under 13. But when Concord officials started looking into the matter, they discovered that their new hire had actually streaked through a park more than a decade ago, said Dean Turner, Concord’s academic dean.
Parker later moved to Pennsylvania, and because of his streaker past was required to register as a sex offender. But the closest thing Pennsylvania’s registry had to “indecent exposure” was the much grimmer “indecent assault,” Turner said. “He tried to get that changed for a long period of time,” Turner said. “But the State Police weren’t willing to do that. His employment was, in at least one instance, impacted by that.”
Secrecy has surrounded the story at Concord. At first, when Parker was hired in August, university officials didn’t know he was listed as a sex offender. Concord’s faculty employment application doesn’t ask. But “when he arrived in our part of the country, he went to the State Police and registered” as a sex offender, “as he is supposed to do,” Turner said. “The State Police notified our security department.”
Concord officials still didn’t know they were dealing with a streaker rather than a child molester. Their lawyer advised them that since Parker hadn’t misrepresented himself, they had no cause to fire him. Turner is still cautious when he talks about the matter, because laws protect registered sex offenders from harassment. “From what we understood, he didn’t seem to be a threat to the community, and the appropriate people in the community had been notified,” Turner said. That was the end of that, for a while. But the story was getting around. ..News Source.. by TARA TUCKWILLER
A Minnesota man must register as a sex offender even though he has not been convicted of a sex crime, the federal appeals court in St. Louis ruled yesterday. That ruling "turns reason and fairness on its head," wrote Judge C. Arlen Beam, who nonetheless concurred in the unanimous decision of the three-judge panel of the court.
The case arose from an encounter in a bar in 1998. Brian Gunderson went home with a woman he met there and, according to her, assaulted and raped her. He was charged two days later with sexual assault.
But the physical evidence collected by the police did not support the woman's accusation of rape. Judge Beam wrote, "The police investigation clearly established a lack of sexual contact between Mr. Gunderson and the complaining woman."
The original criminal complaint was dropped, and Mr. Gunderson pleaded guilty to a new one charging him with assault. He received a 15-month suspended sentence and three years of probation.
State officials later told Mr. Gunderson that he must register as a sex offender under a state law that requires it whenever someone is convicted of a sexual offense "or another offense arising out of the same set of circumstances."
Mr. Gunderson complied, providing the state with fingerprints, a photograph and information about his residence, employer and car. He also sued, saying that making him register violated his constitutional rights. Lower courts ruled against him, and yesterday the United States Court of Appeals for the Eighth Circuit agreed.
The Eighth Circuit said it was bound by a 1999 decision by the Minnesota Supreme Court in which a defendant charged with a sex crime was required to register after pleading guilty to a lesser charge. The federal court also held that including people who are not sexual predators in a registry of sex offenders does not violate their fundamental constitutional rights.
Yesterday's decision also discounted the harm registration would cause to Mr. Gunderson's reputation, noting that the Minnesota registry is used for law enforcement purposes and is typically not available to the public. But if Mr. Gunderson does not update his address in the registry, information about him may be released to the public.
Bradford Colbert, Mr. Gunderson's lawyer, said yesterday's decision was troubling.
"It flies in the face of everything we believe in: the presumption of innocence, the right to trial by jury," Mr. Colbert said.
Mr. Colbert added that his client had no way to clear his name, saying, "He's had no chance to prove his innocence, much less to have the state prove his guilt."
The appeals court judges appeared sympathetic to Mr. Gunderson even as they ruled against him.
"We acknowledge the statute may lead to unfair results in some cases," Judge Kermit E. Bye wrote. "We note, for example, the statute would require registration of a person accused of both a predatory offense and a nonpredatory offense arising out of the same set of circumstances who exercised his right to a trial and was acquitted of the predatory offense but convicted on the nonpredatory one."
"While perhaps unfair," Judge Bye added, "under the precedents we must apply, we discern no constitutional impediment to the Legislature's decision." ..News Source.. by NY Times
NASHVILLE, Tenn. An 18-year-old dad-to-be is being listed as a sexual abuser by the Department of Children's Services because his girlfriend was 13 when he married her out of state. Robert Benjamin Martin could be charged with statutory rape under Tennessee law because it is a crime for someone to have sex with a person under age 16 if there is at least a four-year age difference.
The children's protective agency views Martin as a sex offender and his girlfriend, Chastity Long, as a victim. The state claims the two began having sex when she was 12. Chastity's mother, Tonya Long, contends the couple are in love and it violates her religious rights as a Christian to prevent her from having them married. Chastity is now eight months' pregnant.
On October eighth, Long's husband took the couple to Mississippi, where minors can marry with their parents' permission, and they were wed. However, D-C-S said it took legal custody of Chastity on October sixth, and has questioned the validity of the marriage. ..News Source.. by WVLT TV
Wisconsin: The Law
Wisconsin's child abuse law makes it a felony for anyone to engage in sexual activity with someone younger than 16. It applies to consensual sex, even between teens of the same age.
Last summer, when she was made pregnant by her boyfriend at age 15, Sarah, a shy girl with a pretty face, went to a clinic with her mother for consultation.
As they left the Racine clinic with blankets and booties, neither had any idea that three weeks later, an investigator from Racine County Child Protective Services would show up on their doorstep.
To their horror, they say, the investigator spent a month interrogating Sarah and her mother about Sarah's sexual relationship with her 15-year-old boyfriend of two years.
The investigator's ruling: Sarah would be charged with sexual assault and prosecuted in juvenile court for having sex with a minor. Her boyfriend would be charged, too.
"I didn't know what to say," Sarah, whose name has been changed because she's a minor, said in a recent interview as she sat on her living room couch clutching her newborn son. "I had no idea how this was happening."
Sarah and her mom didn't know that Wisconsin's child abuse law, which makes it a felony for anyone to engage in sexual activity with someone younger than 16, applies to consensual sex between teenagers. And it applies even in cases like Sarah's, where the sexual partners are the same age. Sex with teenagers ages 16 to 18 is a misdemeanor.
Under a separate law, teachers, school counselors, social workers and doctors and other health care providers are required to report sexually active adolescents to county child protective services offices. Those who fail to report can be fined up to $1,000, face jail time or both.
Through mandatory reporting, hundreds - perhaps thousands - of teenagers are being referred each year in Wisconsin to child protective services for having consensual sex with other teenagers, officials say.
A growing number of those teens are being prosecuted for sexual assault, though state and county statistics don't differentiate between sexual assaults involving consensual and non-consensual sex, the officials say. Among them are teenage girls who were once viewed only as victims.
In Racine County alone, an estimated 200 sexual assault referrals involving consensual teenage sex were reported last year to the child protective services agency, said Kittie Milkie, the agency's supervisor. More than a dozen of those, including ones involving same-age couples, were prosecuted, she said.
"It used to be that mostly boys were apprehended," Milkie said. "The idea was that the girls had suffered enough, especially if they were pregnant. Today both the boy and the girl are being prosecuted in an effort to be more equitable."
Not all are prosecuted
Prosecutors and workers in child protective services say only teenagers who pose problems to their families or schools are being prosecuted for having consensual sex with partners of similar ages.
They argue that during six months of court supervision - the typical sentence imposed - the teens are able to receive counseling, have curfews and school attendance enforced, have mandatory separation from their sexual partners and get other services they need. In many cases, prosecutors say, parents are pushing for prosecutions as a way to control their children.
That's what happened last summer in Milwaukee County. When an Oak Creek woman found her 14-year-old daughter nude in the woman's bed with a 14-year-old boy, and the teens were flippant, she called police.
"The parents were begging for us to intervene and get help for the teens," said Lori Kornblum, an assistant district attorney in Milwaukee County. She says the DA's office "gets a huge number of referrals" of sexual assault cases involving teens who have had consensual sex. Of those, "some, perhaps one or two a month," are prosecuted, she said.
But critics say Wisconsin's child abuse law, one of the broadest in the nation, has spun out of control. Instead of protecting children from older predators, as intended, they say, it's being used to ensnarl teenagers who engage in consensual sex - a disproportionate number of them from low-income families who are identified while seeking public assistance - into a system that unfairly brands them rapists.
Never before in trouble
Sarah had never been in trouble with the law or at school before, she and her mother said. Now she's serving six months of supervision under a consent decree after admitting to sexual assault in January. Throughout her pregnancy, she says, she was forced to have no contact with her boyfriend. Only in recent weeks have visitation rights been established.
"Prosecuting these kids is a disservice to teenagers and the system," said Adrienne Moore, an attorney with the Racine public defender's office who represents juveniles. "Throughout history, kids have been experimenting with sex. It's not criminal. And charging them won't change it. All it does is clog the system."
The worst part, Moore says, is that the teenagers she sees don't know that it is illegal for them to have sex or that it is mandatory for teachers, counselors and others to report them, and that, in the worst-case scenario, they could land in detention centers, jail or foster homes.
Few have any idea that if they were prosecuted as adults they could be required to register with the state's list of sex offenders. That was what happened to Kevin Gillson, an 18-year-old from Port Washington who was prosecuted in 1998 as an adult for having sex with his 15-year-old girlfriend after she became pregnant. The judge sentenced Gillson to two years of probation.
Since then, the Legislature has passed a law allowing judges to waive the sex offender registration requirement for teens who are convicted of having non-forcible sex with a minor who is no more than four years younger or older than the offender.
Critics say similar age-specific exceptions should be added to Wisconsin's child abuse law.
In most states, child abuse laws specify that there must be an age gap of at least three years between teens 13 or older in consensual sexual relationships in order for the older partner to be subject to prosecution, said Eva Klain, a project director at the American Bar Association's Center on Children and the Law in Washington, D.C.
Kittie Smith, a planning analyst in the violence against women program with Wisconsin's Office of Justice Assistance, says that in recent years, she has received an increasing number of calls from district attorneys who are confused about how to deal with sexual assault referrals that involve teens of similar ages.
As district attorneys and child protective services workers struggle with how to apply the law, Sarah's mom says it's important for schools to inform students of what can happen if they're caught being sexually active.
"They teach them in school about condoms and other birth control," her mother said. "No one says that if they do have sex they could be charged."
..News Source.. by MEGAN TWOHEY
State police have charged a 15-year-old Latrobe girl with child pornography for taking photos of herself and posting them on the Internet.
Police said the girl, whose identity they withheld, photographed herself in various states of undress and performing a variety of sexual acts. She then sent the photos to people she met in chat rooms.
A police report did not say how police learned about the girl. They found dozens of pictures of her on her computer.
She has been charged with sexual abuse of children, possession of child pornography and dissemination of child pornography.
Police said they are trying to identify all the people who receive photos from the girl. ..News Source.. by Pittsburgh Post-Gazette
Two Northside High School girls who took nude pictures of themselves and e-mailed them to their boyfriends last year said they only did it to be flirtatious. It wasn't long before they realized the consequences: loss of friends, no more school activities, seeing themselves on Internet sites and felony charges.
By the time the girls faced Roanoke County Juvenile and Domestic Relations Judge Philip Trompeter on Thursday, all joking was aside. "You were degrading and hurting yourselves doing this," Trompeter told them. Both 16-year-olds were charged with production and dissemination of child pornography. ..News Source.. by Roanoake Times
BANGOR — A former kitchen worker at the Penobscot County Jail has been ordered to spend 30 days behind bars for having sex with an inmate. Dawn Chambers, 44, pleaded guilty Thursday in Penobscot County Superior Court to one count of gross sexual assault. She admitted that she had sex on two occasions last winter with a 27-year-old inmate who was under her supervision in the kitchen.
Accepting the prosecution's recommendation, Justice Kirk Studstrup sentenced Chambers to two years in prison with all but 30 days suspended, along with one year of probation following her release. Because it is a felony in Maine for jail or prison employees to have sex with inmates, even if the inmate consents, Chambers also will have to register as a sex offender for 10 years.
The victim, now serving nine months at the Maine Correctional Center for a probation violation, urged the judge to give Chambers a longer jail term. "She made advances to me and brought in drugs," he said. "The same drug I had used (before going back to jail)." ..News Source.. by Maine Today
Fitzroy Barnaby said he had to swerve to avoid hitting the 14-year-old Des Plaines girl who walked in front of his car. She said he yelled, "Come here, little girl," before getting out of his car and grabbing her by the arm. He said he simply lectured her. She said she broke free and ran, fearful of what he'd do next. In a Thursday ruling, the Appellate Court of Illinois said the 28-year-old Evanston man must register as a sex offender.
While acknowledging it might be "unfair for [Barnaby] to suffer the stigmatization of being labeled a sex offender when his crime was not sexually motivated," the court said his actions are the type that are "often a precursor" to a child being abducted or molested. Though Barnaby was acquitted of attempted kidnapping and child abduction charges stemming from the November 2002 incident, he was convicted of unlawful restraint of a minor -- which is a sex offense.
'Most stupid ruling'
Now, he will have to tell local police where he lives and won't be able to live near a park or school. "This is the most stupid ruling the appellate court has rendered in years," said Barnaby's Chicago attorney, Frederick Cohn. "If you see a 15-year-old beating up your 8-year-old and you grab that kid's hand and are found guilty of unlawful restraint, do you now have to register as a sex offender?"
But Cook County state's attorney spokesman Tom Stanton said Barnaby should have to register "because of the proclivity of offenders who restrain children to also commit sex acts or other crimes against them." In the criminal case against him, Cook County Judge Patrick Morse said that "it's more likely than not" Barnaby planned only "to chastise the girl" when he grabbed her, but "I can't read his mind."
"I don't really see the purpose of registration in this case. I really don't," Morse said. "But I feel that I am constrained by the statute." Recognizing the stigma that comes with being labeled as a sex offender, the appellate court said "it is [Barnaby's] actions which have caused him to be stigmatized, not the courts." ..News Source.. by STEVE PATTERSON Staff Reporter
SALT LAKE CITY (AP) The Utah Court of Appeals is upholding a judge's refusal to dismiss a sexual abuse allegation against a 13-year-old Ogden girl who became pregnant by her 12-year-old boyfriend.
The appeals court on Friday ruled that the law's ``rigorous protections'' for younger minors include protecting them from each other.
The decision leaves the teens in the position of each being both a victim and a perpetrator in the same offense.
``The Legislature certainly may act to protect the health and safety of children, and may more vigorously protect those of more tender years,'' Judge Gregory Orme wrote for a three-member panel of the court, which made its decision ``with some reluctance.''
The girl's Ogden attorneys, Randall Richards and Dee Smith, are considering an appeal to the Utah Supreme Court.
Richards pointed out that Utah law says minors under age 14 do not have the ability to consent to sexual activity.
``It's a paradox,'' he said. ``How can they be old enough to commit an offense if they're not old enough to consent to it?''
According to the court decision, the girl became pregnant after she and the boy had sex in October 2003.
State authorities filed delinquency petitions in July 2004, alleging each committed sexual abuse of a child, a second-degree felony if committed by an adult.
The girl appealed the petition, saying her constitutional right to be treated equally under the law had been violated.
Her motion noted that for juveniles who are 16 and 17, having sex with others in their own age group does not qualify as a crime.
Juveniles who are 14 or 15 and have sex with peers can be charged with unlawful conduct with a minor but the law provides for mitigation when the age difference is less than four years, making the offense a misdemeanor.
For adolescents under 14, though, there are no exceptions or mitigation and they are never considered capable of consenting to sex.
A juvenile court judge, although sympathetic to the situation, denied the motion. The girl then admitted to the offense while preserving her right to appeal to a higher court. The boy did not appeal.
The judge ordered the young mother to write a report about the effect of her actions on herself and her baby, to obey the reasonable requests of her parents, to remain under the supervision of the state Division of Child and Family Services, to refrain from unsupervised contact with the baby's father and to provide a DNA sample.
If the girl commits a crime when she is an adult, her juvenile record will make it more likely that she will go to prison and could increase the length of her sentence, Richards said. There is also an emotional toll of knowing she has a sexual abuse conviction, he said.
But the Court of Appeals said lawmakers can constitutionally give greater protection to younger juveniles.
``The Legislature is well within its rights to come down solidly against sexual activity with children of such tender years - anywhere, anytime, any place, and by anyone. . . . And we cannot say such strict treatment does not also rationally further those purposes by strongly discouraging any sexual conduct involving children.'' ..News Source.. by AP
WAYLAND (NEWS 3) - It may have started as a prank, but police in Wayland have another name for Ryan Zylstra's decision to take pictures of classmates having sex: a felony.
The 17-year old was arrested and charged with manufacturing, distributing, and using a computer for child pornography.
Investigators say the trouble began New Year's Eve. Zylstra began taking pictures during a party at his Wayland home. Among the snapshots was a photo of two classmates having sex. Police say the Wayland Union High School senior then posted the picture on a website.
"Some of these photographs or printed pictures were passed around during the lunch break at Wayland High School," Police Chief Dan Miller told News 3. "In talking through, some of the students actually thought it was kind of a joke originally," said Smith.
But police aren't laughing. They say the mother of the 16-year-old girl caught on camera says her daughter tried killing herself after learning the picture became public.
And, police say because both teens in the picture were under 18, the photo constitutes child pornography. "I don't really relish, like the fact that my daughter’s in the same school with someone like this. Even though it's a prank, it's a serious prank," Smith said.
But around Wayland, reaction to the charges is mixed.
"He put pictures that shouldn't have been on there, but people should be allowed to put any pictures on there," said Josh Jones, a freshman at Wayland High.
Ashlie Hollis, a 2003 Wayland graduate, feels no pity for Zylstra. "He hurt somebody and he basically disgraced her. I mean, that's horrible. You don't do that to somebody," Hollis said.
Meanwhile, the police chief hopes this case serves as a warning to parents. "If they see them on the computer, ask them what they're doing. If they've heard of these other websites, these blogs or whatever, ask them what they're putting on or make them show them what they're putting on," said Miller.
Zylstra is free on bail. He's scheduled to appear before a judge next month. ..News Source.. by Scott Noll, News 3 Reporter
Teen put sex pics of friends online, police say
WAYLAND -- A Wayland Union High School student faces three felony charges for allegedly taking photographs of two juveniles having sex, posting them from the Internet and linking to them from the popular Xanga web site, allegedly prompting a student in the photos to attempt suicide. Ryan Andrew Zylstra, 17, has been arrested on charges of manufacturing child pornography, distributing child pornography and use of a computer for child pornography.
Wayland Police say Zylstra took photos of a male teen and female teen "engaged in sexual activity" at Zylstra's home on New Year's Eve. Police say Zylstra linked to the photos from his blog site on Xanga, and students printed the photos and passed them out at school on Jan. 3, the day students returned after the holiday break. According to the police report, the mother of the girl in the photos said her daughter came home from school and attempted suicide because of her embarrassment.
The mother reported the incident to police Jan. 16, and police confiscated two computers from Zylstra's home. Police sought a warrant and Zylstra turned himself in Wednesday evening. He is to be arraigned March 6 in Allegan District Court. The Xanga site has been at the center of controversy recently elsewhere in West Michigan. Twenty East Grand Rapids High School students were suspended from extra-curricular activities for two weeks after photos of them drinking alcohol were posted on various Internet blog sites, including Xanga. ..Source.. by Jean Gallup, The Grand Rapids Press
What: Teenagers taking risque photos of themselves are prosecuted for violating child pornography laws.
When: Florida state appeals court rules on January 19.
Outcome: A 2-1 majority upholds conviction on grounds the girl produced a photograph featuring the sexual conduct of a child.
What happened, according to court documents:
Combine unsupervised teenagers, digital cameras and e-mail, and, given sufficient time, you'll end up with risque photographs on a computer somewhere.
There's a problem with that: Technically, those images constitute child pornography. That's what 16-year-old Amber and 17-year-old Jeremy, her boyfriend, both residents of the Tallahassee, Fla., area, learned firsthand. (Court documents include only their initials, A.H. and J.G.W., so we're using these pseudonyms to make this story a little easier to read.)
On March 25, 2004, Amber and Jeremy took digital photos of themselves naked and engaged in unspecified "sexual behavior." The two sent the photos from a computer at Amber's house to Jeremy's personal e-mail address. Neither teen showed the photographs to anyone else.
Court records don't say exactly what happened next--perhaps the parents wanted to end the relationship and raised the alarm--but somehow Florida police learned about the photos.
Amber and Jeremy were arrested. Each was charged with producing, directing or promoting a photograph featuring the sexual conduct of a child. Based on the contents of his e-mail account, Jeremy was charged with an extra count of possession of child pornography.
Some more background: Under a 1995 ruling in a case called B.B. v. State, the Florida Supreme Court said that a 16-year-old could not be found delinquent for having sex with another 16-year-old.
"The crux of the state's interest in an adult-minor situation is the prevention of exploitation of the minor by the adult," the majority said at the time. The court ruled that a Florida statute punishing sex between teens was "unconstitutional as applied to this 16-year-old as a basis for a delinquency proceeding."
The same applies to Amber and Jeremy. Even though he is a year older than her, he is still a minor in Florida.
In other words, under Florida law, Amber and Jeremy would be legally permitted to engage in carnal relations, but they're criminals if they document it.
Amber's attorney claimed that the right to privacy protected by the Florida Constitution shielded the teen from prosecution, an argument that a trial judge rejected. Amber pleaded no contest to the charges and was placed on probation, though she reserved her right to appeal her constitutional claim.
By a 2-1 vote, the appeals court didn't buy it. Judge James Wolf, a former prosecutor, wrote the majority opinion.
Wolf speculated that Amber and Jeremy could have ended up selling the photos to child pornographers ("one motive for revealing the photos is profit") or showing the images to their friends. He claimed that Amber had neither the "foresight or maturity" to make a reasonable estimation of the risks on her own. And he said that transferring the images from a digital camera to a PC created innumerable problems: "The two computers (can) be hacked."
Judge Philip Padovano dissented. He wrote that the law "was designed to protect children from abuse by others, but it was used in this case to punish a child for her own mistake. In my view, the application of this criminal statute to the conduct at issue violates the child's right to privacy under Article 1, Section 23 of the Florida Constitution."
Excerpt from Wolf's majority opinion:
As previously stated, the reasonable expectation that the material will ultimately be disseminated is by itself a compelling state interest for preventing the production of this material. In addition, the statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment...
Appellant was simply too young to make an intelligent decision about engaging in sexual conduct and memorializing it. Mere production of these videos or pictures may also result in psychological trauma to the teenagers involved.
Further, if these pictures are ultimately released, future damage may be done to these minors' careers or personal lives. These children are not mature enough to make rational decisions concerning all the possible negative implications of producing these videos.
In addition, the two defendants placed the photos on a computer and then, using the Internet, transferred them to another computer. Not only can the two computers be hacked, but by transferring the photos using the Net, the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information which may then be disseminated at some later date. The state has a compelling interest in seeing that material which will have such negative consequences is never produced.
Excerpt from Padovano's dissent:
If a minor cannot be criminally prosecuted for having sex with another minor, as the court held in B.B., it follows that a minor cannot be criminally prosecuted for taking a picture of herself having sex with another minor. Although I do not condone the child's conduct in this case, I cannot deny that it is private conduct. Because there is no evidence that the child intended to show the photographs to third parties, they are as private as the act they depict...
The majority concludes that the child in this case did not have a reasonable expectation that the photographs would remain private. To support this conclusion, the majority speculates about the many ways in which the photographs might have been revealed to others. The e-mail transmission might have been intercepted. The relationship might have ended badly. The boyfriend might have wanted to show the photo to someone else to brag about his sexual conquest. With all due respect, I think these arguments are beside the point. Certainly there are circumstances in which the photos might have been revealed unintentionally to third parties, but that would always be the case.
That the Internet is easily hacked, as the majority says, is not material. The issue is whether the child intended to keep the photos private, not whether it would be possible for someone to obtain the photos against her will and thereby to invade her privacy. The majority states that the child "placed the photos on a computer and then, using the Internet, transferred them to another computer," as if to suggest that she left them out carelessly for anyone to find. That is not what happened. She sent the photos to her boyfriend at his personal e-mail address, intending to share them only with him.
The method the child used to transmit the photos to her boyfriend carries some danger of disclosure, but so do others. If the child had taken a printed photograph and placed it in her purse, it might have been disclosed to third parties if her purse had been lost or stolen. If she had mailed it to her boyfriend in an envelope, it might have been revealed if the envelope had been delivered to the wrong address and mistakenly opened. As these examples illustrate, there is always a possibility that something a person intends to keep private will eventually be disclosed to others. But we cannot gauge the reasonableness of a person's expectation of privacy merely by speculating about the many ways in which it might be violated.
The critical point in this case is that the child intended to keep the photographs private. She did not attempt to exploit anyone or to embarrass anyone. I think her expectation of privacy in the photographs was reasonable. Certainly, an argument could be made that she was foolish to expect that, but the expectation of a 16-year-old cannot be measured by the collective wisdom of appellate judges who have no emotional connection to the event. Perhaps if the child had as much time to reflect on these events, she would have eventually concluded, as the majority did, that there were ways in which these photos might have been unintentionally disclosed. That does not make her expectation of privacy unreasonable. ..News Source.. by Declan McCullagh
May 17, 2009
BARRE – A repeat sex offender from Winooski who was jailed on a new sex-crime charge in late 2007, and later had the charge dropped, is suing the state police detective who investigated that case.
John Grenier, 44, filed the lawsuit in U.S. District Court in Burlington last week, accusing Vermont State Police Detective Sergeant Ingrid Jonas of violating his due process rights for allegedly withholding key evidence that freed him from prison once it came to light.
Grenier, who has two convictions of lewd and lascivious conduct on his record, was charged in December 2007 with sexual abuse of a vulnerable adult after a woman accused him of assaulting her, court records state.
At his arraignment on that charge, Grenier was held without bail, and despite contesting that decision at a separate hearing, he remained jailed for 74 days, according to the lawsuit.
Grenier was freed and the charges against him were dropped after a message that the accuser left for Jonas on her voicemail came to light, and he argues the voicemail is what directly led to his release from prison. And Grenier contends that Jonas "intentionally, knowingly and with deliberate indifference" withheld the voicemail from prosecutors for more than a month in order to keep him behind bars.
The voicemail was left on or around Dec. 13, 2007, the lawsuit states, nine days after Grenier was originally held.
In the voicemail, Grenier's accuser made an additional accusation of sexual assault against another man, Travis Denton, the day after Grenier was believed to have assaulted her, the lawsuit states.
Jonas was apparently on vacation until early January 2008, but Grenier contends she would have received the voicemail by early January at the latest.
The lawsuit states that Jonas did not investigate the accusation against Denton "as it was immediately deemed to be false." Jonas never interviewed the accuser or Denton, the lawsuit states.
Soon after the voicemail was disclosed to the prosecutor, the prosecutor agreed to release Grenier on conditions, court records state.
Grenier was jailed from Dec. 3, 2007 until Feb. 15, 2008, and the charges against him were dropped on March 19, 2008, records show.
"Acting in her individual capacity, (Jonas) knowingly and intentionally withheld the voicemail left by Complainant from the prosecutor and from (Grenier's) attorney for more than a month, violating Plaintiff's constitutional rights," the lawsuit states.
Grenier argues there was other evidence that should have led authorities to question the accuser's story. According to the lawsuit, Jonas reviewed records from the Burlington Police Department and the Chittenden Unit for Special Investigations. Both files included a number of sexual assault complaints made by the woman who accused Grenier of abusing her, according to court papers.
The two agencies determined that many of the allegations were unsubstantiated, and their files indicate the cases involving Grenier's accuser were either dismissed or not prosecuted, according to Grenier's complaint.
Jonas "knew or should have known based on her investigation of the incident that Complainant was known to have made false sexual assault reports in the past," the lawsuit states.
Grenier says that as a direct result of Jonas' actions, he was denied bail, which led to lost wages, emotional distress, mental anguish, stigmatization of his reputation, damage to personal relationships, attorney's fees and the denial of his constitutional rights.
Grenier does not seek a specific monetary amount in the complaint, but asks for compensatory and punitive damages in an amount deemed appropriate by the "trier of fact."
Jonas, an experienced sex-crimes investigator, declined to comment for this story.
She is currently the Special Investigation Unit Coordinator for the state police, according to information she provided in a recent affidavit in an unrelated case. She has been a certified law enforcement officer in Vermont since December 1998, she stated, and was a detective assigned to the Northwest Unit for Special Investigations in St. Albans for nearly four years, starting in 2001 where she investigated sexual crimes.
She was then assigned to the Chittenden Unit for Special Investigations in 2005 and continued to investigate sex crimes there, she wrote. In November 2007, she was promoted to the rank of sergeant and supervised the detectives' unit for the Northwest Unit for Special Investigations until the end of March 2008.
The Vermont Attorney General's Office is representing Jonas, and Assistant Attorney General Keith Aten is assigned to the case.
Aten said he is "in the process of reviewing" the case, but added that it's too early to comment on how he plans to respond to the accusations.
"We haven't had a chance to really digest the allegations and ponder what the response would be," said Aten.
Aten said he plans to accept the service of the complaint. Then he will either answer the complaint on behalf of his client, which would mean admitting or denying the allegations, or file a motion challenging the basis of the lawsuit.
The complaint filed on behalf of Grenier makes it clear that he is not suing the Vermont State Police, but is suing Jonas in her individual capacity.
That is because in order to sue a state employee in federal court, a plaintiff must separate the individual from the agency, said Aten.
The lawsuit also makes it clear that Grenier believes Jonas withheld the evidence knowingly and intentionally, but Grenier's attorney Robert O'Neil, of the law firm Gravel and Shea, did not want to back those assertions up this early in the legal battle.
"The complaint speaks for itself, and if the explanation that the state officer has for this is that it was just an inadvertence on her part, we'll find that out in the civil suit," said O'Neil, who said he represented Grenier when he faced criminal charges.
O'Neil added that he knows a lot of Vermont State Police officers and doesn't believe most of them would simply forget about a key piece of evidence.
"They're not forgetful," he said.
Grenier was convicted of lewd and lascivious conduct in 1990 and 1999. He received a 1-to-5 year sentence for the 1999 charge and 2-to-5 year sentence on the 1990 charge, according to court records. Grenier was also convicted of failing to comply with the sex offender registry in 2007. He is not a high-risk sex offender, according to the state's sex offender registry. ..News Source.. by Thatcher Moats Times Argus Staff
Sex offender registration statutes are not a recent occurrence; for almost twenty years, Texas has required some form of registration for those convicted of certain sex-based offenses. In 1991, the Texas legislature passed the first -- of what would become many -- sex offender registration laws, this one requiring those convicted of incest, sexual assault or indecency to register with the state.
While this initial foray into sex offender registration may have gone somewhat unnoticed, the issue received the full attention of the state in 1993, with the abduction, rape and murder of 7-year-old Ashley Estell. In response, the legislature pushed through Ashley's Law, which required all sex offenders to register for a period of years after their sentences -- for some violent sex offenders, the law required registration for life.
Since the passage of Ashley's Law, the legislature has revisited the sex offender registration issue often, each time adding new crimes for which registration is required or increasing the scope of information that must be included in the registry.
Piece by piece, the sex offender registration law evolved, until today most sex offenders face lifetime registration requirements. Under the current regulations, sex offenders must report their address, birth date, height, weight and race to local authorities and must keep an up-to-date photo on file. This information is also available to the public, via a number of searchable Web sites. Moreover, Texas' sex offender registration laws may soon become even more stringent, despite the efforts of a number of civic groups.
The Impact of the Adam Walsh Act
Passed by Congress in 2006, the Adam Walsh Act is a federal law that sets minimum standards for public registries at the state level, including who must register and for how long, as well as what portion of the registered information is made public. The Act was signed on the 25th anniversary of the abduction and murder of Adam Walsh, the son of John Walsh, host of the television program America's Most Wanted.
Under the Adam Walsh Act, states are required to set up a tiered system of registration requirements based on the severity of the underlying crime. Beginning with Tier I -- the least serious crimes -- offenders are required to register for 15 years and must update their status annually. Tier II crimes require registration for 25 years and status updates every six months, while Tier III crimes -- the most serious -- require registration for life. Those convicted of Tier III offenses must update their status every three months.
In Texas, the Adam Walsh Act would require the state to take a step backward in its policy toward juvenile offenders. The Act requires certain juveniles -- as young as 14 years old -- to register as sex offenders for life. At one time, Texas had a similar mandatory registration law, but relying on the opinions of prosecutors and defense attorneys alike, the state now relies on the discretion of judges in individual cases.
In the opinion of at least one civic group, Texas' sex offender registration laws are already too severe, even before the sweeping changes promised by the Adam Walsh Act. The group includes hundreds supports of those convicted of sex offenses or placed on sex offender probation of sex offenders who believe that the existing registration laws do not work to keep the children of Texas safe because they fail to separate sexual predators from non-violent, non-dangerous offenders. The group believes that the law should distinguish, for instance, between an 18-year-old high school senior who foolishly had sex with his freshman girlfriend and a serial rapist. Since, in Texas, anyone under the age of 17 cannot legally consent to sex with an adult, both situations are treated as rape crimes.
Through monthly meetings and an expanding outreach effort, Texas Voices is working to convince lawmakers that the sex offender registration laws should be rewritten to better focus on those offenders who pose a risk to the public, especially children. According to a study conducted by the US Department of Justice, only 5 percent of sex offenders were arrested for another sex crime within three years of their release from prison.
As evidence of the trouble with sex offender registration laws, Texas Voices can point to the case that started it all, at least in Texas: the rape and murder of Ashley Estell. Prior to the passage of Ashley's Law, authorities convicted a man named Michael Blair of the crime, at least in part because of a previous conviction for a sex offense.
Long after his conviction, Blair maintained that he was innocent of the crime. In 2008, DNA evidence cleared Blair, pointing instead to a man who died ten years ago. In this case, at least, the sex offender registration laws that were designed to protect children such as Ashley would have failed; in fact, it was knowledge of Blair's previous offense that may have cost him more than a decade of his life. ..News Source.. by Joe D. Gonzales & Associates.
5-17-2009 South Dakota:
Innocent man's name cleared after more than 20 years
FLANDREAU - Irvin Schoenwetter's big right hand is roughened by hard work.
Dirt from the tires he handles all day darkens his fingernails.
For more than 20 years, few people wanted to shake that hand.
That's because Schoenwetter, 43, served seven years in prison, accused of raping his 8-year-old stepsister. He then lived the cowering life of a registered sex offender after getting out in 1995.
He always said he didn't do it.
The pardon from Gov. Rounds, released publicly last week, made official what Schoenwetter knew since the day he was arrested. Now the people of his hometown know he didn't do it.
And they want to shake his hand.
For Schoenwetter, that simple sign of acceptance is gratifying. But a stranger on a Brookings street and a country lawyer believed him before there was a governor's signature. They believed the basic premise of Schoenwetter's story and formed a lasting bond that conquered the belligerent doubt of the system.
For some reason - demeanor or sincerity or just blind trust - they always knew he didn't do it.
Seeking a home, fighting a claim
Fate picked on Irvin Schoenwetter like a schoolyard bully. He quit school after eighth grade, fulfilling the prediction of a teacher who told him he would not amount to much.
An early marriage was on the rocks when Schoenwetter, in his early 20s, moved in with his father in Huron in 1987. Months later, his father died.
"I had no place to go," Schoenwetter says. He stayed with his stepmother and her daughter for a time. He left when his stepmother found a boyfriend.
"I came back to get the title for a car. That's when he told me he was going to put me up on charges," Schoenwetter says of the boyfriend. "I just walked away. I knew I hadn't done nothing."
About a month later, he was arrested at work.
Schoenwetter says he remembers little of the trial but does recall hearing the verdict. "My heart kind of dropped in disbelief."
'I learned in prison to listen'
The trepidation of going to the penitentiary was compounded for Schoenwetter, since he knew he was wrongly convicted.
"When I took the first few steps in there, somebody yelled at me, 'Welcome to the jungle,' " Schoenwetter says. He had to learn the inmates' hierarchy, "where you can sit, where you can't."
Concerned how others would treat him if they found he was convicted of molesting a child, he told inmates he had been accused of theft.
There is not much to hang on to in prison. But Schoenwetter stubbornly clung to innocence. He refused to take part in sexual offender counseling that would have cut the sentence. "I wasn't guilty in the first place," he says.
The worst time in prison was when he got the chance to enroll in an auto repair course at the medium-security Mike Durfee State Prison in Springfield. Inmates there found out he was a convicted child rapist.
"I had to put myself in protective custody," Schoenwetter says. "They sent me back to Sioux Falls."
In the penitentiary, though, he earned a GED, and in seven years spent in close proximity with other inmates he learned something about people.
"I learned in prison to listen," Schoenwetter says. "Out here, that's helped me a lot, to listen, not interrupt, to hear what they say."
Trust of a new employer, friend
With credit for good behavior, Schoenwetter was released after seven years. He went to live with his mother in Flandreau, and slowly his fortune began to change.
He got a job in Brookings and on a day off was sitting on the front porch when Don Ulwelling drove by.
Ulwelling saw a large, apparently unemployed man at the same time he had an immediate need for help at his tire shop. Schoenwetter looked big enough to do the work. Ulwelling offered him a job.
It was in Flandreau, which was good, Schoenwetter says. But working for Ulwelling meant he would have to tell him he was a registered sex offender. Ulwelling had to sign a statement acknowledging he knew.
"It was kind of hard when I first told him," Schoenwetter says.
"He told me right off what his situation was. No problem," Ulwelling says.
A slight tightening in Schoenwetter's voice more than the words themselves convey what Ulwelling's ready acceptance meant to him.
"I've been with Don 12 years," he says.
Ulwelling insists he knew early on Schoenwetter was innocent. "I've seen him with customers, seen him with kids, seen him with my own family. I knew he never done nothing wrong," he says.
People now tell Ulwelling he's a good guy for hiring Schoenwetter. A rumbling laugh like far off thunder is his answer.
"I needed somebody at the time," he says. "I'm not that good a guy."
Stepsister comes forward
The soft-spoken Schoenwetter kept to himself for almost 15 years. In a small town such as Flandreau, everyone knows if you're a sex offender. When he wasn't working at Don's Tire Shop or helping a brother with haying in summer, Schoenwetter spent much of his time in the house he shares with his mother. His portal to a wider world was his computer screen.
The tire shop with its two bays, hissing air compressor, air wrench rattling against lug nuts and worn out tires piled out back might not seem much of a refuge. In there, though, in their working man's uniform of jeans and blue shirts, Ulwelling and Schoenwetter are just two guys.
Schoenwetter is not a social pariah.
"We talk about women, booze, politics, things that happen in Flandreau, things that pass our way," Ulwelling says.
This might have been the best Schoenwetter could look forward to in life. But in 2000, a brother committed suicide.
Schoenwetter's stepsister, grown now and living in Iowa, learned of it from other relatives. "She was afraid I might do it, too," he says.
To try to prevent that, she sought to right an old wrong.
In April and May that year, Schoenwetter received two notarized statements. In the first, his stepsister wrote that Schoenwetter "did not in fact commit any sexual abuse toward me. ... I do not wish him to be held responsible for a crime he did not commit."
In the second, she said her mother's boyfriend "unduly influenced my knowledge of the incident and conditioned my thinking to believe that the incident of sexual misconduct did take place."
Schoenwetter says: "I was happy she did that. She could have gone the rest of her life without doing anything."
'My greatest legislative' act
When Schoenwetter told him about the affidavits, Ulwelling directed him to John Schaeffer, a Flandreau lawyer.
"I told him 'Yes, you've got some information that's beneficial. But the battle has just begun,' " Schaeffer says.
Schoenwetter's connection to his stepsister was a phone number. He talked to her after she sent the affidavits. But when her phone was disconnected he lost track of her until 2004, when she contacted another brother. He passed on to Schoenwetter the information where she was living in Iowa.
Schaeffer went to Iowa then and taped an interview with the woman in which she reiterated that Schoenwetter had never harmed her. "Within a week, we had a letter to Rounds requesting a pardon," Schaeffer says.
In June of that year, the State Board of Pardons and Paroles unanimously voted to pardon Schoenwetter. Members of the governor's staff and the Division of Criminal Investigation subsequently looked into the case.
It took five more years to get the governor's signature.
Schaeffer surmises that because former Gov. Bill Janklow was criticized for secret pardons he handed out, including one to his son-in-law, Rounds might act especially cautiously when considering requests.
In any event, despite his efforts over several years to prod the governor, Schaeffer says he made no headway until state Sen. Russell Olson, R-Madison, learned of the case last year.
Olson says his uncle was making a sales call at Don's Tire Shop that summer when Ulwelling told him the story.
Olson was serving in the House at the time, preparing to run for the Senate.
"You've got to go over there and visit with this guy," he says his uncle told him.
So before the election, in October, Olson went to Flandreau and talked with Ulwelling, then Schaeffer and Schoenwetter. He read the lengthy file on the case.
"I would be the first person to throw away the key for someone who was guilty of a crime like that," Olson says he told Schoenwetter.
But he also became convinced Schoenwetter deserved to be pardoned.
He wrote to Rounds' chief of staff, Neil Fulton. "It was every week bugging him about it," he says.
Olson suspects the request "fell between the cracks" and dragged on for years. "It got left on somebody's desk, and it took prodding to get it reviewed."
Near the end of the legislative session this year, Olson says, Rounds met with him at length and told him he was going to grant Schoenwetter a pardon.
"I stepped out of the governor's office, and I got a lump in my throat. It is my greatest legislative accomplishment to date," Olson says.
Has never heard from governor
Schaeffer received a phone call March 11 from Rounds telling him the pardon had been granted.
"He said to me, 'You must really have believed in this case to have pursued it so long,' " Schaeffer says. "I didn't bark at him, but I would have liked to have heard him say, 'Sorry for the delay.' "
The pardon itself is framed and hanging on Schoenwetter's bedroom wall. But he's never heard directly from the governor. "It would have been nice," he says. "Hearing it from my lawyer was good enough."
Rounds addressed Schoenwetter's case only in a statement issued by his spokesman Joe Kafka: "The governor has thoroughly reviewed the history of the case. Based upon that history, the recommendation of the Board of Pardons and Paroles, and Mr. Schoenwetter's history since the occurrence, the governor believes the pardon was appropriate."
James Sheridan of Huron was a member of the parole board that voted to recommend pardoning Schoenwetter. He subsequently resigned from the board out of frustration Rounds was dragging out decisions on clemency requests.
Schoenwetter's case wasn't a tipping point in his decision to leave the board. But Sheridan remembers Schoenwetter's request. "I'm glad for him," he says. "He deserves it. It was too long in coming."
Judge remembers testimony
Schoenwetter is not big on seeking retribution - not from his stepsister, nor the governor, nor 3rd Circuit Judge Jon Erickson who sentenced him to 10 years and told him he was going to make an example of him.
"Actually, I don't know what I'd say to him," Schoenwetter says, "probably, 'See, you shouldn't have made an example of me.' "
The trial took place within Erickson's first six months as a judge. He did not immediately recall the case but after reviewing the file remembered "the young lady, who was 8 at the time, testified quite eloquently."
Schoenwetter "did take the stand for a very short time and did deny the allegations," the judge says. "The jury was out about 45 minutes and came back with a guilty verdict."
Schaeffer says "she was a little girl. He was a big brute of a guy charged with molesting her. People's minds were made up."
Greeted differently now
When Schoenwetter learned his pardon had been granted, he and Schaeffer contacted the Moody County Enterprise for a story and word spread from there.
And Schoenwetter's life changed. People who had nothing to do with his misfortune have been making an effort to set it right. "All our customers come in and shake hands with him," Ulwelling says.
Schoenwetter says he's received letters and phone calls of support from strangers as far away as Estelline.
"I can walk around now with relief," he says. "People say 'hi' now and actually mean it."
Ulwelling can see the difference at work in the tire shop. "He doesn't shy away like he did," Ulwelling says. "He's coming out of his shell."
With his citizenship rights restored, Schoenwetter lights up when he reports "I never had a gun permit in my life. I have one now."
Ulwelling plans to ease into semi-retirement this fall. He figures Schoenwetter can take on more responsibility at the shop.
Schoenwetter is looking forward to it.
His life never offered much to begin with, then took away what little he had. Now Schoenwetter is coming to see things from the perspective of the general run of people, anticipating more good will happen than bad.
A good name - and a firm handshake - helps in that regard.
"He's very proud," Ulwelling says, grinning. "And he should be." ..News Source.. by Argus Leader.com
One way to interpret this ruling is, since initilly Megan's law merely required the publishing of name and address, is everything beyond that, also illegal? Think about that....
5-17-2009 New Jersey:
Supreme Court rules Megan’s Law is enough
The New Jersey Supreme Court has ruled that a 1994 state law to protect children from sex offenders is sufficient and that stricter municipal laws are unnecessary. The decision voids at least 120 municipal laws across New Jersey, including one in Secaucus, which restricted where sex offenders can live.
Under the Secaucus ordinance, first passed in 1995 and amended in 2005, sex offenders were barred from living within 2,500 feet of a school, park, playground, or daycare center.
Secaucus was not alone in limiting where sex offenders could live. Similar ordinances were passed throughout the state, with some towns also banning offenders from living near places of worship. In small municipalities, sex offenders were essentially barred from living in the town completely because there were so many places they could not live near.
The court ruling, handed down on May 7, now jeopardizes the future of offender residency restrictions.
Laws stemmed from landmark case
The municipal laws were intended to strengthen Megan’s Law, the landmark 1994 New Jersey law that requires sex offenders to register with local police after being released from prison. Offenders are required to give police their address, Social Security number, offender classification, a photo, details of the crimes, the ages of their victims, and other pertinent information.
Some of this information is then made available to the public online or at local police stations.
The law was passed after the murder of 7-year-old Megan Kanka of Hamilton, N.J. Kanka was kidnapped, raped, and killed by a neighbor, Jesse Timmendequas, a repeat sex offender who had been released from prison. After New Jersey passed the original Megan’s Law other states enacted their own versions of the law. There is also a national Megan’s Law.
Children’s and victim’s rights groups believed, however, that Megan’s Law didn’t go far enough to protect kids from predators, and began lobbying municipal governments to place further restrictions on sex offenders.
Case fought on behalf of college student
The Supreme Court ruling was unanimous, 6-0. While it voids the town ordinances, it has no impact on Megan’s Law itself, which remains in effect.
The decision stems from G.H. v. Galloway Township, a case filed in 2007 by Frank Corrado, a cooperating attorney with the American Civil Liberties Union of New Jersey. Corrado argued that municipalities had overreached their authority by enacting these ordinances.
“These laws were adopted with the best of intentions,” Corrado said. “But they’re ineffective because they tend to either force [offenders] to go underground, meaning people don’t register with local authorities, or they make it impossible for them to live in supportive environments that can help them lead productive lives within the bounds of the law. So they end up actually being counterproductive.”
The case was filed on behalf of G.H., now a senior at Richard Stockton College in Galloway, N.J. When G.H. was 15, he was caught having sexual relations with a 13-year-old girl and was convicted as a minor for improper sexual contact. Years later, after enrolling in college, police told G.H. that Galloway’s predator ordinance banned him from campus.
“One of the problems with these municipal ordinances is that they make no differentiation between Tier I, Tier II, and Tier III offenders,” Corrado said. “So even if you are the lowest level of offender, you’re still covered without regard for the risk of recidivism.”
Tier III offenders are considered to be the most dangerous predators who are most likely to reoffend, while Tier I offenders are considered the least dangerous. Under the state Megan’s Law, G.H. is classified as a Tier I offender and is not subject to lifetime parole like most sex offenders.
Looking to legislature
Local government leaders who still want tougher residency restrictions may now turn their attention to the state legislature.
“It’s too premature to comment fully on the decision,” said Town Attorney David Drumeler last week. “We’ll need to analyze what the Supreme Court said. My hope is the legislature will put something together that essentially says Megan’s Law is the floor and anything municipalities want to enact in addition to that is permissible.” ..News Source.. by E. Assata Wright
May 16, 2009
Hi folks, technology moves on whether we like that or not.
On May 5th Microsoft released its new version of "Windows 7" their new operating system for all personal computers (PCs); well not really ALL... Not for MACs either.
Someday in the future we will be forced to move to Windows 7, but the question is, can our computers handle it, or are we going to have to buy new ones?
Grrrr, the price we pay for staying up to date........Does Bill Gates really need more money?
However, Microsoft has released a program to check our systems today and tell us all sorts of things, about our hardware and software, and whether both ARE ready to install Window 7.
Actually it is a good compatibility program which prepares a list of compatibility problems you will face IF you want to install Windows 7. The program downloads a small program to your computer which does the checking for compatibility; it DOES NOT change anything on your system and takes 5-7 minutes to check a system.
The only thing I didn't like about the compatibility program is, it does not allow printing the list of compatibility issues, instead it creates a file you can store on your drive which THEORITICALLY you can print later on.
The reason I say theoretically is, when I tried to print mine, it wanted a file I do not have on my hard drive...grrrr. I have no idea where to get this file but I'll e-mail Microsoft to find out.
The compatibility program can also create a icon on your desktop so you can run it time and time again, I assume as you fix compatibility issues and want to retest your system.
So, my advice is, at least find out whether you will need a new system, or will need to make changes to your current system.
From everything I read Windows 7 is something everyone will be thankful to have; only time will tell.
Here is the Microsoft page to tell you what to do.
PS: My system needs several things before handling Windows 7
We've all become accustomed to using the Global Positioning System, or GPS, whether via our iPhones, car navigation devices, handheld GPS units, or even watch-based devices like the Garmin Forerunner series. The GPS system went into full operation in December of 1993, was declared a dual-use (military and civilian) system by President Bill Clinton in 1996, and in 2000 had "Selective Availability" removed to increase accuracy for civilian uses. It relies on a constellation of between 24 and 32 medium Earth orbit satellites, some of which have been operating for nearly 19 years. Unlike other national satellite navigation systems, GPS serves the entire world and is maintained by the United States Air Force 50th Space Wing.
So far, so good, but TidBITS reader Mike Craymer, a geodesist who studies the size, shape and temporal variations of the Earth, recently alerted me to a report about a possible future problem with the accuracy of the GPS system. Mike and his team at Natural Resources Canada use very high-end GPS receivers and special data processing techniques to measure the motions of the Earth with an accuracy of about 1 mm per year in their work defining and maintaining the coordinate systems used in North America and in contributing to the global coordinate system used by GPS. Needless to say, Mike is very interested in GPS maintaining its high level of accuracy.
The problem is that, at the end of April 2009, the U.S. Government Accountability Office released a report expressing concern about the Air Force's modernization and maintenance of the GPS system. Constant replacement and upgrading of satellites is necessary, especially with hardware that's been operating in space for almost two decades.
The GAO's report draws attention to problems that the Air Force has had in working with contractors to build and launch GPS satellites within cost and schedule goals. Some of the problems stem from government acquisition methods that didn't provide for enough oversight, and added requirements that resulted in cost and schedule overruns overruns.
The GAO also lays some of the blame on a series of industry mergers (Boeing buying Rockwell, Boeing merging with McDonnell Douglas, Boeing buying Hughes Electronics Corporation's space and communications businesses) that resulted in moving the GPS work repeatedly and losing knowledgeable workers.
Delays in launching new satellites - the next one is scheduled for a November 2009 launch, almost 3 years late - could be problematic if the older hardware starts failing. The GAO has calculated - using reliability curves for each operational satellite - that the probability of keeping a 24-satellite constellation in orbit drops below 95 percent in 2010, and could drop as low as 80 percent in 2011 and 2012. And if the Air Force doesn't meet its goals for the next-generation GPS III satellites, the probability drops to around 10 percent in 2017. (The GPS III satellites bring with them new features, including new military and civilian signals for greater accuracy, particularly in urban environments, plus higher power for current civilian signals, which will help existing GPS receivers.)
Even if the satellite constellation drops below 24 satellites, that doesn't mean that GPS service will fail altogether. It does mean that the level of accuracy that both military and civilian users have become accustomed to - which is actually higher than promised - may degrade significantly.
The GAO has made recommendations for addressing the problems it found in the handling of the GPS system, most notably a single authority to oversee development. Apparently, while the Air Force is in charge of the satellites and ground control, various other branches of the military develop their own user equipment, which makes for coordination problems as the technology is updated and improved. Another solution may come in the form of international cooperation.
Although the GPS system is available worldwide, the European Union has a proposed global navigation satellite system called Galileo in the works, due to come online in 2013. Galileo is intended to be a largely civilian system that wouldn't operate at the whim of the U.S. government in time of military conflict, although a 2004 compromise makes it possible both for the United States to block the Galileo frequencies and for the two systems to interoperate in the future. Galileo also aims to provide greater accuracy than GPS, and when combined with the next-generation GPS III satellites, could improve accuracy even further.
Russia and China also have satellite navigation systems, and there have been discussions with the Russian government about making the Russian GLONOSS system compatible with both GPS and Galileo. No formal announcement has emerged from those talks, but in 2007, GLONOSS was opened up for civilian use. GLONOSS has a checkered history, coming online in 1995 but falling into disrepair soon after, due to Russian economic troubles. Russia committed to restoring the system in 2001, with a full 24-satellite constellation (necessary for global coverage) in operation by 2010.
From the standpoint of normal people in the United States, there's nothing to do except wait and watch, and, if the opportunity presents itself, make sure our elected representatives are aware of the situation. If you think about how essential GPS-based services have become to society at large in the years since Selective Availability capabilities will become in the next decade.
Personally, I can't imagine that the Air Force would let GPS accuracy drop, especially given the military's reliance on it for everything ranging from helping soldiers find their objectives in the dark to accurate targeting of missiles and other precision-guided munitions. If the GAO's suggestions (with which the Department of Defense agrees) don't resolve the problems faced by the GPS system, the Air Force may end up spending far more money to patch the system on an interim basis. ..News Source.. by Adam C. Engst