Articles Posted in Sex Offenses

At least in the courtroom, we act hastily when we conclude that the decisions of prosecutors and jurors can be based on presumptively believing sexual assault complainants. On the contrary, the presumption of innocence and the government’s burden of proof beyond a reasonable doubt in all criminal cases remind us that jurors have an obligation to weigh the credibility of accusers carefully, and indeed that a defendant must be given leeway to cross examine alleged victims to establish that they may be mistaken in their memory of historical events, that they might have a motive to fabricate claims, or that their perception may have been clouded by alcohol or narcotics. All members of society must be conditioned to listen with care and compassion when complainants bring forth accusations of sexual assault, so that we do not apply subconscious stereotypes or biases to reflexively discredit them. But as the “Me Too” movement grows, it is also essential that bedrock protections for the accused are not eroded in a way that predetermines a defendant’s guilt.

Most rape cases are not “whodunits” where identity is an issue. They involve interactions between two or more people who are known to each other from previous interactions-so called “acquaintance rape” situations-where the issue is what happened, not by whom. Sexual assaults usually occur in private, it is rare that they are witnessed by third-parties, and alleged attacks often leave little medical evidence or physical injury. The determinative issues in these types of rape cases are the victim’s consent and the defendant’s mens rea. Where there are no injuries and the defense is either non-occurrence or consent, the credibility of the accuser is especially central to the jury’s verdict.

Cassidy, R. Michael, Character, Credibility and Rape Shield Rules (October 8, 2020). GEO. J. L. & PUB. POL’y, Legal Studies Research Paper No. 542, at 2-3. [[1]]

From Prof. Doug Berman’s excellent Sentencing Law & Policy.

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring.  That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here).  This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.

Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective,

By D. Kim Rossmo and Joycelyn M. Pollock.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Prof. Doug Berman of Sentencing Law & Policy brings this tidbit about SOR in Alaska.

[T]he Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375 (Alaska June 14, 2019) decided that part of its state’s Sexual Offender Registration Act violates due process. Here is how the majority opinion starts and concludes:

This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second is whether ASOR Aviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness….

Thanks to Prof. Berman at Sentencing Law 7 Policy who directs us to Murray, Brian, Are Collateral Consequences Deserved? (January 29, 2019). Available at SSRN: https://ssrn.com/abstract=

I have a standard sex offender registration motion that I use in all cases in which a sex offense is charged and if convicted the client will have to register as a sex offender.

Few appellate courts have been willing to agree that SOR is a punishment and hold that to be a collateral consequence.  Some state supreme courts have held new amendments to their state law are “punishment” for ex post facto analysis, but they are few.  Despite that, I continue to argue that SOR is more than a collateral consequence.  As the second part of my motion, I argue admissibility of SOR as “evidence” under the principles for giving punishment, on which the members are instructed: particularly rehabilitation and deterrence.

The answer is possibly, but it requires some very specific analysis using the Reynolds test.  The Air Force Court of Criminal Appeals has decided United States v. Hyppolite, II, where this issue arose.

In this case, the prosecution sought to use evidence of different allegations of a sexual offense to show that, “Appellant’s conduct admitted to prove each charged offense could properly be used under Mil. R. Evid. 404(b) as evidence that Appellant had a pattern or common plan of engaging in sexual conduct with his friends after they had been drinking and were asleep or trying to fall asleep.”

“The crux of Appellant’s position throughout trial and on appeal is that the sexual conduct alleged in each specification was separate and distinct and must stand on its own. Appellant contends that the allegations were not sufficiently similar to show a common plan and that allowing evidence of one charged offense as evidence of a separate charged offense was tantamount to allowing the factfinder to consider evidence of Appellant’s propensity to engage in sexual misconduct. Appellant, citing United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Hills, 75 M.J. 350 (C.A.A.F 2016), renews on appeal his claim that the military judge misapplied Mil. R. Evid. 404(b) and Mil. R. Evid. 403 and improperly allowed charged offenses to be used as propensity evidence to prove other charged offenses?

11 October 2018.  Orders Granting Petition for Review

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.

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