Blog: Lawyer’s Insight on
Legal Matters:
- Sex Crimes -
"Lawyer's Insight' is a periodic blog by Mr. Samore on
current legal issues that informs readers how current, legal
events influence Americans' lives. If you would like to ask
Mr. Samore to address a particular concern which you may
have, simply send an email to the address at left with
subject "Questions for Lawyer's Insight."
Click on the links below to quickly reach a particular topic,
or just scroll down to read what is of interest. Other sources
of information from Mr. Samore are on the Common
Questions and About Us pages of this website.
OEO Allegations Against University Male Students - TITLE IX CASES
August 2020
Another developing area of law, which our office has represented several young men the past few years, is young University male
students, who are anonymously accused of violating University policies on sexual misconduct (ex. UNM Student Handbook, Sec.
2740). Only the young man is named in the allegation, made by some anonymous person (usually female), and the student has
precious few rights under the recent interpretation of his rights, which make it even more important that he retain an attorney to
represent him at the first notice of a complaint.
No reasonable person denies that assaults on female
students should be seriously addressed. Since 2011,
following a broad but flawed investigation into campus
assault with that lacked substantive accuracy [1], OEO
administrators acted to bolster enforcement, hire
investigators to commit to punishing presumed abusers,
and monitor enforcement findings. In an eagerness to
correct what was perceived as historical underreporting
of sexual abuse on campus, OEO severely restricted an
accusers opportunity to respond, be heard, and prepare.
Funding for each university’s OEO office depend in
significant part on the number of cases they attract, investigate, and find policy violations.
The Office for Equal Opportunity ("OEO"), claiming authority under Title IX which sensibly compels universities to balance both
athletic and academic considerations to prevent gender discrimination in schools that receive public funds, took broad
enforcement authority. It has used for the past decade a "single investigator" model, in which the school designee responsible
for investigating the assault is also at least one of the three people who make the determination of whether sexual misconduct
may have occurred. The young man accused is not informed of his right to counsel by the investigator, and hundreds of young
men have had their lives forever changed for the worse, due to an innocent willingness to talk to an investigator without counsel.
The present OEO procedure does not give an accused person specific information on what the accuser has told him, she is not
identified by name, and he is presumed to already know the scope of the allegation. The disturbing one-sidedness of the OEO
process has increasingly been challenged, from many concerned authorities, including the letter from fifty-six Harvard
University law professors to OEO (2009) and libertarian commentators [2] to the present President’s Education Secretary.
Retired federal judge Nancy Gertner [3] was disturbed by the "low standard for evidence that condemns a young man by a mere
preponderance":
"True enough, except for the fact that civil trials, at which this standard is implemented follow months, if not
years, of discovery (and) is worst in both worlds. The lowest standard of proof(,) coupled with the least
protective procedure."
Judge Gertner accurately describes how the accused person has virtually no right to learn the details of the allegation, so he risks
being adversely judged because he says too much or too little. He is not permitted to directly question his accuser. While OEO
investigators repeatedly assure the suspect that its records are "confidential" and it does not work with law enforcement, this
representation is a rather brazen, functional fabrication of careful and misleading phrasing. OEO investigators readily forward
their interviews, with or without a subpoena, to law enforcement authorities. The illusory representation that OEO investigators
not work with law enforcement is further diluted by the fact that University Police often have ready access to these
investigations. Once he receives often-horrifying allegations (also horrifying because details are unknown and often greatly
exaggerated), the male student has few choices. An adverse OEO finding has grave consequences, but, should the allegation be
found unproven, there is absolutely no consequence to the accuser. She gets a free shot at his life.
The jeopardy to his academic opportunities and professional future cause some students to consider withdrawing or transferring
from school, but OEO does not permit this option. It will continue its OEO investigation and enter its conclusion on the young
man's permanent records, even withholding issuance of his transcripts. What this means to the accused is that he has little
choice but to blindly participate in an unfair process or almost certainly be guaranteed that OEO will make unilateral adverse
presumptions and find against him.
OEO headquarters maintain records of each local office at universities to be sure that they find "probable cause of violation of
university policy" at a subjectively sufficient percentage. Our own University of New Mexico was one of the universities in the
recent past, criticized by OEO and threatened with a reduction of funds for its OEO office because it was not finding "probable
cause" at a high enough percentage to satisfy OEO. The risk of bias in the system is obvious, and, because the people in the
position of investigation and maintaining its process were hired to such full-time positions based on their beliefs, the likelihood
of a fair finding is even more imperiled. An office receives no increased funding if it too often finds against the accusers.
Let's take a look at how one of these cases developed when, because the young man decided to fight back and concede his good
name would be disclosed in media coverage, resulted in Due-Process litigation.
In 2016, the young woman at Kennesaw State University in Georgia claimed she had been raped by a male friend. She admitted
the incident began as consensual fooling around and ended in nonconsensual intercourse, then, later, more specifically admitted
that she let him spend the night, after which, they ate breakfast together in the morning and planned a date later in the day.
Unfortunately, for the young man, he neglected to call back, and when the troubled young woman complained about being stood
up to friends, they told her she should file a rape claim against him, which she did. Far too often, as even as many competent
attorneys acknowledge, the broken date leads to “regret-sex” allegations.
When describing her reluctance to allow an accused male student more information before he is compelled to be interviewed by
OEO and balance the system more equally, Noreen Farrell, Executive Director of Equal Rights Advocates, who originally argued
in 1977 that Title IX should include sexual harassment violations, now concedes, "We, in the advocacy community, who have
been involved in Title IX for decades, understands this (additional rights to protect an accused) is nothing short of a
catastrophe."
Let us hope the pendulum, which swings from the equilibrium of justice, once against the accuser and now against an accused,
may one day return to more balanced stability that is fair and respects all parties.
Lawyer and political scholar Cate MacKinnon has been stirring indignation and alarm on male-female relationships for over
thirty years, including misrepresenting frequency of sexual assault by claiming a subjective look alone is a sexual assault and
that every sexual act "where a man is in the dominant position" equates to "rape" of a woman. Long deemed an extremist, she
finally secured a broader audience with more influence on policy ten years ago as universities sought aggressive means to
address what they believed were underreported campus assaults. The swing in popular opinion is evident in how acceptable it
has become to ridicule men in any forum, be it network media comments or social settings. A tasteless joke or sexist comment
about a woman is no less offensive were about a man. They are both wrong, and we all need be conscientious not to tolerate it
any more than tolerate sexual assaults.
Especially unsettling is how well-meaning people have been so eager to adopt extreme positions that are diabolically prejudicial
to an accused person. They have made policy of "safe spaces" on campus and a long list of "trigger" terms that offend them --
ostensibly to protect tender student ears from the contrary opinions that earlier generations thought was the whole idea behind
higher education: to learn by confronting and disagreeing with unpleasant. Many feminists and progressive thinkers have finally
recognized that student authorities have gone too far.
Columbia professor Laura Kipnis reminded OEO zealots, "The feminism I identified with as a student stressed independence
and resilience; in the intervening years the climate of sanctimony about student vulnerability has grown too thick to penetrate."
Progressive commentator Michelle Goldberg shared concerns that "demand for official censure and emotional injury
demonstrate how correct (Dr. Kipnis) is" in her 2015 article for The Nation. Others are concerned that this narrow interpretation
of Title IX responsibilities actually objectifies women and seems to erase a women's agency. The current Education Secretary
conducted hearing on the bias and revisions that recognizes the accused students rights are scheduled to go into effect in late
2020.
Harvard law professor Janet Halley, who long decried the historical "slipshod handling" of sexual-harassment and sex-assault
cases, now warns, "It is a moment of danger" in setting boundaries that punish what is often standard campus behavior. "We
cannot expect to change behavior without making women part of that equation." She was among the lead group of professors
who challenged Harvard's Title IX policies in 2016 and eventually adopted different standard for the law school to the rest of
Harvard. New Mexico universities adopted the more extreme OEO procedure which centralizes power into one OEO office that
serves as investigator, judge, and jury for the accused student.
John Samore adds that process does not afford the accused right of counsel nor do the OEO investigators warn an accused
student that it will share his interview records with law enforcement nor do they give the young man a meaningful opportunity
to decline to be interviewed. If he were to decline, it is certain that he will be found culpable and sanctioned by the university by
expulsion or suspension. There is no consequence for a female student who makes a provably false allegation. As we have seen
with United soccer players and Lobo athletes, even old and unproven OEO allegations have consequences that cost them jobs
and scholarships.
We now have much of feminism at outer poles, one that makes the self-defined "survivor" movement a matter of unquestioning
acceptance, the other concerned with a sensible balance where truth is not a matter of faith alone. One that presumes women
helpless and the male solely responsible, another that suggests joint responsibility. As Stanford law professor Deborah Rhode
describes it, one that holds only the male responsible and another that recognizes the "moral ambiguities of the common
dangers (to women and men) of excessive alcohol use."
Or as John Samore (a father of five girls) describes it, one that raises children (be they female or male) to be responsible adults,
The kind of procedural abuse in OEO campus investigations neither helps women be strong adults nor does it protect the falsely
accused.
References:
[1] NPR and Center for Public Integrity, as well as the Rape Abuse and Incest National Network, each of which developed
statistics that defined "rape" so broadly as to include far more alleged victims than it is likely were actually physically
assaulted. It left the definition of "rape" largely to the mind of an anonymous group of students from only a few university
campuses.
[2] The day the Office for Civil Rights sends its letter to the suspect, the federal government has made "all sex unsafe on
campus."
[3] Judge Nancy Gertner wrote The American Prospect, 2015.
See our sex offense crimes page.
Samore Law • 505-244-0450
Practicing in Albuquerque and across the State of New Mexico
Mailing address: PO Box 1993, Albuquerque, NM 87103
Street address: 300 Central Ave SW, Suite 2500W, Albuquerque
Do sex offender registration laws really protect us?
July 26, 2013
As more and more people are being put on state and national sex offender registries, we are discovering the original intent to
protect communities also have, in practice, many problems. There are no easy answers. Most of us would agree that some
requirement that people convicted of serious sex crimes should have to register so that law authorities would know where they
can readily be located can be helpful.
Most of us would also agree that, if possible, we would
like these convicted people to serve their punishment,
fulfill their responsibility to pay their debt to society, get
necessary counseling, and have a chance at becoming a
productive member of society. How can we expect them
to accomplish this transformation unless they can get a
good job and have an opportunity to participate in some
community?
These problems, as we are learning, arise from trying to
administer these laws fairly. First of all, some states publish of where these folks live, so they wind up being harassed by mean-
spirited people, even beaten, or even killed. Their families, no matter how much they want to help restore their loved one, can
also be mistreated and ostracized. If the offender cannot find work, they get discouraged, isolated, and cannot benefit from
counseling as they might if they could see light at the end of this tunnel.
Another real problem is how very differently our states define the type of crime that requires a person to have to register. The
people are not just folks who have done horrible things to children. Many of the crimes for which one must register include
Internet behaviors that never result in physical contact. For example, a high school senior could be curious, get on the internet,
and look under some websites that may have child pornography. Once he has done so, even if he is only on the website for a few
minutes, he has committed a serious felony that can readily be traced.
Other folks get convicted for "Romeo-Juliet" relationships where (usually) the male is 18 or older and (usually) the female is
under age. The difference between their ages varies from state-to-state, but, whatever the charge, if a person is convicted in one
state and required to register, that person must almost always register in any state thereafter in which they might live. If
another young man is "sexting" with a person who is under legal age, he can be found guilty of a crime for just that. What strict
interpretation of these alleged age differences can be unduly harsh when the parties could be "role-playing" as part of a little
flirting game. In some states, it is considered a "sex crime" to simply "annoy" a child, which would require New Mexico to
enforce registration requirements that can last from five years to a lifetime. Oftentimes, the time period for compelling
registration is set without the judge having the benefit of any "risk assessment' by a qualified psychologist.
It is quite a challenge to strike a proper balance to protect us from the few serious offenders who might re-offend and not
persecute many others, which may prevent them healing themselves as their victims also heal. Definitions of what actually
constitutes a "crime" can always be difficult. define too narrowly, and genuinely bad people cannot be prosecuted; too broadly,
and decent people's lives can be ruined.
See our sex offense crimes page.
We hear a lot about prosecutions for child pornography; why does your office defend these kind of cases?
July 5, 2016, updated May 20, 2017
When we attorneys are occasionally asked such a question, our first response is to consider who is asking and why. Usually the
questioner is referring to why lawyers represent someone accused of, for example, hurting a child or possessing child
pornography. The obvious (and accurate) answer is to pose to the questioner a better question: would you like to live in a
society where people accused of especially "bad" crimes are not permitted to have an attorney? Who gets to decide what crime is
so bad that the accused person is not even entitled to legal representation? You? Me? Someone else?
Even when the evidence is especially strong of a person's guilt, we must also consider whether the penalty prescribed by law is
fair. The punishment for most crimes in this country today is already more severe than it was here thirty or eighty years ago and
far more severe than it is today in other civilized Western
democracies, of which we like to consider ourselves the
cultural leader.
Here is an example we would like you to consider. Many
outstanding citizens in this country have no criminal
records, good jobs, and good families, but for some
peculiar reason, develop an interest in child pornography.
No one will claim child porn is a good thing, but it is all-
too-easy for a merely curious person to access it on line.
Almost 100% of people who view child porn never
physically abuse any children, but the penalties for merely possessing child porn would lock them away in prison for many
decades. Does someone who possesses child pornography deserve to spend fifty (or even fifteen) years in prison or should they
spend a short time in prison and given an opportunity for treatment of their illness? Which option salvages the person and the
family? Which option costs our society less?
Oftentimes, the best ally in fairly resolving these difficult decisions can be a reasonable prosecutor. Too many prosecutors
become full of themselves and the astounding power they have to push and push and push until the break a person or a crime or
a race of people. They are never satisfied at solving a crime they zealously push for maximum punishment and humiliation.
Fortunately, some others see the broader picture and take a more balanced approach, doing what they can to be fair and
compassionate. They realize that showing compassion or an element of mercy to the culprit does not mean ignoring the actual
victim. There is honor in respecting both the accused and the convicted person, as well as an alleged victim.
I confess that I consider asking the above topic question
myself to certain lawyers. When I say "How can you
represent these people?" I am not talking about easy
targets such as the poor, the pitiable, and the mentally
disturbed who may occasionally commit crimes. I am
referring to attorneys who represent the large
corporations in fields such as pharmaceuticals (drug
companies) and oil and gas and weapons manufacturers
and insurance companies who, as a matter of their daily
course of business, mislead and deceive and cheat the
powerless.
You and I are the powerless. By devotion to profit at any cost, these selfish corporations destroy and maim and kill far more
lives than all the convicts in this country. Only rarely do these vicious corporations get caught, but they will always have a line of
brilliant lawyers who eagerly collect a big paycheck to do all they can to hide the truth to protect the corrupt rich. They can
always afford more justice than the 99% of us. How can those lawyers represent those corporations?
It is a big reason courageous defense attorneys devote their careers to the working men and women, in some way to help balance
the scales of justice.
See our sex offense - sex crimes page.
John Samore
Blog: Lawyer’s Insight on
Legal Matters:
- Sex Crimes -
"Lawyer's Insight' is a periodic blog by Mr. Samore
on current legal issues that informs readers how
current, legal events influence Americans' lives. If
you would like to ask Mr. Samore to address a
particular concern which you may have, simply send
an email to the address at left
with subject "Questions for
Lawyer's Insight."
Click on the links below to
quickly reach a particular topic,
or just scroll down to read what
is of interest. Other sources of
information from Mr. Samore
are on the Common Questions
and About Us pages of this website.
Samore Law
505-244-0450
Practicing in Albuquerque and
across the state of New Mexico
Mailing address: PO Box 1993, Albuquerque, NM 87103
Street address: 300 Central Ave SW, Suite 2500W, Albuquerque
OEO Allegations Against University Male Students -
TITLE IX CASES
August 2020
Another developing area of law, which our office has
represented several young men the past few years, is
young University male students, who are
anonymously accused of violating University policies
on sexual misconduct (ex. UNM Student Handbook,
Sec. 2740). Only the young man is named in the
allegation, made by some anonymous person
(usually female), and the student has precious few
rights under the recent interpretation of his rights,
which make it even more important that he retain an
attorney to represent him at the first notice of a
complaint.
No reasonable person denies that assaults on female
students should be seriously addressed. Since 2011,
following a broad but flawed investigation into
campus assault with that lacked substantive
accuracy [1], OEO administrators acted to bolster
enforcement, hire investigators to commit to
punishing presumed abusers, and monitor
enforcement findings. In an eagerness to correct
what was perceived as historical underreporting of
sexual abuse on campus, OEO severely restricted an
accusers opportunity to respond, be heard, and
prepare. Funding for each university’s OEO office
depend in significant part on the number of cases
they attract, investigate, and find policy violations.
The Office for Equal Opportunity ("OEO"), claiming
authority under Title IX which sensibly compels
universities to balance both athletic and academic
considerations to prevent gender discrimination in
schools that receive public funds, took broad
enforcement authority. It has used for the past
decade a "single investigator" model, in which the
school designee responsible for investigating the
assault is also at least one of the three people who
make the determination of whether sexual
misconduct may have occurred. The young man
accused is not informed of his right to counsel by the
investigator, and hundreds of young men have had
their lives forever changed for the worse, due to an
innocent willingness to talk to an investigator
without counsel.
The present OEO procedure does not give an
accused person specific information on what the
accuser has told him, she is not identified by name,
and he is presumed to already know the scope of the
allegation. The disturbing one-sidedness of the OEO
process has increasingly been challenged, from many
concerned authorities, including the letter from fifty-
six Harvard University law professors to OEO
(2009) and libertarian commentators [2] to the
present President’s Education Secretary. Retired
federal judge Nancy Gertner [3] was disturbed by the
"low standard for evidence that condemns a young
man by a mere preponderance":
"True enough, except for the fact
that civil trials, at which this
standard is implemented follow
months, if not years, of discovery
(and) is worst in both worlds. The
lowest standard of proof(,) coupled
with the least protective
procedure."
Judge Gertner accurately describes how the accused
person has virtually no right to learn the details of
the allegation, so he risks being adversely judged
because he says too much or too little. He is not
permitted to directly question his accuser. While
OEO investigators repeatedly assure the suspect that
its records are "confidential" and it does not work
with law enforcement, this representation is a rather
brazen, functional fabrication of careful and
misleading phrasing. OEO investigators readily
forward their interviews, with or without a
subpoena, to law enforcement authorities. The
illusory representation that OEO investigators not
work with law enforcement is further diluted by the
fact that University Police often have ready access to
these investigations. Once he receives often-
horrifying allegations (also horrifying because
details are unknown and often greatly exaggerated),
the male student has few choices. An adverse OEO
finding has grave consequences, but, should the
allegation be found unproven, there is absolutely no
consequence to the accuser. She gets a free shot at
his life.
The jeopardy to his academic opportunities and
professional future cause some students to consider
withdrawing or transferring from school, but OEO
does not permit this option. It will continue its OEO
investigation and enter its conclusion on the young
man's permanent records, even withholding
issuance of his transcripts. What this means to the
accused is that he has little choice but to blindly
participate in an unfair process or almost certainly
be guaranteed that OEO will make unilateral adverse
presumptions and find against him.
OEO headquarters maintain records of each local
office at universities to be sure that they find
"probable cause of violation of university policy" at a
subjectively sufficient percentage. Our own
University of New Mexico was one of the universities
in the recent past, criticized by OEO and threatened
with a reduction of funds for its OEO office because
it was not finding "probable cause" at a high enough
percentage to satisfy OEO. The risk of bias in the
system is obvious, and, because the people in the
position of investigation and maintaining its process
were hired to such full-time positions based on their
beliefs, the likelihood of a fair finding is even more
imperiled. An office receives no increased funding if
it too often finds against the accusers.
Let's take a look at how one of these cases developed
when, because the young man decided to fight back
and concede his good name would be disclosed in
media coverage, resulted in Due-Process litigation.
In 2016, the young woman at Kennesaw State
University in Georgia claimed she had been raped by
a male friend. She admitted the incident began as
consensual fooling around and ended in
nonconsensual intercourse, then, later, more
specifically admitted that she let him spend the
night, after which, they ate breakfast together in the
morning and planned a date later in the day.
Unfortunately, for the young man, he neglected to
call back, and when the troubled young woman
complained about being stood up to friends, they
told her she should file a rape claim against him,
which she did. Far too often, as even as many
competent attorneys acknowledge, the broken date
leads to “regret-sex” allegations.
When describing her reluctance to allow an accused
male student more information before he is
compelled to be interviewed by OEO and balance the
system more equally, Noreen Farrell, Executive
Director of Equal Rights Advocates, who originally
argued in 1977 that Title IX should include sexual
harassment violations, now concedes, "We, in the
advocacy community, who have been involved in
Title IX for decades, understands this (additional
rights to protect an accused) is nothing short of a
catastrophe."
Let us hope the pendulum, which swings from the
equilibrium of justice, once against the accuser and
now against an accused, may one day return to more
balanced stability that is fair and respects all parties.
Lawyer and political scholar Cate MacKinnon has
been stirring indignation and alarm on male-female
relationships for over thirty years, including
misrepresenting frequency of sexual assault by
claiming a subjective look alone is a sexual assault
and that every sexual act "where a man is in the
dominant position" equates to "rape" of a woman.
Long deemed an extremist, she finally secured a
broader audience with more influence on policy ten
years ago as universities sought aggressive means to
address what they believed were underreported
campus assaults. The swing in popular opinion is
evident in how acceptable it has become to ridicule
men in any forum, be it network media comments or
social settings. A tasteless joke or sexist comment
about a woman is no less offensive were about a
man. They are both wrong, and we all need be
conscientious not to tolerate it any more than
tolerate sexual assaults.
Especially unsettling is how well-meaning people
have been so eager to adopt extreme positions that
are diabolically prejudicial to an accused person.
They have made policy of "safe spaces" on campus
and a long list of "trigger" terms that offend them --
ostensibly to protect tender student ears from the
contrary opinions that earlier generations thought
was the whole idea behind higher education: to learn
by confronting and disagreeing with unpleasant.
Many feminists and progressive thinkers have finally
recognized that student authorities have gone too
far.
Columbia professor Laura Kipnis reminded OEO
zealots, "The feminism I identified with as a student
stressed independence and resilience; in the
intervening years the climate of sanctimony about
student vulnerability has grown too thick to
penetrate." Progressive commentator Michelle
Goldberg shared concerns that "demand for official
censure and emotional injury demonstrate how
correct (Dr. Kipnis) is" in her 2015 article for The
Nation. Others are concerned that this narrow
interpretation of Title IX responsibilities actually
objectifies women and seems to erase a women's
agency. The current Education Secretary conducted
hearing on the bias and revisions that recognizes the
accused students rights are scheduled to go into
effect in late 2020.
Harvard law professor Janet Halley, who long
decried the historical "slipshod handling" of sexual-
harassment and sex-assault cases, now warns, "It is
a moment of danger" in setting boundaries that
punish what is often standard campus behavior.
"We cannot expect to change behavior without
making women part of that equation." She was
among the lead group of professors who challenged
Harvard's Title IX policies in 2016 and eventually
adopted different standard for the law school to the
rest of Harvard. New Mexico universities adopted
the more extreme OEO procedure which centralizes
power into one OEO office that serves as
investigator, judge, and jury for the accused student.
John Samore adds that process does not afford the
accused right of counsel nor do the OEO
investigators warn an accused student that it will
share his interview records with law enforcement
nor do they give the young man a meaningful
opportunity to decline to be interviewed. If he were
to decline, it is certain that he will be found culpable
and sanctioned by the university by expulsion or
suspension. There is no consequence for a female
student who makes a provably false allegation. As we
have seen with United soccer players and Lobo
athletes, even old and unproven OEO allegations
have consequences that cost them jobs and
scholarships.
We now have much of feminism at outer poles, one
that makes the self-defined "survivor" movement a
matter of unquestioning acceptance, the other
concerned with a sensible balance where truth is not
a matter of faith alone. One that presumes women
helpless and the male solely responsible, another
that suggests joint responsibility. As Stanford law
professor Deborah Rhode describes it, one that holds
only the male responsible and another that
recognizes the "moral ambiguities of the common
dangers (to women and men) of excessive alcohol
use."
Or as John Samore (a father of five girls) describes
it, one that raises children (be they female or male)
to be responsible adults, The kind of procedural
abuse in OEO campus investigations neither helps
women be strong adults nor does it protect the
falsely accused.
References:
[1] NPR and Center for Public Integrity, as well
as the Rape Abuse and Incest National
Network, each of which developed statistics that
defined "rape" so broadly as to include far more
alleged victims than it is likely were actually
physically assaulted. It left the definition of
"rape" largely to the mind of an anonymous
group of students from only a few university
campuses.
[2] The day the Office for Civil Rights sends its
letter to the suspect, the federal government has
made "all sex unsafe on campus."
[3] Judge Nancy Gertner wrote The American
Prospect, 2015.
See our sex offense crimes page.
Do sex offender registration laws really protect us?
July 26, 2013
As more and more people are being put on state
and national sex offender registries, we are
discovering the original intent to protect
communities also have, in practice, many
problems. There are no easy answers. Most of us
would agree that some requirement that people
convicted of serious sex crimes should have to
register so that law authorities would know where
they can readily be located can be helpful.
Most of us would also agree that, if possible, we
would like these convicted people to serve their
punishment, fulfill their responsibility to pay their
debt to society, get necessary counseling, and have
a chance at becoming a productive member of
society. How can we expect them to accomplish
this transformation unless they can get a good job
and have an opportunity to participate in some
community?
These problems, as we are learning, arise from
trying to administer these laws fairly. First of all,
some states publish of where these folks live, so
they wind up being harassed by mean-spirited
people, even beaten, or even killed. Their families,
no matter how much they want to help restore
their loved one, can also be mistreated and
ostracized. If the offender cannot find work, they
get discouraged, isolated, and cannot benefit from
counseling as they might if they could see light at
the end of this tunnel.
Another real problem is how very differently our
states define the type of crime that requires a
person to have to register. The people are not just
folks who have done horrible things to children.
Many of the crimes for which one must register
include Internet behaviors that never result in
physical contact. For example, a high school
senior could be curious, get on the internet, and
look under some websites that may have child
pornography. Once he has done so, even if he is
only on the website for a few minutes, he has
committed a serious felony that can readily be
traced.
Other folks get convicted for "Romeo-Juliet"
relationships where (usually) the male is 18 or
older and (usually) the female is under age. The
difference between their ages varies from state-to-
state, but, whatever the charge, if a person is
convicted in one state and required to register, that
person must almost always register in any state
thereafter in which they might live. If another
young man is "sexting" with a person who is under
legal age, he can be found guilty of a crime for just
that. What strict interpretation of these alleged
age differences can be unduly harsh when the
parties could be "role-playing" as part of a little
flirting game. In some states, it is considered a
"sex crime" to simply "annoy" a child, which would
require New Mexico to enforce registration
requirements that can last from five years to a
lifetime. Oftentimes, the time period for
compelling registration is set without the judge
having the benefit of any "risk assessment' by a
qualified psychologist.
It is quite a challenge to strike a proper balance to
protect us from the few serious offenders who
might re-offend and not persecute many others,
which may prevent them healing themselves as
their victims also heal. Definitions of what actually
constitutes a "crime" can always be difficult.
define too narrowly, and genuinely bad people
cannot be prosecuted; too broadly, and decent
people's lives can be ruined.
See our sex offense crimes page.
We hear a lot about prosecutions for child
pornography; why does your office defend these
kind of cases?
July 5, 2016, updated May 20, 2017
When we attorneys are occasionally asked such a
question, our first response is to consider who is
asking and why. Usually the questioner is
referring to why lawyers represent someone
accused of, for example, hurting a child or
possessing child pornography. The obvious (and
accurate) answer is to pose to the questioner a
better question: would you like to live in a society
where people accused of especially "bad" crimes
are not permitted to have an attorney? Who gets
to decide what crime is so bad that the accused
person is not even entitled to legal representation?
You? Me? Someone else?
Even when the evidence is especially strong of a
person's guilt, we must also consider whether the
penalty prescribed by law is fair. The punishment
for most crimes in this country today is already
more severe than it was here thirty or eighty years
ago and far more severe than it is today in other
civilized Western democracies, of which we like to
consider ourselves the cultural leader.
Here is an example we would like you to consider.
Many outstanding citizens in this country have no
criminal records, good jobs, and good families, but
for some peculiar reason, develop an interest in
child pornography. No one will claim child porn is
a good thing, but it is all-too-easy for a merely
curious person to access it on line. Almost 100% of
people who view child porn never physically abuse
any children, but the penalties for merely
possessing child porn would lock them away in
prison for many decades. Does someone who
possesses child pornography deserve to spend fifty
(or even fifteen) years in prison or should they
spend a short time in prison and given an
opportunity for treatment of their illness? Which
option salvages the person and the family? Which
option costs our society less?
Oftentimes, the best ally in fairly resolving these
difficult decisions can be a reasonable prosecutor.
Too many prosecutors become full of themselves
and the astounding power they have to push and
push and push until the break a person or a crime
or a race of people. They are never satisfied at
solving a crime they zealously push for maximum
punishment and humiliation. Fortunately, some
others see the broader picture and take a more
balanced approach, doing what they can to be fair
and compassionate. They realize that showing
compassion or an element of mercy to the culprit
does not mean ignoring the actual victim. There is
honor in respecting both the accused and the
convicted person, as well as an alleged victim.
I confess that I consider asking the above topic
question myself to certain lawyers. When I say
"How can you represent these people?" I am not
talking about easy targets such as the poor, the
pitiable, and the mentally disturbed who may
occasionally commit crimes. I am referring to
attorneys who represent the large corporations in
fields such as pharmaceuticals (drug companies)
and oil and gas and weapons manufacturers and
insurance companies who, as a matter of their
daily course of business, mislead and deceive and
cheat the powerless.
You and I are the powerless. By devotion to profit
at any cost, these selfish corporations destroy and
maim and kill far more lives than all the convicts in
this country. Only rarely do these vicious
corporations get caught, but they will always have
a line of brilliant lawyers who eagerly collect a big
paycheck to do all they can to hide the truth to
protect the corrupt rich. They can always afford
more justice than the 99% of us. How can those
lawyers represent those corporations?
It is a big reason courageous defense attorneys
devote their careers to the working men and
women, in some way to help balance the scales of
justice.
See our sex offense - sex crimes page.