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Legal Update 2003

Spousal Communication Privilege in Child Sexual Abuse
January 2, 2003
Supreme Court of Pennsylvania
Commonwealth of Pennsylvania v. Jon Anthony Spetzer

The court examined the question of whether communications made by defendant to his spouse while there were pending charges of rape of his 12-year old step-daughter are protected by the spousal confidential communications privilege. The statements in question included an admission to raping the child, plans to abduct and rape the child and her sisters, and attempts to intimidate his wife and the child into recanting their prior accusations. At one point, he assaulted and choked his wife while telling her to make sure that the victim "keeps her mouth shut." The court held that in this case the challenged communications, which consisted of "persistent and sadistic statements," regarding the abuse of a child are not protected by the spousal confidential communications privilege.

Withdrawal of Consent Leads to Rape Charges
January 6, 2003
California Supreme Court
People v. John Z.
http://caselaw.lp.findlaw.com/data2/californiastatecases/s103427.doc

The California Supreme Court examined the question of whether a withdrawal of consent by a female nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse. The evidence at trial revealed that the 17-year old female consented to initial penetration by her male companion, and then withdrew her consent during the act of intercourse. She claims that the male continued against her will.

The Supreme Court reviewed the evidence and held that is immaterial at what point a rape victim withdraws her consent to sexual intercourse, so long as the withdrawal is communicated to the male. They ruled that the victim clearly communicated her withdrawal of consent to defendant and he had ample time to stop but failed to do so.

Florida 's Sexual Predator Act Ruled Unconstitutional
Jan 15, 2003
District Court of Appeal of Florida , 3 rd District
Espindola v. State

In a unanimous decision, the Third District Court of Appeals ruled that the Florida Sexual Predator Act violates procedural due process because it lacks provisions for determining a defendant's threat to the community. The ruling arose from a case involving a man who admitted to sexually assaulting a woman whose cocktail had allegedly been drugged. By pleading guilty to sexual battery, Ferman Carlos Espindola, 23, was automatically required to register as a sexual predator. The appeals court ruled that before requiring registration and public notification a hearing should be required to determine whether the defendant presents a danger to the public.

Ruling Recognizes Patients' Right to Sue Managed Care Organizations
February 11, 2003
U.S Court of Appeals (2nd Circuit), New York
Cicio v. Vytra Healthcare

A federal appeals court ruled that health maintenance organizations and their medical directors can be sued for medical malpractice when they make decisions about the treatment of a patient. In the past, courts have usually rejected such claims, saying they were precluded by Erisa, the federal law on employee benefits. Erisa law allows workers and their dependents to recover the cost of a service improperly denied; however, it does not allow recover damages for lost wages, pain and suffering or wrongful death. In the current case, the Court of Appeals for the Second Circuit ruled that Erisa only covers eligibility decisions. HMO's can be held accountable when they mix decisions about eligibility with decisions concerning medical treatment. Treatment decisions are not protected under Erisa and are subject to state standards of medical malpractice.

Archdiocese's First Amendment Motion Rejected
February, 19, 2003
Massachusetts Superior Court, Boston

More than 500 alleged victims of sexual abuse by Catholic clergy have brought legal claims against the Archdiocese of Boston, arguing that bishops were negligent in moving abusive priests from parish to parish. The Archdiocese of Boston filed a motion to dismiss the civil lawsuits arguing that sexual abuse lawsuits against the church violate the First Amendment's separation of church and state. Superior Court Judge Constance M. Sweeney rejected this argument ruling that the lawsuits should proceed because the cases will not delve into religious principles, but will instead focus on the handling of allegedly abusive priests by their superiors. To accept the church's argument, Sweeney wrote, would be akin to granting the church blanket immunity from civil lawsuits and would leave alleged victims of abuse with no legal redress in civil court.

Illinois Supreme Court Upholds Registration of Young Sex Offenders
February 21, 2003
Illinois Supreme Court
In re J.W.

In a 5 to 1 ruling the Illinois Supreme Court upheld the constitutionality the Illinois Sex Offender Registration Act. The Act requires juvenile "predators" who commit serious sexual offenses to be held accountable for their actions. As a result, sex offenders as young as 12 can be ordered to register as "sexual predators" for the rest of their lives. The ruling involved a 12 year old boy who pleaded guilty to sexually assaulting two 7-year-old boys in 1999. Despite finding that the Act is legal, several justices expressed reservations with its treating child as adults. Chief Justice Mary Ann McMorrow wrote that she hopes the legislature will reconsider "the wisdom of imposing such a burden on juveniles, particularly juveniles under the age of 13."

New report: Risks and Remedies for Online Pornography Exposure Among Youth
March 2003
http://www.unh.edu/ccrc/pdf/Exposure_risk.pdf

A new study by University of New Hampshire researchers found that a quarter of youth surveyed said they had been exposed to pornography involuntarily over the course of a year. Youth who go to chat rooms, use computers in other people's homes and engage in risky online behavior tend to encounter more unwanted online pornography. In contrast, youth in households with filtering and blocking software are exposed to pornography somewhat less frequently. These findings are published in the March 2003 issue of the journal Youth and Society by researchers Kimberly Mitchell, David Finkelhor and Janis Wolak of UNH's Crimes against Children Research Center .

Nine-Month Delay in Reporting Sexual Harassment No Bar to Title VII Suit
March 2003
U.S. District Court (3rd Circuit), Pennsylvania
Hawk v. Americold Logistics

A Pennsylvania federal court has ruled that a worker who delayed complaining about her supervisor's alleged sexual harassment for nine months may proceed to trial on her Title VII claim. Plaintiff Susan Hawk, a forklift driver at Americold, was allegedly harassed verbally and physically by her supervisor, Jack Bambary. Hawk did not report Bambary's behavior initially because he was her boss and she was a temporary employee. As a single mother, she was afraid of losing her job.

Eight months later, Hawk finally reported the harassment. While it was under investigation, she experienced another incident of harassment and Hawk resigned and informed Americold that she had been constructively discharged. Americold claimed that it had exercised reasonable care to prevent and promptly correct any harassing behavior and that Hawk unreasonably failed to take advantage of preventive or corrective opportunities by delaying her reporting of Bambary's harassment. The court found on Hawk's behalf, noting that her delay stemmed from a reasonable fear of losing her job, since her alleged harasser was her supervisor.

Supreme Court Upholds `Three-Strikes' Law
March 5, 2003
U.S. Supreme Court

The high court addressed an appeal to California 's "three-strikes" law. The California law allows a life prison term for someone convicted of a third felony --"no matter the severity of the crime. The Supreme Court upheld the law, ruling that a term of 50 years to life in prison is not out of bounds for a small-time thief who shoplifted videotapes from Kmart. The tapes were worth $153.

Court Upholds Sex Offender Registration
March 5, 2003
U.S. Supreme Court

In its first review of Megan's laws, the Supreme Court upheld the law in two states -- Connecticut and Alaska . All 50 states now have Megan's laws, which impose registration requirements on dangerous sex offenders. In addition to requiring offenders to notify the authorities of their whereabouts, most states post public registries on the Internet. In the Alaska case ( Smith v. Doe ), the Supreme Court ruled that states may put pictures of convicted sex offenders on the Internet without unconstitutionally punishing them twice. The second ruling dealt with Connecticut 's Internet registry ( Connecticut v. Doe ). By a vote of 9 to 0, the court rejected the argument that before posting offenders' photographs and information on the internet, Connecticut must give offenders the chance to demonstrate at a hearing that they are not dangerous. The Megan's laws take their name from a law passed in New Jersey in 1994 after a 7-year-old girl, Megan Kanka, was raped and murdered by a twice-convicted sex offender who lived across the street from the unsuspecting family.

Court Strikes Down Online Porn Law
March 6, 2003
U.S. Court of Appeals (3 rd Circuit), Philadelphia

The Child Online Protection Act (COPA) makes it illegal to "knowingly" publish material that is "harmful to minors" on the World Wide Web and for a "commercial" purpose. The Act was challenged by the American Civil Liberties Union who claimed that the Act infringes on the free speech rights of adults. The federal appeals court in Philadelphia agreed and ruled that COPA fails the strict scrutiny test because the definitions of key terms and provisions in the statute (e.g., definitions of "commercial" and "harmful to minors") weren't narrowly tailored. For example, in seeking to define material harmful to minors, the law made no distinction between things inappropriate for a 5-year-old and things harmful to someone in their mid-teens. As a result, Internet publishers must guess at the potential audience of minors and their ages so that the publishers can refrain from posting material that will trigger the prurient interest, or be patently offensive. The court also ruled that screening methods suggested by the government, including requiring Web-page viewers to give a credit card number, would unfairly require adults to identify themselves before viewing constitutionally protected material such as medical sites offering sex advice.

PAS Testimony Rejected by California Appellate Court
April 3, 2003
California Court of Appeal, Sixth District
People v. Sullivan

In an unpublished decision, the California Court of Appeal upheld a lower court ruling which excluded expert testimony on parental alienation syndrome (PAS). PAS is a controversial syndrome in which one parent purportedly turns a child against the other parent in order to gain an advantage in custody litigation. Charles Phelps Sullivan claimed that his ex-wife prompted their 8-year-old daughter to make a false accusation against him.

Sullivan had also been accused of abuse some years before by his step-daughter when she was five. Although no charges were ever brought against him, the accusations led to the breakdown of his marriage. After the divorce, the mother allowed defendant to have custody of both girls from the current relationship. The mother's other daughter (Sullivan's step-daughter) went to live with her biological father. The mother became a long distance truck driver and visited every few months. The older of the two daughters left living with Sullivan disclosed abuse during a visit with her mother, and the mother took her to a hospital. The daughter then made a detailed and emotional disclosure to the police.

During the criminal trial, the court refused to expert testimony on PAS. In refusing to allow the father's expert to testify before the jury, the judge stated: (1) the behavior was not beyond common experience of the jury (2) the testimony was not scientific enough to satisfy the "Kelly-Frye" rule; and (3) Dr. Rand's name was not included on the witness list. Sullivan was found guilty at jury trial of six counts of aggravated sexual assault and one count of forcible lewd or lascivious acts on a child and was sentenced to a term of 96 years to life in state prison.

Sullivan appealed on a number of grounds including the courts refusal to allow testimony on PAS. The appellate court found that the court had not abused its discretion in refusing to let Dr. Rand testify. Noting that the concept that a parent would encourage a child to lie in a divorce proceeding is commonly understood, as such the appellate court held that admitting testimony on PAS would not have added to the jurors' common fund of information. However, the appeals court found that the lower court erred when it failed to state reasons for imposing fully consecutive sentences. Thus, the case was remanded for resentencing.

Supreme Court Approves Execution in Juvenile Case
April 4, 2003
U.S. Supreme Court

The Supreme Court overturned a stay allowing Oklahoma to move ahead with the execution of a man who was 17 when he killed two people. Scott Allen Hain, 32, had won a reprieve from the U.S. Court of Appeals for the 10th Circuit. According to the American Bar Association (ABA), the United States and Iran are the only countries in the world that formally allow the execution of juvenile offenders.

Supreme Court Sides with Managed Care Organizations
April 7, 2003
U.S. Supreme Court
Pacificare Health Systems, inc., et al., v. Book et al .

Over 600 doctors brought a class-action RICO (the Racketeer Influenced Corrupt Organizations Act) suit against managed care organizations. They alleged that the HMOs failed to reimburse them for health-care services that they had provided to patients covered by organizations' plans. The Supreme Court ruled unanimously in favor of the managed care organizations which had petitioned for the dispute to be submitted to arbitration.

Congress Approves Child Abduction Prevention Act
April 10, 2003

The House and Senate overwhelming approved legislation establishing a nationwide, federally subsidized alert system to help rescue abducted children. The "Amber alert" system, already operating in many states, uses the media to convey information about suspected child abductions. In addition, the bill heightens penalties for those convicted of sex offenses. For example, the bill calls for a mandatory life sentence for twice-convicted sexual offenders; denies pretrial release for alleged child rapists or child abductors; and extends the statute of limitations for child abductions and sex crimes to the life of the alleged victim. The bill also bans the distribution of "virtual" child pornography -- legal pornographic images of adults that have been digitally altered to look like children having sex -- and makes it illegal for online pornographers to deliberately mask their sites behind innocuous domain names.

Sioux Sue the United States for Abuse at Government-Run Schools
April, 11, 2003
U.S. Court of Federal Claims, Washington , DC

Six members of the Sioux Nation who say they were physically and sexually abused in government-run boarding schools sued the United States for $25 billion. The class-action lawsuit seeks damages on behalf of all students who were allegedly abused in the past century at the schools, most of which were run by churches or other religious groups. The plaintiffs claim in their lawsuit that the government forced them to leave their homes for boarding schools where psychological, physical, and sexual abuse was routinely inflicted on Indian children.

HIPAA - Medical Privacy Rules Go into Effect
April 14, 2003

New federal rules establishing the nation's first medical privacy standards took effect on April 14, 2003. The Health Insurance Portability and Accountability Act (HIPAA) dramatically changes the way hospitals, doctors, health plans and pharmacies must handle personal health information, and imposes criminal and civil penalties for breaching patient privacy.

Under the rules, patients will receive notices from their providers describing their new rights. Those rights include the ability of patients to examine their own medical records but restrict others from accessing patient data. For example, the rules forbid healthcare providers from sharing identifiable health information with employers. One of the underlying goals of the new regulations is to prevent employers from using health information in making employment decisions. In addition, unless a patient has specifically granted his or her consent, providers may not sell lists of patients to companies for marketing purposes.

HIPAA for Psychologists: Online Course offered by APA http://www.apapractice.org/apo/hipaa/course.html#

This online course provides a step-by-step guide to complying with the HIPAA Privacy Rule. It includes state-specific forms, policies, and explanations that can be personalized and saved to your desktop. It also offers an optional test for CE credit. Practitioners insured through the APA Insurance Trust will receive a 5% premium discount for passing the CE test.

HIPAA Challenged for Failing to Safeguard Patients' Privacy
April 14, 2003
U.S. District Court (3rd Circuit), Philadelphia

A coalition of privacy advocates and medical professionals filed suit challenging the new HIPPA regulations. The suit alleges that the new regulations will illegally eliminate the duty to obtain a patient's consent before disclosing medical records and give insurance companies, drug companies and police virtually unfettered access to individual medical records.

According to the suit, a key element of the original rule was recognition of the traditional right of individuals to give or withhold consent before their personal health information is used or disclosed for most routine purposes. However, the Department of Health and Human Services altered this provision when they issued the "Amended Privacy Rule" in August 2002. According to the suit, this amendment grants blanket regulatory permission for thousands of organizations and individuals to use and disclose individuals' identifiable health information for routine purposes without their knowledge or consent and against their will. As a result, the suit alleges, the new rule effectively "turned the health information `privacy' rule into a health information `disclosure' rule."

Adolescent Mayo Deny Guardian ad Litem Access to Her Therapy Records
April 30, 2003
Florida Court of Appeals
S.C. v. Guardian ad litem, No. 4D02-3414, 2003 WL 1970335 (Fla.Ct. App. Apr. 30, 2003)
The Department of Children and Family Services petitioned for adjudication of dependency and filed a motion to give the child's GAL access to her therapy records. The 14-year old girl objected to the release of the records on the grounds of psychotherapist/patient privilege.

On appeal, the court held that she had a right to assert the privilege because the simple form of GAL appointment cannot override the child's right to privacy and right to assert the privilege. 

The appeals court found that "at a minimum, [the petitioner] was entitled to notice and an opportunity to be heard, before any such invasion may be permitted." While the court acknowledged that "a guardian ad litem has an interest in inquiring into the child's progress in therapy," it concluded that the interest does not trump S.C.'s right to assert the therapist/patient privilege. In Florida , the therapist/patient privilege gives patients, regardless of age, the right to refuse to disclose communications with a therapist in the course of treatment for a mental or emotional condition.

The University of Miami School of Law's Children and Youth Law Clinic filed an amicus brief in support of the petitioner. The guardian ad litem plans to appeal.

The PROTECT Act of 2003 Signed into Law
April 30, 2003

The PROTECT Act law does the following:
It establishes a nationwide AMBER Alert Program to help recover abducted children.
It provides expanded wiretapping authority to catch suspected sex predators before they strike. Law enforcement officers say online sex predators often use a phone call to arrange meetings, and this new authority will allow them to intervene before these meetings take place.

  • It strengthens laws punishing offenders who travel abroad to prey on children (i.e., "sex tourism").
  • It removes statutes of limitation for federal crimes involving the abduction or physical or sexual abuse of a child.
  • It provides increased federal penalties for sexual exploitation of children and child pornography.
  • It revises and strengthens a prohibition on `virtual' child pornography

Doctors Charged for Failing to Report Suspected Abuse
May 19, 2003
Wayne County, Michigan

An emergency room doctor and an internist were charged with failure to report child as mandated by law. Rufus Young, a four-year-old foster care child, was examined by these doctors in February 2003 at Children's Hospital of Michigan . Six weeks later Rufus was beaten to death. His foster father, Roderick Hall has been charged with the killing.  The Wayne County Prosecutor's office has charged two doctors with failing to report suspected child abuse. The doctors entered not guilty pleas and they were released on personal bond. The charge is a misdemeanor and the maximum time it carries is 93 days in jail.

Expert Testimony on PTSD Cannot be Used to Prove that Sexual Abuse Occurred.
May 20, 2003
Louisana Supreme Court
Louisiana v. Chauvin, No.02-K-1188, La. Sup; 2003 La. LEXIS 1604

In a 2 to 1 ruling, the Louisiana Supreme Court ruled that expert testimony on PTSD cannot be used to prove that sexual abuse occurred. After a jury trial, the defendant, Amos John Chauvin, was convicted of two counts of indecent behavior with a 14-year-old girl. At trial, the State introduced expert testimony by a licensed clinical social worker who had diagnosed the adolescent with PTSD. The trial court allowed the testimony, over the objection of the defendant, without conducting a Daubert hearing to test the reliability of PTSD in the diagnosis of sexual abuse.

The court of appeal reversed the convictions and remanded for a new trial, finding the trial court abdicated its responsibility to "act as a gatekeeper," by failing to apply the Daubert ( Daubert v. Merrell Dow Pharmaceuticals, Inc .) and Foret ( State v. Foret ) factors to test the reliability of the theory of PTSD in the diagnosis of sexual abuse. The state asked the Supreme Court to review this decision.

The Louisiana Supreme Court affirmed the lower appellate court and, relying on a Maryland case, Hutton v. State (1995), held that since there is no evidence showing that PTSD evidence is reliable and accurate as substantive proof of sexual abuse and therefore, it is inadmissible for this purpose. (The Hutton court noted that causes other than sexual abuse may trigger PTSD, thus a diagnosis of PTSD does not reliably prove the nature of the stressor.)
The justice who dissented wrote that the expert never did testify that PTSD was the result of sexual abuse or that it was used to prove the abuse occurred. This justice emphasized that PTSD is a "scientifically recognized and credible condition" and that evidence of the victim's PTSD was proper simply to articulated the victim's behavior to the jury.

Ohio Prosecutes Abuse Victim for Violating Her Own Protective Order
May 30, 2003
On appeal to the Ohio Supreme Court

In what appears to be a first, the Ohio courts have held that it's allowable for the state to prosecute a victim with aiding and abetting her abuser in violating a restraining order.
The case arose from a May 2001 birthday party that Betty Lucas, 35, of Newark , held for one of their children. She invited her ex-husband, Joseph Lucas, to the party, in spite of the fact that she had a protective order against him at the time from a previous domestic violence arrest. The order prohibited Joseph Lucas from having any contact with his ex-wife. When the party disintegrated into fighting, the police were called. In an unexpected twist, both adults were charged with violating the protection order - her ex-husband for attending and Lucas for inviting him.

Ms. Lucas pleaded guilty to domestic violence in the wake of the fight with her husband and was sentenced to 90 days in jail. She also pleaded no contest to violating her own protection order, and was sentenced to another 90 days in jail. Mr. Lucas, on the other hand, was prosecuted only for violating the protective order. He also pleaded no contest and was fined $100.

Betty Lucas appealed her complicity conviction to the 5th District appellate court. The court upheld her conviction. The court said that it was "overreaching" when someone like Lucas "requested the protection order, and then recklessly exposed herself to the offender from whom she has sought protection."

The case is now on appeal to the Ohio Supreme Court.

Court Throws Out Child-Porn Evidence Against California Judge 
June 17, 2003
Federal Court, District Court, 9 th Circuit
U.S. v. Kline, CR02-40 ( C.D. Ct., filed 2002).

A federal judge threw out the majority of the evidence in the government's child-pornography possession case against former Orange County Superior Court Judge Ronald Kline. In a 13-page opinion, U.S. District Judge Consuelo Marshall suppressed all evidence seized from Kline's home, including more than 100 images of child pornography from his private computer and a child-porn videotape, because it stemmed from an illegal computer break-in.

Canadian hacker Bradley Willman had used a Trojan Horse virus to infiltrate Kline's home computer, where he allegedly found nude pictures of boys and a sexually graphic personal diary. Willman alerted a Kansas-based Internet watchdog group, PedoWatch, who in turn alerted the Irvine Police Department. The police subsequently obtained a warrant to search Kline's home and work computers where large quantities of child porn were found.

The federal judge ruled that the hacker was acting as a government agent when he illegally searched Kline's computers in 2000. Marshall scolded the government for its reliance on the self-appointed cyberpoliceman and questioned why Willman was not prosecuted for his extensive computer hacking or for his possession and transmission of child pornography.

Theory of Fraudulent Concealment Overcomes Statute of Limitation in Decades-Old Abuse Suit
June 19, 2003
Wayne County, Michigan

A man referred to in court papers as John Doe, alleges that he was abused by the Rev. Robert Burkholder while his family attended Immaculate Heart of Mary Church in Detroit in the 1970s. Burkholder, now in his 80s, has been labeled Michigan 's worst pedophile priest by Wayne County Prosecutor Michael Duggan. In the 1990s, Burkholder admitted to Catholic officials that he had molested nearly two dozen boys during his career.

Until now, most people who were sexually abused as minors by priests have been unable to file claims against the church in Michigan , because the statute of limitations for such actions has long since expired. However, a judge in Wayne County allowed the suit to go forward under the theory of fraudulent concealment. Under Michigan law, for fraudulent concealment to postpone the running of the period of limitations, the fraud must be manifested by an affirmative act or misrepresentation. A plaintiff must show that the defendants engaged in some arrangement or contrivance of an affirmative character designed to prevent subsequent discovery.

Mr. Doe's attorney, Cyril Weiner, argued that the Archdiocese of Detroit was aware of Burkholder's abuse and became a partner in his crimes by fraudulently concealing complaints and moving him from parish to parish. The archdiocese is expected to appeal the decision.

Supreme Court Upholds Internet Library Filters
June 23-2003
U.S. Supreme Court
U.S. v. American Library Association et al.

Congress enacted the Children's Internet Protection Act (CIPA), which forbids public libraries to receive federal assistance for Internet access unless they install software to block obscene or pornographic images and to prevent minors from accessing material harmful to them. The law was challenged by a coalition led by the American Library Association and the American Civil Liberties Union, who argued that the law constituted unconstitutional censorship and that filters may also block access to legitimate topics such as breast cancer or homosexuality.

By a 6-3 vote, the U.S. Supreme Court upheld the law ruling that public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, does not induce libraries to violate the Constitution, and is a valid exercise of congressional power.

"Keeping Children Safe Act" Signed into Law
June 25, 2003
Public Law 108-36

The Keeping Children and Families Safe Act of 2003 reauthorizes the Child Abuse Prevention and Treatment Act (CAPTA). CAPTA, which helps states improve practices in preventing and treating child abuse and neglect, includes a basic state grant program for improving the child protective services (CPS) system infrastructure, a discretionary grant program for research, program demonstrations, training, and other innovative activities, and a grant program focused on community-based prevention efforts. The bill also reauthorizes the Adoption Opportunities Act, the Abandoned Infants Assistance Act and the Family Violence Prevention and Services Act. As part of the law, HHS is required to conduct a 4th National Incidence Study of Child Abuse and Neglect and report its findings within four years of enactment.  The last National Incidence Study was conducted in 1993.

Court Strikes Down California Law on Old Sex Crimes
June 26, 2003
United States Supreme Court
Stogner v. California, 01-1757.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol= 01-1757

In 1993, California enacted a new criminal statute of limitations permitting prosecution for sex-related child abuse where the prior limitations period has expired if the prosecution is begun within one year of a victim's report to police. A subsequently added provision made it clear that the law revives causes of action barred by prior limitations statutes.

In 1998, Marion Stogner was indicted for sex-related child abuse committed between 1955 and 1973. Stogner was accused of molesting his daughters when they were children. Police uncovered the abuse while investigating molestation claims against his sons. His daughters said that he began molesting them when they were under age five and the abuse went on for years. At the time those crimes were allegedly committed; the limitations period was three years. And that period had run 22 years or more before the present prosecution was brought.

The U.S. Supreme Court struck down the law saying that it violated the Constitution because it was enacted after prior limitations periods for Stogner's alleged offenses had expired. The Court ruled that "[a] law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution."

An Amicus Brief was filed in support of the State's position by the American Psychological Association; the National Association of Counsel for Children; the American Professional Society on the Abuse of Children. The brief can be accessed at http://naccchildlaw.org/training/stogner.pdf

Physician immune from suit for reporting child sexual abuse
June 30, 2003
Georgia Supreme Court
O'Heron et al. v. Blaney et al., 276 Ga. 871; 583 S.E.2d 834; 2003 Ga. LEXIS 608 (Supreme Court of Georgia, 2003)

This case involves a physician who was sued after reporting suspected child sexual committed against two young girls by their grandfather. The abuse allegations were brought to the doctor's attention after the girls disclosed to their mother. During an examination and interview with each child, the children made specific and detailed allegations of sexual contact by their grandfather. The physician reported the allegations to child protective services. Criminal charges were brought against the alleged abuser but later abandoned by the district attorney after a grand jury refused to indict him. The accused then filed a civil suit against the physician alleging malicious prosecution, professional malpractice and ordinary negligence.

Summary judgment for the defendant was granted by the trial court, as Georgia's mandated reporter statute shields a mandated reporter from civil liability where there exists "reasonable cause to believe" that abuse has occurred, or where there is a "showing of good faith." The accused appealed and the Court of Appeals reversed the lower court's ruling. The Supreme Court of Georgia reversed the Court of Appeals decision and reinstated judgment in favor of the physician finding that physicians having a reasonable basis to suspect child abuse are shielded from criminal and civil liability for reporting the abuse under the mandatory child abuse reporting law.

Appeals Court Dismisses Guilty Plea in Obscenity Case Involving Fictitious Stories
U.S.10th District Court of Appeals , Ohio
July 17, 2003

A state appeals court dismissed the guilty plea of a man imprisoned for writing fictitious stories of child torture and molestation. Brian Dalton, on probation for a 1998 conviction involving child pornography, kept a journal in which he described in graphic detail his fantasies about the abduction, rape and torture of three young children. Although the writings were fictitious, Daltonplead guilty to "pandering obscenity involving a minor." The court later refused to allow withdraw his guilty plea and he was sentenced to 10 years in prison.

ACLU attorneys appealed on his behalf arguing that Dalton was wrongfully imprisoned for what should have been constitutionally protected free speech. Dalton also argued that he had received ineffective counsel. Agreeing that he initially received poor legal assistance, the Ohio appeals court threw out Dalton 's guilty plea. The case was then remanded back to Franklin County Common Pleas Court for retrial. The prosecution has since appealed the dismissal of his conviction to the Ohio Supreme Court.

Budget Crisis Doesn't Excuse States from Complying with Federal Law
August 5, 2003
U.S. 10th Circuit Court of Appeals, Kansas

The U.S. Supreme Court ruled in June 1999 that under the federal Americans with Disabilities Act, it is discrimination to institutionalize a person with a disability who could live at home with proper community-based support. According to a ruling by the U.S. 10th Circuit Court of Appeals, the Supreme Court decision also applies to those not already living in an institution and those who are on waiting lists. Further, the appellate court ruled that a budget crisis alone doesn't excuse states from complying with federal law.

In November 2002, responding to budget problems, Kansas officials imposed a "hard freeze" on the Department of Social and Rehabilitation Services' waiting list for Medicaid-funded services to help prevent disabled people from being forced to move into nursing homes. Many on the long waiting list have waited over a year for services. The freeze meant that no new names could be added to the list. Advocates for the disabled sued the state noting that the freeze would force disabled persons of all ages who could be cared for at home into institutions. If the ruling stands, Kansas will have to come up with the money to provide community-based services for all those who qualify.

State Law Requiring Juvenile Sex Offenders to Register on the State Sex Offender Registry Upheld
August 11, 2003 
South Carolina Supreme Court

The South Carolina Supreme Court unanimously held that forcing a boy to register after he was convicted of first-degree criminal sexual conduct when he was 9-years-old does not violate the child's right to due process. The justices accepted the state Attorney General's Office argument that the boy's reputation would not be harmed because the names of children who committed their offense under age 12 are kept off the public sex offender list. In South Carolina the names are kept on a separate list available only to victims or witnesses, schools, day-care centers and businesses or organizations that primarily serve children, women or vulnerable adults.

Doctor Need Not Tell Patient of Affair with Wife
August 15, 2003
Pennsylvania
Long v. Ostroff

A Philadelphia judge has ruled in what appears to be a case of first impression that a medical doctor does not have a professional duty to refrain from sexual affairs with spouses of patients. Walter Long of Philadelphia sued his family physician, Dr. Jonathan E. Ostroff, for negligence after finding out that his doctor he was having an affair with his wife. Common Pleas Judge Sandra Mazer Moss granted the doctor's motion to dismiss noting that the affair did not constitute malpractice under state law. Mazer Moss held that while many jurisdictions have recognized that a sexual relationship between a psychiatrist and patient can constitute malpractice, there was no therapist-patient relationship between the doctor and either of the Longs. The suit has been appealed to the Superior Court.

Psychiatrists Can't Testify Against Patients Who Make Threatening Confessions during Therapy
August 22, 2003
U.S. 9th Circuit Court of Appeals, Oregon

Although psychiatrists are sometimes required to report incidents to authorities that could lead to violence, the 9th U.S. Circuit Court of Appeals ruled that prosecutors can't use testimony from doctors to help convict their patients. Psychiatrist Dr. Kay Dieter was treating Steven Chase for bipolar disorder. Chase, who was under investigation by the FBI, described having homicidal thoughts during therapy. Eventually, Dieter became concerned enough to notify the FBI. Chase was arrested and faced a trial on two counts of threatening to murder FBI agents.

The appellate court held that the gain from refusing to recognize a dangerous-patient exception to the psychotherapist-patient testimonial privilege in federal criminal trials outweighs the gain from recognizing the exception. "Although incarceration is one way to eliminate a threat of imminent harm, in many cases treatment is a longer lasting and more effective solution. A criminal conviction with the help of a psychotherapist's testimony is almost sure to spell the end of any patient's willingness to undergo further treatment for mental health problems." The court noted that its ruling doesn't extend to proceedings in civil court over whether the patient should be committed to a hospital.

Supreme Court Rejects Request for Sex Offender Program
August 25, 2003
South Carolina Supreme Court

The South Carolina Supreme Court ruled that a man serving 35 years in prison on child molestation and other charges can not force the state to treat him in a sex offender program. Chuck Sullivan, a former high school coach, pleaded guilty in 1998 to 32 charges involving at least 17 boys between the ages of 11 and 16. Sullivan completed the first stage of sex offender program and was then placed on a waiting list for the second phase of the program. Sullivan filed a grievance against the Corrections Department contending that the state constitution guarantees him a right to rehabilitation. The Supreme Court noted that Sullivan has already received some rehabilitation and the constitution does not guarantee him the right to participate in a particular program.

Court Limits Grandparent Visitation Rights
August 25, 2003
South Carolina Supreme Court

The South Carolina Supreme Court sharply limited the ability of Family Court judges to order visitation rights for grandparents. Susan and Terry Smith appealed a Family Court decision ruling which required visits between their three children and Susan's parents. In an unanimous decision, the high court held that showing a child may benefit from contact with the grandparent, or that the parent's refusal is simply not reasonable, does not justify government interference in the parental decision. Prior to this ruling, grandparents in South Carolina could petition for visitation with their minor grandchildren if the parents of the children were separated or divorced. The grandparents had to show that they had an existing relationship with their grandchildren, that the visits would be in the best interest of the children, and that visits would not interfere with the parent-child relationship. According to this new ruling, before being granted visitation grandparents will have to show more compelling factors, such as "significant harm" if visitation isn't allowed.

Missouri Supreme Court Overturns Juvenile Death Sentence
August 26, 2003
Missouri Supreme Court

The Missouri Supreme Court overturned the death sentence of Christopher Simmons, who was 17 when he broke into a woman's home, kidnapped her and killed her. In 1993 Simmons was convicted of murder and sentenced to death. Under current Missouri law, convicted murderers age 16 and over can be sentenced to death. Simmons appealed the decision arguing that the minimum age should be 18 -- traditionally considered the age of adulthood. In a 4-3 decision, the Missouri Supreme Court resentenced Simmons to life in prison without eligibility for parole. The court found that "a national consensus has developed against the execution of juvenile offenders," as evidenced by the growing number of states that bar such executions for juveniles.

Death Penalty Given in a Child Rape Case
August 27, 2003
Louisiana

A Louisiana man was convicted and sentenced to death recently under a Louisiana law that allows for death in cases of rape involving children under age 12. Patrick Kennedy was accused of raping an 8-year-old stepdaughter, injuring her so badly that she required surgery. The girl, who is now 13, testified against him. During the penalty phase of the trial, Kennedy's goddaughter testified that he had raped her on three occasions when she was 8 or 9.

Although Louisiana drafted its child-rape law in 1995, this is the first time a jury has agreed to impose it. The death sentence is the first in the United States for any crime other than murder since 1977, when the United States Supreme Court held in Coker v. Georgia (1977), that death an excessive punishment for rape. Only two other states, Florida and Montana , have capital-rape laws on their books. However, prosecutors don't use them. Legal experts in Louisiana believe the case will be overturned and the law deemed unconstitutional upon review.

Juveniles Covered by Federal Prison Litigation Reform Act
August 28, 2003
U.S. 2nd Circuit Court of Appeals , New York
Lewis v. Gagne

In an apparent case of first impression in the 2nd U.S. Circuit Court of Appeals, a Northern District judge has found that juvenile delinquents detained by the state are covered by the federal Prison Litigation Reform Act. As a result, youths with a complaint about their treatment in a state facility must exhaust administrative remedies before they will be allowed to take their case to court.

The matter involves Corey Lewis, a juvenile delinquent who was detained at Tryon Residential Facility in Johnstown , N.Y. The facility is operated by the state Office of Children and Family Services. In 2001, Lewis, who was 13 at the time, claims that aides intentionally burned his hand and wrist on a metal heater while attempting to restrain him. He further alleges he was denied medical treatment by a burn specialist or outside hospital.

Lewis made verbal complaints to the staff, and his mother contacted an attorney and the Family Court. She also filed a complaint with the New York State Child Abuse and Maltreatment Register. The state contended that the case was covered by the Prison Litigation Reform Act and moved for dismissal based on failure to exhaust administrative remedies. U.S. District Judge David Hurd ruled that the Prison Litigation Reform Act applies to juvenile detainees. However, he rejected the state's argument that Lewis had failed to exhaust his administrative remedies. Judge Hurd ruled that a literal adherence to every element of the administrative process is not necessary, especially when the facility itself often digresses from the formal procedure.

Texas Medicaid Cuts Mental Health Services for Adults 21 and Older
September 1, 2003

During its regular session, the Texas Legislature enacted several measures that resulted in the elimination of Medicaid funding for mental health services for adults. As a result, no mental health professionals, except psychiatrists, are authorized to bill Medicaid for mental health services provided to adults over the age of 21 as of September 1, 2003.

First Charges Filed Under New Internet Porn Law
September 3, 2003
U.S. v. Zuccarini

John Zuccarini, 53, is the first person to be charged with violating a provision of the new Amber Alert legislation designed to prevent the use of misleading Internet addresses to lure children to pornographic sites. Zuccarini allegedly used Web addresses that switched or omitted letters of popular teen or children's sites in order to steer unsuspecting youths to porn sites -- many of which were designed to be technically difficult to exit. For instance, Zuccarini registered domains that riffed on the names of Disneyland , Harry Potter, Mickey Mouse, Scooby Doo, and the Teletubbies. Prosecutors said Zuccarini had registered at least 3,000 Internet domain names and was making up to $1 million per year from them, mainly from Internet pornographers paying him to direct Web users to their sites.

Zuccarini was charged with one count of 18 U.S.C. § 2252B, which was passed in April as an amendment to the Truth in Domain Names statute. Subsection (a) of the new law makes it a crime to knowingly use a "misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity." If convicted, Zuccarini could be sentenced to up to four years in prison and fined $250,000.

Missouri Abuse Reporting Law Ruled Unconstitutional
September 10, 2003
District Court, Greene County, Missouri

A Greene County judge has dismissed two misdemeanor charges of failure to report child abuse against an emergency room nurse after declaring a Missouri law requiring health care workers, teachers and clergy to report suspected child abuse to police was unconstitutional.

Nurse Leslie Brown was believed among the first to be prosecuted under the so-called "mandated reporting law." Brown was charged for failing to report bruising along the backbone of Dominic James. Brown claimed that she asked the boy's foster mother about the incident, and was satisfied with the explanation that the bruises were caused by leaning back in his booster seat.

Four days after being sent home with his foster parents, Dominic returned to the hospital with more severe injuries and died August 21, 2002. Prosecutors charged Brown with the misdemeanor counts in February. Brown's attorney argued at an April hearing that the statute was "vague and indefinite" in its wording, stating that professionals should make a report if "reasonable cause to suspect" child abuse exists. Judge Calvin Holden agreed, finding the state statute on mandated reporting to be unconstitutional. Prosecutor Darrell Moore said he would appeal.

Geoghan's Sex Abuse Conviction Erased
September 17, 2003
Massachusetts Appeals Court

Convicted sex offender and defrocked priest John J. Geoghan was killed August 23, 2003 in his cell at the maximum-security Souza-Baranowski Correctional Center . After his death, the Massachusetts Appeals Court erased Geoghan's conviction for fondling a boy in a public swimming pool. Although Geoghan had been accused of molesting nearly 150 children, the statute of limitations prevented most cases from being filed. As a result, only one case had gone to trial. Another criminal case was pending in Suffolk County . Geoghan's alleged victims reacted with anger and disbelief. Prosecutors did not oppose the action noting that erasing convictions is routine for criminal defendants who die while their case is under appeal in Massachusetts ,

Woman Cannot be Charged with Violating Her own Protective Order
September 24, 2003
Ohio Supreme Court

The Ohio Supreme Court said that a Newark woman cannot be charged with violating her own protective order. In May 2001, Betty Lucas of Newark invited her husband, Joseph Lucas, to their child's birthday party. After drinking together, the two eventually got into an argument and physical confrontation in which Joseph Lucas sustained the majority of the injuries. The police were called and Joseph Lucas was charged with violation of a protective order. Betty Lucas was charged with domestic violence and complicity to violate a protective order for inviting her husband into her home. She was convicted of both charges in Licking County Municipal Court and was sentenced to 180 days in jail. Mr. Lucas, on the other hand, was prosecuted only for violating the protective order. He pleaded no contest and was fined $100. An appeals court upheld the complicity conviction, saying Lucas had "recklessly exposed herself to the offender from whom she has sought protection."

The Ohio Supreme Court overturned the conviction. Writing for the majority, Justice Paul Pfeifer wrote, "Protection orders are about the behavior of the respondent and nothing else," Pfeifer wrote. "How or why a respondent finds himself at the petitioner's doorstep is irrelevant." The court further held that "If petitioners for protection orders were liable for criminal prosecution, a violator of a protection order could create a real chill on the reporting of the violation by simply threatening to claim that an illegal visit was the result of an illegal invitation." Pfeifer also noted that this case would have never been pursued by police "had Betty Lucas not gotten the best of her husband."

Defendant prohibited from questioning certain relationships between the victim and her mother
October 2, 2003
Michigan Court of Appeals
State of Michigan v. Steven P. Rose, No. 240837, 2003 Mich. App. LEXIS 2502 ( Ct. of App. Mich., Oct 2, 2003)

A Michigan trial court prohibited the defendant, Steven Rose, accused of child sexual abuse from questioning witnesses regarding the nature of certain relationships between the victim and her mother, including evidence of the mother's alleged history of accusing boyfriends of molesting her daughter. The Court of Appeals of Michigan noted that the Confrontation Clause protects the defendant's right to a "reasonable opportunity" to test the truthfulness of a witness. A court, however, may deny cross-examination on collateral matters bearing only on general credibility and on irrelevant issues. The court noted that this testimony would merely present a general picture of the interrelationships between the parties involved in the hope the jury would infer that the victim had a motive to lie. The court concluded, however, that there was no explanation or testimony as to why the victim would falsely accuse the defendant. The court also ruled that while some of the relationship testimony was relevant, it was properly excluded on the ground that it would have only confused the issues and misled the jury.

Victim's post-conviction recantation sufficient to warrant reversal of the defendant's conviction
October 8, 2003
Court of Criminal Appeals of Texas
Ex parte Ricky Dale Harmon , Applicant, NO. 74,432, 2003 Tex. Crim. App. LEXIS 536 ( Ct. of Crim. App. of Tex. October 8, 2003)

The Texas Court of Criminal Appeals denied the state's motion for rehearing based on the post-conviction recantation of a sexual assault victim. Ricky Harmon was convicted of aggravated sexual assault, and sentenced, enhanced by a prior conviction, to 30 years of prison. Harmon contends that he is actually innocent, as demonstrated by the complainant's affidavit that her trial testimony was false and that Harmon never sexually assaulted her. The trial court conducted a hearing and entered findings that the complainant's recantation was credible, and recommended that relief be granted. The court of appeals set aside the verdict and remanded the case to the trial court.

Prohibition against viewing pornography allowed to stand as a condition of probation
September 3, 2003
U.S. Court of Appeals, 2nd Circuit, Vermont
U.S. v. Simmons, 343 F.3d 72 U.S. App. LEXIS 18189 (U.S. Ct. of App., 2d Cir.Vt., September 3, 2003)

Defendant Alan Simmons appealed a judgment of the U.S. District Court. Simmons was convicted of drugging and then videotaping himself sexually abusing a minor and several adult women. He was sentenced to 168 months and a special condition was imposed on his probation that he not possess or view any pornographic material. On appeal of the special condition he argued first that the prohibition did not provide adequate notice of what was prohibited and second that the condition was neither reasonably related to a legitimate sentencing purpose nor sufficiently tailored to serve only such a legitimate purpose.

The federal court rejected both arguments. First, it held that while the definition of pornography was elusive for artistic and cultural purposes, as to federal criminal law, under 18 U.S.C. 2256(8), it was concrete: any visual depiction, including any photograph, film, video, picture or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct. Second, it concluded that there was a connection between Simmon's viewing and possessing sexually explicit material and his criminal behavior.

Alleged rape victim jailed for not testifying
Hamilton County , Ohio
October 1, 2003

A 33 year old rape victim spent five days in jail for repeatedly failing to show up in court to testify against the man accused of raping her. Michael Lindsey, 25 was accused of raping the suburban Cincinnati woman July 8 in the woods near her home. Hamilton County Common Pleas Judge Patrick Dinkelacker dismissed the charges against Lindsay after the woman's second failure to appear to testify at his trial. In citing the woman for contempt of court, the judge said, "If victims don't participate in the system, we don't have justice." The woman told the judge that neighbors threatened her and her children, calling her a snitch.

Defendant prohibited from questioning certain relationships between the victim and her mother
October 2, 2003
Michigan Court of Appeals
State of Michigan v. Steven P. Rose, No. 240837, 2003 Mich. App. LEXIS 2502 (Ct. of App. Mich., October 2, 2003)

A Michigan trial court prohibited the defendant, Steven Rose, accused of child sexual abuse from questioning witnesses regarding the nature of certain relationships between the victim and her mother, including evidence of the mother's alleged history of accusing boyfriends of molesting her daughter. The Court of Appeals of Michigan noted that the Confrontation Clause protects the defendant's right to a "reasonable opportunity" to test the truthfulness of a witness. A court, however, may deny cross-examination on collateral matters bearing only on general credibility and on irrelevant issues. The court noted that this testimony would merely present a general picture of the interrelationships between the parties involved in the hope the jury would infer that the victim had a motive to lie. The court concluded, however, that there was no explanation or testimony as to why the victim would falsely accuse the defendant. The court also ruled that while some of the relationship testimony was relevant, it was properly excluded on the ground that it would have only confused the issues and misled the jury.

Victim's post-conviction recantation sufficient to warrant reversal of the defendant's conviction
October 8, 2003
Court of Criminal Appeals of Texas
Ex parte Ricky Dale Harmon, Applicant, NO. 74,432, 2003 Tex. Crim. App. LEXIS 536 ( Ct. of Crim. App. of Tex. October 8, 2003)

The Texas Court of Criminal Appeals denied the state's motion for rehearing based on the post-conviction recantation of a sexual assault victim. Ricky Harmon was convicted of aggravated sexual assault, and sentenced, enhanced by a prior conviction, to 30 years of prison. Harmon contends that he is actually innocent, as demonstrated by the complainant's affidavit that her trial testimony was false and that Harmon never sexually assaulted her. The trial court conducted a hearing and entered findings that the complainant's recantation was credible, and recommended that relief be granted. The court of appeals set aside the verdict and remanded the case to the trial court.

Incest victim seeks to keep the name of her perpetrator off a public sex offender list
October 24, 2003
Minnehaha County Circuit Court, South Dakota

An unidentified woman -- listed as Jane Doe in court papers -- sued Minnehaha County and the city of Sioux Falls to stop them from posting the name of the family member who abused her on the Internet. The woman's lawyers argued that making the name public could identify the victim, who by nature of the crime has to be a family member. But lawyers for the city, county and state argued that victims don't necessarily have to be immediate family; they can include nieces, nephews, cousins or other distant relatives. The judge ruled against the woman, saying state law is quite clear that information on people who commit sex crimes is public and should be available.

New law suspends time limit on civil suits for child sexual abuse
November 2, 2003
Illinois Statutes §13--202.2(b)

A new statute has opened the door for many more civil suits against alleged abusers in Illinois . Before the new law was enacted almost no one older than 28 years of age had any legal recourse. As amended in 2003, Illinois Statute § 13--202.2(b) provides:

An action for damages for personal injury based on childhood sexual abuse must be commenced within 10 years of the date the person abused discovers or through the use of reasonable diligence should discover that the act of childhood sexual abuse occurred and that the injury was caused by the childhood sexual abuse.

Expert properly testified that child victim showed no signs of having been coached
November 6, 2003
Texas Court of Appeals, 1st District
Coy v. Texas

A Texas state appellate court ruled that a therapist properly testified that a child victim of sexual abuse showed no signs of having been coached.  In this criminal case, the defendant was convicted of sexually assaulting a 9-year-old girl.  On appeal the defendant contended that the trial court erred by allowing the State's expert, Susan Szczygielski, to testify that she did not see the complainant exhibit any signs of coaching. During the trial, the defense conceded Szcygielski was qualified to testify about child sexual assault, but objected to testimony about coaching.

The Texas Court of Appeals ruled that expert testimony regarding the effect of sexual abuse on children is nonscientific expert testimony. In determining whether nonscientific expert testimony is reliable, and therefore admissible, the court sought to determine (1) whether the expert's field of expertise is a legitimate one; (2) whether coaching is within the scope of the expert's field of expertise; and (3) whether the expert's testimony properly relied upon or utilized the principles involved in her field.

The Court of Appeals ruled the coaching testimony was proper based on the literature and the fact that the expert had ten years of experience as a therapist and supervisor at a children's assessment center. The court specifically rejected the defendant's objection that her testimony about coaching lacked support in studies using statistical analysis. According to the Court, the absence of epidemiology "goes to the weight" of the evidence, not its admissibility.

Divorced parents who move out of state risk having to relitigate custody of their children
November 11, 2003
Georgia Supreme Court
Bodne v. Bodne, S03G0275

The Georgia Supreme Court overturned years of Georgia case law when it ruled 4-3 that custody issues can be revisited if the primary guardian decides to move out of state. Previously, a parent couldn't successful contest custody unless they could prove adverse living conditions.
According to the court decision, parents Rachel Ann Bodne and David Bodne shared equal custody of their two children, but David Bodne, a medical doctor, had primary physical custody. In 2001, David Bodne, who had remarried, planned to move to Alabama to open a new medical practice. He filed a petition to modify his ex-wife's visitation schedule. Rachel Ann Bodne counterclaimed, stating she opposed the move and sought primary custody of the children. The Georgia Supreme Court ruled that the doctor's decision to move "and place his interests first affected Ms. Bodne's ability to continue her equal involvement in the children's lives and also had a direct negative effect on the children." Critics suggest that the ruling will encourage custody re-litigation and may lead to the renewal of hostilities related to earlier custody decision between parents.

Expert testimony on behavior patterns of typical child molesters not allowed
November 17, 2003
U.S. Court of Appeals, 4th District
U.S. v. Fitzgerald (unpublished)

Sgt. Robert Fitzgerald was charged in a federal indictment with abusive sexual contact with minors. The district court excluded certain evidence proffered by the government, including expert testimony of a psychologist regarding the behavior patterns of child molesters. The Federal Court of Appeals affirmed the decision holding that psychologist failed to show that the testimony met the requirements of Daubert . The court further noted that "the average juror can understand whether a touch is innocent or abusive from lay testimony about the events in question."

Statutory rape ruled to be a "crime of violence" even if victim consents
November 24, 2003
U.S. Court of Appeals, 2nd Circuit, Connecticut
Chery v. Ashcroft

Haitian citizen Serge Chery, who was 33 at the time of the 1998 incident, was convicted of sexual assault in the second degree in 1999 for having consensual sexual relations with a 14-year-old girl. The Immigration Judge found that Chery's conviction was an aggravated felony (more specifically, a "crime of violence") under 8 U.S.C.14 §1101(a)(43)(F) and thus Chery could be deported from the United States where he had become a legal permanent resident. The Board of Immigration Appeals affirmed, finding that the Connecticut statute, "§53a-71, by its nature, involves substantial risk that physical force against the victim may be used in the course of committing the offense."
Chery appealed and U.S. District Senior Judge Peter C. Dorsey reversed finding that a conviction under C.G.S §53a-71 didn't constitute a crime of violence for purposes of immigration deportation proceedings. The government appealed and the 2nd Circuit reversed the lower courts ruling. Agreeing with the initial Board of Immigration Appeals affirmation, the appellate court held that because § 53a-71 criminalizes sexual intercourse with a victim who, because of her age, is unable to truly give consent, the crime of statutory rape carried a substantial risk of physical force.

Psychologist does not owe duty of care to non-custodial father accused of sexually abusing child
November 25, 2003
Superior Court of New Jersey, Appellate Division
P.T. et al. v  Richard Hall Community Mental Health Care Center et al.

A non-custodial father and his parents sought compensatory and punitive damages from a court-appointed psychologist and a treating psychologist. The claims arose from opinions rendered by the psychologists in a child custody dispute involving allegations of child sexual abuse. The plaintiffs argued that the court-appointed psychologist does not enjoy absolute or qualified immunity and that the psychologist, who treated the alleged child victim of sexual assault, owed a duty of care to the paternal grandparents and the non-custodial parent accused of sexual assault.

The New Jersey Appellate court reviewed and affirmed two orders granting the psychologists' motions for summary judgment and dismissing the complaint. In doing so, the appellate court upheld the lower court's opinion which found that the court-appointed psychologist enjoyed "absolute immunity," and that, with respect to a psychologist who evaluates and treats a minor suspected to be the victim of sexual abuse, no duty is owed to the non-custodial parent or grandparents. 

Court upholds rape conviction against Ohio man who impregnated his stepdaughter
December 18, 2003
Ohio Supreme Court

The Ohio Supreme Court upheld a rape conviction for an Ohio man who used a syringe filled with his own semen to forcibly impregnate his 16 year old stepdaughter. Without comment, the Court let stand a lower court ruling affirming the 2002 conviction of John Goff, 42, on rape and child endangerment charges. Goff was convicted partly under a rape law that expanded the definition of rape to include penetration with any object, not just intercourse. The girl had testified that she agreed to be inseminated because Goff had threatened her with a gun and said he would hurt her mother if she didn't comply. Her mother was unable to have more children because of health problems. The girl gave birth to a son in 1999. The baby was placed in foster care.

The appeal by Goff, had argued in part that jurors should not have been told that a legal definition of force can be met simply by the fact he was the girl's parent. The 9th Ohio District Court of Appeals had rejected that argument, saying: "The parent's position of authority and power, in relation to a child's vulnerability, creates a unique situation of dominance and control."

Children's Defense Fund reviews Congress in 2003
December 23, 2003
http://www.childrensdefense.org/release031223.php

The Children's Defense Fund released an analysis of decisions made by the U.S. government over the past year which determined that the President and Congress did much more for special interests and the wealthy than they did for America 's children. According to their analysis, for the most part, the choices made by our federal elected officials in 2003 leave many of the most important needs of America's children unmet, or pushed even farther in the wrong direction in 2003.

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