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Laurie L. Levenson is a professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles, and director of the Center for Ethical Advocacy. She can be reached at [email protected]. If the 1980s and 1990s were to be dubbed as the decades of the “War on Drugs,” the current decade is likely to be remembered as the time of two wars-the “War on Terrorism” and the “War on Sex Abuse.” Many lawyers have been closely following the war on terrorism and the changes brought about by the USA Patriot Act. Significantly less attention has been devoted to the war on sexual abuse. Yet there have been a number of significant developments in this area of criminal law. In the last two months, both the U.S. Supreme Court and Congress have taken important steps to curtail the growing epidemic of sexual abuse, especially involving children. This term, the Supreme Court issued two crucial decisions upholding state sex-offender registration requirements. At the same time, Congress enacted the 2003 PROTECT (“Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today”) Act, Pub. L. No. 108-21 (April 30, 2003). Together, these rulings and laws will have a significant impact in the area of sex abuse crimes. The high court does its part in the war on sexual abuse First, the Supreme Court has been eager to do its part to aid in the war on sexual abuse. On March 5, it decided two cases upholding state sex-offender registration laws: Smith v. Doe, 123 S. Ct. 1140 (2003) and Connecticut Dep’t. of Public Safety v. Doe, 123 S. Ct. 1160 (2003). Both of these cases raised challenges to so-called “Megan’s Laws” that require registration of convicted sex offenders when they are being released back into society. One of the most controversial provisions of these laws is that they authorize the public posting of information regarding the offenders. Opponents of these laws object to the lasting stigma to offenders who have completed their sentences and are trying to get a fresh start in society. This year, two different types of challenges were brought to such laws, which now exist in all jurisdictions throughout the country. In Connecticut Dep’t. of Public Safety v. Doe, 123 S. Ct. 1160 (2003), a convicted sex offender challenged Connecticut’s sex-offender registration requirement. Under Connecticut law, any defendant convicted of certain offenses, including violent and nonviolent sexual offenses against minors, must register with the Department of Public Safety (DPS). The law requires DPS to make available at its offices, and on an Internet site, registrants’ names, addresses, photographs, physical descriptions and a summary of the nature of their convictions. A group of prospective registrants filed a 42 U.S.C. 1983 action challenging the law on due process grounds. They claimed that the law violated their liberty interests because it permanently stigmatized them without giving them an opportunity to demonstrate that they no longer pose a danger to society. The district court found in their favor and permanently enjoined the law’s public-disclosure provisions. The 2d U.S. Circuit Court of Appeals affirmed. The Supreme Court reversed. Writing for a unanimous court, Chief Justice William Rehnquist began his opinion with a clear statement about how the court viewed sexual abuse and efforts being made to counter the problem. He wrote: ” ‘Sex offenders are a serious threat in this Nation’ . . . ‘The victims of sex assault are most often juveniles’ and ‘when convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sex assault.’ Connecticut, like every other State, has responded to these facts by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders.” Id. at 1163 (internal citations omitted). Given this articulated view of the danger posed by sexual abuse, it is not surprising that the court went on to hold that a separate hearing to determine continuing dangerousness is not required before a defendant may be forced to register with the authorities. In another case decided the same day, the Supreme Court addressed a different challenge to sex-offender registration laws. In Smith v. Doe, 123 S. Ct. 1140 (2003), individuals convicted of sex offenses before the state’s new registration law went into effect claimed that the registration requirements violated the ex post facto provision of the Constitution. Arguing that the posting of registration information is the equivalent of public shaming-a type of punishment in the colonial period-the challengers claimed that the new registration statute should be applied only prospectively to defendants convicted of sex offenses after the registration laws went into effect. The Supreme Court rejected this argument as well. Writing for a divided court, Justice Anthony Kennedy found that registration laws are nonpunitive in nature. As he stated, publicity may embarrass the convicted defendant, but without accompanying physical restraint or pain, it is not punitive in nature. “Dissemination of truthful information in furtherance of a legitimate governmental objective” is not punishment. Id. at 1150. Thus, there is no constitutional obstacle to applying registration requirements retroactively to those defendants convicted of sex crimes before the registration laws went into effect. These two decisions, together with the Supreme Court’s decisions in recent years upholding civil commitment for sexually violent predators, are a clear signal that the court supports registration laws. While there could still be further challenges to such laws-for example, on equal protection or substantive due process grounds-Megan’s Laws appear to be here to stay. An important function of criminal defense lawyers will be to steer their clients through the registration requirements imposed by their jurisdiction. Meanwhile, Congress has been busy adding to these laws in their ongoing efforts to win the war on sex offenses. On May 1, President George W. Bush signed into law the new “Amber Alert” law, formally known as the “PROTECT Act.” In addition to providing for coordination and financial support for programs that use highway signs and radio broadcasts to alert the public to child kidnappings, the new law makes many critical changes to federal criminal laws involving child pornography and sexual offenses. Perhaps the most controversial provisions of the new act are the limits it places on the discretion of federal judges when sentencing defendants convicted for federal sex-related offenses. Known as the “Feeney Amendment,” this portion of the bill prohibits most downward departures for defendants convicted of these offenses, even if judges find behavior that would ordinarily qualify for a departure. See, e.g., U.S.S.G. § 5K2.20, 5K2.13. The law also shifts sentencing power from district judges, who actually hear cases, to appellate judges by changing the standard of review for district court sentences. In an attempt to overrule the Supreme Court’s holding in Koon v. United States, 518 U.S. 81 (1997), the law no longer requires that appellate judges give “due deference” to all sentencing decisions of district court judges. The new law states that the appeals court “shall” perform a complicated, de novo review of all cases in which district judges depart downward from sentencing guidelines based upon unauthorized factors. It also prohibits district courts from departing downward on new grounds in all instances when cases are remanded to them by an appellate court. These new sentencing restrictions will make it extraordinarily difficult for defense counsel to secure lenient sentences for defendants charged with certain federal sex offenses. Moreover, they represent a general effort to rein in judges who are viewed as having too frequently departed from the sentences demanded by the Federal Sentencing Guidelines. A new bill adds to the list of federal sexual offenses In addition to limiting trial judge’s sentencing discretion, the new bill also increases punishments for sex offenses and adds to the list of federal sexual offenses. For example, the new law increases statutory maximum and minimum penalties for sexual exploitation of children and related offenses. It makes it a crime to knowingly use a misleading Internet domain name with the intent to deceive a person into viewing obscenity on the Internet or to deceive a minor into viewing material harmful to minors. Likewise, it prohibits the possession of virtual child pornography created with computer technology, while also making it a crime for U.S. citizens or permanent resident aliens to travel abroad to engage in illicit sexual conduct with minors. And, of course, the law has its own federal registration requirement for sex offenders. The new bill requires convicted child pornographers to register with the national sex-offender registry established under 42 U.S.C. 14072. The law also seeks to address parental kidnappings. One provision of the new law adds attempts to the criminal code provision on international parental kidnapping (18 U.S.C. 1204) and authorizes the increased use of wiretaps and electronic surveillance to apprehend those suspected of kidnapping and several kinds of sex crimes (18 U.S.C. 2516). Finally, the new act affects how sex offenses will be procedurally handled in federal court. There will no longer be a statute of limitations for sexual abuse or kidnapping of a child, nor will those charged with such crimes generally be eligible for pretrial release. Federal Rule of Criminal Procedure 7 has also been amended to provide that an indictment for a federal sex crime may identify the defendant by only his or her DNA profile. While such information may be helpful in apprehending the perpetrator, it gives little or no notice to an individual that he or she is wanted by the authorities. Thus, the federal rule change will make it more difficult for defense lawyers to assist their clients in cooperating and surrendering to the authorities because it will not be apparent when a suspect is wanted for a particular sexual offense. The war on sexual abuse is in full swing. The question is not whether it is wrong to fight against sexual abuse, but whether there will be innocent bystanders hurt by these efforts.

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