Articles Posted in Sex Crimes

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computerEven after a criminal defendant completes his or her jail sentence, restrictions on freedom may remain. When a defendant leaves a jail or prison, a judge may impose terms of supervised release, which place certain restrictions on a defendant’s activities and require him or her to check in regularly with a probation officer. For defendants convicted of sex crimes, these terms of supervised release may be particularly restrictive because of the very serious nature of their crimes and the high rates of recidivism for sex offenders. A recent case before the Seventh Circuit Court of Appeals looks at particularly restrictive terms and a defendant’s efforts to oppose them.

In United States v. Warren, Mr. Warren was charged with transporting and possessing child pornography and was sentenced to five years in prison and 15 years of supervised release. Over the course of 19 days in 2003, Mr. Warren managed a Yahoo Group that he used to share and distribute child pornography to other members. He also solicited members to add to the collection of child pornography that he had created. In February 2004, federal agents executed a search of Mr. Warren’s apartment and seized his computer. Mr Warren admitted to hosting the Yahoo group and to possessing child pornography. He pled guilty to the charges against him and was sentenced to jail time and supervised release. Toward the end of his prison term, the probation officers in charge of Mr. Warren’s eventual release petitioned the court to modify Mr. Warren’s conditions of supervised release. Specifically, they sought to add a travel condition to his release, requiring him to notify his probation officers whenever he sought to travel outside the state. They also sought to impose a no-contact-with-minors condition and a polygraph condition.

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clockWhen individuals are convicted of serious sex crimes in state courts, they can appeal their convictions through multiple state and federal channels. While state procedures are governed by state law, federal procedures govern the process of applying for a writ of habeas corpus (or an application for relief) from a federal court. The law that governs this process is known as the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).  Under AEDPA, while federal channels are available to criminal defendants, they must exhaust the necessary state procedures first. Once those state procedures are completed, the clock then begins to run on the time for a defendant to appeal to the federal courts.  A recent case out of Wisconsin looks at what happens when federal defendants fail to meet those timelines.

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computerWhen an individual has engaged in the interstate transfer of child pornography, they may open themselves up to both state and federal criminal charges. While a defendant cannot be charged twice for the same crime, a defendant can be sentenced for different crimes that have somewhat overlapping elements. When a defendant is convicted of multiple related crimes, a sentencing judge must determine whether the sentences imposed will be served separately or concurrently (meaning they will be served at the same time). A recent case before the Seventh Circuit Court of Appeals looks at when a judge is required to impose a sentence concurrently and when a judge has the liberty to increase the severity of the punishment by requiring a defendant to serve sentences one after another.

In United States of America v. Schrode, Mr. Schrode was convicted of sexually assaulting his step-daughter, who was four years old at the time. He was sentenced to 18 years imprisonment by the Illinois state courts.  Later that year, the FBI executed a search warrant on his home, believing that Mr. Schrode also possessed child pornography. He was found to have possessed child pornography and transmitted it to other users. A short time afterward, Mr. Schrode’s wife discovered that some of the pornography he possessed included images of his step-daughter and of his sexually assaulting his step-daughter. As a result, he was indicted on four federal charges:  (1) receiving child pornography; (2) producing child pornography of his step-daughter in February 2013; (3) producing child pornography of his step-daughter in March 2013; and (4) possessing child pornography. He pled guilty to all four charges.

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houseIn recent years, corrections officials have become convinced, despite conflicting studies,  that sex offenders are prone to particularly high rates of recidivism.  In an effort to address concerns that certain circumstances, such as homelessness, accelerate recidivism, many counties have enacted regulations and administrative ordinances imposing various requirements on sex offenders upon their release from prison. For instance, sex offenders may be required to return to their county of residence rather than allowed to move to a new location after prison, and they may be prevented from residing near schools or daycare facilities.  In Brown County, Wisconsin, local officials enacted an ordinance providing that sex offenders who cannot find an approved home that meets these various types of requirements must continue to remain in jail, or prison, during the evenings until a suitable home is located.

While such restrictions are a result of justifiable concerns, they also raise important questions for due process and the liberty rights of offenders. In Werner v. Wall, Mr. Werner raised a constitutional challenge to Brown County’s ordinance, arguing that incarcerating him after his mandatory release date, and until he found a proper home, was a violation of his Eighth Amendment and Fourteenth Amendment rights.  At trial, the individual defendants that he sued, including various correctional officials, moved for summary judgment against his claims, holding that they were barred by qualified immunity. The district court agreed.  Mr. Werner appealed.

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gavelWhen an individual is found guilty of committing a crime, a sentence is not usually automatically imposed. Instead, a separate hearing is scheduled for sentencing and other matters. Leading up to the sentencing hearing, the government will create what is known as a pre-sentencing report, which sets forth the applicable sentencing factors to be considered by the judge and provides a recommendation for what the sentence should be.  While this pre-sentencing report (PSR) focuses primarily on the jail time to be imposed, it also addresses other factors, such as conditions of probation or supervised release, or fines that must be paid. A recent case before the Seventh Circuit looks at PSRs for those convicted of child pornography-related offenses and when objections to PSRs can be made.

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flip phoneIn a time of rapidly changing technology, it can often be difficult for state legislatures and courts to keep up with the various means that sexual predators use to communicate with and lure their victims. Without broad and flexible definitions, state criminal statutes and court decisions can quickly become dated and inapplicable to the current and preferred communication methods.  A recent case before the Supreme Court of Wisconsin looks at how concepts such as “computerized communication systems” can be applied flexibly to allow for the continued prosecution of sexual predators.

In State of Wisconsin v. McKellips, Mr. McKellip was a high school basketball coach hired to coach the girls varsity basketball team at Athens High School. C.H. was one of the players selected for the varsity team. Mr. McKellips began his relationship with C.H. by praising her basketball skills to her mother and calling her on the phone to discuss practices, team strategy, and other basketball issues. While most of these calls were relatively normal, Mr. McKellip ended one call by stating “I love you.” Soon, Mr. McKellip began to call C.H. on her cell phone on a more regular basis. When her parents learned of this, they admonished C.H., telling her to tell Mr. McKellip to call on the home phone.  When C.H. told Mr. McKellip this, he bought her a flip cell phone to use so that he could call and text her. C.H. and Mr. McKellip continued a texting and calling relationship, which eventually progressed into a sexual relationship. This continued until C.H.’s parents discovered the secret cell phone, and she admitted what had been happening.

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restitutionTime spent in prison is not the only punishment that can be applied to defendants who are found guilty of committing a crime.  Defendants may also be required to relinquish certain rights, such as the right to own a firearm, or may be forced to attend classes, such as a DUI class, related to their crime. Additionally, defendants may be required to pay restitution to the victims of their crime, as a small means of attempting to remedy the crime that has occurred.  In child pornography cases, it is often difficult to implement restitution because the victims of the crime may be unidentifiable minors. Recently, however, a child pornography case before the Seventh Circuit dealt with restitution for a widely identified child pornography victim who had been greatly harmed by the sharing of images that involved her.

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subwayAs has been widely reported in news media throughout the country this past year, Jared Fogle, the well-recognized spokesman for Subway sandwiches, was arrested and indicted on child pornography charges. Fogle had previously gained notoriety for his Subway diet, which allegedly helped him to lose a significant amount of weight and led to his frequent appearances on Subway radio and television advertisements.  Fogle’s criminal indictment caught many by surprise, yet his name quickly disappeared from the media. Recently, however, Fogle’s charges and conviction were reviewed by the Seventh Circuit as Fogle sought to appeal various aspects of the trial court proceedings.

In 2015, Fogle’s close friend Russell Taylor was put under surveillance by federal law enforcement after they received a tip that he was soliciting sex from minors.  During the process of investigating Taylor, Fogle quickly became a second subject of concern after it was discovered that he knew about the child pornography that Taylor possessed and had met many of the child victims whom Taylor solicited.  Upon the execution of a warrant to search Fogle’s home, the police discovered that Fogle had his own child pornography collection and that he had actively solicited sex from minors as well.  Fogle was arrested and charged with various criminal counts, including distributing and receiving child pornography, conspiracy to distribute and receive child pornography, and attempting to engage in sexual conduct with a minor. Fogle pled guilty in exchange for the government agreeing not to recommend more than 151 months in prison time.  At sentencing, Fogle requested 60 months, and the government recommended 151 months.  The judge, however, chose to go above the recommended sentencing guidelines for Fogle’s crimes and sentenced him to 188 months for each count, with each sentence to be served concurrently.  Fogle appealed.

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The Wisconsin Legislature has recently proved itself committed to increased policing of Internet crimes against children. On February 16, the Senate unanimously approved Senate Bill 546, which gives the attorney general the power to issue subpoenas to get the names and addresses of computer users accessing child pornography from Internet service providers without first going through a judge. It additionally imposes a fine on individuals convicted of misdemeanors and felonies, and it directs the funds towards investigating Internet crimes. computer-keyboard-1188763

In early January, two legislative committees had hearings on Senate Bill 546, also called “Alicia’s Law.” The law is named for Alicia Kozakiewicz, who was kidnapped and tortured in 2002 for several days before authorities located her in Virginia. Alicia has since become an advocate. She shared her harrowing story with the committees in hopes of urging members to vote for Senate Bill 546.

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