Articles Posted in Sexual Assault

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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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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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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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