Spousal Communication Privilege in Child Sexual Abuse
January 2, 2003
Supreme Court of Pennsylvania
Commonwealth of Pennsylvania v. Jon Anthony Spetzer
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
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
Archdiocese's First Amendment Motion Rejected
February, 19, 2003
Massachusetts Superior Court, Boston
Illinois Supreme Court Upholds Registration of Young Sex Offenders
February 21, 2003
Illinois Supreme Court
In re J.W.
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
Court Upholds Sex Offender Registration
March 5, 2003
U.S. Supreme Court
Court Strikes Down Online Porn Law
March 6, 2003
U.S. Court of Appeals (3 rd Circuit), Philadelphia
PAS Testimony Rejected by California Appellate Court
April 3, 2003
California Court of Appeal, Sixth District
People v. Sullivan
- the behavior was not beyond common experience of the jury
- the testimony was not scientific enough to satisfy the “Kelly-Frye” rule; and
- Dr. Rand’s name was not included on the witness list.
Supreme Court Approves Execution in Juvenile Case
April 4, 2003
U.S. Supreme Court
Supreme Court Sides with Managed Care Organizations
April 7, 2003
U.S. Supreme Court
Pacificare Health Systems, inc., et al., v. Book et al .
Congress Approves Child Abduction Prevention Act
April 10, 2003
Sioux Sue the United States for Abuse at Government-Run Schools
April, 11, 2003
U.S. Court of Federal Claims, Washington , DC
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
- 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
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
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
Doctor Need Not Tell Patient of Affair with Wife
August 15, 2003
Pennsylvania
Long v. Ostroff
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
Court Limits Grandparent Visitation Rights
August 25, 2003
South Carolina Supreme Court
Missouri Supreme Court Overturns Juvenile Death Sentence
August 26, 2003
Missouri Supreme Court
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
n 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
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
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)
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)
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
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)
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)
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
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
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.
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
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
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)
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
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.
