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 Person "in a position of authority" articulated
How Stockholm Syndrome kept girl spellbound by her captor
New sex offender law - failure to register is a federal crime
Judge rejects that 13-year-old victim "consented" to sex
Court-appointed attorneys accountable to their child clients
Person "in a position of authority" articulated
Source: Center for Law and Social Responsibility, the Domestic and Sexual Violence Project, at New England School of Law, summarized by Jennifer Cochran, Law Student, August 28, 2006
State v. Mogler, 2006 WL 2052903 (Minn.App.) Court of Appeals of Minnesota
Issue: Due Process
Nature of the case and issue on appeal:
After being convicted of two counts of third-degree criminal sexual conduct by a person "in a position of authority", the defendant police officer argued among other things on appeal that the phrase "position of authority" as used within the criminal statute was unconstitutionally vague and "so broad that the state could consider anyone to be in a position of authority, or alternatively, that the definition does not clearly provide fair warning that it includes a police officer."
Summary:
The Court of Appeals disagreed reasoning as follows:
"The third-degree criminal sexual conduct statute prohibits sexual penetration involving a minor who is at least sixteen years old but younger than eighteen and person who is more than forty-eight months older than the minor and is in a position of authority over the minor." Minn. Stat. § 609.344, subd. 1(e) (2002).
"'Position of authority' includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent's rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act."
For the purposes of subdivision 11 [Minn.Stat. §609.341), "position of authority" includes a psychotherapist and neither consent nor mistake of age are defenses to third-degree criminal sexual conduct [Minn. Stat. §609.341 subd.10].
Minn. Stat. §609.344, subd. 1(e) (2002).
This Court found that the statute listed the following examples of persons in a position of authority: "a parent; a person charged with responsibilities of the parent; and a person charged with any duty or responsibility for the health, welfare and supervision of the child" and that the American Heritage Dictionary defined "position" as "a person's social standing or employment" and "authority" as "the power to enforce laws, exact obedience, command, determine or judge."
This court held that the statute's coordinate elements narrowed the scope of the statute by restricting it to specific age groups (involving a minor who is at least 16 but younger than 18) and provided ample warning of the conduct it prohibits (sexual penetration involving a minor who is at least 16 but younger than 18). The Court reasoned that an ordinary person would understand the statutory language and it was thus not unconstitutionally vague. The court also held that although a police officer was not expressly listed within the statute as a person "in a position of authority", it does not exclude a police officer either as the statute allows for a police officer within its definition by using the express language of "includes but is not limited to any person."
Editorial comment:
About half the states have some type of statute that specifically punishes sexual crimes perpetrated by people in positions of authority though most articulate the particular types of relationships with more precision such as "teacher to student" and "therapist to client/patient". Obviously, it is beneficial to codify a broad enough category to include all types of power-imbalanced relationships with children, though policy-makers worry that using language like "position of authority" might be struck down by the courts as unconstitutionally overbroad. This ruling should give comfort to legislatures considering the enactment of similar kinds of laws.
Summaries at the Center for Law and Social Responsibility, the Domestic and Sexual Violence Project, at New England School of Law
How Stockholm Syndrome kept girl spellbound by her captor
Source: DailyMail.co.uk, Brain Masters, criminologist, August 29, 2006. Excerpts:
The term (Stockholm Syndrome) was coined by criminologist Nils Bejerot after an attempted bank robbery in Sweden in 1975, when some employees of the bank were held hostage for several days by the gang. During this time, the captives and the captors bonded to the extent that when police rescued them, it was the hostages who cried out to warn the robbers. The gang was captured and sent to prison, but one of them became engaged to a bank clerk who had been one of his hostages. There have been many other instances of Stockholm Syndrome, most famously perhaps with the newspaper heiress Patty Hearst, who was kidnapped by a now largely forgotten group called the Symbionese Liberation Army. While the world anguished over her fate, she freely joined them in a daring bank robbery and was herself imprisoned.
There are many reasons why a captive should develop Stockholm Syndrome; some conscious, others not. The most obvious, curiously, is gratitude. When you are suddenly thrust into a position of powerlessness, with your fate and future, even indeed your life, dependent upon another person's decisions, you are bound to feel a profound sense of relief, and thankfulness, that they have not killed you. Then, as custom and habit are established, the feeling of mute gratitude subsides, to be replaced quite quickly by a kind of replenishing identification. Unless torture or some other ill-treatment dominate the relationship, this is almost inevitable. For we all need human contact for survival. We cannot think and feel in a bubble, cut off from the world entirely.
The simple and rather startling statement issued by Natascha Kampusch (Dutch girl who escaped from her captor after 10 years) is replete with honesty, dignity and calm. Her statement is a vivid and eloquently expressed example of what is known as Stockholm Syndrome, when a captive identifies with his or her captor so far as to become his apologist and defender. So Natascha Kampusch is not an oddity when she refuses to hurl abuse at the man who held her prisoner for eight years. These past years in captivity have been her life. Natascha Kampusch was cut off from every possible human contact save one. And that one became her only avenue to human life, to understanding human psychology, to finding her own role in a relationship with one other person. She writes: "He has been a big part of my life, and as a result I do feel I am in a sort of mourning for him." And there is the unspoken reality of the quite unnerving bond which grew between them, possibly more intense than the bonds normally experienced by the rest of us, because it was unique. That may seem strange to us in the outside world. But it is all she had. It was, perversely, the one thing that kept her sane.
New sex offender law - failure to register is a federal crime
Source: NewsZap.com, Delaware State News, by Joe Rogalsky, Aug 6, 2006. Excerpts:
DOVER - New federal legislation means trouble for sex offenders who do not register with state and local authorities. President Bush signed the bill July 27, the 25th anniversary of the abduction and murder of Adam Walsh, whose father, John, was prompted to launch the successful television show "America's Most Wanted." The law makes failing to register a federal crime and directs the U.S. Marshals Service to track down unregistered offenders.
Many states, including Delaware, require those convicted of sexual offenses to enter into a registry that the public can view to see if offenders live in their neighborhood. Offenders must provide information such as a photo, type of crime committed, their address and who employs them. You'll be able to search for sex offenders living nearby in the database, just as you can with the state's.
A provision of the new law sets up a national database of sex offenders; offenders must update their information on a regular basis. Tier 1 offenders, considered the least serious, must re-register with a new photo and other information every year. For the mid-level Tier 2, offenders must re-register every six months. Tier 3 offenders, who have committed the most serious crimes, are required to register every three months.
David Thomas, a deputy U.S. marshal in Delaware, said the new law will make apprehending unregistered offenders easier. Before, he said, offenders could move to another state and make it difficult and expensive for Delaware authorities to track them down and extradite them back to the First State. Now, Marshal Thomas said he could call the local marshal's office in Hawaii, for example, to pick up an unregistered offender who has fled to Honolulu. "The bill makes failure to register a federal crime, so they could be arrested in Hawaii, tried in Hawaii and tried in a U.S. District Court in Hawaii," Marshal Thomas said. "No one would have to be extradited. As long as they are in the U.S., we will be able to come after them," Marshal Thomas said of his agency's long reach. "We do have some tools that the localities do not have. For sex offenders that are hard to locate, we might be able to lend some assistance.
"We have been working with our state and local partners for some time to go after sexual predators, but when this legislation is fully implemented, unregistered sex offenders will be considered federal fugitives and they will be a priority for deputy U..S. marshals across this country," said John Clark, director of the Marshals Service. "We look forward to working with the National Center for Missing and Exploited Children to arrest those sex offenders who lurk in our neighborhoods and threaten the safety of our children and communities."
Supreme Court Victory Works Against Scouts
Judge rejects argument that 13-year-old victim "consented" to sexual relationship
Source: New York Law Journal, Mark Fass, June 6, 2006. Excerpts:
The U.S. Supreme Court decision that affirmed the Boy Scouts of America's right to exclude homosexuals has been used against the organization in an unlikely way. In a negligence case initiated against the organization by a former scout who was sexually abused by his scoutmaster, Manhattan Supreme Court Justice Marilyn Shafer has ruled that the Boy Scouts of America's arguments in Boy Scouts of America v. Dale, 530 US 640, contradict its current claim that the national organization exercises no control over the hiring of scoutmasters.
The Boy Scouts moved for summary judgment, arguing among other things that the organization does not participate in the selection of local-level volunteers, such as scoutmasters. They also argued that the victim consented to the repeated oral and anal sex. Shafer denied the Boy Scouts' motion. Citing numerous sections of New York's Social Services Law that state that a minor's "consent" to various forms of sexual abuse is irrelevant, Shafer held that "at most" the Boy Scouts raised a triable issue for a jury to decide. In discounting the Boy Scouts' argument that it exercised no discretion over the hiring of scoutmasters, Shafer used the 97-year-old organization's biggest and most controversial legal victory against them. "[T]he record also includes evidence that may be held to demonstrate that the [Boy Scouts] had reserved to itself the authority to control [its New York chapter] and to control, directly or through the [New York chapter], the local chartered troops, and had the power to select, appoint, reappoint, or exclude scoutmasters," Shafer held, citing Dale, which affirmed the organization's First Amendment right to expel a gay New Jersey man from his assistant-scoutmaster post.
Shafer also found insufficient evidence that the 13-year-old victim "consented" to the sexual relationship, as argued by the Boy Scouts of America. She, therefore, denied the Boy Scouts' motion for summary judgment, allowing the former scout's $50 million lawsuit to go forward. The plaintiffs attorney, solo practitioner Michael G. Dowd, called the Boy Scout's arguments "morally reprehensible." "It's a dangerous position," Dowd said, "to argue that an adult scoutmaster in his thirties can have consensual sex with a 13-year-old in his scout troop is something dreamt up in pedophile heaven."
The former scout alleged that his scoutmaster, co-defendant Gerald Schwartz, sexually abused him over the course of three years, beginning in 1994 when he was 13. In July 2001, the Manhattan district attorney's office charged Schwartz with 38 counts of sodomy. He later pleaded guilty to four counts. He is serving a sentence of 2 2/3 to 8 years at the Oneida Correctional Facility. The former scout also initiated a civil action against Schwartz, the Boy Scouts of America, its local chapter and the troop's church sponsor, alleging sexual abuse of a minor and endangering the welfare of a child, among other things. The plaintiff claimed he suffered "permanent physical, psychological, and emotional injuries, including drug addiction, stress, anxiety, and depression, requiring psychiatric hospitalization," according to Shafer's decision in Mizrack v. Schwartz, 110215/2001.
Paul Battaglia of the Syracuse, N.Y., office of Bond Schoenbeck & King represented the Boy Scouts of America. He declined to comment.
Court-appointed attorneys accountable to their child clients
Source: Eileen King, Regional Director, One Voice Justice For Children, Wash. D.C. Chapter, March 28, 2006. Excerpts:
The Maryland House of Delegates passed legislation (HB 700) guaranteeing that court-appointed attorneys for children will be fully accountable to their child clients. Physically and sexually abused children need and deserve attorneys who will vigorously and effectively advocate for their interests. Under HB 700, as amended, children will finally have the voice in court that they so desperately need.
As originally proposed, HB 700 would have granted immunity to attorneys who represent their child clients carelessly, negligently, or incompetently. Immunity has been entirely removed from the bill. In its place, the House Judiciary Committee inserted language specifying that court-appointed attorneys owe their child clients a duty of “ordinary care and diligence,” the same duty that attorneys owe their adult clients. This language, once enacted into law by the Senate, will send a strong message to court-appointed attorneys for children that they must handle these incredibly important cases with the highest level of care.
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