Thursday, April 06, 2006

How did I miss THIS?

So I'm skimming Alas, A Blog for the latest feminista-type news, when I run across this:

Pedophilia Fears Contributed to Child’s Death

It's a rare day in Mudville that I agree with Wendy McElroy

The toddler wandered from her nursery school, Ready Teddy Go, through a door left open. A bricklayer named Clive Peachey drove past her in his truck. At the inquest, he stated, "I kept thinking I should go back. The reason I didn't was because I thought people might think I was trying to abduct her."

Instead, he assured himself that the parents must be "driving around" and would find her.

A few minutes thereafter, Abby fatally fell into an algae-covered pond.

There's no doubt that child molestation is a real problem, and increased awareness is a good thing. But as Abby's story horribly illustrates, societies in which adults don't feel free to approach or help strange children, are not child-safe.

That leads me to this Fox News Story the McElroy link. It expounds on whether Mr. Peachy is morally liable child's death, and whether his fears were proportionate:
First and foremost, the responsibility lies with the nursery staff who became her guardians. Abby was in no immediate danger when Peachey saw her and he contacted the police upon later hearing a 'missing child' report.

Arguably, if he had phoned the police immediately, Abby would have been dead long before they arrived. Moreover, by coming forth, Peachey has accepted the damage to his life that comes with the public disgrace of saying "I drove past her."

Important information in judging Peachey is missing. For example, if Peachey has a family, he may have been reluctant to place his reputation or livelihood at risk. He may have balanced possible harm to his own children against helping a stranger's child.

Peachey's fears have precedence on this side of the Atlantic.

Last summer, an Illinois man lost an appeal on his conviction as a sex offender for grabbing the arm of a 14-year-old girl. She had stepped directly in front of his car, causing him to swerve in order to avoid hitting her.

And that leads me to the Des Moines Register article about the Illinois man, of somewhat more local applicability:
The facts, as reported in the Chicago Sun-Times, show that an angry Barnaby called to the 14-year-old he'd nearly run down, yelling, "Come here, little girl."

He then got out of his car, took her by the arm and gave her a lecture about how stepping in front of a vehicle is a very bad idea.

The girl ran away, complained to police and Barnaby was charged with - again no joke - attempted kidnapping and child abduction. This is even though he didn't attempt to take the girl anywhere. Barnaby beat those charges.

He was, however, convicted of unlawful restraint of a minor. And in Illinois, that is considered a sex offense.

That means even though he didn't do anything to the kid other than take her by the arm and give her a lecture that might end up saving her life, he must register as a sex offender. He is prohibited from living near a park or school and must keep local police advised as to his place of residence.

He might even get his name and picture in the local newspaper, to advise neighbors they're living near a sex offender.

How is this possible, you ask?

Well, a spokesman in the prosecutor's office said, the guy should be considered a sex offender "because of the proclivity of offenders who restrain children to also commit sex acts or other crimes against them."

Now we'll let the Appellate Court of Illinois, which upheld this insanity last week, explain itself.

While it may well be "unfair for (Barnaby) to suffer the stigmatization of being labeled a sex offender when his crime was not sexually motivated," grabbing a kid is "often a precursor" to a child being molested, the court said.

"It is (Barnaby's) actions which have caused him to be stigmatized, not the court," the ruling said.

Trial court judge Patrick Morse even conceded Barnaby's only apparent intention was to chastise the girl.

But, the judge said, "I can't read his mind."

Barnaby's lawyer, Frederick Cohn, of Chicago, provided a succinct assessment of the situation: "This is the most stupid ruling the appellate court has rendered in years."

Insanity. Pure insanity. I am annoyed enough by Iowa's classification of any and all indecent exposure as a sex offense, but this? Wow. And now with the 2000 foot rule, he's been banished to the SO ghetto. Lovely.

My old rant on the Sex Offender Registry is at the bottom of the post on the Side Note.

Governor Vilsak has signed HF619 into law, which makes substantial changes in both the sex abuse laws and the sex offender registry. As the Des Moines Register Article points out:
The expense of the new law, signed Tuesday by Gov. Tom Vilsack, is projected to more than double over the next five years, topping $12.4 million in 2010.

But I see bigger issues here. The problem, as I've stated it before, lies in three related code sections:
Iowa law defines indecent exposure as:
709.9 Indecent exposure.
A person who exposes the person's genitals or pubes to another not the person's spouse, or who commits a sex act in the presence of or view of a third person, commits a serious misdemeanor, if:
1. The person does so to arouse or satisfy the sexual desires of either party; and
2. The person knows or reasonably should know that the act is offensive to the viewer.

Note this is broad enough to include someone "mooning" out a car window as a prank, people who go skinny dipping who and caught by some old fart with binoculars, or a couple of horny kids without a dorm room to go to who have sex in some public park or car and get walked up on by the law.

Persons required to register under the sex offender registry in Iowa include the following:
692A.2 Persons required to register.
1. A person who has been convicted of a criminal offense against a minor, an aggravated offense, sexual exploitation, an other relevant offense, or a sexually violent offense in this state or in another state, or in a federal, military, tribal, or foreign court, or a person required to register in another state under the state's sex offender registry , shall register as provided in this chapter. A person required to register under this chapter shall, upon a first conviction, register for a period of ten years commencing as follows:
a. From the date of placement on probation.
b. From the date of release on parole or work release.
c. From the date of release as a juvenile from foster care or residential treatment.
d. From the date of any other release from custody.

On first blush, that doesn't seem to cover the mooners, skinny dippers or horny teenagers. I mean, it's not an aggravated offense, or an offense against a minor or anything. The language here implies we're only dealing with serious crimes. But wait . . . there's that pesky "other related offense." What's that about?
7. "Other relevant offense" means any of the following offenses:
a. Telephone dissemination of obscene materials in violation of section 728.15 .
b. Rental or sale of hard-core pornography in violation of section 728.4 .
c. Indecent exposure in violation of section 709.9

This means that upon conviction of an indecent exposure, the mooners, the skinny dippers, the horny kids, and so forth will find themselves on the sex offender registry for ten years.

As I indicated earlier, I think it would be appropriate to alter the indecent exposure laws to create two separate offenses.

For one thing, it would save a substantial amount of money on the DNA testing mandated by HF619 by splitting out the sexual offenders from the skinny dippers. As the Register points out:
. . . the combined cost of a DNA collection kit, analysis of a DNA sample and development of a DNA profile is about $45 a sample. Testing all felons will cost about $1.1 million in the first year of the program, according to the nonpartisan Legislative Services Agency.

It should also help alleviate the costs of publicizing the addresses of offenders by limiting the list to the ones we truly want to track. HF 619 allows for publication to:
Sec. 27. Section 692A.13, subsection 2, paragraph b, Code 2005, is amended to read as follows:
b. The general public, including public and private agencies, organizations, public places, public and private schools, child care facilities, religious and youth organizations, neighbors, neighborhood associations, community meetings, and employers. Registry information may be distributed to the public through printed materials, visual or audio press releases, radio communications, or through a criminal or juvenile justice agency's web page.

Do we really want to hear a radio announcement on every skinny dipper in town?

But there's another reason I'm concerned about this issue, which lies within the measures of HF 619 that are designed to address the Jetseta Gage situation. The legislature attempted to make some changes that would allow the Department of Human Services to pull kids out of homes where their parent chooses to live with a known sex offender, and allow the county attorney to charge a parent who brings a sex offender into their home with child endangerment. Here are the provisions:
Sec. 20. Section 232.68, subsection 2, Code 2005, is amended by adding the following new paragraph:
NEW PARAGRAPH. i. Cohabitation with a person on the sex offender registry under chapter 692A in violation of section 726.6.

(NOTE: Section 232.68 is the definition of child abuse.)

Sec. 31. Section 726.6, subsection 1, Code 2005, is amended by adding the following new paragraph:
NEW PARAGRAPH. h. Cohabits with a person after knowing the person is required to register or is on the sex offender registry as a sex offender under chapter 692A. However, this paragraph does not apply to a person who is a parent, guardian, or a person having custody or control over a child or a minor who is required to register as a sex offender, or to a person who is married to and living with a person required to register as a sex offender.

(Section 726.6 is the definition of the crime of child endangerment.)

The Child in Need of Assistance laws provide grounds to transfer custody to the Court for placement when abuse is present:
6. "Child in need of assistance" means an unmarried child:
a. Whose parent, guardian or other custodian has abandoned or deserted the child.
b. Whose parent, guardian, other custodian, or other member of the household in which the child resides has physically abused or neglected the child, or is imminently likely to abuse or neglect the child. . . .

UPDATE: After getting a chance to do a more thorough read-through of this, I have revised my opinion on these issues. It seems the child abuse section references the child endangerment section in it's definition, so the child endangerment definition controls both, unlike what I thought earlier. In other words, the state exempts from the child abuse definition people who are "a parent, guardian, or a person having custody or control over a child or a minor who is required to register as a sex offender," or are "married to and living with a person required to register as a sex offender."

That alleviates my earlier questions about a husband and wife getting caught having sex in the park, or having custody of a 15-year-old "mooner," so it's not so relevant on the issue of whether to create a two-tiered indecent exposure law.

However, it raises an interesting new question: you've exempted married sex offenders from the child endangerment/child abuse provisions. Why???? If Trena Gage had decided to get married to Bentley (either one of them) that would've made it all okay??? If two hard-core sex offenders get married, is it not still child endangerment?

HF 619 also provides for a study committe:
legislative council is requested to authorize a study for the 2005 legislative interim on sexual abuse=related criminal offenses and the sex offender registry. The study recommendations and findings shall include but are not limited to identifying possible changes to sexual abuse=related offenses and the sex offender registry. The study report, including findings and recommendations, shall be submitted to the general assembly for consideration during the 2006 legislative session. The study shall be conducted by a study committee consisting of up to nine members of the general assembly. A chairperson or co=chairpersons shall be designated by the legislative council.

I'd propose the committee investigate altering the indecent exposure laws to something roughly as follows - but please keep in mind I whipped this out in about ten minutes, and the language would need substantial refining.
Indecent Exposure
A person who intentionally exposes the person's genitals or pubes to another not the person's spouse or who knowingly commits a sex act in the presence or view of a third party, with the intent to arouse or satisfy the sexual desires of either party, commits indecent exposure.
(i) A person eighteen years of age or older is upon conviction guilty of an aggravated misdemeanor if the person commits indecent exposure with a child. The provisions of this section shall also apply to a person sixteen or seventeen years of age who commits any of the enumerated acts with a child who is at least five years the person's junior, in which case the juvenile court shall have jurisdiction under chapter 232.
(ii) Any other indecent exposure is a serious misdemeanor, unless otherwise provided.

Public Exposure
A person who exposes the person's genitals or pubes to another not the person's spouse, or who commits a sex act in the presence of or view of a third person commits a simple misdemeanor if the person knows or reasonably should know that the act is offensive to the viewer.

I'd then propose changing the sex offender registry laws so that the first one would require registry, the second would not. Note that I also enhanced the penalty to an aggravated if it's with a child, diminishing the penalty to a simple if there's no intent, just 'cause I think it's fair.

Finally, in response to the new issue I'd pointed out regarding the holes in the definitions of sex abuse and child endangerment, I'd alter HF619's provisions to take out the exception for being married to a sex offender or being the parent of one. If we're limiting the sex offender registry to only those who really did molest kids, or at the very least intentionally flashed people for sexual purposes, then I'd say that the relationship between the sex offender and the parent is irrelevant to the potential harm to the other children in the home.

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