Sex Offenses Category Archives — Page 7 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

A broader definition of CP?

May 31, 2014 | The Law Office of Philip D. Cave

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea. However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing. And they compounded this with offering 12 images as a “sample.” This caused the military judge to reopen providency, because he found only three of the images were likely CP.

Interesting AF stats on military justice

April 24, 2014 | The Law Office of Philip D. Cave

With the ongoing politics surrounding sexual assault in the military, and whether the commander should remain as the disciplinary decision maker, the AF has done an interesting review of (convictions).

After a spate of sex-related incidents last year, the Air Force reviewed all courts-martial from the previous three years — more than 2,400 cases — and found 25 instances in which a commander disagreed with a judge advocate general’s recommendation, Air Force Chief of Staff Gen. Mark Welsh said.

I am assuming they mean that the CA granted either clemency or dismissal of one or more findings post-trial. The article goes on to say:

On consent to sexual activity

April 11, 2014 | The Law Office of Philip D. Cave

Capacity to Consent to Sexual Risk, Elaine Craig, Dalhousie University – Schulich School of Law, 2013

Abstract:

Do women lie about rape

June 28, 2013 | The Law Office of Philip D. Cave

Yes is the simple answer.

The harder answer is why, and how do you tell.

As I always say, the first question to consider is motive. If you have a motive, a lot must follow to corroborate the motive. Here is an article from the FBI Law Enforcement Bulletin about, False Allegations of Adult Crimes.

Is a complaining witness’s prior sexual misconduct admissible

February 16, 2013 | The Law Office of Philip D. Cave

Prof. Colin Miller has an interesting post about application of Rule 412, under Texas law, as decided in Johnson v. State, 2013 WL 531079 (Tex.App.-Waco 2013).

From Under the Shield: Court of Appeals of Texas Finds Rape Shield Rule Doesn’t Cover Alleged Victim’s Sexual Misconduct

Texas Rule of Evidence 412 mimics the federal rule which mimics the military rule. I leave out most of the post and conclude with this.

CP and 414

January 10, 2013 | The Law Office of Philip D. Cave

As noted in yesterday’s post, Federal Rule of Evidence 414(a),

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, what exactly counts as "child molestation" for Rule 414(a) purposes? Let’s take a look at the recent opinion of the United States District Court for the District of Utah in United States v. Gardner, 2013 WL 53845 (D.Utah 2013).

More on providency and “sodomy”

December 16, 2012 | The Law Office of Philip D. Cave

The C. G. Ct. Crim. Apps. has issued an unpublished decision in United States v. Whitaker, in which it discusses whether:

Appellant’s conviction under Article 125, UCMJ, for consensual sodomy should be dismissed because the military judge failed to discuss the corresponding liberty interest during the providence inquiry.

The court concluded it was proper to dismiss the charge.

Now what another innocent life taken

November 22, 2012 | The Law Office of Philip D. Cave

AP reports the following.

Johnathan Montgomery spent the past four years in a Virginia state prison saying the same thing a lot of inmates do: He was innocent. Convicted in 2008 of molesting a 10-year-old girl outside her grandmother’s Hampton home when he was 14, he insisted the alleged 2000 assault never happened. Turns out, he was telling the truth.

Coast is being identified because authorities say she admitted fabricating the story and because she has been charged with perjury. According to media reports, prosecutors say that Coast told investigators that her parents caught her looking at pornographic websites in 2007 when she was 17, so she concocted a story of prior sexual abuse to explain her behavior. When the alleged assault occurred, Montgomery lived across the street from Coast’s grandmother in Hampton, Va. The two had previously played together.

Confrontation and authenticating IP documents and reports in CP cases

November 15, 2012 | The Law Office of Philip D. Cave

Here is an interesting case from the First, United States v. Cameron, decided 14 November 2012. The issue is confrontation and the admission of various internet provider records. I think this case helpful in litigating the paper that the prosecution seeks to use in CP cases.

We thus presume that Cameron’s challenge is to the following categories of evidence: (1) the Yahoo! Account Management Tool and Login Tracker data — this data was attached to the CP Reports and was also produced in response to search warrants; (2) electronic receipts of Yahoo’s CP Reports to NCMEC — these receipts were produced by Yahoo! in response to search warrants; (3) NCMEC’s CyberTipline Reports to ICAC; and (4) the Google Hello Connection Logs.

Standard motion in CP cases

September 18, 2012 | The Law Office of Philip D. Cave

Here, from Prof. Berman TG at Sentencing Law & Policy is a reminder about evidence in CP cases. I think most of us already do this, and a number of prosecutors already think of this.

A notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here), highlights the challenges (and the truly disgusting nature) of some federal child pornography prosecutions. Here is how the lengthy opinion gets started:

David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months’ imprisonment and 20 years’ supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges. Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed. We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged. Those errors were not harmless, and we will therefore vacate and remand for a new trial.