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

Child pornography is?

September 22, 2009 | The Law Office of Philip D. Cave

This “issue” or question would be addressed to all of those parents across the country who like to take pictures of their young children. The answer could be that maybe you shouldn’t.

1. Bath Photos & Wal-Mart: What is Child Pornography? By Caleb Groos on September 22, 2009, on FindLawBlotter.

An Arizona couple had to regain custody of their children after Wal-Mart employees and local authorities deemed their bath time photos child pornography. Their horror story has many wondering: what exactly constitutes child pornography?

New Coast Guard decision

September 15, 2009 | The Law Office of Philip D. Cave

The CGCCA has decided United States v. Molena.

Before this Court, Appellant has assigned the following four errors:
I.
Appellant was denied effective counsel when his attorney erroneously informed him that he would not need to register as a sex offender.
II.
The bad-conduct discharge is an inappropriately severe sentence.
III.
Defense counsel’s failure to submit evidence regarding SA O’s character resulted in ineffective assistance of counsel.
IV.
Appellant’s plea was involuntary due to a failure by the Convening Authority to adhere to a material term of the pretrial agreement.
We grant relief on Assignment of Error IV (AOE IV) by setting aside the findings of guilty to Charge IV and its specification, indecent exposure.

By setting aside the charge on IV the court mooted the allegation of IAC.

Alcohol in sexual assault cases

April 21, 2009 | The Law Office of Philip D. Cave

I take some back, almost.

Again I was looking at the NKO Criminal Law Division’s practice tips and I came across this one dealing with the ““Blackout” defense to alcohol facilitated sexual assault.” No, it’s not. This title implies that the accused has deliberately gotten the complaining witness drunk. This is not the case in 99% of the cases and don’t let the prosecutor characterize it this way. There are several items or thoughts generated from this pointer helpful to the defense. This pointer could be useful to the defense in justifying experts. But let’s comment on the article from a defense perspective – I’ll do this stream-of-consciousness. No secrets here, it’s in plenty of records of trial.

1. The article tells the prosecution to hold the defense feet to the fire on qualified experts. Ha! Doesn’t the prosecution usually deny the expert and then offer one under the “adequate substitute” theory? I would be very interested in the number of times an expert request is made and not approved. Which leads to a next point about this. Now, remember this. When the prosecution denies the request and proffers a substitute, even if it turns out the substitute isn’t really qualified, what has the prosecution done? Conceded necessity. Once that happens it’s all over, the only issue is who and is that person available according to the timetable. Ooops, just gave a hint to the prosecution, but that’s OK.

DHDT

April 16, 2009 | The Law Office of Philip D. Cave

Gates: DOD will comply — cautiously — with any "Don’t ask" order, reports Stars & Stripes.

CAAF grant.

March 13, 2009 | The Law Office of Philip D. Cave

Here is an interesting CAAF grant in a Coast Guard case.

No. 08-0719/CG. U.S. v. Webster M. SMITH. CCA 1275. Review granted on the following issue:

WHETHER THE MILITARY JUDGE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSERS BY LIMITING HIS CROSS-EXAMINATION OF [SR], THE GOVERNMENT'S ONLY WITNESS, ON THREE OF THE FIVE CHARGES.

Civil commitment and sex offenders.

February 20, 2009 | The Law Office of Philip D. Cave

First Person Civilly Committed as Sexually Dangerous Person Under AWA, Sex Crimes blog, 13 February 2009. Professor Yung is reporting an event reported to him.

This is worth reading. I've had at least one prior child pornography client picked up while on parole for hanging around children in a local child's play-park.

To commit an individual under [the AWA] provisions, the Government must

DoD Sexual Assault Policy

February 13, 2009 | The Law Office of Philip D. Cave

The NMCCA has heard oral argument and has a case pending which challenges the constitutionality of the "new" Article 120, UCMJ. All the other Service CCA's or MJ's to consider this issue have found the statute constitutional. The MJ's have taken varying approaches in the court-room though. One MJ I had ended up basically using the "old" BB instruction for a sexual assault case, another believed that if the defense showed consent by a preponderance the Members must acquit (this case got dismissed just before trial, and before I had a chance to change forum to MJA. We had lots of consent evidence.).

LT Keith B. Lofland, JAGC, USN, Article, Essay, & Note: The Neglected Debate Over Sexual Assault Policy in the Department of Defense, 55 Naval L. Rev. 311 (2008) is of interest and is online, at the NJS website.

Volume 56 seems to be out, but I can't seem to access it — anyone?

Advice to clients about collateral consequences.

February 12, 2009 | The Law Office of Philip D. Cave

United States v. Rose, __ M.J. ___, No. ACM 36508 (A.F. Ct. Crim. App. Feb. 12, 2009), has been released. Thanks to CAAFLog for early access to this important case.

This is a case on collateral consequences of court-martial convictions. We've discussed SOR several times. The discussion of collateral consequences, especially in guilty plea cases is becoming much more complex than in the old days. There are three areas of concern: sex offender registration, immigration status for resident aliens, and security clearances.

1. Sex offender. I don't think there can be any doubt these days that there are registration concerns with any offense involving sex and child pornography. I use Sex Offender Registries as a basic starting point. The site tends to be complete and reasonably current. The Adam Walsh Act is online. Sex Crimes blog has a lot of information on registration issues. The DODI 1325.7 is on-line and lists current registration offenses. Page 109, Encl. 27, lists the offenses for which DOD considers registration required. Indecent assault is clearly listed. DD Form 2791-1 is supplied from the Brig or confinement facility. I suspect the Brig at Miramar might be willing to give guidance, as they and Charleston and the USDB are where most sex offenders go to serve a sentence.

Megans’ Law: Effective?

February 5, 2009 | The Law Office of Philip D. Cave

Dr. Karen Franklin is one of many reporting the results of a survey in New Jersey on the effectiveness of Megan's law.

Karen Franklin, Megan's Law: Millions for Nothing, 5 February 2009. Bottom line:

Despite their enormous popularity, little research has been conducted into whether they work.

Community Standard — Indecency

February 1, 2009 | The Law Office of Philip D. Cave

Professor Yung posts and asks Which Community Standard? The question relates to purchasing of alleged obscence materials across state lines.

For courts-martial, the community standard question is also important for allegations alleging indecency or obscenity. It would be beneficial for a service-member being prosecuted at court-martial for an incident in the local town to argue the alleged acts or items are not indecent according to that community standard. Not so fast. The military has it's own community standard. It's basically the most restrictive, and some.

In United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996), the military judge incorrectly instructed the Members (jury) that: