What is Wrong With People?

by Holly Hughes

The more I hear about the Penn State pedophilia scandal, the angrier I get. A bunch of grown men sat around and did nothing for years, allowing who knows how many young boys to be sexually molested. 

It boggles my mind that a grown man walked in on the rape of a child and did nothing to stop it. Forget for a moment the whole question of who it should have been reported to. Just pause and think about what really happened back in 2002 in a Penn State locker room shower. Mike McQueary, a grown man, a graduate assistant at the time, has said he heard the sound of skin slapping on skin. He went into the shower area and saw a young boy, whose age he estimates to be around ten, with his hands pinned up against the wall and Jerry Sandusky was having anal intercourse with the child. In response to this assault McQueary turns and walks away. He doesn’t yell out or stop Sandusky from raping this little boy, he just simply leaves. He goes home and tells his father. Still, neither of them telephone the police. 

To this day, despite the indictment and charges levied against Sandusky, that little boy from the shower is still unidentified. No one knows if he is even alive today. Unfortunately, the statistics tell us that abused children often get into drugs, prostitution and other trouble with the law. McQueary tells his “boss,” Joe Paterno, who passes the information on to Tim Curley and Gary Schultz and nothing is done.

This case is a cautionary tale in many respects. Time after time there were multiple opportunities to stop this monster, Sandusky, from abusing children. As early as 1998, Sandusky was reported to authorities as having inappropriate contact with young boys. Despite the fact that Sandusky admitted to the boy’s mother, on tape, that he had showered with her eleven year old son and other boys and “wishes he was dead”, nothing is done. Despite interviewing another young boy who also reports that Sandusky showered with him, nothing is done. The District Attorney at the time, Ray Gricar, declines to prosecute this predator, and nothing is done. Thomas Harmon, who headed the campus police force at the time, closed the investigation and nothing is done. 

In 2000, a janitor named Jim Calhoun tells a co-worker and his supervisor that he saw Sandusky engaged in sexual activity with a young boy in the showers. The supervisor tells Calhoun who he can report it to if he wants. Again, another grown man, this time Calhoun, does nothing to stop the sexual assault of a child while it is in progress. No one, not Calhoun, his coworker or his supervisor calls the police and nothing is done. 

Another highly disturbing aspect is that all of these grown men (and more) knew Sandusky had six adopted children, took in foster children and ran a charity he had established for “troubled” youth. Did these men honestly think that those children were safe in Sandusky’s care? It is unconscionable to me that all of these men turned away and did nothing at the expense of every victim since the first reported one in 1998. Not one of them can honestly say they thought pedophilia was a one time event. Their behavior is indefensible. 

The average pedophile is said to have 100 victim over his lifetime, but I fear Sandusky is far worse than the “average” pedophile. This is a man who, thanks to his friends, had an endless supply of young boys to victimize. They enabled a child molester to continue unchecked for years. 

The Penn State officials, who had a mandatory duty to report suspected child abuse, never did so. Their answer was to take away Sandusky’s keys to the locker room. Really? Really? So, what’s the message there, “It’s okay to rape children, just don’t do it on our campus"? I have heard all the excuses. They didn’t want to destroy the integrity of the football program? Well, how’s that going for you boys? The janitor didn’t want to lose his job. How about his humanity? His compassion? His sense of decency? 

Having prosecuted homicides, hate crimes and high profile cases for ten years, I didn’t think there was much that could still shock me. I was wrong. The depth of this cover up at the expense of children is sickening. Even as I write this piece, more victims are coming forward. Sadly, there will be more victims unidentified than the number we will know about. 

As the Senate schedules congressional hearings and the California legislature proposes laws to prevent this from happening again I can’t help but think of the sad irony. It takes a tragedy like this for people to wake up and realize that we are failing the children of this country in horrifying ways. 

Frighteningly, it didn’t take a special hearing of Congress to prevent this particular tragedy. It would have only taken one of those grown men to “man up” and take a stand. To report this monster and expose him, before he abused all of his victims. 

Sometimes it takes a village, sometimes it just takes one good man. How tragic that we didn’t have one here.

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A Sign of the Times...."Sexting"

by Robin Sax

Sexting is a relatively new term in our lexicon, referring to the sending of a sex image through a text message (combine the word sex and “texting” and you get sexting). You may be surprised to find out that sexting can send a young person to jail. Even more, it can cause him/her to be convicted of the dissemination of child porn and be forced to register as sex offender -- for life.

In October of last year a Texas eighth-grader spent the night in a juvenile detention center after his football coach found a nude picture on his cell phone, sent by fellow student. In January of this year three western Pennsylvania high school girls were charged with child pornography for sending semi-nude cell phone pictures of themselves. Last month in Indiana a teenage boy was indicted on felony obscenity charges for sending a photo of his private parts via “sext” to several female classmates.

There is nothing new to the notion that technology has created a bucket-load of new crimes. But like everything else, the technology is ahead of legislators and the criminal justice system. If a 16-year-old girl willingly sends a naked picture of herself to her same aged boyfriend, are we shocked? It seems relatively harmless, right? Maybe… or depending on the jurisdiction and the prosecutor it could be considered a crime (that is, sending and possessing child porn). It all depends on which way you view it. Is it innocent child play or criminally dangerous behavior?

Taking it a step further, what happens when that 16-year-old boyfriend forwards that “sext message” to 100 people, or even just three of his closest friends? Besides the fact that it is mortifying to the young girlfriend (and invading her privacy), the boy could be subjected to charges of disseminating child porn, a crime that can includes jail and a lifetime registration as a sex offender. Now, I am not here to argue that the child should not be punished. Of course there should be consequences. But should that 16-year-old now be a registered sex offender? I say hell no!

We can argue whether or not the boyfriend’s actions should be considered criminal or merely a boyish prank. But the bigger issue is whether or not this 16-year-old can really be considered a sexual predator that belongs on a sex registration list. I do believe the boy should be punished, charged with harassment, bullying, or whatever. Requiring registration, however, in this case only does one thing: undermines the sex offender registry. As parents and citizens, we need to know what we are talking about when we refer to sex offenders. Most people agree that this list should be reserved for the “true” predators and molesters who have a likely chance of recidivism (repeating the crime of seeking young victims as sexual prey). When you hear child porn you think an adult with pictures of a pre-pubescent or barely pubescent child. Not 16-year-olds sending pictures of themselves naked.

Several states see my argument and agree. Here are some recent legislative developments around the country:

Vermont lawmakers introduced a bill in April 2009 to legalize the consensual exchange of graphic images between two people 13 to 18 years old. Passing along such images to others would remain a crime. In Ohio, a county prosecutor and two lawmakers proposed a law that would reduce sexting from a felony to a first-degree misdemeanor, and eliminate the possibility of a teenage offender being labeled a sex offender for years. In Cincinnati the proposal to lesson sexting was supported - even by the parents of Jessie Logan, an 18-year-old who committed suicide after a naked picture of herself (which she sexted) was forwarded to people in her high school. Utah lawmakers lessened the penalty for sexting for someone younger than 18 from a felony to a misdemeanor.

But more needs to be done; specifically in the areas of parenting and educating our teens. The National Campaign to Prevent Teen & Unplanned Pregnancy, a private nonprofit group whose mission is to protect children, along with CosmoGirl.com, surveyed nearly 1,300 teens about sex and technology. The result: 1 in 5 teens say they have sexted even though the majority knows it could be a crime, they continue to do it.

So, friends, I ask you…where do you stand on what do about “sexting??” Let me know I what your thoughts....email me at http://www.robinsax.com/.

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If I Were Judge, Jury, and Lawmaker, Too . . .

by Robin Sax

There’s not a week that goes by when someone doesn’t ask me, “How can you prosecute sex crimes without getting ill, jaded or miserable?” Well, while my job is challenging, I consider it an honor and privilege to give young victims a voice, a place to regain trust, and a place to heal. But today, I‘d like to tackle a different question: “What would you do to the change the system?”

So, if I were judge, jury, and lawmaker, here’s my answer. And by the way, I’ll be brutally honest, even if I think you won’t like what I have to say.

1. First, I believe there should be mandatory sentencing schemes in all jurisdictions. Mandatory sentencing schemes should not require specific additional factors that a jury would have to prove beyond a reasonable doubt. Under many current statutes, a case involving two victims would make a case eligible for a mandatory life sentence. If, however, the jury convicted one victim and not the other (which happens very often because jurors like to throw a “bone” to the defendant), then the case may no longer hold a mandatory life sentence.) I believe the existence of the multiple-victim factor alone should qualify a case for an enhanced penalty.

2. I believe that the Supreme Court should overturn the Crawford decision. Under current law, if a victim dies or is legally unavailable for a court appearance, the victim’s prior statements made to the police or hospital would be inadmissible, due to the defendant’s right to confront and cross-examine the witness. I am in favor of the law prior to the recent Crawford decision that allows for admitting victims' or unavailable persons' previous statements made under certain conditions that ensure reliability.Why should a defendant benefit from the death or legal unavailability of his or her victim?

3. Our jury system sounds wonderful in theory Under the Constitution, each person charged with a crime is entitled to have the case heard by a jury of one’s peers., “peers” are people selected from our community who listen to the evidence and determine what the facts are in the case, while the judge decides on the legal issues.

“A jury of one’s peers” is based on the supposed impartiality of a random sample of the population. It assumes that the average accused will share more similarities than differences with a random sample of the population, and therefore will be judged by people who are likely to give the accused a fair shake.

The problem with this theory is twofold. First, those of us who are not “average” will have a much smaller likelihood of having a jury that comprises our peers. Second, the mechanisms of the “voir dire” process, or jury selection, increases the problem by creating juries composed of a greater percentage of poor, uneducated, unintelligent people, with very little experience with the justice system, than their natural prevalence in society.

The solution to this imbalance is a professional jury system. Professional jurors would be laypersons educated for the task. They would be taught to understand the rules of evidence, the trial process and instruction, and would be tested thoroughly on their objectivity. Most important, a professional jury would have no motivation other than ensuring that due process was followed. The complexities, nuances, and intricacies involved in a child sexual assault warrant a professional jury both because of the difficulty of the case and the great danger of releasing a predator back into society if a jury makes the wrong decision.

4. We need better supervision of registered sex offenders. Some ways to improve supervision include requiring registered sex offenders to register their computer Internet accounts, IP addresses, telephone numbers--not just their physical address. They should be required to inform authorities of international travel and there should be an integrated international registration system (like that for known terrorists) to monitor the “comings and goings” of registered sex offenders. Registered sex offenders should also be subject to lifetime counseling and therapy, and not only conditions of parole or probation.

5. Money and time should be available to train the professionals in this field. This goes for all the agencies involved, including law enforcement, prosecutors, advocates, therapists, judges, probation, and parole officers. It's important, of course, to stay current on the latest advances and laws in this area. Additionally, studies show that training and resources alleviate burnout and serve to inspire and motivate people in this line of work.

6. Right now, it’s standard procedure to assign prosecutors and law enforcement to handle sex crimes for a limited time before rotating them to another area of crime. The benefit of being in a vertical unit (handling all aspects of a case from beginning to end) is that there is a high degree of specialization and high accountability for those involved.

The whole theory behind vertical prosecution is to have a group of people trained in this highly difficult area so that they become specialists. However, all too often, once a prosecutor or detective reaches about a year or so in the unit, they get transferred.The bureaucratic thinking is that prosecutors and detectives should be cross-trained in all areas of criminal law, and that specializing narrows a prosecutor’s or detective’s skills. In the sex crimes area, where cases are so sensitive and the victims have their own special needs, I believe that lawyers and detectives should be assigned for a minimum of five years. Also, I believe lawyers and law enforcers should be assigned to these units only if they want to be there. This is not the type of unit for someone who doesn’t have the requisite passion or a tough enough stomach to handle these cases.

7. Specific courtrooms should be designated and designed for child sexual assault (and child abuse) cases, so they are 100% devoted to the needs and realities of kids who testify. For example, courtrooms can be painted in “kid friendly”colors like pastels, so they look more like a classroom than the typical large, windowless, intimidating enclosure. The chairs on the witness stand should be appropriately “kid sized” and adjustable so that a child’s feet can reach the floor. Further, the judges in these cases should be especially trained to handle them, and to be very familiar with the laws pertaining to child testimony. They would thus be able to use their discretion to protect the child and assist the child when giving testimony. This system can be modeled after the drug courts that are in place in many jurisdictions, where specific courts are devoted to drug addicts and focus on treatment, as opposed to punishment. These courts work with the defendants to address their issues and are sensitive to the needs of addicts.

8. There should be limits to an attorney’s ability to cross-examine and badger kids. One of the basic tenets of our Constitution is that criminal defendants have the right to confront and cross-examine the witnesses against them. It often seems that our criminal justice system offers greater protection to the accused than to the child victim involved in a sexual abuse prosecution.

9. Finally, in recent years, legislators have been concerned about defendants who escape punishment for sexually molesting young children because the children are afraid to testify in the defendant's presence. To address this problem, many states have enacted special rules that authorize judges--in certain situations--to allow children to testify via closed-circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be present where the child is testifying and can cross-examine the child. Closed-circuit TV should be allowed more readily than its current use.

10. Currently, admissibility of expert testimony requires the prosecutor to jump thorough a number of legal hoops. And even when admitted, the admissibility tends to be for extremely limited purposes. Expert testimony should be welcomed and encouraged (from both sides) in order to assist jurors in understanding the unique issues when it comes to child sexual assault. The very things that the defense highlights as a way to discredit a child are the factors that can make a disclosure more credible if put into perspective by an expert. These include delayed disclosure, recantation, minimization, self blame, lying first in order to protect the abuser or fearing they are in trouble, and understanding why “smart” kids engage in risk-taking behavior.

11. Defense attorneys should be as sensitive and compassionate about victims as they are about their own clients. There must be legislation to stop re-victimizing the victim through the court process and to cease casting blame on the victim for being a crime victim.

12. Cases involving children should go to trial as soon as possible and definitely no later than six months from the filing. Currently, the most expeditious cases are tried in roughly a year from the date it was filed (not necessarily reported). Unlike fine wine, an aging case never gets better for the prosecution as time goes by.

13. As an alternative to jail and/or prison there should be live-in/lock-down facilities that are meant to work with, treat, and study sex offenders. Like drug rehabilitation, there should be facilities where we can take a low-level sex offender off the streets to ensure the safety of the public and treat them (if possible) or at least learn from the offender.

14. There should be amendments to the rule against double jeopardy (which means you can’t be tried twice for the same offense) to enable the re-opening of proceedings against acquitted defendants where there is compelling new evidence. This will apply to a range of grave offenses, including those involving serious sexual offenses.

15. There should be a total ban, or at least limitations, on what a child sexual assault defendant should be allowed to do in the criminal process. For example, if representing himself, he should not be able to personally direct or cross-examine the complaining children who are witnessing against him. He should not be able to access all the discovery information that a defense attorney (an officer of the court) would normally receive, such as the victim’s school records, rape exam photos, and other confidential records.

16.If a case is appealed after a conviction, it may take two or three years before a court determines whether or not the defendant is entitled to a new trial. If the defendant is granted a new trial, the prosecution would need to bring the victim in to testify again. The new or old testimony could then be presented as “inconsistencies” from the first testimony, thus casting doubt on the victim’s credibility. If the cause for appeal has nothing to do with the victim’s testimony, the victim should not be made to return to court and the entire prior testimony should be stipulated as accurate and complete.

There is no greater concern in society than the concern people have for children. Whether it is providing a better earth, protecting kids from wars, terrorism, criminals, or abuse, our society prides itself on shielding our young. And with good reason--children are powerless to take on the perils of our world on their own. We can give children the voice that they so desperately deserve if our leaders, lawmakers, and voters spoke up on and acted to protect the children we brought into this world.

POSTS FROM ROBIN SAX DO NOT REPRESENT THE OPINIONS OF THE LOS ANGELES COUNTY DISTRICT ATTORNEY OR THE LOS ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE.

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