Sex Offenders: Give Us Your Passwords

[Bricker]

@amarone

Oh dear. Did you even try this or did you just guess that it would support your argument? I did such a search and on the first page eight of ten entries were links to articles stating that a duck’s quack does indeed echo, one was a link to a search engine and just one was a factoid that it doesn’t echo.

And I apologize - you have offered up one case. That seems to show that in a case in California nearly 30 years ago (no idea if the timescale makes any difference), public urination was found not to be an offence. It is one piece of support for your position, although as yet that does not persuade me that it outweighs the dozens of links to opinions that are easily found - a unanimous position in my searching, not one in ten as with the duck’s quack.

OK, then can you provide a link to one of the opinions you’re talking about?

Er… you do mean COURT opinions, right? NOt some guy railing on his blog at the injustice of public urination being a sex crime?

[Bricker]

@amarone

a unanimous position in my searching, not one in ten as with the duck’s quack.

@R. Feynman

 This question of trying to figure out whether a book  is good or bad by

looking at it carefully or by taking the reports of a lot of people who
looked at it carelessly is like this famous old problem: Nobody was
permitted to see the Emperor of China, and the question was, What is the
length of the Emperor of China’s nose? To find out, you go all over the
country asking people what they think the length of the Emperor of China’s
nose is, and you average it. And that would be very “accurate” because you
averaged so many people. But it’s no way to find anything out; when you have
a very wide range of people who contribute without looking carefully at it,
you don’t improve your knowledge of the situation by averaging.

Same deal here. You’re looking at lots of different people that have repeated the same claim, and because there are a lot of them, you’re inclined to believe it must be so. But it’s just as Feynman’s story about the length of the Emperor’s nose goes: when you have a very wide range of people who contribute an opinion without looking carefully at it, it’s not all that useful to count up the number of opinions. Perhaps they are all relying on the Human Rights Watch commentary.

But doesn’t it seem suspicious to you that in all these opinions, not one of them is offering up an actual test case: John Q. Smith, whose only crime was public urination. Where is he? With all those cases, all those opinions, you’d think there’d be hundreds of examples of actual people in this jam.

Where are they?

[Bricker]

Vermont’s inclusion on the list debunked:

@In re: Edward Lane

The essential elements of lewd and lascivious conduct are met when a person (1)
intentionally engages in behavior that is both (2) open and gross and (3) lewd and lascivious.
13 V.S.A. § 2601; State v. Penn, 2003 VT 110, ¶ 12, 176 Vt. 565 (mem). The element of
“open and gross” conduct requires proof that the act was undisguised and observed by at least
one witness. State v. Benoit, 158 Vt. 359, 361 (1992). The element of lewdness and
lasciviousness requires proof that the behavior was “sexual in nature, lustful, or indecent, that
which offends the common social sense of the community, as well as its sense of decency
and morality.” Penn, 2003 VT 110, ¶ 12. Although the definition of lewd and lascivious
behavior is generally not susceptible to precise explanation, all of the reported cases suggest
that there must be a sexual component to the crime. See State v. Purvis, 146 Vt. 441, 443
(1985) (suggesting that a defendant would not be convicted for lewd and lascivious conduct
for “mere nudity”).

[YogSothoth]

I’ve always thought that these extra punishments for sex offenders are simply the public’s way of dealing with a squeamish issue. If they are so gung-ho about denying these people the right to a normal life after they served their time, they should just increase the penalty. But the last I heard, sex offenses are not punishable by life in prison.

I’m against letting the public dodge this issue. I don’t think we should monitor them at all after they get out, and they should be able to hide their identity and live next to schools if they want to. Got a problem? Then increase their damn sentences.

[Gfactor]

@Bricker

You haven’t done ANY work. You’ve cut and pasted the link that GFactor gave in his Staff Report. GFactor, because he is a cautious and careful lawyer and reseacher, said (correctly) that HRW claims this to be true. But he does not independently endorse their findings, and a good thing, too, because examining the first two claims shows that they have dramatically overstated the case.

I agree they overstate the case. IIRC, when I looked at the statutes in that footnote, I found a few that, like the Arizona statute, don’t have any sort of lewdness component. I also had relied on In re Birch, 10 Cal. 3d 314; 515 P.2d 12; 110 Cal. Rptr. 212; 1973 Cal. LEXIS 156 (1973) as an example of a conviction for indecent exposure for public urination requiring registration (obviously the registration requirement was not imposed by the Adam Walsh Act). In Birch, the defendant was charged with indecent exposure for urinating on a retaining wall at 1:30 am. He pleaded guilty (without counsel), and served five days in jail, and was required to register as a sex offender. He sought to withdraw his plea because he claimed he hadn’t been informed of the registration requirement. The California Supreme Court allowed him to withdraw the plea. All of this sounds pretty good, and I guess I wasn’t quite cynical enough, because I overlooked footnote four:

Petitioner urges that rather than simply reversing the conviction for inadequate advice with respect to counsel and the consequences of the plea, we should order the charge dismissed on the ground that his conduct does not, as a matter of law, amount to a violation of Penal Code section 647, subdivision (a).

---

On this state of the record, which discloses that no testimony has been taken or evidence adduced as to the facts underlying the crime and no stipulation has been entered as to such events, we believe that we should not attempt to determine whether the conduct allegedly resulting in the charges is, as a matter of law, insufficient to support a conviction under section 647, subdivision (a). If, on remand, the state chooses to reprosecute Birch on such charges, defendant will of course remain free to show that his conduct did not exhibit the requisite “sexual motivation” to bring it within the ambit of “lewd and dissolute conduct” proscribed by section 647, subdivision (a). (Cf. In re Smith (1972) 7 Cal.3d 362, 366 [102 Cal.Rptr. 335, 497 P.2d 807]; Wainwright v. Procunier (9th Cir. 1971) 446 F.2d 757, 759-760.)

Of course, a later case noted,

In Birch the question was whether Birch’s conviction [**416] should be set aside because he was not properly advised of the 290 registration requirement before entering his plea to a section 647 subdivision (a) Penal Code violation. Birch had urinated on a retaining wall at approximately 1:30 a.m. Two police officers observed his offense. In Birch the question of proportionality of the registration requirement to the section 647, subdivision (a) offense was not presented. While the Supreme Court makes reference to the “ignominious badge” resulting from registration, the court held, on [*180] other grounds, Birch was entitled to have his judgment of conviction set aside. The court, however, did not prohibit the use of the section 290 registration requirement even on such a petty type offense to which Birch pled.

People v. Mills, 81 Cal. App. 3d 171; 146 Cal. Rptr. 411; 1978 Cal. App. LEXIS 1567 (1978) (Emphasis added.)

Regarding the Arizona statute, cf., State v. Sandoval, 175 Ariz. 343; 857 P.2d 395; 1993 Ariz. App. LEXIS 141; 144 Ariz. Adv. Rep. 37 (1993):

The trial court is correct in stating that something more than mere public nudity is necessary for a conviction under A.R.S. section 13-1402. That something more, however, is not supplied by the common law, but by the explicit terms of the statute. See State v. Miniefield, 110 Ariz. 599, 602, 522 P.2d 25, 28 (1974) (Arizona criminal law is based solely on statute and not on common law). In addition to nudity in the presence of another (i.e., the act of exposure), this statute plainly and specifically requires that a defendant be reckless about whether the other person present, as a reasonable person, would be offended or alarmed by the act.

Of course the fact pattern of *Sandoval *is of no help to us here:

On April 12, 1992, the defendant was observed urinating in public at Wesley Bolin Plaza by two girls, aged eight and nine respectively. When the defendant observed the girls, he removed his pants and chased the girls while on his bike. Both girls saw the defendant’s penis, and both were extremely frightened when they contacted the police.

The Court, after noting that the exposure need not be sexually motivated, observes,

The stipulated facts are sufficient to establish the elements of “indecent exposure” as set forth in A.R.S. section 13-1402. Defendant not only exposed his penis to the two girls, but chased after them while doing so. A rational trier of fact could certainly decide that a reasonable person in the position of the two girls would be offended or alarmed by defendant’s actions. The fact that the girls were scared by defendant’s conduct itself provides some evidence that a reasonable person would be alarmed by such conduct. Defendant does not really contest that the facts are sufficient for these elements

Also, the *Sandoval *court addressed the Arizona registration requirements, in the context of whether crimes requiring registration must be committed with sexual motiviation, and concluded they did not:

Finally, defendant points out that A.R.S. section 13-3821 requires that any defendant convicted of an offense under Title 13, Chap. 14, must register as a sex offender and asserts that this dictates that there must be some element of sexual intent. We find this argument likewise unpersuasive. A.R.S. section 13-3821 also requires persons convicted under Chapter 35.1 of Title 13 to register as sex offenders. Under that chapter, A.R.S. section 13-3552 prohibiting the commercial sexual exploitation of a minor does not require that the offender be sexually motivated. As is wellknown, an offender under this statute may be motivated solely by profit or pecuniary gain. Finally, A.R.S. section 13-3556 makes it unlawful for “an owner, operator or employer to admit a person under the age of eighteen into any business establishment where persons, in the course of their employment expose their genitals or anus or the areola or nipple of the female breast.” This statute has no requirement that the offender be sexually motivated. We perceive no indication by the legislature that it intended to modify the offenses set forth in Chapter 14, through the enactment of A.R.S. section 13-3821.

The language of A.R.S. section 13-1402 is clear and unambiguous. The statute contains no requirement expressed or implied requiring that the acts proscribed be sexually motivated or done with some sexual intent to commit indecent exposure. Nor does any other part of the criminal code add such a requirement to A.R.S. section 13-1402. I’ll also point out that I found at least three law review articles that claim various numbers of states require registration for public urination convictions, each citing the HRW paper.

[Bricker]

@Gfactor

I’ll also point out that I found at least three law review articles that claim various numbers of states require registration for public urination convictions, each citing the HRW paper.

I think that HRW paper spawned a great many of the hits that amarone found.

[amarone]

@Bricker

I think that HRW paper spawned a great many of the hits that amarone found.

It is certainly possible. As I recall, it was the first hit presented by Google, which means that it is the most linked-to article, if I understand Google’s algorithm correctly.

From memory, other sites I found included:

• another human rights organization whose name I cannot remember (sorry - I know that is not helpful)
• an Economist article, which itself was cited in several other sites
• Wikipedia entry on Adam Walsh Act
• several articles on the state of New Hampshire looking to change its laws so that public urination did not fall under the Adam Walsh Act.
• a bunch of blogs.

[Bricker]

@amarone

It is certainly possible. As I recall, it was the first hit presented by Google, which means that it is the most linked-to article, if I understand Google’s algorithm correctly.

From memory, other sites I found included:

• another human rights organization whose name I cannot remember (sorry - I know that is not helpful)
• an Economist article, which itself was cited in several other sites
• Wikipedia entry on Adam Walsh Act
• several articles on the state of New Hampshire looking to change its laws so that public urination did not fall under the Adam Walsh Act.
• a bunch of blogs.

Which of these mentioned its sources? The Wikipedia article cites the HRW report as a source, I know. The Economist does, too:

@The Economist

A report by Sarah Tofte of Human Rights Watch, a pressure group, found that at least five states required men to register if they were caught visiting prostitutes. At least 13 required it for urinating in public (in two of which, only if a child was present)

And then The Economist article is cited in several other cites, which are all simply totem-pole citations to the HRW report.

[Bricker]

Of some interest to the discussion on this thread:

The Supreme Court has granted certiorari to U.S. v. Dixon, a Seventh Circuit case involving the Sex Offender Registration and Notification Act, which is part of the Adam Walsh Child Protection and Safety Act discussed above. The Court will consider whether people who were convicted before the Act was passed, and who traveled in interstate commerce before the Act was passed, may still be required to register pursuant to the Act or if that requirement violates the Ex Post Facto clause. The Tenth Circuit had previously held (in US v. Husted) that the Act only applied to convicted sex offenders who travel in interstate commerce after the Act was passed; the Seventh Circuit disagrees.

[tomndebb]

@amarone

Oh dear. Did you even try this or did you just guess that it would support your argument? I did such a search and on the first page eight of ten entries were links to articles stating that a duck’s quack does indeed echo, one was a link to a search engine and just one was a factoid that it doesn’t echo.

You do realize that you have just made Bricker’s point regarding your references and citations?

[amarone]

@tomndebb

You do realize that you have just made Bricker’s point regarding your references and citations?

No, you have completely lost me there. Bricker seemed to be saying that I shouldn’t believe something just because I do an Internet search that throws up lots of supporting cites. He then gave an example of something that is not true. But when you do the search the vast majority of links show it not to be true. I don’t see how my pointing this out made his point rather than mine. My point is that Internet searches can be reliable. Bricker’s example, which it looks he intended as a counter-example, ended up supporting my case (about Internet searches, not public urination).

Maybe I am just being dim - if so, enlighten me.

[Bricker]

Turning our attention back to the issue of public urination, it’s definitively clear now that the Human Rights paper was both highly exaggerated and a frequent source of misinformation: it spawned dozens, if not hundreds, of pages that repeated its claims, but those claims were not accurate.

Started in large measure because of the discussion in this thread, GFactor and I researched each state’s statute and case law. The results have been appended to GFactor’s Staff Report that amrone quoted above. ( Can I be charged with indecent exposure if I stay on my own private property? - The Straight Dope )

[quote=Gfactor]
In the preceding report, I refer to a Human Rights Watch white paper that cites state statutes and claims, “[a]t least 13 states require registration for public urination; of those, two limit registration to those who committed the act in view of a minor.” The report indeed says that. But when fellow SDSAB staff lawyer Bricker and I checked the cites, we concluded that no more than five states’ laws could possibly be construed to require registration for someone convicted of peeing in public, and of those, four require multiple convictions before registration is required. To sum up:
[ul]
[li]Five of the states listed have statutes that might require registration; [/li][li]It’s unlikely even in those states; [/li][li]Four of those states wouldn’t require registration for a first offense – they only require repeat offenders to register.[/ul] [/li][/quote]

So, no, amarone: you shouldn’t believe something just because you do an Internet search that throws up lots of supporting cites.