Understanding the Sexual Assault Allegations that Rock Capitol Hill

The latter half of 2017 has been a tsunami of sexual assault allegations against prominent politicians and Hollywood men. In most states, sexual assault is unconsented intention sexual contact for sexual gratification. These allegations have dire political consequences and potential legal consequences. Al Franken may soon be under Congressional ethics investigation, Roy Moore is taking a beating in the polls of his Senate race, and Trump is still President.

However, not all sexual assault allegations are created equal. But to prove a crime, prosecutors must show that the defendant committed the act with a criminal intent. For example, if the defendant hits another person with his car because that person owed him money, then the defendant is guilty of vehicular assault.  If the defendant hit the victim by accident, then there would be no intent and thus no crime. If the defendant didn’t hit the victim, then there would no act and thus no crime (with exceptions for attempted crimes).

Regardless of the political costs, the legal fallout will be different for each man based on the evidence and the potential criminal charges each man might face.

Roy Moore

Roy Moore faces the most significant potential criminal charges: sexual abuse with a minor. Under Alabama state law, 1st degree sexual abuse is a Class C felony. A conviction can result in up to ten years in prison, a $15,000 fine, and registration as a sex offender. Although the statute of limitations for crimes is usually five years in Alabama, child sexual abuse is one of the crimes that is exempt from the statute of limitations.

capitol hillFortunately for Moore, the evidence against him is the weakest of the three cases. Other than the accusers’ testimony, the only evidence that exists is circumstantial evidence. The yearbook proves that Moore was lying about not knowing the alleged victim and the ban from the mall collaborates Moore’s admittance that he liked to date girls who were barely legal. However, neither proves that Moore had sexual contact with a 14-year-old girl or attempted to rape a 16-year-old. The yearbook suggests that Moore thought of the 16-year-old in a sexual manner, but it’s unknown whether Moore tried anything beyond being a creepy and egomaniac Assistant District Attorney.

Al Franken

Senator Franken could be indicted with fifth degree criminal sexual conduct, whereby he engaged in nonconsensual sexual contact, which is a gross misdemeanor. It would not be a higher degree because there are no allegations of penetration and there was no reasonable fear of imminent physical harm, since there were other people around and the accuser was asleep. A conviction would lead to one year in prison and a $3,000 fine for first time offenders.

Franken’s case involves strong evidence outside the accuser’s testimony: a photograph where Franken is grabbing or attempting to grab the accuser’s breasts. Going back to the elements of a crime, the photograph is evidence of a sexual act, though no intent is established. The fact that the accuser was wearing a bullet proof vest is of no significance. The photographer, Franken’s brother, testifies that the photograph was taken in jest and that the accuser was actually awake and in on the joke.

Franken’s best defense, if the accuser’s testimony is discounted, is that he did not touch her for sexual gratification. Most states define sexual assault as unconsented intention sexual contact for sexual gratification. It is legally possible to intentionally touch someone’s sexual parts without consent if the purpose was not for sexual gratification.

When might that happen? If a woman fainted and a man was trying to resuscitate her by performing CPR, he would have to touch her mouth and chest. CPR would require intentional non-consented touching of otherwise private body parts, but most states would not prosecute for sexual assault because the CPR was done for non-sexual purposes.

The example is extreme, but if the sexual contact was not for sex, there cannot be sexual assault. If Franken grabbed the accuser’s breasts while she was asleep as a joke, there would no sexual purpose and he would not have committed sexual assault (though assault and battery would still be an issue).

Obviously, we cannot excuse every allegation of sexual assault as a joke. In Franken’s case though, there are facts that do support the argument. He had a long career as a comedian prior to becoming a senator and these allegations occurred during a Saturday Night Live skit. I am not excusing his conduct; his behavior was appalling and he should resign his Senate seat. However, there may not be enough evidence to convict Franken of a criminal offense.

Donald Trump

The allegations against the 45th President are well documented now. Trump is the opposite of Franken in many respects. The now infamous “pussy grabber” Hollywood Access video shows that Trump has criminal intentions, even if there is no evidence of sexual acts other than the testimony of the women against him (in contrast with the photograph of Franken’s act, but without an intent to prove it was sexual).

The White House is insistent that Franken should be investigated, but Trump is absolved because Franken has apologized while Trump (and Moore) have denied all allegations. There’s two things wrong with this logic. First, denial does not mean one is innocent. There are thousands of prisoners who have pleaded not guilty and have never confessed to a crime. Second, we should have higher standards for our elected representatives.

We might assume that men are innocent until proven guilty in a court of law, but that is not the standard for employment. If a hiring manager at a McDonalds or Walmart had any doubts about whether an employee had sexually abused or harassed women in the workplace, that employee would be terminated. Why do we have lower standards for Senators and the President of the United States than cashiers at retail stores or fast food restaurants?  Men like Trump, Moore, and Franken have no business representing us and they should all resign.

What You Need to Know About the Harvey Weinstein Lawsuits

The accusations of sex crimes committed by Harvey Weinstein have come thick and fast over the last month. As of now, over 80 women have come forward accusing Weinstein of every degree of heinous sex crime imaginable. Some of these accusations are over decades old events while others are quite recent. As they have come to light, they have opened the floodgates for an enormous number of accusations revealing a pervasive atmosphere of sexual assault in Hollywood as more and more actors are called out for previous sexual assaults or for being complicit in such acts and doing nothing.

But, no accusations have matched the sheer numbers and disturbingly normalized pattern of what Weinstein is alleged to have done. An enormous number of women, Gwyneth Paltrow, Rose McGowan, Lucia Stoller, Asia Argento, Ashley Judd, and many more, have accused Weinstein of sexual crimes ranging from sexual assault to rape. The accusations all follow a similar pattern, Weinstein invited an actress or aspiring actress to a hotel room or similar isolated spot on the pretense of speaking about their career and then sexually propositioned them–often not taking no for an answer and threatening their career if they did not comply. Many of these women have cited Weinstein destroying careers as their reason for not immediately coming forward; others came forward but were not believed, berated, and no action was taken.

Weinstein allegedly used his enormous resources to hire people to conceal the acts, allegedly with the help of his company and Miramax. The most recent lawsuit against him includes allegations of Weinstein hiring lawyers, reporters, private investigators and more–often to the tune of over $100,000–to cover his tracks. The efforts were apparently quite in depth, false businesses and false names created to mislead victims into believing they were investing in their productions while they were gathering information and attempting to prevent publication of details regarding Weinstein’s attacks. An enormous amount of effort was put into discrediting victims.

weinsteinWhile everything here is still allegations, there has been quite a bit of information released to support the notion that these attacks were a bit of an open secret in Hollywood. Weinstein himself admitted in a recorded NYPD sting operation in 2015 that he had groped a model. He described the behavior as something he is “used to.”

These allegations have sparked what will hopefully be a continuing change in the way sexual assault is treated in Hollywood. However, they have also given rise to a web of lawsuits brought both against and by Harvey Weinstein himself. Let’s look at some of these lawsuits including a recent class action against Weinstein, Miramax and The Weinstein Company, a recent lawsuit brought against The Weinstein Company by Weinstein himself, and the criminal investigations related to Weinstein.

Class Action Alleging Sexual Assault and More

Perhaps the largest suit against Harvey Weinstein was brought just a few weeks back. The suit is brought on behalf of an unnamed actress–going only by Jane Doe in the lawsuit–alleging that Weinstein acted against her career after she refused to show him her breasts while alone in a hotel room. The 59-page complaint also includes other similarly situated persons in the suit.

The suit alleges charges against Weinstein, and both The Weinstein Company and Miramax as knowing and complicit facilitators of Weinstein’s actions. There have been many instances over the year of interviews and memos indicating at least a passing knowledge of Weinstein’s sexual assaults Some of the women assaulted were brought to isolated meetings with Weinstein as part of agendas provided to them as part of Miramax productions. Reports of Miramax contracts with Weinstein as recently as 2015 allegedly include specific terms that allow Weinstein to avoid internal punishment for treating somebody improperly under Miramax Code of Conduct if he pays all damages and fines out of pocket–along with liquidated damages which would increase for every instance. The lawsuit also argues that many of the attacks were done while Weinstein was acting within the scope of his duties for Miramax and the Weinstein Company.

The specific acts taken against Jane Doe in the case involve Weinstein demanding to see her breasts, then telling her that refusal would end her career. He then allegedly locked her in a dark stairwell where she was eventually released by a janitor.

The charges of the suit include 18 U.S.C. § 1961 RICO Act charges, the same types of charges originally created to combat mafia-style organized crime. The lawsuit basically alleges a concerted group effort to tamper with and intimidate victims and witnesses. They also allege a conspiracy to do the same, negligent supervision of Weinstein by Miramax and The Weinstein Company, civil battery charges, assault charges, and both negligent and intentional infliction of emotional distress.

While many of the charges would normally be barred by the statute of limitations for these charges, the complaint argues the limitations do not apply because the full nature of the conspiracy between Weinstein, The Weinstein Company and Miramax was not known until the expose on the issue published by the New York Times on October 5th, 2017.

Other Suits Related to Weinstein’s Actions

This class action is just one of many brought against Weinstein, Miramax and The Weinstein Company. For instance, actress Dominique Huett has brought a $5M negligence suit against the Weinstein Company. Just recently, an anonymous Los Angeles actress sued over a rape as recent as just last year. These are just the tip of the iceberg, and we can likely anticipate much more in the future.

Weinstein Suing Weinstein Company

Weinstein has been doing some suing of his own–bringing a lawsuit against his own former company The Weinstein Company. Weinstein himself has been forced out of his company in light of the accusations against him. After this, Weinstein has sued his former company for under two separate causes of action–first for wrongful termination and second over the release of emails and documents to him.

The wrongful termination lawsuit is in arbitration currently and the exact details of the accusations are not fully public. The lawsuit over release of documents, however, has seen much more movement and a Delaware judge has already set a trial for January on the issue.

The lawsuit boils down to Weinstein alleging that the company is refusing to turn over emails and other documents that he claims will prove he is innocent of the accusations leveled against him.

A Delaware judge set a January trial for Harvey Weinstein’s effort to get the film production company he co-founded to turn over emails and other documents that he says will exonerate him of–or at least help defend him against–the accusations of sexual harassment. Weinstein apparently intends to produce emails which, according to sources associated with Weinstein, include evidence that accusers “enticed” him or thanked him for what happened. It’s unclear whether any of this evidence exists and seems rather unlikely it would help him in the court of public opinion at this point. Weinstein’s suit has also acknowledged that the email may also show some level of complicity on the part of The Weinstein Company and Miramax.

The Weinstein Company has responded with a request to dismiss the case outright in a recent answer to Weinstein’s complaint.

Criminal Action Against Weinstein

The action against Weinstein are not all civil actions. Both Los Angeles and New York have ongoing investigations into the actions of Harvey Weinstein–quite rightly considering the scope and seriousness of what he is accused of.

In Manhattan, the district attorney’s office has been investigating the accusations of actress Pas de la Huerta who has said that Weinstein raped her twice in her own apartment in 2010. The investigations are still ongoing, so details are still a bit sparse. However, you can expect to hear more on these criminal charges soon.

The Weinstein Company and Weinstein’s Response to the Allegations

Weinstein himself has consistently responded to all allegations with blanket denials of everything these 84 women have charged him with. The Weinstein Company has created as much distance between themselves and Harvey Weinstein as possible and, while there is certainly evidence suggesting they knew about Weinstein’s actions, the company has denied all knowledge and involvement. It’s also worth noting that many of the 80 plus claims here are too old to see litigation in court–if not too old to reach the court of public opinion.

The Weinstein Company has hired a couple of law firms to prepare themselves for potential bankruptcy proceedings. This would limit their financial liability moving forward.

If, or more likely once, criminal charges are brought against Weinstein it may impact the civil actions against him. Just as Bill Cosby asserted due process rights to put civil lawsuits against him on hold during his criminal proceedings, Weinstein may do the same. The argument being that the civil proceedings may prejudice a criminal jury.

The allegations against Weinstein have shone the light on a horrifying aspect of our society and opened the door for an enormous number of similar allegations. Regardless of the outcome of the cases against him, this is an important step. However, it’s hard to imagine the lawsuits discussed here are anything but the tip of the iceberg for Weinstein. We’ll see more action against him in the future, likely the near future.

Teenage Illegal Alien Right’s to an Abortion: The ACLU’s Lawsuit

A lawsuit over a 17-year-old illegal immigrant’s right to get an abortion has seen many twists and turns since it was brought by the ACLU a little over a month ago–the most recent of which happened only days ago. The girl in question, known only as Jane Doe in court documents, was caught crossing the border in September and learned shortly after while at an immigration detention center specifically for illegal alien minors that she was pregnant. She did not want to carry her pregnancy to term however, following Trump administration policies, the detention center refused. They instead took her to religious counseling sessions to convince her not to get an abortion and to a clinic to get ultrasounds of the fetus which they then showed to her.

All this is part of a policy implemented in March requiring approval from the U.S. Office of Refugee Resettlement before a shelter can release a non-citizen minor to get an abortion or abortion-related service. The director of this office, Scott Lloyd, has long been outspoken in his condemnation of abortion and women who get abortions. He has made public announcements, in the wake of the policy, that he would allow no abortions whatsoever for and only allow release for “pregnancy services and life-affirming options counseling.” Texas officials have made it clear that they also will allow no abortions.

Under Texas law, a minor requires either parental approval or court approval before receiving an abortion. However, even after receiving court approval to get an abortion, the shelter Jane Doe was staying at refused to take her to a clinic where she could get an abortion. After this, the ACLU brought a lawsuit on behalf of Jane Doe to secure her right to an abortion and challenge the policy itself.

This is a matter that has seen very little litigation, so there were quite a few eyes on the case ruling. Just weeks ago, the court ruled on the issue in favor of the ACLU–leading to a twist in the case before an appeal was brought. Let’s look at the lawsuit, the ruling and this most recent twist in order to understand what this case means for the rights of illegal aliens to an abortion.

The ACLU Lawsuit

As we discussed earlier this week, illegal aliens have quite a few constitutional rights including 1st, 4th, 5th, and Equal Protection Act protections. This, along with the obligations of the government to take care of unaccompanied minor illegal aliens–an obligation which the government has recently been found in breach of–formed the cornerstone of the ACLU’s case.

The ACLU argued that the policy violated First and Fifth amendment rights by forcing these minors to receive approval before gaining access to an abortion–something far beyond the usual constitutional protections granted to citizens under the law. This is especially true because the policy provides no explicit exceptions, even for victims of rape. They argued that this, along with forcing minors to attend religious counseling discouraging abortions and requiring them to get approval from either parents or a sponsor before getting an abortion, violated the Fifth Amendment right to privacy. They argued they violated the First Amendment by compelling unaccompanied immigrant minors to discuss their decisions to have abortions. The lawsuit also alleged that requiring religious counseling violated the Establishment Clause of the First Amendment.

ACLUThe Flores agreement  is a government agreement which requires the government to provide care for unaccompanied illegal alien minors up to a certain minimum standard. This includes a requirement to provide medical care, specifically including family planning services and emergency health care services. The lawsuit argued that the government policy did not live up to these obligations.

The District Court’s Ruling

The federal district court sided with the ACLU, signing an order allowing Jane Doe to receive an abortion. The judge in the case called both the shelter’s actions and the policy itself “shocking” and “unconstitutional.”

To make the ruling simple, the decision essentially came down to the court stating that it is well established as unconstitutional to outright deny access to abortion–whether it is applied to a citizen or an illegal alien. By following the state rules of Texas when it comes to receiving an abortion, Jane Doe had the equal protection of the law and was constitutionally allowed to receive an abortion.

The order required the shelter to “promptly and without delay” transport Jane Doe to the nearest abortion clinic and allow her to obtain an abortion.  It is important to note however that the order does not yet extend to challenging the policy.

The Case Takes a Twist

The government refused to comply with the court’s order, and appealed the case. However, the appeals court supported the lower court ruling–although they delayed the abortion slightly to seek a sponsor for Jane Doe. This delay was potentially a serious issue for Jane Doe. Texas law does not allow nearly any abortions after 20 weeks of pregnancy, at 15.5 weeks Jane Doe was nearing the point where the case would become moot.

Even after this, the government made it clear that they would take the case all the way to the Supreme Court. They argued that there is no established constitutional right to an abortion while in federal custody. They also interpreted the rules of the Flores agreement to require the care of all minors in their custody–including unborn fetus’ such as Jane Doe’s. This is an interpretation supported by no case law. In fact, the rulings on the status of a fetus two months into a pregnancy tend to go the other way.

However, here came the twist. Before the government made any further filing to seek a stay on the court’s order requiring them to allow an abortion, the ACLU moved up Jane Doe’s clinic appointment, changed it from a counseling appointment to an actual abortion, and Jane Doe got the abortion she wanted.

As mentioned above, Texas law does not allow nearly any abortions after 20 weeks of pregnancy, so the clock was ticking for Jane Doe. However, the government has taken affront to the ACLU’s actions. While the ACLU argues they were under no obligation to wait for the government to decide to act while Jane Doe ran out of time, the government has sought sanctions against the ACLU lawyers and argue that the lower court ruling should be vacated due to their actions.

The Case Moving Forward

Jane Doe got her abortion. In a statement afterword she said that nobody should be shamed for making the right decision for themselves. However, the case is not over. There has been no movement on the government’s requests as of now. What’s more, and most importantly, the central question of the case has not been thoroughly addressed.

These ruling imply that, at minimum, non-citizens have a right to the same protections of state abortion laws the same as citizens would have. However, the exact outlines of these rights have not been fully explored–the rulings in this case are rather brief. The ACLU will continue its battle against the policy of the Trump administration regarding illegal alien abortions. It seems quite likely that the question will eventually reach the Supreme Court as many are discussing the case as the largest abortion case since Trump took office. Jane Doe is also not the only plaintiff in the ACLU’s case, it was brought on behalf of all similarly situated people. This is not the last we will hear of this case or this issue. As of now, the trends say that non-citizens have the same rights to an abortion as anybody else.

Teenage Illegal Alien’s Right to an Abortion: Understanding Constitutional Rights of Non-Citizens

A 17-year old girl who realized she was pregnant while being held in an immigration detention center in has found herself at the center of an ongoing lawsuit over her right to get an abortion as an illegal immigrant. The girl is unnamed, known only as Jane Doe in all the documents associated with her. She was pregnant when she was originally caught, by herself, crossing the border in September. However, she did not realize she was pregnant until she was being held in a Texas shelter.

We’ve talked before about the shelters the government is required to provide to unaccompanied minors held for potential deportation, and the governments failures when it comes to providing basic necessities in these shelters. However, the government was denying something else this time–access to an abortion. Jane Doe had made it clear that she did not want to carry her pregnancy to term, but was repeatedly denied requests to leave the shelter to go to a clinic and get an abortion. In the meantime, she was instead taken from the shelter to–without her request–to attend religious counseling sessions to convince her not to get an abortion and to a clinic to get ultrasounds to show her sonograms of the fetus. As the timer for an abortion was obviously ticking down, eventually the ACLU was forced to bring a lawsuit on behalf to enforce her rights to an abortion.

This lawsuit is an interesting way to analyze a not well resolved issue of law: the rights of non-citizens to an abortion while in the U.S. However, it is worth first addressing the constitutional rights of non-citizens and illegal aliens in the U.S. Despite a bit of a misinformation campaign to the contrary, non-citizens inside the U.S. do have constitutional rights–end of story. But to explore both the lawsuit and the rights of non-citizens in general, we’re going to do a two-part article. This article will address non-citizen constitutional rights and the next one will deal with Jane Doe’s lawsuit itself.

abortionConstitutional Rights of Illegal Aliens

Right off the bat, illegal aliens have constitutional rights. Despite a great deal of information on the internet trumpeting that they do not, they do. Before you leave a comment on this article, they do. Seriously. Not only do they have constitutional rights, but the fact that they have these rights has been settled for over a century.  The issue has been settled since 1886.

The first cases addressing the issue all dealt with Chinese immigrants, primarily here as non-citizens working on the railroads. In three cases–in 1886, 1896, and 1903–it was firmly established that so long as you are within U.S. territory you have at least some constitutional rights regardless of your citizenship status or whether you are here legally or illegally. These non-citizens were ruled all the way back then to have 14th Amendment Equal Protection rights as well as the due process protections of the 5th and 6th Amendments.

The lynchpin of these rulings rested on the words of the Constitution of the United States: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” You notice that the first section of that quote says “citizen” while the rest of the sections simply say “person.” This is an important distinction; some rights are indeed generally reserved for citizens but due process and equal protection of law is guaranteed to any person in the United States. The Supreme Court has consistently stuck to this interpretation of the Constitution.

In 2001, they ruled once again that the 14th Amendment applies to all aliens–legal or illegal. Two decades earlier, they ruled against Texas preventing illegal alien children from attending grade school on Constitutional Equal Protection grounds. To make a complicated issue short, states cannot deny to anybody in their jurisdiction–including illegal aliens–equal protection under their laws.

The Supreme Court has, at least in the criminal context, also extended the protections of the First and Fourth Amendment. This includes rights such as search and seizure protections, a right against self incrimination, and political freedoms of speech and association.

Situations Where Non-Citizens Have Very Little Rights

While illegal aliens do have Constitutional rights, the federal government has an extremely broad discretion in how to treat these non-citizens–immigration proceedings. The Supreme Court has long established that immigration law is the realm of the fed and these proceeding are essentially an administrative matter above judicial review.

Immigration is treated as a national security and foreign policy matter–firmly in the realm of Congress. This means Congress can do things that might be constitutionally unacceptable if they were dealing with citizens; if only in the context of immigration and deportation proceedings. This power is further supported by the nature of immigration proceedings as administrative as opposed to criminal hearings–you don’t go to jail you just get deported.

When the Supreme Court upheld this in 1952, they did so in the context of Congress’ right to expel noncitizens who were former communists. However, they also made it clear what the message behind the ruling was, saying “In recognizing this power and this responsibility of Congress, one does not in the remotest degree align oneself with fears unworthy of the American spirit or with hostility to the bracing air of the free spirit…One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court.”

What Do the Constitutional Rights of Non-Citizens Mean in the Abortion Context?

Non-citizens and illegal aliens have constitutional rights and, generally, enjoy protection of state law equal to that of a citizen. Depending on the state an illegal alien lives in, these rights are occasionally expanded by state law. While California likely offers the most additional protections, many states offer things such as in-state tuition, driver’s licenses, healthcare, and more. If somebody tells you non-citizens do not have constitutional rights or are not protected by the law, they are incorrect.

But before Jane Doe’s case there had never been a case specifically ruling on the constitutional rights of non-citizens to an abortion. Obviously there are a great deal of protections for citizen women seeking an abortion, although some might argue these protections are not enough. However, no court had ruled on the specific issue. Non-citizens enjoy equal protection of the law, but how does that apply when it comes to the law on abortion? Later this week we’ll look at Jane Doe’s case and find out.

A Scarlet Letter: Sex Offender Status to Be Put on Passports

Over a year since the law was passed the State Department has begun enforcing provisions of the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders–more colloquially known as the International Megan’s Law or H.R. 515–requiring the passports of registered sex offenders convicted of sex offenses involving a minor to bear a notice saying, “the bearer was convicted of a sex offense against a minor.”

The International Megan’s Law was introduced back in 2015 and signed into law by former-President Obama on February 2nd, 2016. There are many provisions of the law, however the relevant ones here require sex offenders whose crime involves a minor to bear passports including the above discussed notice. The law also requires offenders to give law enforcement 21 days notice before travelling out of the country.

sex offenderThe law has obviously been in effect for over a year, but as of a few days ago the State Department will begin revoking the existing passports of covered sex offenders and requiring them to apply for new passports bearing the notice. The goal of this law is to target and eliminate sex tourism, a serious issue. According to the State Department, the passport notice and provisions of the law will not prevent a sex offender from leaving the country altogether or affect the validity of their passports in any way–although they do acknowledge that other countries may take a different approach.

Despite these reassurances, there have been some who have raised questions about the legality of these provisions. An organization known as California Reform Sex Offender Laws brought a lawsuit almost immediately after the law was passed. The right to travel freely is often discussed as a fundamental human right, so the concerns are not completely meritless. However, the goal of eliminating sex tourism is hard to argue with. To better understand the situation, let’s look at the original Megan’s Law, the International Megan’s Law, and the resolution of the lawsuit brought against the law.

The Original Megan’s Law

Megan’s Law is fairly well known, but for those unfamiliar it is the informal name for the laws creating the public registry of sex offenders. In the wake of the horrific rape and murder of a young girl named Megan Kanka, states across the nation created laws requiring registration after somebody is convicted. The laws vary a bit from state to state in terms of what information is publically available, what offenses require registration if convicted, requirements placed on registered offenders etc. Some common information that is publically available includes names, pictures, addresses, conviction/incarceration dates, and the type of crime they were convicted of.

The laws have occasionally faced challenges and criticism. These criticisms usually trend towards the laws either being overly restrictive or overbroad in who is required to register. For example, public urination is an offense that often requires registration. Another common criticism is that the laws tend to paint with broad strokes in terms of making little to moderate distinctions between types of offenses. Regardless of these criticisms, the laws have consistently been supported in the courts.

Potential Issues with The International Megan’s Law

The International Megan’s Law has a great deal more elements than the passport provisions discussed above. For example, in addition to the passport provisions, the law allows the U.S. to notify destination countries if an offender is travelling to their country. Stopping sex tourism is hard to argue with, especially when the provisions are exclusively targeted at sex offenders with crimes involving minors. However, this has certainly not stopped critics from commenting on the law. Surprisingly, not everything these critics say is necessarily completely off the mark.

As mentioned, the law was created to stymie sex tourism and child sex trafficking. When originally passed, representatives made it clear that no one law could totally stop these issues but argued that every step towards eliminating them was an important one. However, critics have pointed out that the issue targeted may have been more of a talking point than a realistic problem. In a five-year period, there were only three convictions for sexual offenses overseas out of the over 800,000 registered sex offenders in the U.S. today. What’s more, statistics do seem to show than the percentage of registered offenders who commit similar crimes again is very low–in the realm of 3%. The critics argue that the new passports are a sort of “Scarlett Letter” singling out registered offenders even more than before and that the law does not address a problem as widespread as Congress suggested or effectively deal with sex tourism. These criticisms led to the lawsuit discussed above from the California Reform Sex Offenders Laws.

The Arguments of the Lawsuit

The lawsuit primarily focused on how much the laws could limit travel and how potentially overbroad the provisions were–including those convicted of crimes such as sexting or public urination. The plaintiffs in the case included several people who specifically highlighted this potential over breadth and would need special passports–a man whose conviction had been expunged, a man sentenced to only probation and not required to register because his crime was particularly minor, and a man convicted 25 years ago. At least one of these three was required to routinely travel to China for work, so the passport requirement hit him particularly close to home. The lawsuit argued that the law was unconstitutional because it compelled speech in violation of the First Amendment, retroactively punishes people (generally a legal no-no), denied them equal protection of the law and denied them the right to legal process in defending their passports. The court in question did not buy any of these arguments and dismissed the case in September of 2016.

The judge ruled that the lawsuit, brought before passport provisions had taken effect, had no actual injury but only a speculative one–an actual injury is required for standing to challenge a law. However, the judge still took the time to rule that despite not having standing the case would have lost anyway. Government speech, such as the contents of a passport or driver’s license, is not protected by the First Amendment. Court’s have long held that registration of sex offenders–no matter how substantial or far reaching the impact on a registrant’s life–don’t implicate retroactive punishment issues as they are not punitive measures. The judge also ruled that the registrants already got their due process–when they were first convicted of the crime they had to register for. Finally, she ruled that there was no constitutionally protected class that was targeted by the law and that it only required a rational basis–the least rigorous constitutionality test–to be considered constitutional. The judge said that the International Megan’s Law met this test.

Law Potentially More Effective Than Anticipated

As of now, the International Megan’s Law and its passport provisions are constitutional. However, with the passport provisions taking effect there is an actual harm that may give a lawsuit standing to challenge the law and the district court ruling on the matter. But, it looks like the provisions are here to stay. What’s more, it looks like they are having an effect.

The author of the law has said Thailand has expressed gratitude for the passage of the International Megan’s Law. Apparently, over 160 convicted sex offenders have been caught trying to enter the country.  It is not clear whether these offenders were entering for the purposes of sex tourism, but Thailand has an unfortunate reputation as destination for this sort of activity. Ultimately, it’s hard to argue against any step designed to reduce such heinous behavior. It is certainly crucially important to protect the constitutional rights of all–including those who have been convicted of a crime. The arguments that the potential benefits of the law could be outweighed by the harm they do isn’t one to dismiss out of hand. However, for now the International Megan’s Law is a constitutional law protecting children across the world.