child molestation

On March 2, 1998, Patrick Kennedy called 911 at 9:18 a.m. to report that his eight-year-old stepdaughter L.H. had been raped in the side yard by two neighborhood boys who fled on a blue bicycle. Police arrived between 9:20 and 9:30 a.m. and found L.H. on her bed wrapped in a bloody blanket. She was bleeding profusely from severe vaginal injuries that included a laceration separating her cervix from the vagina and a torn perineum requiring emergency surgery at Children's Hospital. Kennedy initially told investigators that L.H. had been dragged from the garage to the yard. Both L.H. and Kennedy maintained this account in early interviews, including a three-hour videotaped session with a psychologist days after the assault. Physical evidence soon contradicted the yard account. The grass showed little disturbance except for coagulated blood. A bicycle found nearby had flat tires and spider webs. Blood was discovered on the underside of L.H.'s mattress inside the home. Kennedy had also made telephone calls before 7:37 a.m. inquiring how to remove blood from carpet. He had called a cleaning service. He did not contact 911 until roughly 9:18 a.m. Eight days after the crime, Kennedy was arrested. About a month later L.H. was removed from her mother's custody. On June 22, 1998, she first told her mother that Kennedy had raped her. In December 1999 she recorded a videotaped accusation at the Child Advocacy Center. The State charged Kennedy with aggravated rape of a child under twelve under La. Stat. Ann. § 14:42 and sought the death penalty. The trial began in August 2003 when L.H. was thirteen. She testified that Kennedy had been on top of her, had given her orange juice with chopped pills afterward, and had instructed her to blame neighborhood boys. The jury convicted Kennedy of aggravated rape. After hearing testimony from another child about prior sexual abuse by Kennedy, the jury unanimously sentenced him to death. The Louisiana Supreme Court affirmed the conviction and death sentence in 2007. The United States Supreme Court granted certiorari in 2008.

In order to combat child pornography, Ohio enacted Revised Code Annotated section 2907.323(A)(3). The statute prohibits any person from possessing or viewing material or a performance that shows a minor who is not the person's child or ward in a state of nudity, unless certain exceptions for bona fide purposes or parental consent apply. Columbus, Ohio police officers conducted a valid search of petitioner Clyde Osborne's home and found four photographs. Each photograph depicts a nude male adolescent posed in a sexually explicit position. Osborne was convicted of violating the statute and sentenced to six months in prison. An intermediate appellate court affirmed Osborne's conviction. The Supreme Court of Ohio likewise affirmed. Relying on its construction of the statute, the Ohio Supreme Court rejected Osborne's claim that the First Amendment prohibits states from proscribing private possession of child pornography. The court also found that the statute, as narrowed to require a lewd exhibition or graphic focus on the genitals, is not unconstitutionally overbroad. The court held that scienter is an essential element of the offense. Osborne objected that the trial judge had not required the government to prove lewd exhibition and scienter as elements of the crime. The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the jury instructions at trial and the court did not believe the failures amounted to plain error. The Ohio Supreme Court denied a motion for rehearing and granted a stay pending appeal. The United States Supreme Court noted probable jurisdiction in June 1989.

In 2006 Congress enacted 18 U.S.C. § 4248. The statute permits the Attorney General to certify to a federal district court that a person in Bureau of Prisons custody has previously engaged in sexually violent conduct or child molestation. The person must currently suffer from a serious mental illness or disorder. As a result the person is sexually dangerous to others because he would have serious difficulty refraining from such conduct if released. Upon filing of the certification the individual's release from prison is automatically stayed pending a hearing at which the Government must prove the statutory conditions by clear and convincing evidence. The individual is entitled to counsel, to present evidence, to subpoena witnesses, and to cross-examine Government witnesses. In November and December 2006 the Government filed § 4248 certification proceedings in the Eastern District of North Carolina against five individuals then in federal custody. Three had previously pleaded guilty in federal court to possession of child pornography. A fourth had pleaded guilty to sexual abuse of a minor. The fifth had been charged with aggravated sexual abuse of a minor but found mentally incompetent to stand trial. The Government alleged that each was about to be released, had a qualifying prior sexual offense, and suffered from a mental condition rendering him sexually dangerous. Each of the five moved to dismiss the commitment proceeding, asserting among other claims that Congress lacked power under Article I to enact the statute. The district court granted the motions, holding both that due process requires proof beyond a reasonable doubt and that Congress exceeded its Article I authority. The Court of Appeals for the Fourth Circuit affirmed the dismissal on the Article I ground alone. The Government petitioned for certiorari, which the Supreme Court granted limited to the question of congressional authority under Article I. After the grant, the First and Eighth Circuits upheld the statute, creating a split with the Fourth Circuit.

Gregory Smith was committed to the Camden County jail on April 14, 1989, for trial on robbery charges. In September 1988 he had tested positive for HIV and knew of his infection. Jailers placed him in a special blood alert area. Before June 11, 1989, Smith repeatedly threatened corrections officers that he would bite or spit on them to kill them or give them AIDS. He had discussed his HIV status with guards and a local reporter while seeking transfer to a state prison for better medical care. On May 5, 1989, Smith kicked his cell door. After officers restrained him, he threatened to bite and spit while showing his teeth. On May 17 he again resisted officers. He threatened to take one of us the fuck out. He promised to have an officer killed by his brothers. He later spat at another officer while trying to bite him. On June 11 officers escorted Smith to Cooper Hospital after he claimed a fall. At the hospital he became disruptive. He grabbed a metal cylinder. During the struggle he bit Officer Waddington's hand, causing puncture wounds visible in photographs taken days later. Throughout the incident Smith repeatedly threatened to bite and give the officers AIDS so they would die. Waddington was treated by Dr. Zimmerman who prescribed an oral antibiotic and administered hepatitis B immunoglobulin. Since the incident, Waddington has undergone continued testing for HIV. As of the time of trial in April 1990, the tests had been negative. Additional incidents occurred on June 12 and October 17, 1989, in which Smith again threatened officers with his HIV status while resisting restraint. At the April 1990 trial the State presented Dr. Porwancher, who testified that transmission of HIV by bite was possible on rare occasions based on case reports in Lancet and a Soviet study. Defendant's expert Dr. Condoluci testified that the chance was extremely remote and cited studies showing no transmissions in documented bite cases. Smith testified that he knew HIV could be transmitted only sexually, by transfusion, or by needles. He believed transmission by bite was impossible. Mental health worker Eugene Niblack confirmed he had told Smith biting was extremely difficult if not impossible. Smith denied biting or threatening the officers and claimed the officers lied. The jury convicted Smith on April 11, 1990, of attempted murder of Waddington, aggravated assault on both officers, and terroristic threats. Judge Mariano imposed an aggregate twenty-five-year term with twelve-and-one-half years of parole ineligibility. Smith appealed to the Superior Court, Appellate Division.