Analysis and Commentary on Criminal Law

Football, Sexual Assault, and the Web: The End of the Institutional Cover-ups of Sexual Abuse and Assault

Justia columnist and Cardozo law professor Marci Hamilton comments on the confluence of forces that have made the victories in the fight against child sex abuse possible. Among the key factors, Hamilton argues, are the end of the old boys’ network; survivors who are empowered by the justice system; and revelations that go public far more quickly than they could have prior to the Age of the Internet, when victims and critics of abusers have a strong, far-reaching voice and the ability to recruit allies and supporters. With all these developments, together, sparking public outrage, Hamilton notes that even previously untouchable football institutions can be made accountable—noting, for instance, the crimes toward a young woman in Steubenville, Ohio, by members of that town’s team.

The Ongoing Debate Over Physician-Assisted Suicide

Justia columnist and attorney David Kemp comments on the controversial topic of physician-assisted suicide (“PAS”), which is legal in only three states: Washington, Oregon, and Montana. Kemp provides a history of PAS; explains the distinctions between PAS and other end-of-life decisions such as palliative care and the choice to withdraw life-sustaining treatments; and comments on the question whether PAS merits criminal liability.

The Year in Review: 2012 Marks the Highest Watermark Yet for Victims of Child Sex Abuse

Justia columnist and Cardozo law professor Marci Hamilton looks back on this year’s important developments regarding justice for victims of child sex abuse. Among the events Hamilton chronicles are the conviction of prominent Satmar Hasidic school counselor Nechemya Weberman, and the Catholic Church and Penn State cases, which led to the convictions, respectively, of Msgr. Willam Lynn and Jerry Sandusky. Other developments, as Hamilton explains, have involved the Boy Scouts’ release of previously secret files, as well as the release of previously secret files pursuant to the settlement by the Catholic Church’s Los Angeles Archdiocese. Key priorities for the future, Hamilton notes, are increased legal reform in this area, and a greater focus on the problem of incest.

A Review of the Documentary Mea Maxima Culpa: Silence in the House of God, Which Reveals the Paradigm of Institution-based Child Sex Abuse

Justia columnist and Cardozo law professor Marci Hamilton reviews a recent HBO Films documentary about child sex abuse within the Catholic Church, noting that the paradigm that the documentary reveals also applies to many other institutions where child sex abuse has occurred, including Penn State, the Boy Scouts, other religious groups, other schools, and many more. Mea Maxima Culpa is especially heart-wrenching, Hamilton explains, because the victims of sex abuse were deaf boys, and some of their families had never learned to sign—making them all the more vulnerable to the predation. The documentary, Hamilton contends, surely deserves an Oscar nod, especially as it captures the paradigm of institution-based abuse, covering the victims, the perpetrators, and the institution.

The Global Child Sex Abuse Scandals in Institutions Continue, With Australia Now Joining the Countries That Are Investigating: What Congress and the President Should Do Here in the U.S.

Justia columnist and Cardozo law professor Marci Hamilton discusses the child-sex-abuse investigation in Australia and developments regarding child sex abuse here in the U.S. Hamilton argues that America’s response to evidence of child sex abuse in our institutions has been woefully deficient. While some local or state prosecutors have moved forward, Hamilton argues that what is needed, as well, is a response at the federal level. Hamilton suggests that Members of Congress are afraid to take on the relevant institutions, despite the terrible toll that child sex abuse takes on children and the monetary costs that are associated with that toll. Hamilton argues, however, that addressing child sex abuse is not only the right thing to do, but also ultimately in Members of Congress’ political interests. In particular, she urges Republicans to change their focus from “unborn children” to actual children who are suffering due to child sex abuse. Hamilton also urges Democrats in Congress and President Obama to investigate and act on this important issue, including by reforming the insurance industry's role.

I See London, I See France: Upskirting and the Law

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and Stanford law professor Lawrence Friedman comment on the law regarding the despicable practice of “upskirting.” As Grossman and Friedman explain, upskirting is the secret taking of photos or videos with a camera that is angled so as to look up a woman’s skirt. They begin by discussing expectations of privacy, and go on to consider the particular invasion of privacy that is perpetrated through upskirting. They then note that while one might assume that upskirting (and its counterpart, downblousing) in a public place would be illegal and penalized in every jurisdiction, in fact that is not the case. Grossman and Friedman explain the puzzling legal status of upskirting in many jurisdictions, and comment on why the current law in this area often defies our intuitions about privacy—though some recent state laws are now authorizing punishments for upskirters.

An Educated Electorate: Essential to a Robust Democracy

Justia guest columnist and Loyola Law School professor Paula Mitchell discusses the high costs of the death penalty in California and suggests that life in prison without the possibility of parole is a more expeditious alternative. Mitchell describes the different components contributing to the expense of having the death penalty, including direct appeals and habeas corpus petitions, finding that the total costs far exceed a system where life without the possibility of parole is the maximum sentence. Mitchell then explains the initiative that will appear on the ballot in California in November 2012—Proposition 34—which will give California voters an opportunity to reform the state’s penal system by replacing the costly death penalty with life in prison without the possibility of parole.

The Failure of Criminal HIV Transmission Laws

Justia columnist and attorney David Kemp criticizes criminal HIV-transmission laws, arguing that the criminalization of HIV transmission succeeds only in marginalizing people with HIV; deterring sexually active persons from acting responsibly and getting tested; and in some instances, leading to violations of constitutional due process protections. Kemp notes that such laws have led to dramatic injustice, citing, as a case in point, the 25-year sentence that was imposed on a man after his one-time encounter involving protected sex. Though that particular sentence was ultimately commuted to five years of supervised probation, laws that allow strict punishments for consensual sexual contact still remain on the books. Rather than resort to invoking such laws, Kemp argues, states should focus their efforts on (1) seeing that people know their HIV status by getting tested; (2) seeing that people disclose their HIV status to their sexual partners; and (3) urging people to engage in safer behavior via publicly funded campaigns, using billboards or the like, to get the word out.

Why the Summer of 2012 Will Go Down in History as the Breakthrough Summer for Child-Sex-Abuse Victims

Justia columnist and Cardozo law professor Marci Hamilton makes the case that Summer 2012 has marked a key moment in American history with respect to the country’s treatment of child sex abuse. She focuses not only on the recent convictions of Penn State’s notorious Jerry Sandusky, but also the child endangerment conviction of Monsignor Lynn of the Philadelphia Archdiocese. Noting the sea-change in our society with respect to trials about, and punishments for, child sex abuse, Hamilton reflects that we have come a very long way. Commenting on the problems with even the best of internal investigations, such as that which Louis Freed conducted for Penn State, Hamilton argues that internal investigations are no substitute for public trials. In addition, she applauds the state legislatures that are seeking to enact or expand mandatory child-sex-abuse reporting laws.

What the Freeh Report Does—and Does Not—Tell Us About Child Sexual Abuse at Penn State

Justia columnist and Cardozo law professor Marci Hamilton comments on the recently released Freeh Report. Authored by former FBI Head Louis Freeh, the Report—commissioned by Penn State itself—summarizes the result of Freeh’s investigation into Penn State’s child sex abuse scandal, and its failure to protect children from serial child sexual predator Jerry Sandusky. As Hamilton notes, the Report pins blame on Penn State former President Graham Spanier, Vice President Gary Schultz, Athletic Director Tim Curley, and legendary (and now deceased) football coach Joe Paterno. Hamilton discusses the Freeh Report’s recommendations, and tells readers what may be ahead, in terms of possible criminal and civil trials, in the quest for accountability for Penn State’s, as well as Sandusky’s, wrongs.

Why The D.C. Court of Appeals Rejected the Claim that Performing a Rap Constituted Making a Criminal Threat

Justia columnist and attorney Julie Hilden comments on a recent decision by the D.C. Court of Appeals—D.C.’s highest court—regarding the First Amendment and the “true threats” doctrine, which holds that true threats are not First Amendment-protected. Hilden notes that the case was unusual as it involved not just a statement, but a rap. After covering three key U.S. Supreme Court cases regarding the “true threats” doctrine, Hilden goes on to consider why the court ruled in favor of the speaker, and to agree with the court’s result. She also emphasizes the importance of context in the decision whether a given comment counts as a true threat or First-Amendment-protected speech, and notes a number of factors that might cut for or against a “true threat” finding in particular cases.

Survivors of Sexual Abuse Prevail in Pennsylvania: The Lynn and Sandusky Cases Show Us What Justice Looks Like

Justia columnist and Cardozo law professor Marci Hamilton discusses the guilty verdicts that juries recently reached in the cases of Jerry Sandusky and Monsignor William Lynn. The verdicts were both handed down this past Friday, June 22. Sandusky was convicted of 45 counts of child abuse, in connection with his alleged sexual abuse of numerous young boys. Lynn was convicted of a count of child endangerment arising from his alleged allowing another priest, who had committed child sexual abuse, to continue to have access to children. Hamilton also covers progress in the Pennsylvania and New Jersey legislatures regarding extending those states’ statutes of limitations for child sex abuse, in order to enable survivors to receive justice.

Are Teen Flirting Sites Safe? The Skout Experiment Provides a Cautionary Tale

Justia columnist and U. Washington law professor Anita Ramasastry comments on the lessons to be learned from the recent experience of Skout, which initially offered teen and adult flirting sites and apps. In the wake of three separate allegations by teens of rape by an adult whom they met via Skout and who was posing as a teen on the site, Skout has closed down its teen site and app. Ramasastry notes that Skout was always vigilant about the risk of adults impersonating teens, but vigilance, in the end, wasn’t enough. Thus, Ramasastry raises the possibility that society—and especially teens’ parents—should discourage teen meet-up business models that carry the kind of risks that Skout’s teen site did.

What Penn State, Horace Mann, the Ultra-Orthodox Jewish Community, the Roman Catholic Church, and the Fundamentalist Church of Jesus Christ of Latter-Day Saints Have Taught Us: We Need Child-Sex-Abuse Whistleblower Laws

Justia columnist and Cardozo law professor Marci Hamilton comments on recent revelations of alleged child sex abuse at New York private school Horace Mann, and discusses a number of legal measures that, she argues, can make it more likely that perpetrators of child sex abuse will be brought to justice. Noting the broad array of institutions that have harbored child sex abuse, Hamilton contends that this is a problem that urgently requires effective legal remedies. Among the legal reforms she supports are whistleblower-protection laws for those who report child sex abuse, penalties for failure to report abuse, and extensions of child- sex-abuse crimes’ statutes of limitations.

The First Day of the Trial of Former Penn State Assistant Coach and Second Mile Founder Jerry Sandusky for 52 Counts of Child Sex Abuse

Justia columnist and Cardozo law professor Marci Hamilton comments on the beginning of the trial of Jerry Sandusky, the former Penn State assistant football coach and Second Mile founder who is accused of having sexually molested numerous boys who trusted him. Hamilton describes yesterday’s testimony from the first alleged victim to testify in the case, who is known simply as Victim #4. Hamilton also explains why she believes Victim #4, noting that his testimony has featured a number of the indicia that typically have shown, in her experience, that alleged victims are telling the truth about having been abused. Hamilton also comments on the defense’s strategy, which invokes a psychiatric condition called Histrionic Personality Disorder, and, in her opinion, is highly unlikely to succeed.

A Tale of Two Child Sex Abuse Trials Involving Two Iconic Pennsylvania Institutions: Penn State and the Philadelphia Roman Catholic Archdiocese

Justia columnist and Cardozo law professor Marci Hamilton comments on two child-sex-abuse trials related to two iconic Pennsylvania institutions: Penn State and the Philadelphia Roman Catholic Archdiocese. The upcoming Penn State-related trial arises out of widely reported allegations of child sex abuse by former assistant coach Jerry Sandusky, who served under Joe Paterno. The defendant in the ongoing trial relating to the Philadelphia Archdiocese is Monsignor William Lynn, who is charged with conspiracy and child endangerment. Hamilton’s report today comes after hearing testimony in the Lynn case. In addition to commenting on these two cases themselves, Hamilton makes a strong suggestion that Philadephia, home of both of the institutions involved in the scandals, should review its laws and practices regarding to allegations of child sex abuse, and should work toward the state’s now becoming a model when it comes to preventing and punishing child sex abuse.

Denying Clemency for Draconian Sentencing Based on Bad Information: The Clarence Aaron Case

Justia columnist and former counsel to the president John Dean comments on a criminal case in which he argues that a deeply unjust sentence was handed down. Dean contends that it is high time for presidential clemency for the prisoner, Clarence Aaron, especially as the record shows that the Pardon Attorney gave President George W. Bush’s staff inaccurate and incomplete information in the case. As Dean explains, drawing on reporting by The Washington Post and ProPublica, Aaron—a 23-year-old first-time offender at the time of his arrest—was convicted for his role in abetting a non-violent drug deal. Dean notes that other participants in the deal had made careers in the drug business, and received light sentences in exchange for pointing the finger at Aaron, who received three life sentences. Their testimony has, since then, been shown and admitted to be false, yet Aaron still languishes in jail. Especially now that Aaron has the support of the relevant U.S. Attorney, Deborah Rhodes, and the sentencing judge, Dean contends that it is high time that Aaron receives a pardon.

The Truth About the Philadelphia Archdiocese, Child Sex Abuse by Its Priests, and Its Latest Missteps

Justia columnist and Cardozo law professor Marci Hamilton comments on recent events regarding the Philadelphia Archdiocese and clergy child sex abuse. She praises former Philadelphia D.A. Lynne Abraham and current Philadelphia D.A. Seth Williams for their courage and hard work in pursuing the matter, and establishing not only crimes, but also a cover-up. Hamilton notes that the trial of Msgr. William Lynn, who is charged with suppressing the identities of priest perpetrators, marks the first time a member of the Catholic Church’s hierarchy has been put on trial. Despite Pennsylvania’s short statute of limitations for child sex abuse, Hamilton explains, the prosecutors still found a way to make their case—finding two victims whose claims still fit within the statute of limitations, and successfully admitting evidence about 22 other victims whose claims are time-barred at trial. Hamilton faults the Philadelphia Archdiocese not just for the underlying crimes that are alleged, but also for the deficits of its own private investigation, which she argues has re-victimized the victims, given the insensitive way in which it has been conducted.

Revisiting Woodward and Bernstein’s Watergate Reporting: A New Smoking Gun?

Justia columnist and former counsel to the president John Dean comments on a fascinating new twist in the Watergate story—evidence that Woodward and Bernstein spoke to Watergate grand jurors. The evidence was unearthed by Jeff Himmelman, who has written a biography of former Washington Post executive editor Ben Bradlee, who served during the Watergate years. It consists of a seven-page memorandum, dated 1972, that summarizes a conversation between Bernstein and a Watergate grand juror. The find prompted Bernstein recently to comment wryly, “Maybe they’ll send us to jail after all.” The memorandum is all the more notable because it is clear that Judge Sirica, who presided over the Watergate grand jury proceedings, did not believe that Woodward and Bernstein had obtained any information from any grand juror. Dean tells the story of how Woodward and Bernstein managed to avoid suffering consequences, despite their having intentionally had contact with at least one grand juror. He also provides a sampling of attorneys’ opinions as to whether the law was, or was not, broken, assuming that contact between Woodward and Bernstein and one or more grand jurors did indeed occur.

Mug Shot Mania: The Legal and Policy Issues Surrounding Private Websites’ Postings of Arrest Photos

Justia columnist and U. Washington law professor Anita Ramasastry comments on the phenomenon of Internet mug shot galleries. Unlike a Megan’s Law database, Ramasastry explains, these galleries show photos of arrestees, who have not yet been, and may never be, convicted of any crime. That raises fairness issues, Ramasastry argues. Moreover, she notes that not only police departments, but also private companies, collect such photos together into mug-shot galleries. Because the private companies’ galleries tend to dominate search results, arrestees have no recourse except to pay the private companies to take down the photos. Because of issues like these, Ramasastry argues that this is an area that is ripe for reform—for you can now be exonerated in court, but not on Google. She also briefly discusses the phenomenon of police departments putting mug shots on their Facebook pages.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more