NARSOL supports man who won rare constitutional challenge

By Larry Neely . . . The National Association for Rational Sexual Offense Laws (NARSOL) has filed an amicus curiae brief in the United States Court of Appeals for the Ninth Circuit in support of Stephen Edward May, whose conviction for child molestation in an Arizona case has been set aside by the federal court in Arizona. NARSOL’s interest in May’s case rests on the Arizona statute defining the offense of child molestation to require the accused to prove that any contact with an underage child did not result from a sexual interest or motivation. The law, which was upheld by the Arizona Supreme Court in State v. Holle, 240 Ariz. 300, 379 P.3d 197 (2016), essentially requires an accused to prove that he is not guilty of the crime, rather than preserving the traditional presumption in American law that the individual is presumed innocent until proven guilty.

The United States District Court granted habeas corpus relief (set aside his conviction) in Stephen May’s case, finding that his counsel’s failure to challenge the Arizona statute on constitutional grounds violated his right to effective representation. It based its decision on the obvious constitutional flaws in the statute and the Holle court’s decision upholding the requirement that the accused charged with child molestation prove to the jury that he did not act with any sexual intent when coming in contact with a child under the age of fifteen years. The District Court found that the current approach upheld in Holle was inconsistent with the history of Arizona sexual offense laws, which required the prosecution to prove that the defendant’s actions were motivated by sexual interest.

NARSOL’s involvement is prompted by the real threat that the Arizona approach to shifting the burden of proof from the prosecution to the defense will spread to other states if the Ninth Circuit rules against May on the fundamental issue of proper assignment of the burden of proof in criminal cases to the State.   Currently, only Hawaii has started down this road to easing the burden traditionally imposed on the State to prove an individual’s guilt beyond a reasonable doubt before convicting and incarcerating him.

“The danger in shifting the burden of proof to an accused to disprove guilt or prove innocence is heightened in the context of sex offense prosecutions,” explained J. Thomas Sullivan, NARSOL’s attorney in its May amicus brief, “because these cases may be lacking in forensic evidence, or credible testimony from complainants, who may be misled into fabrication or misunderstand the requirement for truth when influenced by adults who hold positions of responsibility, such as investigators or often-well-meaning counselors. The consequences of an improper conviction of an innocent person are staggering, including imprisonment, a lifetime of stigma and public shaming, as well as lifetime or extended periods of registration and restrictions on personal freedom. Any compromise of the guarantee of due process is most unfair and dangerous in sexual offense prosecutions.”

In the amicus brief, Sullivan, a Distinguished Professor of Law, also argued that by requiring accused persons to prove the negative by convincing jurors or trial judges that they did not act with sexual motivation, the Arizona statute forces the accused to waive the right to remain silent and testify at trial. “It seems clear that jurors will expect an accused denying sexual motivation to offer his own personal testimony on that point. Frankly, in almost every case, it is only the accused who knows whether he was motivated by sexual interest in any circumstance in which improper contact with a child is alleged.”

“The number one fear that most people admit involves a fear of speaking in public. Unfortunately, the realities of trial are such that many defendants are simply not able to testify convincingly because they are afraid and because there is so much riding on their performance,” Sullivan added. “They face cross-examination by skilled prosecutors who are trained to shred the testimony of inexperienced witnesses who must testify before strangers on the most sensitive of matters with fear and lack of confidence. And the prosecutor has the benefit of state’s witnesses, who are often designated by the trial judge as experts and who are trained in the art of testifying effectively in the trial setting.”

NARSOL has thus far been joined by the Arizona Attorneys for Criminal Justice and the Arizona Civil Liberties Union in supporting Stephen May before the 9th Circuit.

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Larry Neely

Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

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    • #38584 Reply
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      Timothy DA Lawver

      BURDEN OF PROOF???

      IF A BURDEN EXISTS THEN HOW IS IT WE SEE DNA EXONERATIONS AT AN ALL TIME HIGH?

      The fact is…THEY DO NOT NEED ANY ” REAL” EVIDENCE! And they have not needed it for quite some time.

      I Think it is because the people have elected so many former prosecutors who have in turn altered the rules of the game in favor of the state. Who gives a crap if the wrong man is convicted and punished….almost nobody!

      SOR is just another step towards that end. Any man facing registration violation is before a jury already guilty and not, “innocent until proven otherwise.” Patently unconstitutional yet supported by the people, their representatives AND SCOTUS.

    • #38655 Reply
      Avatar
      d

      There was a small Victory in Indiana today:

      Kristopher L. Weida
      Appellant (Defendant below)
      –v–
      State of Indiana
      Appellee (Plaintiff below)

      Cheers!

      • #38778 Reply
        Avatar
        Mr. Timothy D.A. Lawver

        Indiana V. Weida,

        The only win here is that Indiana’s SC accepted Packingham from Robin’s state, NC. Since the case involved a citizen on probation the courts sided with state on All but 2 P&P rules. The win is minor as any blanket bans are generally a no-go when courts review them. Like the blanket ban on porn for SOs, internet accessing can NOT actually be stopped. Enforcement is nearly impossible because defining PORN is subjective and completely so. Technically, then the internet is accessed by using a phone or automatic teller or texting. Any number of devices used then would also fall under illegal behavior prohibited simply by connection. The court merely recognizes the one cannot properly function, in modern society, without connection to internet. So this court upheld the vast majority of p&p rules on SOs. The DOCs of States will continue to increase rules and obligations without much interference. someone always seems to have more ideas that might work.

    • #38670 Reply
      Avatar
      Saddles

      I like Larry’s understanding about a lot of this sex registry situation or circumstances. It is well thought out in a lot of these types of encounters. And I thought everybody got due process to show facts. I guess when they sway one into a plea bargain or plea deal one has to do what they can to redress a lot of this stuff.

      • #38779 Reply
        Avatar
        Mr. Timothy D.A. Lawver

        Saddles,

        Some did not enter into plea agreement. Never plead to what you did not do. The power of the state is enormous and square that for the Federal. Why the founders enshrined the basics including a few seperations, limitations, and fewer outright prohibitions on gov’t is readily apparent.

        “We hold these truths to be self evident.”

        That our society and governance has divorced from natural law and the constitution is on the people for following. Fear rules.

    • #38717 Reply
      Avatar
      WC_TN

      I hope the 9th Circuit upholds overturning this case. When “guilty until proven innocent” or “prove a negative” becomes the standard, we may as well do away with criminal trials altogether and just let the D.A. hand down the sentence on the spot.

      That this kind of law could have ever gotten traction to begin with is beyond rational belief!

      Here is another “fact” of science that needs to be thoroughly debunked: “Innocent, helpless children don’t know how to lie about being molested.”. They can surely be coached by counselors and parents!

      Years ago 20/20 did an investigative report on the techniques used to interview children who are suspected victims of sexual abuse. 20/20 went out of their way to find 10 kids they knew for an absolute fact had never been molested. By the end of the interviews these children were subjected to they every one were convinced they had been molested. This just shows how suggestions can be planted and drilled into their pliable, malleable little minds. They can be fed details in the form of very leading and suggestive questions. Vague questions are asked that can be “open to interpretation” by the “experts”.

    • #38743 Reply
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      Saddles

      Actually from listening to that podcast or Episode “Can they do that” Larry makes a great gesture to all. We all have reason to hope. Even that Episode was very informative. Actually its getting down to the nuts and bolts of things about these sex registry hijinks. While the that was very informative of alternative’s we all should take in these actions, pardons’ from governments, and things such as theses. Its a human factor of man wanting to dominate man.
      I don’t know which is worse Andy wanting to conk Larry on the head or Larry wanting to give good informative information to all about these issues. If you haven’t listen to that Episode it gives a lot of examples of people and also comments of people involved in the field of these types of situations that effect those in these sex situations.
      I’m wanting to go the redress of grievance way or the human rights way or civil rights way as anyone can see the constitution is broken in a lot of these shameless sex scheme’s that justice seem to want to profit by to dupe those that are under this duress and stressful time in their life. I even like the amicus endeavor in some situations. Its all about challenge and truth to balance the scales of justice.

    • #38793 Reply
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      obvious answers

      The article is partially not accurate. Its statement that only Hawaii is easing the burden of proof to defence from prosecution is not correct. It is a common trend among states.
      Many states including michigan have shifted the burden of proof to the defence rather than the prosecutorial.
      As an example : Michigan (and Texas,among others) have NO exception or acceptance for the possibility or too include the possibility that the “victim” has been dishonest and/or misrepresented their age. It is called strict liability laws. Not even shifting of the burden but completely placing all burden and removing of defense.
      So as an example: you meet an underage person in a tavern or alcohol establishment in Michigan.Said person either misrepresents/lies about their age, or it is an alcohol establishment and is required to be 18 or above so you assume age threshold.(id at door) Next This person later has sexual behavior of any type (does not require penetration) with you and you are over the age threshold any degree, you will be going to prison and registering for lifetime or past death does you part.. There is allowed NO defense for you.Not only is all burden shifted to you all defence is removed from you!! It is not even legal to state a defense!! Strict liability laws insure you are guilty beyond all doubt and are not only not allowed a defense it is illegal for the other person to even stand in your defence if they would otherwise choose to!! That is clearly an example of shifting the burden of proof to the accused and away from the accuser. And it is commonplace and has been since the mid 1990s. I know this for a fact as well since I was sentenced under those laws in 1997 and sent to prison for 5 years and eventually after a dozen retro active sentencings the lifetime registry for a girl I met in a bar and a consensual night. She found out she was pregnant pointed at me, who had given her my address and name since i didn’t know she was underage and to prison i went..oh and the child? dna later demonstrated not even mine..
      I will include a link here of an example of anouther person’s story to show it is not isolated. if it is allowed to share it. https://www.texasdefenseattorney.com/blog/2015/06/teen-sentenced-to-jail-term-girl-lied-about-her-age-before-sex.shtml

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