Monday, February 24, 2014

Virginia Bill to Study 172 Freedom of Information Act (FOIA) Exemptions

This is an issue I have run into many times over the last 5 years and I posted about my most recent encounter back on October 26, 2013 The Virginia State Police will give the data to Victims Groups, National Missing and Abused Children’s Organizations and College Researchers, but not to me.

I look forward to seeing what happens with this bill, HJ96. 


OpEd: Bill moves to study FOIA exemptions, February 23, 2014

Want to know what your government is really up to? 

The Virginia Freedom of Information Act allows citizens of the commonwealth (and representatives of the media) to gain access to numerous records held by state and local agencies, government officials and other public authorities, along with providing the right to attend public meetings. The presumption of the FOIA is that all records and all meetings are to be open to the public — unless there is a special exemption specifying secrecy.

Sounds good, right? 

Maybe — until you begin counting up those exemptions. All in all, Virginia has peppered the Freedom of Information Act with 172 different exemptions under which transparency is prevented. Many of these exemptions are understandable: closed meetings for personnel issues such as hiring or firing, protected documents that show security plans. But many might not, in fact, be necessary. Circumstances might have changed since their enaction, rendering them unwarranted. They might be the result of “mission creep” — the slow, steady, cumulative advance of changes that might have once seemed justifiable in isolation, but have now proved to be over burdensome in aggregate. 

HB326: Making Revenge Porn a Criminal Misdemeanor has Passed the Virginia Senate Courts of Justice Committee

HB326- proposes dissemination of images of totally nude, in a state of undress, or engaged in sexual conduct of adults to become a criminal offense passed the Senate Courts of Justice Committee today. 

YEAS--Marsh, McEachin, Saslaw, Norment, Howell, Lucas, Edwards, Puller, Obenshain, McDougle, Stuart, Vogel, Wexton--13.

Past Posts on this issue/proposal:
There were some very good comments made during the discussion and I want to share a few of them here with you. 
The patron stated that he lifted much of the language (where they could) from other statutes including the obscene phone call statute. 

HB403: Allowing a Prior Sexual Conviction as Admissible Evidence in a New Case Passed the Virginia Senate Courts of Justice Committee

HB403 which proposes allowing a prior sexual conviction as evidence in a case of a new sexual charge passed the Senate Courts of Justice Committee today. 

YEAS--Marsh, McEachin, Saslaw, Norment, Howell, Lucas, Edwards, Puller, Obenshain, McDougle, Petersen, Stuart, Vogel, Stanley, Wexton--15.

Past Posts on this issue/proposal:
The patron of HB403 reminded the Senate Committee they passed this proposal last year but then it was sent to the Virginia Crime Commission to be studied in 2013 and they made some changes and now this is the new version. 

Delegate Bell then told the Committee that this proposal is more specific than the Federal Rule 414 which allows for previous claims and charges of sexual crimes to be entered as evidence. Whereas Delegate Bell’s proposal only allows for previous convictions of § 18.2-61. Rape , § 18.2-370. Taking Indecent Liberties w/ Child , § 18.2-370.01. Indecent Liberties by Child  and § 18.2-370.1. Taking Indecent Liberties w/ Child by Person in Custodial or Supervisory Relationship . 

There were some very good comments made during the discussion and I want to share a few of them here with you. 

Sunday, February 23, 2014

HB326: Revenge Porn Patroned by Delegate Rob Bell. Today the Proposal is a Misdemeanor, But in 2015 or 2016, Will it Become a Felony and a Lifetime on the Virginia Public Sex Offender Registry? That’s My Prediction.


Attorney: Va. 'revenge porn' bill makes bad manners a crime, March 1, 2014

Original Post:

HB326- Unlawful dissemination or sale of images of another. A.K.A. - Revenge Porn will be heard by the Senate Courts of Justice Committee tomorrow Monday February 24, 2014. 

Revenge Porn is images or videos usually taken by or distributed by the person in the image(s) in a sexual situation, partially nude or fully nude. But it can also be hacked or stolen. Then it is posted on-line or distributed to others through email or text without the permission of the person depicted. 

My opinion on this issue:
1.      If the images are hacked or stolen a crime has occurred and some sort of charges should be applied.
2.     If the images were taken without the person in the image knowing about it then a crime has occurred.
3.     If someone is extorting money from the person in the image, then a crime has occurred.
4.     If personal information of the person in the image like full name, address, phone numbers, email addresses, place of employment or school are posted with the photos to create situations of sexual propositions, harassment and stalking, then a crime has occurred.
5.     Websites that specialize in revenge porn soliciting men to take and send in images specifically to humiliate those pictured in the image should be made illegal and shutdown by the government.
6.     If the images were distributed by the person pictured in them and they wind up posted on Twitter, Facebook, SnapChat, etc or in other peoples in-boxes the person in the image needs to take responsibility for sending the images out into the world.
    Once someone has shared an image with another person it is no longer theirs to manage. They can not control where the image winds up or who has possession of it. Not days, weeks, months, years or decades later. As the taker/sender it is now out in the universe and wherever it turns up is a gamble. But instead regret sets in they taker/sender of a sexual image  needs to take responsibility for their own actions and that includes dealing with regret and the inevitable repercussions. But criminal or civil charges against other people is not a solution to a mistake they made, they need to own the consequences of their actions.

HB326 starts off with wording like intent to coerce, harass, or intimidate which I agree with. But then HB326’s verbiage goes on to use maliciously disseminates, so in other words posts or shares without the permission of the person in the image. 

While I am not opposing HB326 or a version (HB49) that was rolled into it, I do have great concerns with it. 

Friday, February 21, 2014

Candy Hatcher: Flaws in the State's Sex Offender Registry. HB523 and Edgar Coker Jr.

OpEd: Flaws in the state's sex offender registry, February 21, 2014
The Virginia Sex Offender Registry exists to keep society safe, especially its children. 

Sometimes, it does just the opposite. 

Sometimes, the law that prevents sex offenders from being on school property and around kids isolates and stigmatizes innocent people. It can ruin lives. 

Edgar Coker Jr. was 15 when a 14-year-old neighborhood girl accused him of rape in 2007. His Stafford County lawyer failed to investigate the claim and advised Edgar to plead guilty to avoid a lengthy prison sentence. 

He went to juvenile prison, and his name was added to the state registry, which publicly identifies and tracks the people who have been required to register as sex offenders. 

Two months later, the girl admitted she had lied. 

Edgar, now 22, has spent the past seven years trying to clear his name. 

He was released from juvenile prison in 2009, but courts refused to consider his claim of innocence. 

The unusual part of this story is not that Edgar was placed on the state sex offender registry with 20,000 others; it's that he finally got his name off. Last week, a judge found that his lawyer had done a sorry job representing him. She overturned the conviction and ordered his name removed from the sex offender list. 

The young man, who had struggled to find a job because of the registry, whose family had moved repeatedly because of harassment, who essentially had confined himself to home to avoid any trouble, now waits to see whether Attorney General Mark Herring will appeal - or whether Stafford County prosecutors will ask for a retrial. 

Thursday, February 20, 2014

Political Scapegoats: HB233 Does Nothing to Address the Reason Given for the Bill. But I Do Know What Will Fix the Problem and it Doesn’t Include Any New Restrictions or Processes (Hoops to Jump Through) for Virginia’s RSO’s

On Monday I was in the Senate Courts of Justice hearing when HB233 was being discussed. 

How name of person may be changed; sex offenders; probationers; incarcerated persons. Provides that applications for a change of name by persons for whom registration with the Sex Offender and Crimes Against Minors Registry is required may only be accepted by a court after a finding that good cause exists for such application. The bill provides that if the court accepts an application from a probationer, person for whom registration with the Sex Offender and Crimes Against Minors Registry is required, or incarcerated person, a copy of the application shall be mailed or delivered to the attorney for the Commonwealth for the jurisdiction where the petition was filed and the attorney for the Commonwealth for any jurisdiction where a conviction occurred that resulted in the petitioner's restricted status. The bill also provides that the attorney for the Commonwealth where the petition was filed shall be entitled to respond and represent the interests of the Commonwealth. The bill provides that the court shall conduct a hearing on such applications and may order a change of name if the court determines that it would not frustrate a legitimate law-enforcement purpose, is not sought for a fraudulent purpose, and would not otherwise infringe upon the rights of others. The bill also provides that the order shall contain written findings stating the court's basis for granting the order. 

The bill also provides that any order granting a change of name that fails to comport with the requirements is void ab initio and that the attorney for the Commonwealth for the jurisdiction where the petition was filed has the authority to bring an independent action at any time to have such order declared void. The bill also provides that if an order granting a change of name is declared void or if a person is convicted of perjury for unlawfully changing his name, the clerk of the court entering the order or the order of conviction shall transmit a certified copy of the order to the State Registrar of Vital Records, the Department of Motor Vehicles, the State Board of Elections, the Central Criminal Records Exchange, and any agency or department of the Commonwealth that has issued a license to the person where such license utilizes the person's changed name.  

HB233 is a bill I had not been following since I do not oppose the proposal. I had missed the explanation of its intent in the House so I was very surprised by what the patron told the Senate on February 17, 2014. 

On Monday the patron mentioned that a Registered Sex Offender had changed his name and the victim was unable to locate him on the Virginia Sex Offender Registry because of the change. The article (link above) was titled Dodging Google. 

With this information/reasoning for HB233 being proposed I can confidently tell everyone that HB233 will NOT fix the problem. 

But I do know what will.  

ICAC: Southern Virginia Task Force Polices Digital Shadows

I just came across this article today, sorry for the delay.

I’ve selected some interesting tid-bits from it. Click the link to read the entire article. 
Southern Virginia task force polices digital shadows, February 16, 2014

·        In 2010, the first year ICAC had statistics available, the task force investigated 669 cases and had 91 arrests, 51 pleas and 28 trials.
·        In 2011, those numbers jumped to 953 cases, 130 arrests, 60 pleas, and 23 trials.
·        In 2012, cases rose to 1,374 with 180 arrests, 82 pleas, and 44 trials.
·        Last year the agency investigated 2,118 cases with 216 arrests, 119 pleas and 40 trials.
Many of those investigations are outside of Bedford County. When an offender solicits an undercover officer in Bedford County, the crime is committed in both jurisdictions. Generally, Anders said, offenders are prosecuted where they live.
But if the crime is a felony in Virginia and would be a misdemeanor in another state, officers and prosecutors work together to bring the suspect under the harsher penalty.

Andrew Extein- Capitol Punishment: The Troubling Consequences of Federal Child Pornography Laws

 "The media contributes to the hatred and hysteria"
Capitol Punishment: The Troubling Consequences of Federal Child Pornography Laws
By Andrew Extein- a social worker, psychotherapist, advocate, and writer on issues of sexuality and criminal justice.
Co-authored by Galen Baughman- Director of Communications for International CURE, where he advocates for criminal justice reform from a perspective of human rights.
Until Dec. 11, 2013, Jesse Ryan Loskarn was a popular chief of staff for a Tennessee senator. But on that winter day, police broke down the door of his rowhouse in southeast Washington, D.C., and searched for the illegal digital items that had led them there: explicit videos of boys posing nude and engaging in sexual acts.  

On Thursday, Jan. 23, 2014, Ryan was found dead in his basement. 

On Monday, Jan. 27, 2014, there was a twist. Ryan's mother posted his suicide note online, revealing the great complexity to his story. He wasn't a faceless headline, wasn't a cautionary tale, wasn't a vague story of justice. He became what most people didn't want him to be: a human being. 

What most of us have trouble comprehending -- an argument all but forbidden in our current climate -- is that Ryan could be understood as a victim himself. For his suicide note reveals a stunning truth: his own history of sexual abuse, one that had far-reaching, complex emotional effects. 

Monday, February 17, 2014

Update: HB523- Mandating Registration of Juveniles as a Public Sex Offender for a Minimum of 10 Years Was “Passed by Indefinitely for 2014”, Which Means it is Dead!

Past posts on HB523:
I attended the Senate Courts of Justice meeting this morning. 

I gave an opposition statement against HB523 as did 4 other people. No one spoke in support of the bill. 

The bill was Passed by Indefinitely for 2014 with a vote of 9 to 6. 

YEAS--Marsh, McEachin, Norment, Howell, Lucas, Edwards, Puller, Petersen, Wexton--9.
NAYS--Saslaw, Obenshain, McDougle, Stuart, Vogel, Stanley--6

Is your Senator on this Committee? If so, you should be aware of how they voted above.  

If you approve of their vote, let them know. If you disapprove of their vote, let them know. 

Sunday, February 16, 2014

Action Alert: HB403- Allowing a Prior Sexual Conviction as Admissible Evidence in a New Case Will be Heard by the Virginia Senate Courts of Justice Committee


February 17, 2014:

This bill was on today’s agenda but the patron asked the Committee to allow it to be postponed as he was waiting to hear back from Attorney General Herring in regards to his support on the proposal.

The next Senate Courts of Justice hearing would be on Wednesday February 19 in the afternoon or next Monday morning.

If you have not yet contacted the members of the Committee asking them to oppose HB403, please do so today!

Original Post:

Originally scheduled to be hear on Monday February 17, 2014 at 8AM.

Back on January 4, 2014 I posted an action alert about HB403 which proposes allowing a prior sexual conviction as evidence in a case of a new sexual charge. 

HB403 passed the Virginia House on February 11, 2014 92-6 with one Delegate not voting. 

Virginia Rule of Evidence 2:403 excludes relevant evidence on grounds of prejudice, confusion, misleading the jury or needless presentation of cumulative evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.  

As I previously stated at the September 3, 2013 Virginia Crime Commission allowing a defendants past into evidence but not the plaintiffs history contaminates the process with bias and destroys the presumption of innocence which is the very foundation of our justice system. 

Virginia Rule of Evidence 2:412 states regarding admissibility of complaining witness' prior sexual  conduct; criminal  sexual  assault  cases; relevance of past behavior that general reputation or opinion evidence of the complaining witness' unchaste character or prior sexual conduct shall not be admitted.   

Including a false accusation against someone else! 

But yet 92 out of 99 Virginia Delegates believe this hypocritical proposal is justice. 

Saturday, February 15, 2014

Maya Rhodan: States Lead The Way on Sentencing Reform (not Virginia)

A very interesting article below. 

But in Virginia for 2014 HB504 and SB433 are halting a Virginia Sentencing Commission recommendation to slightly lower the sentencing for possession of child pornography even after the U.S. Sentencing Commission has recommended doing just this and HB523 mandates juvenile must register as Sex Offenders taking the discretion out of Virginia’s judges hands. 

The VCSC report from the 2013 General Assembly for Fiscal Impact Statements had Mandatory Minimums as 10.2% of the requests.


States Lead The Way on Sentencing Reform
A new report shows that 32 bills addressing mandatory minimum sentences have passed within the past 5 years alone

While the Obama administration has spent the past several months rolling out piecemeal sentencing reforms for non-violent drug offenders, states have already taken a hatchet to mandatory minimum sentencing, according to a new report. 

“Backed by decades of research demonstrating that longer sentences have only a marginal effect in reducing recidivism and that many offenders can be safely and more effectively supervised in the community, more and more states are revisiting tough-on-crime sentencing policies in pursuit of a fairer, more cost efficient justice system,” said Peggy McGarry, director of the Center on Sentencing and Corrections at the Vera Institute of Justice. 

A new Vera Institute of Justice report shows that since 2000, 29 states have enacted laws increasing judicial discretion and revising when and how sentences are handed down. Thirty-two bills have been passed within the past five years alone, according to the report. States, the report shows, are becoming champions of reform, acting ahead of both Congress and the Obama administration. 

Edgar Coker Jr.: Life Better for Young Man Exonerated in Rape Case

Life better for young man exonerated in rape case
By Pamela Gould              February 14, 2014

It wasn’t until Edgar Coker knew his name was off Virginia’s Sex Offender Registry that he exhibited any joy over this week’s court ruling exonerating him of raping a neighbor.

Before that, the 22-year-old had, at best, a muted reaction to Monday’s ruling by Circuit Judge Jane Marum Roush ordering his rape and breaking-and-entering convictions vacated and his name removed from the online registry.

After nearly seven years of living with the label of rapist and violent sex offender, and more than five years of efforts from a team of attorneys seeking to right what his initial accusers considered an injustice, Coker was skeptical of the impact of the ruling.

But on Wednesday, when University of Virginia Law School Innocence Project Legal Director Matthew Engle spoke to Coker, he noticed a change.

“There was a sense of optimism that I’ve not heard in the four years I’ve been working with him,” Engle said.

“He really sees the sex offender registry as something that has been holding him back,” Engle said. “That was really the first time I’ve heard excitement in his voice and hope for the future now that this is finally done.”

Roush is assigned to Fairfax County’s circuit but presided in the case after Stafford County judges recused themselves.

On Monday, she filed an order in Stafford Circuit Court instructing the Virginia State Police to remove Coker’s name from the state’s Sex Offender Registry.

On Wednesday, it was gone.

Friday, February 14, 2014

Action Alert: HB523- Mandating Registration of Juveniles as a Public Sex Offender for a Minimum of 10 Years Will be Heard by the Virginia Senate Courts of Justice Committee Monday February 17, 2014 at 8AM

HB523 – Mandated Registration of juveniles as a Sex Offender for a minimum of 10 years that passed the Virginia House on Tuesday is on the Senate Courts of Justice agenda for Monday February 17, 2014. This meeting is the one and only time citizens can come to the G.A. building and speak for or against the bill in front of Senate members. 

Past posts on HB523 with bullet points and facts for you to use in your email or phone call:

Wednesday, February 12, 2014

February 25, 2014 Special Election for Virginia 100th House District Seat


Republican Bloxom easily wins House seat on Eastern Shore, February 26, 2014
Victory gives party 68 seats in 100-member chamber

Original Post:
After Delegate Lynwood Lewis won the Special Election on January 7, 2014 for the Senate 6th District Seat that left a vacancy in his House seat resulting in no representative for the 100th during the 2014 Virginia General Assembly session that should adjourn around Saturday March 8, 2014. 

A Special Election for the 100th House District has been scheduled for February 25, 2014 so the winner will get to Richmond with only 8-10 days left in session. 

Do you live in the 100th   District?
  • Counties of Accomack and Northampton
  • Cities of Norfolk (part) and Virginia Beach (part)
If you aren’t sure look up your District /Current State Delegate and Senator by your address. 

The candidates for the February 25, 2014 Special Election are: 

House 100th District:
Willie C. Randall              (D)
Robert S. Bloxom Jr.       (R)

If you live in this district and are a registered voter, please read up on the candidates. 

Do you have family members or friends in this district? 

You should contact the candidate(s) in your district, introduce yourself, tell them what issues concern you and let them know you will be voting on February 25th . Have your family and friends do the same. 

Be sure that your voice is heard on February 25, 2014. VOTE! 

Mary Devoy 

Americas Misguided Child Pornography Laws Do Little to Protect Children, but Plenty to Fund the State, the Feds and the Victims Advocate Groups

In 2013 the Virginia Criminal Sentencing Commission studied the inconstancies in our code with those who view/possess/reproduce (forward it to someone else) child pornography images mandating longer sentences than those who produced/created the images and actually abused the children. After months of work and 4 public meetings the VCSC voted to lower the sentences by a very small amount for those who possess such images (Recommendation #2). This was the first time in 19 years of the VCSC existence that they have ever recommended lowering a sentence and as soon as it was announced PROTECT pounced with this report vowing to stop the decrease from occurring. 

Out of the five 2013 VCSC recommendations there was an increase in the on-line solicitation of a minor (Recommendation #1) and PROTECT had no issue with the VCSC raising a sentence but when it came to lowering a sentence they rushed to find a Delegate (Bell-HB504) and a Senator (McDougle-SB433) to patron companion legislation to stop the decrease from occurring. 

Why? Well, I’ve posted about it before if you’re interested. 

There is a lot of money at stake in the prosecution, incarceration, restitution, probation, therapy and monitoring of those who possess child pornography. Federal grants, State grants, Annual  Budgets, Civil Restitution, Seizure of Personal Property, Prison bed quotas, local communities depending on prison jobs, Therapy Providers, Polygraph Examiners, Probation Officers, Halfway Houses, GPS Fees, Dept. of Social Services, VSP Sex Offender Compliance Officers and the list goes on and on. Viewers of Child Pornography are being squeezed for every last dime similar to the adults who smoke cigarettes and chew tobacco products, tax them for schools, tax them for new roads, tax them for daycare centers. No one is going to stick up for “those vial smokers”, just like Sex Offenders. 

If the government went after the websites and the producers of the Child Pornography then there would be no viewers/customers, no industry at all. But they don’t! Our Government continues to go after the viewers/customers because they are the “cash cows” and keeps the money flowing for all the groups listed above. 

Now HB504 and SB433 will pass through the 2014 Virginia General Assembly and most likely be signed by the Governor and the first positive step in 15 years of draconian laws aimed at the viewers (customers) and not at the producers (abusers) will never be implemented. And the VCSC will probably rethink ever recommending a decrease in sentencing ever again at least when it comes to Child Pornography and THAT is the real wrongdoing in all of this.  

Here are 2 great articles by the same writer about these misguided laws.

Mary Devoy

Our misguided child porn laws do little to protect children
By Jacob Sullum               February 11, 2014

In the letter he wrote on the day he hanged himself last month, Ryan Loskarn talked about the shame and guilt he felt after he was caught with child pornography. Loskarn, former chief of staff to Sen. Lamar Alexander (R-Tenn.), did not mention fear of prison, perhaps because he had already resolved to end his life. But for anyone in his position who planned to stay alive, the prospect of spending years behind bars would loom large. 

The legal treatment of people caught with child pornography is so harsh that they can end up serving longer sentences than people who actually abuse children. In a 2009 analysis, federal public defender Troy Stabenow shows that a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years. 

Edgar Coker Jr.:UVA Law Clinics Help Exonerate Man Convicted of Rape, Ending Seven-Year Struggle

UVA Law Clinics Help Exonerate Man Convicted of Rape, Ending Seven-Year Struggle

After a legal battle spanning almost seven years, the University of Virginia School of Law's Innocence Project and Child Advocacy clinics have helped exonerate a man falsely accused of rape in 2007, when he was 15. 

In an order released by the Stafford County circuit court on Monday, Judge Jane Marum Roush vacated the conviction of Mineral resident Edgar Coker and said he was no longer required to register as a sex offender. Roush's opinion also said the original defense attorney's representation of Coker "was not reasonably competent." 

The order followed an extended effort by Coker's legal team to clear his name. 

"It was very important to many people that we hang in there and keep defending Edgar Coker, no matter the legal hurdles, the odds or the costs," said Deirdre Enright, director of investigation for the Innocence Project Clinic. "Edgar Coker is and always was innocent, in spite of legal determinations to the contrary.  He plead guilty to avoid being sent to an adult detention center, and sadly, he’s not the only child in Virginia — or in this country — who has been forced to face such a draconian choice.  Edgar’s case should motivate us to re-evaluate circumstances under which a prosecutor can make such a threat in a case like this." 

Andrew Block, director of the Child Advocacy Clinic, said the judge's decision was a call for lawyers to take representing juveniles seriously. 

"The court made quite clear that failing to prepare or just figuring things out on the day of court are constitutionally deficient legal strategies," Block said. "While you might think that would be obvious, here in Virginia where we have the lowest-paid court-appointed lawyers in the country, and no transcripts of juvenile proceedings, this opinion, unfortunately, is a necessary reminder for both lawyers and judges of what is required to effectively represent kids."
After a prosecutor threatened to try him as an adult and seek a lengthy prison sentence, Coker pleaded guilty in juvenile court to rape and breaking and entering in 2007. Following his conviction, Coker was incarcerated by the Department of Juvenile Justice for 15 months and listed on the sex offender registry for six years. 

Tuesday, February 11, 2014

Action Alert: HB523- Mandating Registration of Juveniles as a Public Sex Offender for a Minimum of 10 Years Passed the Virginia House and Now Moves onto the Virginia Senate


HB523 – Mandated Registration of juveniles as a Sex Offender for a minimum of 10 years passed the Virginia House today 85-12 (2 Delegates did not vote at all on the proposal).  
Past posts on HB523:
Here is the official tally: