Supreme Court Grants Justice Dep't Request to Reject Child Victims

Last week the United States Supreme Court ignored the extraordinary pleas of three nationally recognized child advocacy groups and granted the Justice Department's request to dismiss a child sex abuse victim's appeal for criminal restitution.

The case now returns to the district court which must follow the DC Circuit's holding that the victim in this case, Amy, does not have a clear and indisputable right to full restitution, but must instead trace precisely how her losses were “proximately” caused by each of the thousands of child molesters and pedophiles who collect and trade her child sex abuse images.

The Supreme Court's rejection means that a child pornography victim's right to criminal restitution in the federal courts will continue to be limited and denied in sixteen states and territories, including California, New York and Washington, DC. Only in the Fifth Circuit—encompassing the states of Texas, Louisiana and Mississippi—is restitution still mandatory.

The Court's denial—and the Justice Department's stubborn refusal to abandon a legal standard which the influential Ninth Circuit concluded "present[s] serious obstacles for victims seeking restitution in these sorts of cases"—leaves child sex abuse victims like Amy with scant chance for justice in the federal courts.

Pedophiles, child molesters and the Justice Department are likely to seize on the high court's rejection as a sign that criminal restitution for child sex abuse victims is all but impossible in the federal courts except under the most egregious circumstances.

We continue to urge everyone to Take Action and ask the Justice Department to stop siding with convicted child molesters and pedophiles instead of child sex abuse victims!

Just go to http://bit.ly/DOJustice for full details on how you can help.

For the complete background on this issue, visit http://www.childlaw.us/restitution/.

Take Action! Here's how you can help child sex abuse victims

Why is the Justice Department siding with convicted child molesters and pedophiles instead of child sex abuse victims? Many have called and e-mailed asking "what can I do to help convince the Justice Department to change its unacceptable position on this issue?"

Now you can easily support child sex abuse victims by submitting a request to Congress and the President.

Just click on the Take Action button which will launch our petition at Petition2Congress.com. We've filled in all the details and it only takes a minute.

Just add your name and zip code and a pre-formatted letter will be created which asks your Representative, Senators and the President to immediately contact the Justice Department and ask why the Criminal Division is opposing the victims in In re: Amy Unknown in the Fifth Circuit and United States v. Shawn Crawford in the Sixth Circuit.

The letter also asks Congress to hold hearings to find out why the Justice Department is siding with convicted child molesters and pedophiles instead of child sex abuse victims.

You will be given a chance to make any changes or edits to the letter before sending. For maximum impact Petition2Congress.com can hand-deliver a printed copy of your letter to Capitol Hill and the White House.

Amy and Vicky need your help. Hundreds of victims like them are effectively shut-out of the federal courts by the Justice Department's wrongheaded policy.

Almost 20 years ago, then-Senator Joe Biden promised victims that they would receive restitution from criminals convicted of child sex crimes. Ironically, Vice President Biden's own Justice Department is failing to live up to his vision in the Violence Against Women's Act.

You can help awaken the politicians in Washington with just a few clicks. Amy and Vicky thank everyone for their continued support. You can make a difference in their fight for justice!

Enjoying Young People in the Shower and Having a Good Time

In a series of interviews last night, accused Penn State child molester Jerry Sandusky was asked if he is “sexually attracted to underage boys?” He responded, “No. I enjoy young people.” When asked to explain Sandusky's alleged rape of a ten year old boy in the Penn State locker room on a Friday night in 2002, his lawyer Joe Amendola replied that “the kid was messing around and having a good time” in the shower with Sandusky:

“Jerry Sandusky is a big, overgrown kid. He's a jock,” Amendola told CNN's Jason Carroll. “The bottom line is jocks do that—they kid around, they horse around.”

Amendola told NBC's Today show the apparent person in question claims the alleged rape never happened.

“We believe we've found him and if we have found him, he's telling a very different story than Mike McQueary and that's big news,” Amendola said.

Clearly, the effort to whitewash the overwhelming evidence against Sandusky is in full swing. Unfortunately the willingness of otherwise honest and decent people to ignore and justify the actions of pedophiles and child molesters is nothing new and all too common.

Just last week in the New York Times, respected Ohio State law professor Douglas Berman referred to child pornography as nothing more than “dirty pictures.” This kind of flippant belittling effectively desensitizes and normalizes the collection and broad dissemination of pictures and videos of pre-pubescent children being raped and sexually exploited.

What Berman fails to recognize is that “in the context of children … there can be no question of consent, and use of the word pornography [let alone “dirty pictures”] may effectively allow us to distance ourselves from the material’s true nature. A preferred term is abuse images and this term is increasingly gaining acceptance among professionals working in this area. Using the term abuse images accurately describes the process and product of taking indecent and sexualized pictures of children, and its use is, on the whole, to be supported.” Sharon W. Cooper, et. al., Medical, Legal, & Social Science Aspects of Child Sexual Exploitation p. 258 (2005).

Not surprisingly, Professor Berman is a defense expert witness in child pornography cases and a critic of mandatory minimum sentences for inter alia producing, collecting and sharing child pornography.

In an interview with Cincinnati.com, Professor Berman claimed that “because the Internet has made this kind of material more readily available, it's not as obvious that someone who looks at these images will be a serious threat to do harm to a child.” Rationalizing the wide and ubiquitous availability of child pornography, Berman intoned “we're to a point now where it's just one click. There may be a lot of serendipity as to whether that one click gets you one picture or a thousand pictures.”

Berman is not alone in providing intellectual cover for child molesters. None other than the Administrative Office of the United States Courts has taken the position that “the only appropriate judicial role” is to deny restitution requests for victims of child molesters who are convicted of collecting child pornography.

That's right. In an illegal advocacy brief written by the federal court system itself, Assistant General Counsel Joe Gergits suggested that “even though federal law prohibits him from lawfully “engag[ing] directly or indirectly in the practice of law in any court of the United States,” his “legal advice” is something which might “coincidentally” be beneficial to judges around the country.

After its release in August 2009, Mr. Gergits' brief quickly became exhibit number one for child molesters across the country who were seeking to avoid paying criminal restitution to child pornography victims. The brief was reportedly distributed to the chief probation officer in every federal judicial district in the country.

By actively taking such a position, the United States federal court system itself injected bias and prejudice against child crime victims into the "independent, national judiciary providing fair and impartial justice."

New York University law Professor Amy Adler explained that since the legal war against child sex abuse images has already been lost, there is “the possibility that certain sexual prohibitions invite their own violation by increasing the sexual allure of what they forbid.” Adler argues that “the dramatic expansion of child pornography law may have unwittingly heightened pedophilic desire.”

In the Berman-Gergits-Adler justice system, the very existence of laws against child sex abuse images and the wide availability of those images creates unwitting offenders who are then prosecuted in a justice system which is biased against the “alleged victims” depicted in the images and who are ultimately given little or no criminal sentence.

Add to this mix yellow journalists like the New York Times' Erica Goode—whose recent article on an absurdly rare “life sentence” for child pornography gave carte blance acceptance to a defense attorney's proclamation that “a growing body of scientific research shows that that someone who looks at child pornography is not a child molester or will become a child molester”—and Debbie Nathan—whose so-called National Center for Reason and Justice is a wholly owned subsidiary of the pedophile defense bar and whose work for the movie Capturing the Friedmans vigorously advocated for the absolution of convicted child molesters Jesse and Arnold Friedman—and it's not a stretch to believe that Sandusky was just behaving like one of the boys.

Everything can be explained away. Things are not what they seem. A little fun in the shower never hurt anyone.

Sadly, the effort to silence, marginalize and de-legitimize victims of child sex crimes is alive and well in 2011.

To quote the Pope, again, approvingly:

In the 1970s, paedophilia was theorized as something fully in conformity with man and even with children. This, however, was part of a fundamental perversion of the concept of ethos. It was maintained—even within the realm of Catholic theology—that there is no such thing as evil in itself or good in itself. There is only a “better than” and a “worse than.” Nothing is good or bad in itself. Everything depends on the circumstances and on the end in view. Anything can be good or also bad, depending upon purposes and circumstances. Morality is replaced by a calculus of consequences, and in the process it ceases to exist. The effects of such theories are evident today.

The rationalization and justification of child sex abuse in all its forms not only discredits the victims, it corrupts justice and society. Morality ceases to exist. Evil becomes a construct. Punishment disappears.

Understanding the sexual exploitation of children means accepting that evildoers actively exploit the naivete of youth by grooming victims, establishing trust, normalizing deviant behavior and enforcing loyalty. When caught perpetrators sow doubt and confusion.

No wonder Sandusky's victims feel sadness, shame and even complicity. As one of the Penn State victim's attorney, Ben Andreozzi, revealed yesterday on the Today show:

The eight victims currently involved in charges against Sandusky all became part of the Penn State football team’s inner circle and developed deep attachment to the program.

“I think it’s fair to say the victims could be thinking to themselves right now that as a result of (my) coming forward, look what’s happened to this football program,” Andreozzi said.

“These folks were involved in the Penn State football community—they were on the sidelines at football games, they were spending significant amounts of time travelling with the team and/or in the locker room with the team and getting to know members of that football team.”

Andreozzi added that his client, who is now in his 20s, is grieving. “To say that he’s torn apart, I think would be an emotion that would really explain where he’s at right now.”

As I wrote on this blog in July, “The Secret" is the key to understanding child sex abuse.

In my post Pedophiles Lobby for Acceptance I explain how politically motivated child molesters and pedophiles actively discredit social science research which indicates a substantial rate of recidivism by convicted child sex offenders.

Sandusky and his defenders fit into a well-established dialectic which minimalizes the crime and co-opts the victims. Let's hope that this time around, voices of reason and justice prevail.

It's Open Season on Children in Pennsylvania

As anyone who has read this blog for any length of time knows, there's something rotten in the state of Pennsylvania when it comes to protecting children. From Masha Allen (who was adopted from Russia by a pedophile with the help of one of Pittsburgh's premier adoption agencies), to the Luzerne county kids for cash scandal, to high school students being spied on at home by school administrators; the list of woe goes on and on.

Now Hank Grezlak, the editor-in-chief of The Legal Intelligencer—Pennsylvania's influential legal daily—has articulated what many of us have known for years: It's Open Season on Children in Pennsylvania.

In this hard-hitting commentary, Grezlak writes:

In light of the Penn State sex abuse scandal, Pennsylvania really needs to change its nickname from the Keystone State to the Child Abuser State.

The shameful moniker fits. After a decade that has already included the Archdiocese of Philadelphia priest sex abuse scandal and the Luzerne County judicial scandal featuring "kids-for-cash," how can anyone argue that it isn't a fitting label?

In all three instances, powerful people and powerful institutions failed to protect the most vulnerable and innocent in society: children.

In all three instances, authorities were made aware of harm or wrongdoing being committed, and did nothing.

In all three instances, people have made excuses for those in power who failed to act, either by failing to report or investigate, allegations of misconduct.

As with the previous two scandals, in the wake of the Penn State disgrace, there will be much hand-wringing and demonizing of a few, along with committees and panels appointed. Inevitably, recommendations will be made that will largely be ignored.

There will be a push to put more laws on the books and stiffen penalties, but those largely will be punitive and after the worst has already been done. We're not hurting for prosecutors bringing high-profile cases and getting convictions. But again, that's about seeking justice after the worst has happened, not about protecting kids in advance.

We, as a society in Pennsylvania, have failed to protect our kids.

It's an excellent sobering commentary. A big shiny gold star to Mr. Grezlak for boldly stating what needs to be said and DONE and which should have been said and DONE years ago. Changing the culture will take time and vigilance. Grezlak takes a bold first step in the right direction.

Read his entire well-deserved invective here.

Lawyers at the Center of the Penn State Rot

According to this post in the AmLawDaily blog, numerous lawyers—including a mysteriously disappeared district attorney—are at the center of the widening Penn State child molestation scandal:

Curley and Schultz stepped down from their respective posts Monday, not long after news of the charges levied against them and Sandusky broke over the weekend. Sandusky himself retired in 1999, but remained active with The Second Mile children's charity, which he founded in Penn State's hometown of State College, Pennsylvania, in 1977. Prosecutors, led by Pennsylvania attorney general Linda Kelly, claim that Sandusky met the eight boys he is accused of sexually assaulting over a 15-year period via his association with the Second Mile charity.

In an added wrinkle, the 23-page grand jury report laying out the state's charges against the Penn State trio notes that the university's former outside general counsel, Wendell Courtney of State College-based McQuaide Blasko, served as an attorney for Second Mile. According to the grand jury report, Courtney reviewed a 1998 report prepared by Penn State police that detailed inappropriate interactions between Sandusky and an underage boy. The incident never led to any formal charges, and efforts to understand why are complicated by the fact the former local district attorney, Ray Gricar, went missing under mysterious circumstances in 2005, according to The New York Times.

McQuaide Blasko's Web site identifies Courtney as pro bono counsel to Second Mile. He did not respond to a request for comment Wednesday about his work for either the charity or Penn State. The university replaced Courtney and McQuaide Blasko as general counsel last year.

Title IX's Demise in the Public School System

Title IX is a 1972 federal law which requires gender equity for boys and girls in every educational program that receives federal funding. This includes the vast majority of public school systems in our country.

Title IX prohibits both teacher-student harassment and student-student harassment. It also prohibits a hostile environment based on gender. The goal is to eliminate sex-based discrimination in federally assisted education programs. Every public school has an affirmative obligation to prevent sex-based harassment and to lessen the harm to students if, despite their best efforts, harassment occurs.

Almost forty years after the enactment of Title IX, a recently released study by the American Association of University Women reveal that sex-based harassment is pervasive in the public school system.

According to the report, Crossing the Line: Sexual Harassment at School, nearly half of 7th to 12th graders experienced sexual harassment in the last school year with 87% of those who were harassed reporting negative effects such as absenteeism, poor sleep and stomachaches.

For the purposes of the study, harassment was defined as “unwelcome sexual behavior that takes place in person or electronically.” Over all, girls reported being harassed more than boys—56% compared with 40%—though it was evenly divided during middle school. Boys were more likely to be the harassers, according to the study, and children from lower-income families reported more severe effects.

“It’s pervasive, and almost a normal part of the school day,” said Catherine Hill, the director of research at AAUW and one of the report's authors.

Over all, 48% of students surveyed said they were harassed during the 2010-11 school year. Forty-four percent of students said they were harassed “in person”—being subjected to unwelcome comments or jokes, inappropriate touching or sexual intimidation—and 30% reported online harassment, like receiving unwelcome comments, jokes or pictures through texts, e-mail, Facebook and other tools, or having sexual rumors, information or pictures spread about them.

Whatever the medium, more girls were victims: 52% of girls said they had been harassed in person and 36% online, compared with 35% of boys who were harassed in person and 24% online.

Harassers come in all shapes and sizes, but the AAUW survey revealed overarching patterns. Nearly all the behavior documented in the survey was peer-to-peer sexual harassment. Boys were more likely than girls to say they sexually harassed other students (18% vs. 14%). Most students who admitted to sexually harassing another student were also the target of sexual harassment themselves (92% of girls and 80% of boys). Almost one-third (29%) of students who experienced sexual harassment of any type also identified
themselves as harassers. Only 5% of students who had never experienced sexual harassment identified themselves as harassers.

It is clear from this study that Title IX's promise of a learning environment free from sex harassment has failed miserably. Students revealed that the ability to anonymously report problems was a top recommendation (57%) as was enforcing sexual harassment policies and punishing harassers (51%). Schools which fail to address the behavior outlined in this report are inviting not only costly litigation, but a student-body which is rife with discord and distress.

Sadly, behavior which is not tolerated in the workplace has become a routine part of student life in our nation's public schools. At a time when workplace sex harassment has taken center stage in the Republican presidential race (40% of Republicans and Independents consider the employment based sex harassment claims against candidate Herman Cain a "serious matter"), the even bigger problem of sex harassment in school has gone all but unnoticed.

It's time for the public school system to return Title IX to it's rightful place as guarantor of a educational environment free from sex based harassment in every form and format. Schools need to continuously publicize and promote sex harassment policies and procedures. They need to institute anonymous reporting and vigorous enforcement. Schools need to institute a zero tolerance policy for both bullying and sex harassment. If we can have drug free school zones, why not harassment free school zones too?

Court Rules Attorney-Client Privilege ≠ Colorado GAL-Attorneys

Last week, the Colorado Supreme Court ruled that the attorney-client privilege does not apply to conversations between guardians ad litem and the children they represent in child abuse, child welfare and custody cases. In Colorado, a guardian ad litem is an attorney appointed to represent a child who has been abused or neglected or is in foster care. They are also appointed for children are accused of crimes or involved in a custody fight.

In a very controversial 5-2 decision, the Court held that “because a child who is the subject of a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem, neither the statutory attorney-client privilege nor ethical rules governing an attorney’s obligations of confidentiality to a client strictly apply to communications by the child.”

Justice Nathan Coats, writing for the majority, found that a guardian ad litem does not represent litigants on opposite sides of a case “or even the demands or wishes of the child. … The guardian ad litem is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child.”

The underlying case, People v. Gabriesheski, involved a man criminally charged with abusing his step-daughter. While that case was pending, the department of human
services filed a case in juvenile court and an attorney was appointed as guardian ad litem to represent the child victim. During the criminal case, the prosecutors
attempted to call the GAL to testify about her private conversations with the victim. Both lower courts held that the conversations between the victim and her GAL were
protected by attorney-client privilege.

The Supreme Court reversed, basing its decision on the duty of a child's attorney to protect his or her client from abuse; a lawyer acting as a guardian ad litem is supposed to help the court act in the child's best interest even if the child doesn't want the lawyer to reveal information.

The dissent wrote that “the majority's decision deprives children of the right to legal representation. … the impact of this decision will have devastating effects on the ability of guardians ad litem to fully represent the best interests of children in dependency and neglect proceedings. Because children will no longer have the protection of the attorney-client privilege, guardians ad litem will be required to disclose information about their wards even when it is not in the child's best interests to do so. This outcome, which appears to be based on a generalization that a child is incapable of being involved in the legal process, is at odds with a child's fundamental right to be represented in court, and fails to protect the legal rights of children.”

The Rocky Mountain Children’s Law Center, a nonprofit organization that provides legal advocacy for abused and neglected children in Colorado, stated that “this decision denies children in the Colorado child protection system effective legal representation by depriving them of the opportunity to have confidential conversations with the attorneys appointed to protect their best interests. The Colorado Supreme Court has decided that abused children are not entitled to one of the most basic benefits of legal representation, which is having a trusting, confidential relationship with an attorney.”

Jeff Koy, the director of litigation of the Children’s Law Center, who has served as a court-appointed GAL for more than 12 years, argued in this case that conversations between GALs and children should be protected. “Children have a right to be in a safe home and receive the treatment services they need. GALs are charged with ensuring that children are provided these protections. To do this effectively, children must be able to trust us,” said Koy. “They have to be able to
confide in us about where they feel safe and what happened to them without fear of having their confidences betrayed. Otherwise, the very people who abused them may
learn what the child said.”

“The children we represent have often been through horrific abuse before landing in state care,” Koy said. “They need someone to confide in. Until today, that person was their GAL.”

The old adage “hard cases make bad law” rings especially true in this case. As a longtime victim's advocate and even longer-time children's advocate, the tension between what's best for your client and what should be done to keep your client healthy and safe thankfully does not often conflict. When it does, however, the implications can be far-reaching.

Many years ago I represented an eleven year old child in exactly the same situation. After an immigrant girl was removed from her home for alleged physical abuse, I was appointed as her “law guardian.” At that time the GAL role was ill-defined and unclear. My client denied the abuse and wanted desperately to return to her family.

When the judge asked me for my recommendation, I stated emphatically that my client wanted to return home. When pressed further, I informed that court that I was not personally or professionally taking a position on whether or not she should return home, but instead informing the court of my client's expressed wishes. I explained that I had interviewed my client, her teachers and family friends; that my client was mature enough to have a position; that she understood the consequences of her decision; that she expressed her wishes to me clearly and repeatedly; that I was my client's only voice in the court system and felt compelled to advocate for her expressed wishes and not her “best interests.”

Reluctantly, the court turned to the child welfare agency which was unable to substantiate any of the abuse charges and the case was dismissed allowing my client to return home.

I'm not sure how I would have handled the case if my client told me she was being abused. Understanding what I now know about victims, I can appreciate the fact that children rarely disclose physical and sexual abuse and when they do they should be believed.

When children do disclose such things to their attorney-GAL, there are legitimate and ethical ways to address any real or perceived conflict. The child's attorney can ask that a GAL be appointed to represent the child's best interest. The child's attorney can ask the court to permit withdrawal based on “irreconcilable differences” which make the attorney-client relationship is unsustainable. The child's attorney can counsel the client to an end result which keeps the client safe and preserves confidences.

What makes this case so unsettling is that the Colorado Supreme Court is directly requesting that an attorney reveal client confidences. This case is not about a “recommendation” or a request for “the child's best interest.” It is a direct invasion into the relationship between the child and her attorney. It goes far beyond defining the role of an attorney-GAL to assaulting the very foundation of the now non-existent attorney-client relationship.

The Colorado Supreme Court's decision strips a child from ANY advocate in the court system. It applies not only to sexual abuses cases, but to all cases involving a child including custody, child welfare and even criminal cases. Imagine a juvenile delinquency case in which the prosecutor can force the child's attorney to testify against his or her client. Imagine a child custody case in which a parent can force a child's GAL to testify about which parent the child prefers.

The Court's decision here has far-reaching implications. It was ill-advised, ill-conceived and vastly over-broad. In solving one perceived problem (after all, we don't know that the child client in this case told her attorney anything about the sexual abuse), it creates an untold number of complications with the end-result that children in the Colorado court system no longer have reliable advocates or an unconstrained voice.

Child Pornography Victims Abandoned at the Supreme Court

Last week, the Solicitor General filed this brief with the United States Supreme Court which effectively denies child victims the ability to obtain criminal restitution from the thousands of child molesters and pedophiles who collect and share child pornography.

The defendant in the case currently pending before the Supreme Court, Amy v. Monzel, admitted to law enforcement that he sexually abused his granddaughter and traded images of girls being sexually abused. A search of his home uncovered more than 800 child sex abuse images including pictures of Amy, the victim in this case. The defendant pleaded guilty to distributing child pornography and was sentenced to 10 years in prison.

The District court ordered the defendant to pay just $5000 in criminal restitution to Amy, a girl whose rape and sexual abuse images were found in his collection. That award was overturned on appeal. Amy then appealed to the Supreme Court where three amici joined her in asking the Court to take the case.

Despite supporting the victims in the lower courts, the government abandoned victims of child pornography at the Supreme Court by asking the Court not to review the Court of Appeals’ denial of restitution. The Solicitor General's position on this issue effectively strips victims of child pornography the ability to obtain criminal restitution from any of the thousands of child molesters and pedophiles who collect and share their child sex abuse images.

The Solicitor General is essentially asking the Supreme Court to uphold a standard of proof that government cannot meet. During the past two years, the government has failed in hundreds of cases throughout the country to convince federal judges that the standard they are now defending in the Supreme Court will result in any restitution for victims of child pornography. In July, the government lost this case in the Ninth Circuit on just this issue and decided not to appeal to the Supreme Court.

Victims of child pornography deserve their day in court. Three amicus filed briefs in the Supreme Court supporting this basic right, highlighting the importance of this issue for children who are sexually abused and exploited through child pornography.

As a candidate in 2008, President Obama supported the death penalty for defendants convicted of raping a child. Now the Solicitor General is promoting a standard which will save some of these same defendants from paying restitution to their victims. While millionaire child molesters are housed in government prisons at taxpayer expense, child sex abuse victims like Amy must rely on public assistance and charity to take care of their most basic needs.

When Congress—led by then Senator and now Vice President Biden—passed the child pornography restitution statute in 1994, it made restitution mandatory for victims. In fact, Congress felt so strongly that every child pornography victim receive the “full amount” of their losses that it used the word mandatory twice in the statute. Despite this clear requirement, federal courts throughout the country are confused and their often arbitrary approaches have led to widely differing outcomes for victims. A deepening split among the Courts of Appeals and the district courts require a decisive decision and direction that only the Supreme Court can provide.

Only the Supreme Court can conclusively guarantee a child pornography victim's right to restitution. Justice delayed is justice denied. Victims of child pornography have waited and suffered long enough.

Children's Law Center - Helping Children Soar

Clients of Children's Law Center talk about why they needed help from our lawyers and what they were able to achieve together. This video premiered at the annual Helping Children Soar Benefit on September 21, 2011 and focuses on CLC's adoption and guardianship work creating forever families. Visit www.childrenslawcenter.org for more information.

Child Pornography Restitution Now Before the Supreme Court

Two years ago, the Marsh Law Firm filed the first-ever request for federal criminal restitution against a convicted child pornography collector. Since then, we have filed over 700 requests for restitution in every federal district court in the country.

Despite a few decisive victories, a child pornography victim's right to restitution is being curtailed in circuit after circuit. Recent federal Circuit Court decisions have effectively barred restitution in the Second and Ninth Circuit and the District of Columbia Circuit. Only in the Fifth Circuit—encompassing the states of Texas, Louisiana and Mississippi—is restitution still mandatory.

When Congress passed the child pornography restitution statute in 1994, it made restitution mandatory for victims. In fact, Congress felt so strongly that every child pornography victim receive the “full amount” of their losses that it used the word mandatory twice in the statute. Despite this clear requirement, many federal courts have sought to limit the amount that convicted child pornography collectors pay their victims by forcing victims to prove precisely how much each individual defendant injured them.

The federal district courts are also severely divided on how to interpret the child pornography restitution statute. Some district courts have held that victims seeking restitution need not establish proximate cause. Other district courts have read a general proximate cause requirement into the statute and then concluded that proximate cause was not established.

Still other district courts read a general proximate cause requirement (or in some courts simply “causation”) into the statute and then find that the victim provided sufficient proof to obtain at least some restitution. The approaches are often arbitrary and have led to widely differing outcomes. For example, a few district courts have
awarded “nominal” restitution in an arbitrary amount, sometimes as low as $100.

The Fifth Circuit got it right in March when it found that “[c]ourts are required to award victims of child sex abuse ‘the full amount of the victim’s losses.’” It held that “Congress abandoned the proximate causation language that would have reached all categories of harm … This change is consistent with the reasons for enacting a second generation of restitution statutes. The evolution in victims’ rights statutes demonstrates Congress’s choice to abandon a global requirement of proximate causation.”

Last month, in an effort to restore a child pornography victim's rapidly eroding right to restitution, the Marsh Law Firm filed a Petition for a Writ of Certiorari in the United States Supreme Court. Only the Supreme Court can conclusively resolve this issue and guarantee a victim's right to restitution under the child pornography restitution statute. A deepening split amongst the federal circuits and the district courts require a decisive decision and direction that only the Supreme Court can provide.

A coalition of child advocates recently filed three separate amicus briefs supporting our request for Supreme Court review. This rare occurrence will hopefully put the issue of child victim restitution squarely before the Court which is now considering whether or not to accept our case.

Thank you to all the amici who spent a significant amount of time and effort to get these uncommon amicus briefs filed during the summer months. Child victims are grateful for your tireless work on their behalf now and in the future.

Click on the links to read the briefs by the National Center for Missing and Exploited Children, the National Crime Victim Law Institute and the National Association to Protect Children.

The Marsh Law Firm's Petition for Cert is here.

Pedophiles Lobby for Acceptance

Two recent articles expose a political effort by pedophiles to gain acceptance and legitimacy. Last week FoxNews reported that a group of psychiatrists and other mental health professionals are lobbying for changes to the Diagnostic and Statistical Manual of Mental Disorders, or DSM, the guideline of standards on mental health that's put together by the American Psychiatric Association. According to FoxNews:

The organization, which calls itself B4U-Act says its mission is to help pedophiles before they create a crisis, and to do so by offering a less critical view of the disorder.

"Stigmatizing and stereotyping minor-attracted people inflames the fears of minor-attracted people, mental health professionals and the public, without contributing to an understanding of minor-attracted people or the issue of child sexual abuse," reads the organization's website.

B4U-Act said that 38 individuals attended a symposium in Baltimore last week, including researchers from Harvard University, Johns Hopkins University and the universities of Illinois and Louisville. According to the group, which said to not endorse every point of view expressed, the speakers in attendance concluded that "minor-attracted" individuals are largely misunderstood and should not be criminalized even as their actions should be discouraged.

Speakers also argued that people who are sexually attracted to children should have input into the decision about how pedophilia is defined in the DSM, which they said is supposed to be a guide to promote “mental health vs. social control.”

Critics of the conference say it was a thinly veiled attempt to make children of any age sexually accessible to adults.

That same week, the New York Times ran an op-ed entitled "Sex Offenders: The Last Pariahs" The author, Professor Roger N. Lancaster, argues that:

Our sex offender laws are expansive, costly and ineffective — guided by panic, not reason. It is time to change the conversation: to promote child welfare based on sound data rather than statistically anomalous horror stories, and in some cases to revisit outdated laws that do little to protect children. Little will have been gained if we trade a bloated prison system for sprawling forms of electronic surveillance that offload the costs of imprisonment onto offenders, their families and their communities.

This sounds reasonable until you consider that Lancaster ignores recent research which indicates a substantial rate of recidivism by convicted child sex offenders. According to Lancaster "only a tiny proportion of sex crimes are committed by repeat offenders."

A recently reported study of individuals incarcerated for possession, receipt and distribution of child pornography, however, found that these offenders were significantly
more likely than not to have sexually abused a child via a hands-on act.

The study’s authors suggest that online criminal investigations, while targeting so-called “Internet sex offenders,” likely have resulted in the apprehension of concomitant child molesters. Upon being discovered these offenders tend to minimize their behavior. They may attribute their search for child pornography to “curiosity” or a similar benign motivation. They may “accept responsibility” only for those behaviors that are already known to law enforcement, but hide any contact sexual crimes to avoid prosecution for these offenses, or to avoid the shame and humiliation that would result from revealing their deviance to family, friends, and community. Only later do the majority of sex offenders who enter treatment acknowledge that they were not, as they initially claimed, merely interested in sexual images involving children; they were, and are, sexually aroused by children.

Further, as prior research and the current findings suggest, it appears that the manifestations of their deviant sexual arousal was not limited to fantasy. Rather,
when an opportunity arose either incidentally or as a result of planned predatory efforts many offenders molested or raped children and engaged in a variety of other
sexually deviant behaviors. Michael L. Bourke & Andres E. Hernandez, The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child
Pornography Offenders, Journal of Family Violence (2009) 24:183-191.

In addition, one study of sex offenders found an overall recidivism rate of 31.7%. Kingston, Drew, et al., Pornography Use and Sexual Aggression: The Impact of
Frequency and Type of Pornography Use on Recidivism Among Sexual Offenders, Aggressive Behavior, Volume 34 (2008).

The predicted odds of recidivism increased by 177% among the offenders that viewed deviant pornography such as child pornography. Moreover, the predicted odds of
violent recidivism, including sexually violent recidivism, increased by 185% for this group. The predicted odds of any type of sexual recidivism increased by 233% for
the group that admitted to viewing deviant pornography. This increased risk of recidivism among sexually deviant offenders has also been found in earlier studies,
including a meta-study from 1996 (updated in 2004). See Hanson, R. Karl, et. al., Predictors of Sexual Recidivism: An Updated Meta-Analysis, Public Works and Government Services Canada (2004).

Indeed, a study slated for publication in December, followed 201 registered male child pornography offenders 5.9 years after release from prison. In this extended follow-up, 34% of offenders had new charges for any type of reoffense, with 6% charged with a contact sexual offense against a child and an additional 3% charged with historical contact sex offenses (i.e., previously undetected offenses). Predictors of new violent (including sexual contact) offending were prior offense history, including violent history, and younger offender age. Approximately a quarter of the sample was sanctioned for a failure on conditional release; in half of these failures, the
offenders were in contact with children or used the internet, often to access pornography again. Angela W. Eke, Michael C. Seto & Jennette Williams, Examining the Criminal History and Future Offending of Child Pornography Offenders: An Extended Prospective Follow-up Study, Law Hum Behav (2011) 35:466-478.

And remember, these studies only count repeat offenders who were caught. Given the huge and well-documented under-reporting of sex crimes by children, the recidivism numbers are likely to be much higher.

Clearly, sound public policy should not be based on "moral panic," supposition or shoddy evidence. Unfortunately for B4U-Act and Lancaster, the research is all too clear. Criminals who represent a clear and present danger to our communities need continued incarceration and close monitoring. That's reason enough for everyone.

Teen Facebook Hacker Convicted of Felony Identity Theft

Last month a California state Court of Appeal ruled in In re Rolando S. that a teenage boy committed felony identity theft when he accessed a girl's account, altered her profile and posted obscene messages and comments.

The boy was one of several recipients of an unsolicited text message providing the password to the victim’s email account. He used the victim’s email and password to gain access to her Facebook account where he posted, in her name, the following messages:

On a male classmate’s wall: “I want to stick your dick in my mouth and then in my pussy and fuck me really hard and cum on my face.”

On another male classmate’s wall: “When we were dating we should have had sex. I always thought you had a cute dick, maybe we can have sex sometime.”

On the victim’s profile description: “Hey, Face Bookers, [sic] I’m [S.], a junior in high school and college, 17 years young, I want to be a pediatrician but I’m not sure
where I want to go to college yet. I have high standards for myself and plan to meet them all. I love to suck dick.”

The victim found out about the messages and informed
her father who removed the messages from her account and called the police. The boy admitted that he posted the messages and altered the victim's profile.

A juvenile petition was filed alleging one count of "willfully obtaining personal identifying information and using it for an unlawful purpose" in violation of California state law.

The boy was found guilty in juvenile court and sentenced to a juvenile academy for between 90 days and one year and placed on probation.

The boy argued that since he made no effort to obtain the password, instead passively receiving the text message on his cell phone “without his prior knowledge or consent,” he did not “willfully” obtain the victim’s email account
password for purposes of the statute.

The Court of Appeal rejected this argument, holding that the boy "willfully obtained the victim’s password when he chose to remember the password from the text message, and
later affirmatively used the password to gain access to the victim’s electronic accounts."

The boy next contended that his conduct failed to satisfy the second element; that he “use[d] [the victim’s] information for any unlawful purpose.” He reasoned that at most he “possibly defamed” the victim, but asserted that civil torts do not constitute an “unlawful purpose” for purposes of the statute.

The Court also rejected this argument explaining that intentional civil torts, such as libel, constitute an “unlawful purpose” for purposes of the statute.

The Court affirmed the juvenile court's sentence.

For years commentators and technology experts have bemoaned the lack of traditional legal remedies in the brave new world of The Internet. Now more and more courts are finding that good old legal theories such as theft, defamation and invasion of privacy can and do apply in the digital realm, if only judges and lawyers have the courage to apply them.

Legal marijuana possession = child abuse?

Today's New York Times contains an article about state child welfare investigations of parents who legally possess marijuana:

The police found about 10 grams of marijuana, or about a third of an ounce, when they searched Penelope Harris’s apartment in the Bronx last year. The amount was below the legal threshold for even a misdemeanor, and prosecutors declined to charge her. But Ms. Harris, a mother whose son and niece were home when she was briefly in custody, could hardly rest easy.

The police had reported her arrest to the state’s child welfare hot line, and city caseworkers quickly arrived and took the children away.

Her son, then 10, spent more than a week in foster care. Her niece, who was 8 and living with her as a foster child, was placed in another home and not returned by the foster care agency for more than a year. Ms. Harris, 31, had to weather a lengthy child neglect inquiry, though she had no criminal record and had never before been investigated by the child welfare authorities, Ms. Harris and her lawyer said.

“I felt like less of a parent, like I had failed my children,” Ms. Harris said. “It tore me up.”

Hundreds of New Yorkers who have been caught with small amounts of marijuana, or who have simply admitted to using it, have become ensnared in civil child neglect cases in recent years, though they did not face even the least of criminal charges, according to city records and defense lawyers. A small number of parents in these cases have even lost custody of their children.

New York City’s child welfare agency said that it was pursuing these cases for appropriate reasons, and that marijuana use by parents could often hint at other serious problems in the way they cared for their children.

Is this good case work or child protection overkill?

Now consider this. Yesterday, the Ninth Circuit Court of Appeals decided in Dougherty v. City of Covina that a warrant to search a suspected child molester's computer was illegal when the only evidence linking the suspect to possession of child pornography was the experience of the requesting police officer.

In other words, while NYC caseworkers have lawful authority to remove kids from parents who possess legal amounts of marijuana based solely on their training and experience, law enforcement officials cannot search the computers of suspected child molesters based solely on their training and experience.

Should child welfare case workers be governed by the same Fourth Amendment constraints as law enforcement officers? Should a case worker be allowed to search the computers of suspected child sex abusers without a warrant? Is searching a computer any different from searching a refrigerator and finding a small amount of marijuana?

Brazilian Bass Fishing Offers More Than A Good Catch

Brazilian bass fishing is more than big business, it's also apparently a vehicle for child sex tourism. For the past 20 years, U.S. fishing aficionados have been spending up to $10,000 for trips to remote lodges in the interior reaches of Brazil or Venezuela. American sport tour ads are filled with promises of "uncompromising luxury" in plush jungle lodges, complete with resort-like amenities, fine dining and satellite phones to keep in hailing distance of the office.

Now a federal investigation and two related actions — a parallel criminal inquiry in Brazil and an unusual lawsuit filed in federal court in Georgia — could provide a rare look at the business operations of the multibillion-dollar international sex tour industry, which has increasingly focused on Brazil. The Justice Department is conducting a criminal investigation of sports fishing expeditions in the Amazon that may have been used as covers for Americans to have sex with underage girls.

Four indigenous Brazilian women, allegedly sex trafficked as minors by an American fishing tour operator, Richard Schair, operating Wet-A-Line Tours in the Amazon for many years up until 2009, filed a lawsuit for damages in the U.S. District Court for the Northern District of Georgia. Initiated and coordinated by international human rights organization Equality Now, the landmark civil case will be filed by Atlanta law firm King & Spalding. The case is noteworthy because it is the first time that the Trafficking Victims Protection Act (TVPA) will be used by alleged victims of trafficking to seek damages from a sex tour operation.

The four women allege an American operating fishing tours in the Amazon lured girls onto his fishing boats with the promise of earning money and that they were then given alcohol and drugs and made to perform sexual acts with male customers. All four plaintiffs were minors when they were allegedly sold for sex.

For more background on this lawsuit, see these articles in the New York Times, ABC News, and the Dallas Morning News.

Here is the Complaint, Motion for Stay, and Answer filed in the federal civil case.

Foster Children Speak to Congress - is anyone listening?

This summer, fifteen former foster children worked as Capitol Hill interns and developed a set of policy recommendations outlined in a recently released report entitled "The Future of Foster Care - a revolution for change."

Among the recommendations created by these former foster youth:

• Congress should require that an education advocate be trained and assigned to every foster child in special education;


• Congress should require that surrogate parents be trained on the unique needs of foster youth in special education;


• Documented and undocumented immigrant children within the foster care system deserve the same basic rights and freedoms that are granted to children in other demographics, yet the child welfare system is not set up to allow these children to access the services that they deserve;


• The greater prevalence of mental health issues among foster youth does not justify the assumption which too often exists among foster parents, child welfare professionals, or other adults involved in the foster child’s life that the best way to help alleviate issues is through medication;


• States need to be held accountable to the foster child’s education outcomes;


• To ensure that the foster youth is receiving a proper education, there should be an education point person placed within the foster youth’s school district;


• One option for ensuring the success of foster youth is to provide them with a consistent and stable mentoring relationship;


• Congress should fund individual charter schools dedicated entirely to early childhood and preschool education of foster children in the ten cities in the nation with the largest foster care populations;


• Each foster parent should be given the same monthly maintenance payment, regardless of behavioral, mental or physical health needs. If a youth needs more services, this is where the money needs to be invested. More resources, such as individual therapy, tutoring, parenting classes, family counseling, wraparound services, a behavior coach, or other services should be made available, however, not as direct funds to foster parents;


• Congress should require the Department of Health and Human Services (HHS) to collect from the relevant agency of each state information on the type and quality of legal representation that children in the dependency court process receive and the laws and regulations that pertain to this representation;


• Congress should pass legislation requiring all states to recognize children in dependency court proceedings as a legal party to the case;


• Congress should require all states to implement a client directed model of legal representation for all children in the dependency court process. States should be allowed no more than three years to fully comply with this implementation, and those that do not fully comply should be penalized by a reduction in federal child welfare funding.

Congressional leaders and members should read and heed this excellent report. If there's something everyone should be able to agree upon, it's that foster children deserve our continued and tireless concern and advocacy. Given Congress' record low standing and the American people's absolute disgust with the functioning of government and the foul stench of mindless partisanship, perhaps this is one agenda which can bring members together to do what's right and decent for a change.

Handling Lost/Destroyed Records in Child Welfare Tort Litigation

A recently published article in the American Bar Association's Child Law Practice examines the potential effects of failing to preserve or produce evidence in the child welfare context. Best practices are offered from three perspectives—the plaintiff, the defending agency, and the court.

Litigation involving public and private social services agencies should make administrators and attorneys keenly aware of the obligation to preserve evidence. Across the country, torts regarding individual children in the child welfare system are common.

Professor Daniel Pollack and his co-author Associate Professor Dale Margolin explain that while lost records are common in child welfare torts, the issue has long been overlooked by litigators and courts. Recently, however, it is starting to receive attention. Attorneys and judges must be mindful of incomplete, altered, and destroyed case records. This includes taking preventative steps, while also being prepared to ask for evidentiary and other sanctions or pursuing separate tort actions when lost or destroyed records are harming a party.

Contact Professor Pollack by email for a copy of this timely in-depth article.

The Free Market in Child Pornography

More than six years after the international law enforcement community began desperately searching for the child pornography victim known as the Disney World Girl, justice remains allusive for Masha Allen. Despite two Congressional investigations in 2006 and pressure from Nancy Grace and Oprah, none of the perpetrators involved with her international adoption have been brought to justice.

Despite the involvement of almost 30 lawyers since Masha was rescued from Matthew Mancuso in 2003 (including the prosecutor and lead investigator in the much-hyped Caylee Anthony investigation), not one of the many child welfare institutions and organizations who were involved with Masha's international and domestic adoptions have paid one dime for her care and recovery.

And despite a federal law named for her, not one case has been brought on her behalf under Masha's Law which guarantees $150,000 from each of the thousands of child molesters who collect and trade her images each year.

Neither a high-profile 2008 exposé in Wikileaks nor aborted investigations by ABC News in 2009 and the Pittsburgh Post-Gazette in 2010 have been able to shed any light on the abject failure of the American justice system to vindicate the rights of one of the most notorious victims of child trafficking in this country's history.

Ms. Allen will turn 19 in just a few days. With each passing year, her ability to collect anything from anyone diminishes substantially. The tolling she enjoyed as a minor under the Pennsylvania statute of limitations ended when she reached legal adulthood last year. Law suits for intentional torts typically must be brought within a year. Claims for fraud, personal injury or professional malpractice must be brought before Masha turns 20. This includes a lawsuit under the Notice of Claim relating to her failed domestic adoption by Faith Allen which we filed back in 2007.

Masha's millionaire father also has somehow escaped civil liability for what he did to Masha. And while other victims are collecting hundreds of thousands of dollars in mandatory restitution in the federal courts, Masha has sought and received nothing.

Now Masha's Law itself is under attack. In 2009, Jesse Walker, the influential editor of Reason magazine (which espouses "free minds and free markets"), wrote an editorial entitled The Blurry Boundaries of Child Porn. Walker correctly summarizes Supreme Court jurisprudence which makes child pornography outside the scope of First Amendment protection when he recognizes that "[t]he viewing [of child sex abuse images], in this analysis, is itself a perpetuation of the abuse."

Walker continues:

Such arguments undergird Masha’s Law, named for Masha Allen, a Russian orphan who was held prisoner, raped repeatedly on camera, and advertised in the kiddie porn world as “Disney World Girl.” The measure, which became law in 2006, allows adults who were victimized by pornographers as minors to sue people who download the resulting images.

Emotionally, it’s a compelling concept. And where invasion of privacy is the concern, civil remedies certainly make more sense than criminal prosecutions. But the idea opens a can of worms. If the issue is privacy, shame, and being haunted by ineradicable images, wouldn’t the same argument apply to the abused prisoners photographed at Abu Ghraib? To hostages filmed by their captors and aired on the news? To anyone humiliated in front of a camera? Should an inadvertent Internet celebrity, deeply embarrassed that people are chuckling at a clip of his light-saber dance, have standing to sue the viewers?

That last example might seem absurd, but it actually veers close to the pornography debate. Because the child porn laws set the age of maturity so high, they cover not just the victims of coercion but exhibitionists who voluntarily put photographs of themselves online. There also are people who post pictures that are salacious but don’t include the “lascivious exhibition of the genitals or pubic area” invoked by the law. They do not necessarily intend for anyone but their friends to see the photos. But the Internet doesn’t always work that way.

After analogizing Masha's child sex abuse images to teen-aged girls in bikinis and equating them with a video clip of a "light-saber dance," Walker declares "Is it the role of the government to preserve her peace of mind? … I’m not convinced that’s reason enough to punish the people who merely see those recordings, as opposed to the people who actively participate in the abuse of prisoners like Allen."

Perhaps what Walker desires is a "free market" in child pornography which will "free the minds" of the tens of thousands of child molesters and pedophiles who actively collect and trade child sex abuse pictures and videos.

Walker's vision, however, is hardly "free" or fair to the victims. Until the legal system insures that victims like Masha Allen can recover for the very real harms caused by the horrific abuse inflicted on them by the production, distribution and collection of child sex abuse images, the "market" is neither free nor fair.

And as we've seen in the Masha Allen case, if Congress, Oprah and 30 lawyers can't bring justice to one victim, then deregulating the market for child pornography is hardly the answer. Sadly, Walker's unfettered "free market free mind" is currently much closer to reality than the victims' "peace of mind." Unfortunately, for Masha Allen and thousands of other victims of child pornography, justice remains long in coming.

Abused Child Victim Denied Lawyer at Psych Exam

Last month, a federal judge ruled that a child who is suing the Boy Scouts for emotional distress for abuse at a faith-based military camp is not entitled to have his lawyer present during a psychiatric examination.

In M.S. et al v. Cedar Bridge Military Academy et al, federal Magistrate Judge Martin C. Carlson found that a lawyer's presence "interjects an adversarial, partisan atmosphere into what should be otherwise a wholly objective inquiry."

Judge Carlson explained that there is a conflict between federal civil procedure and the Pennsylvania rules. The federal rule and case law discourage any observers, while Pennsylvania's Rule 4010 permits lawyers to attend such examinations.

The judge concluded that Rule 4010 is not a "rule of substance" that is binding on the federal courts, but rather "is simply a procedural preference which does not control our exercise of discretion" under Rule 35 of the Federal Rules of Civil Procedure.

Rule 35, however, allows the court to determine “the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Rule 35 "consigns the procedures to be used in conducting these examinations to the sound discretion of the court, an approach that is consistent with the general guidance of the rules which provide that issues relating to the scope of discovery rest in the sound discretion of the Court."

Clearly, under this analysis, Judge Carlson could have allowed the victim's parents or attorney to be present during the exam subject to whatever reasonable "conditions" the court imposed. Judge Carlson recognized that "[i]n considering this question, we note that the exercise of our discretion compels a choice between conflicting guidance. Rule 35 does not, by its terms, specify who may attend a psychiatric examination undertaken in connection with civil litigation."

There was no discussion that this case involves a child victim nor any consideration of the child's maturity or any special circumstances which would necessitate the attorney's presence at the exam.

Court Okays Student's MySpace Principal Parody

The Third Circuit Court of Appeals has finally ruled that school officials cannot discipline students for ridiculing their principals on MySpace during their hours away from school.

As I discussed last year in the blog here, the Court agreed to re-hear both cases en banc (with the Court's entire 14 judges considering the case). In the first, J.S. v. Blue Mountain School District, the judges were sharply split, voting 8-6 to overturn a 10-day suspension of a student who posted a fake profile on MySpace that portrayed the principal as a pedophile and a sex addict.

The majority opinion rejected the school district's argument that such lewd speech—even when it occurs off campus—may be punished if it targets school officials and has the potential to create a disturbance at school. Such a determination "would vest school officials with dangerously overbroad censorship discretion."

The Court found that the student had created the fake profile "as a joke," and took steps to make it private so that it would be accessible only to her and her friends.

While it was "indisputably vulgar," it was also "so juvenile and nonsensical that no reasonable person could take its content seriously."

The Court concluded that lewdness and a connection to the school community was not enough to satisfy the Tinker and Fraser tests. In order for the Court to rule for the school district, the explained that it would be forced to "adopt a rule that allows school officials to punish any speech by a student that takes place anywhere, at any time, as long as it is about the school or a school official, is brought to the attention of a school official, and is deemed 'offensive' by the prevailing authority."

The second case, Layshock v. Hermitage School District, was less controversial. The Court unanimously held that the school district waived any so-called Tinker defense that focuses on speech that causes disturbances at school.

The majority in that decision held that it would be "an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities."

Judge Overturns 6-Year-Old's Expulsion Over Touching

A Philadelphia judge has ruled that a kindergartner should not have been expelled from a charter school because he allegedly touched his teacher’s thighs.

Philadelphia Common Pleas Court Judge Paul P. Panepinto, writing an opinion explaining his decision to the Commonwealth Court May 23, said that, on the record before him, no reasonable person would have reached the same decision as the First Philadelphia Charter School for Literacy’s Board of Trustees to expel a student who allegedly touched his teacher’s legs after she complained that they hurt.

The decision to expel the kindergartner was arbitrary, capricious and prejudicial to the public interest and was a gross abuse of discretion, Panepinto said.

Read the full story here at The Legal Intelligencer.