International Adoption: it's even more complicated than you thought

From today's New York Times, a followup to their August article on international adoption trafficking.

But many parents saw China as the cleanest of international adoption choices. Its population-control policy, which limited many families to one child, drove couples to abandon subsequent children or to give up daughters in hopes of bearing sons to inherit their property and take care of them in old age. China had what adoptive parents in America wanted: a supply of healthy children in need of families.

As Mr. Mayer reasoned, “If anything, the number of children needing an adoptive home was so huge that it outstripped the number of people who could ever come.”

This narrative was first challenged in 2005, when Chinese and foreign news media reported that government officials and employees of an orphanage in Hunan had sold at least 100 children to other orphanages, which provided them to foreign adoptive parents.

Mr. Mayer was not aware of this report or the few others that followed. Though he knew many other adoptive families, and was active in a group called Families With Children From China — Greater New York, no one had ever talked about abduction or baby-selling.

“I didn’t even think that existed in China,” he said.

Again he paused.

“This comes up and you say, holy cow, it’s even more complicated than you thought.”

Read the entire article here.

Autistic and Seeking a Place in an Adult World

An excellent article in today's New York Times about the challenges and promises decades of special education have delivered for autistic children.

People with autism, whose unusual behaviors are believed to stem from variations in early brain development, typically disappear from public view after they leave school. As few as one in 10 hold even part-time jobs. Some live in state-supported group homes; even those who attend college often end up unemployed and isolated, living with parents.

But Justin is among the first generation of autistic youths who have benefited throughout childhood from more effective therapies and hard-won educational opportunities. And Ms. Stanton-Paule’s program here is based on the somewhat radical premise that with intensive coaching in the workplace and community — and some stretching by others to include them — students like Justin can achieve a level of lifelong independence that has eluded their predecessors.

“There’s a prevailing philosophy that certain people can never function in the community,” Ms. Stanton-Paule told skeptics. “I just don’t think that’s true.”

With some 200,000 autistic teenagers set to come of age in the United States over the next five years alone, little is known about their ability to participate fully in public life, or what it would take to accommodate them. Across the country, neighbors, employers, colleagues and strangers are warily interacting with young adults whose neurological condition many associate only with children.

Read the complete article here.

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.

New York Times Reports on Marsh Law Firm's Restitution Efforts

In a follow-up to a February 2010 profile of the Marsh Law Firm's groundbreaking work pursuing federal criminal restitution for victims of child pornography, the New York Times released this story today about a decision in the Second Circuit.

A victim of child pornography seeking restitution should not receive court-ordered payments from those who possessed the images but had no hand in creating them, a federal appeals panel ruled Thursday. The young woman, referred to in court papers as Amy, was known as “Misty” in pornographic images created by her uncle. The uncle was convicted and imprisoned on child pornography charges, but the images continue to be widely circulated and downloaded.

Since then, Amy’s lawyers have entered pleas in hundreds of child pornography possession cases around the country seeking payment for their client’s lost wages and counseling through federal criminal restitution statutes, asking for more than $3 million in each case. They have submitted nearly 700 of these pleas, and have recovered $345,000 so far.

Some federal district courts have granted nothing, stating that the link between Amy’s harm and the act of possession is too tenuous to support a restitution order. A Florida court ordered the full $3,680,153, with others in between.

The Second Circuit decision may be the toughest of several recent rulings in cases involving Amy; a decision out of the 11th Circuit upheld the restitution award, while others have denied payment.

Paul G. Cassell, a former federal judge and Utah law professor who has joined Amy’s legal team for appellate argument, said that with federal circuits divided, “we are hoping the Supreme Court will step in to resolve the issue and enforce the law as we think it was written — and not impose this impossible burden on crime victims to trace out to each and every defendant what exact percentage of the law was attributable to them.”

Amy's fight for justice is far from over, however, and her case is already pending in the Supreme Court. More on this in the coming days. For now, read the full story on the New York Times website here.

No Neglect by Mother who Mistakingly Left Child Home Alone

Last month the New Jersey Supreme Court in Dept of Children & Families, Div. of Youth & Family Servs. v. T.B. held that a finding of neglect was improperly entered against a mother who left her four-year-old child unsupervised for two hours under the mistaken belief that his grandmother was in the home.

Susan and her then four-year-old-son, John, were living with Susan’s mother, Mary, and step-father, Jim, who assisted in caring for John on a regular basis. Although Susan and John lived downstairs, the entire house was accessible to John and he moved freely to the upstairs portion of the home where his grandparents lived.

On Sunday, March 25, 2007, Susan and John returned home between 7:00 p.m. and 7:30 p.m. Susan immediately put John to bed and, with the belief that Mary was home, went to eat dinner with a friend. Susan believed that Mary was home sleeping because she saw Mary’s car in the driveway; Mary had been ill all week with the flu; Mary was always home on Sunday nights to prepare for work on Monday morning; and Jim worked on Sunday nights.

Mary, however, was not home because she and Jim took an impromptu trip to New York. Shortly after 9:00 p.m., John woke up and discovered that he was alone. He left the house, crossed the street, and told his neighbor that he could not find his mother. The police department was contacted. When Susan returned from dinner between 9:30 p.m. and 10:00 p.m. she was transported to the police station, where she gave a handwritten statement.

Mary and Jim returned from New York and attested to the impromptu nature of their trip and that Mary is always home on Sunday nights. No criminal charges were filed against Susan and the matter was turned over to DYFS.

DYFS substantiated the neglect allegation against Susan based upon inadequate supervision under New Jersey law.

Susan filed an appeal and the matter was referred to the Office of Administrative Law. After a hearing, the Administrative Law Judge (ALJ) recommended dismissal of the charges against Susan, concluding that DYFS did not prove by a preponderance of evidence that the physical, mental, or emotional condition of Susan’s child was impaired or was in imminent danger of becoming impaired as a result of her failure to exercise a minimum degree of care.

The DYFS Director rejected the ALJ’s decision and reinstated DYFS’s finding substantiating child neglect against Susan. The DYFS Director observed that Susan failed to take the cautionary actions of supervision that are expected and, although John was not harmed, the omission exposed him to a substantial risk of harm.

The Appellate Division affirmed. The Appellate Division was satisfied that sufficient credible evidence existed in the record to support the Director’s finding that Susan failed to exercise the minimum degree of care required under New Jersey law and concluded that Susan had placed John at substantial risk of harm by failing to ensure that her mother or step-father was at home before leaving the house.

The New Jersey Supreme Court granted Susan’s petition for certification.

The Court held that Susan did not fail to “exercise a minimum degree of care” under New Jersey law because her conduct did not rise to the level of gross negligence or recklessness. Therefore, her name must be removed from the Child Abuse Registry.

The Court explained that Susan’s conduct did not constitute a failure to “exercise a minimum degree of care.” Susan did not leave her son at home alone knowing there was no adult supervision.

Instead, Susan, who lived with her parents and is intimately familiar with the rhythms of their every-day-family-life, arrived at her home on a Sunday night and saw her mother’s car in the driveway. She knew that her mother was always home on Sunday nights and that her mother had been ill all week with the flu. Further, her mother and step-father attested that Susan’s mother is always home on Sunday nights and that the trip to New York was unexpected. What occurred was totally out of the ordinary.

The Court concluded that although Susan’s failure to perform the cautionary act of assuring her mother’s presence was clearly negligent, under all of the circumstances known to her it did not rise to the level of gross negligence or recklessness.

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.

Echos of the Masha Allen case play out in a New York courtroom

I first wrote about the disturbing case of adoptive parent Judith Leekin back in 2008. Now new details of that case are emerging which share shocking similarities to Masha Allen's second adoption. According to the New York Times:

More than 30 years ago, a Queens foster mother was investigated and cited for scalding a boy in her care. But despite that finding, the city did nothing in the decades that followed to prevent the woman, Judith Leekin, from carrying out one of the most brazen and disturbing child welfare schemes in recent memory.

The failure of child welfare officials to bar Ms. Leekin from the system after that 1980 episode is one of the most striking revelations in new court reports filed in a Brooklyn lawsuit. Ms. Leekin was arrested in 2007; the authorities determined she had adopted 11 disabled New York foster children using aliases, then moved to Florida, where she subjected them to years of abuse — all the while collecting $1.68 million in subsidies from New York City until 2007.

The 1980 episode, for example, occurred at Ms. Leekin’s home on 226th Street in Laurelton, Queens, the reports show. When Ms. Leekin later adopted 11 children under four aliases over an eight-year period, she listed the same address; it was never cross-checked, the reports say.

The documents include a deposition by Ms. Leekin, taken in a Fort Lauderdale prison, in which she suggests a possible motive for her use of false identities: her concern that she would be linked to the 1980 abuse episode.

In court documents, they depict Ms. Leekin as a sophisticated serial criminal whose extraordinary scheme fooled varied professionals and could not have been foreseen or detected, given the practices and capabilities of the time.

In a jailhouse deposition in October, she came across as defensive and combative as she admitted hitting children as punishment, the 184-page transcript shows. She acknowledged being the subject of the early abuse report, and conceded she “probably” later used aliases out of concern that the earlier episode would have otherwise surfaced.

But she said that as she began adopting children under aliases — “Anne Marie Williams,” “Cheryl Graham,” “Michelle Wells” and “Eastlyn Giraud” — she was never asked for her passport, birth certificate or any other form of identification.

“Yes, I did some wrong things, sir, but they didn’t do their investigation,” she said, adding she had been made “a scapegoat.”

“They had references. Did they check out the references? No,” Ms. Leekin said. “You convicted me. You sentenced me. And now you want to come here to get a deposition from me, for what? The city has to take some kind of responsibility.”

Throughout the process, Ms. Leekin offered conflicting or false responses when asked about her employment history, income, education, assets and religion.

Mr. Safarik, the other plaintiff’s expert, wrote: “Had the defendants simply verified the self-reported information, her lies would have been uncovered.”

Read the entire story here.