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Sexual misconduct may not be abusive

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The 7th Circuit Court of Appeals vacated today a man's sentence following a guilty plea on a child pornography charge because it was unsure whether his previous conviction in Indiana for sexual misconduct with a minor should be considered abusive and allow for his minimum sentence to be increased.

In United States of America v. Sean Osborne, No. 08-1176, Sean Osborne pleaded guilty to possessing and distributing child pornography in violation of 18 U.S.C. Section 2252(a). Under that section, a defendant with a previous conviction in any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual misconduct with a minor or ward would have an increased minimum sentence of 15 years. Osborne was convicted in 2002 of violating Indiana Code Section 35-42-4-9(b), which makes it a crime for someone 18 or older to fondle or touch someone age 14 or 15 with intent to arouse the sexual desires of the child or adult.

The question in this case is whether Osborne's sexual misconduct in the 2002 case was abusive. The District Court ruled every conviction under that state statute arises from abusive sexual conduct and sentenced him to the 15-year minimum.

The federal statute section doesn't define what is abusive nor has any appellate court addressed what makes sexual conduct involving a minor abusive. Interpreting that any offense out of sexual conduct with a minor is abusive would make the use of the word unnecessary in the statute, wrote Judge Frank Easterbrook.

Under I.C. Section 35-42-4-9(b), it's possible for an 18-year-old high school student to be convicted for sexual contact with his or her 15-year-old significant other that may be considered typical behavior for high school students in a relationship.

"Exploratory touching between students in high school is not a form of 'abusive' sexual contact, as that word is ordinarily understood," wrote the judge.

Because of the lack of a definition of abusive under federal Section 2252, the 7th Circuit ruled it's best to say as a matter of federal law that sexual behavior is abusive only if it is similar to one of the crimes denominated as a form of abuse elsewhere in Title 18.

Unless the charging papers can show Osborne has been convicted of violating the Indiana Code in a way that shows abusive sexual behavior, the District Court must treat his 2002 conviction as non-abusive because the elements of the statute permit a conviction for many kinds of conduct that federal law doesn't consider abusive, wrote Judge Easterbrook.

The federal appellate court remanded the case for further proceedings.

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  1. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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