General Practice, Solo & Small Firm DivisionMagazine
Legislative Update / E. E. Anderson
Sex Crimes Against Children
© American Bar Association. All rights reserved.
E. E. Anderson, a retired general in the U.S. Marine Corps, is the director of the Solo and Small Firms Division of the ABA General Practice, Solo and Small Firm Division.
On June 11, 1998, the House passed by unanimous consent H.R. 3494, the Child Protection and Sexual Predator Act of 1998. This act prohibits contacting a minor over the Internet for the purposes of engaging in illegal sexual activity.
Under current law, the federal government must prove that a pedophile "persuaded, induced, enticed or coerced" a child to engage in a sexual act. The new crime establishes a lower penalty for even initiating a harmful relationship with a child for illegal sexual activity.
In introducing H.R. 3494, Rep. Bill McCollum (R-FL) said that "nearly two-thirds of the prisoners serving time for rape and sexual assault victimized children, and almost one-third of those victims were less than 11 years old." The legislation places special emphasis on the growing menace of computer-based crimes, as law enforcement officers are discovering that criminals roam the Internet just as they roam the streets. Parents once believed their children were safe when they were home behind locked doors, but today, these cyber-predators are simply logging on to their computers. The bill:
• Prohibits contacting a minor over the Internet for the purposes of engaging in illegal sexual activity.
• Doubles the maximum prison sentence from five to ten years for enticing a minor to travel across state lines to engage in illegal sexual activity.
• Increases the maximum prison sentence from ten to 15 years for persuading a minor to engage in prostitution or a sexual act.
• Doubles the maximum prison sentence for repeat sex offenders who commit a federal crime involving the transportation of another person for sexual activity.
• Mandates life in prison for serial rapists—those who commit federal sexual assaults and have been convicted twice previously of serious state or federal sex crimes.
• Increases the maximum prison sentence from ten to 15 years for transporting a minor in interstate commerce for prostitution or sexual activity.
• Doubles prison sentences for abusive sexual contact if the victim is under the age of 12.
• Doubles the maximum prison sentence available for second-time offenders.
An amendment by Rep. McCollum was adopted that would impose a mandatory sentence of life imprisonment, unless the death penalty is imposed, for a violent felony or the sexual exploitation of a child, if the victim is under 14 years of age and dies as a result of the offense. Another adopted amendment, offered by Rep. Steve Chabot (R-OH), prohibits federal prisons from allowing inmates to use an interactive computer service, such as the Internet, without supervision. The bill also requires the Attorney General to report to Congress the extent to which states currently allow access to the Internet. H.R. 3494 has garnered broad-based support, and a companion bill (S. 1987), introduced by Sen. Mike DeWine (R-OH), is expected to move swiftly through the Senate.
Deadbeat Parents to Be Punished
On May 12, 1998, the House by a vote of 402-16 passed the Deadbeat Parents Punish-ment Act of 1998, and on June 5, 1998, the Senate passed the bill by voice vote, without debate, and sent it on to the president for signature. On June 24, 1998, the president signed P.L. 105-187 into law as P.L. 105-187. The law makes it a felony for parents to cross state lines to evade child support (the prior law made this offense only a misdemeanor).
Rep. Henry J. Hyde (R-IL), chair of the House Judiciary Committee, was the chief sponsor of the legislation. Upon introducing the bill, he stated, "The Deadbeat Parents Punishment Act of 1998 strengthens the federal criminal child enforcement by establishing felony violations for aggravated cases of failing to pay legal child support obligations."
The prior law made it an offense if a parent wilfully failed to pay for a child who lived in another state and the amount was greater than $5,000 or had remained unpaid for more than two years. A first offense carried a maximum of six months in prison; a second or subsequent offense had a maximum of two years’ imprisonment time. P.L. 105-187’s provisions reflect the viewpoint of Congress that aggravated offenses, such as parents moving from state to state to avoid paying child support, require more substantial penalties.
P.L. 105-187 is similar to the bill the Justice Department submitted to the 104th Congress, but includes several additional measures to clarify and toughen federal child support enforcement provisions. It clarifies how these penalties apply to child support orders issued by Indian tribal courts. The bill also provides that prosecutions now may be brought in any district in which the child resided, or in which the obligated parent resided during the period of nonpayment.
The bill establishes two new categories of felony offenses, both of which are subject to a two-year maximum prison term. The first offense is traveling in interstate or foreign commerce with the intent to evade a support obligation if such obligation has remained unpaid for a period longer than one year or is greater than $5,000. The second offense is wilfully failing to pay a support obligation regarding a child residing in another state if the obligation has remained unpaid for a period longer than two years or is greater than $10,000. Both of these offenses involve a level of culpability greater than that reflected by the prior six-month maximum prison term for the first offense. As such, a maximum two-year prison term is appropriate for these offenses.
Rep. Hyde summarized the essence of the bill:
This bill is a reasonable and overdue step to punish those who abdicate their fundamental—and legal—responsibility to provide for their children. The legislation of this body regularly deals with the consequences of the disintegration of the family institution. While we are powerless to keep families together, we can ensure that strong condemnation is directed against those who would neglect their children in violation of law. In doing so, we are taking a small, but important, step to support the family institution, and the legal duties of parents to their children.
Rep. Steny Hoyer (D-MD), a co-sponsor of the bill, said the provisions would "help close loopholes in the system which allow parents to slip across state lines to avoid paying child support, thus leaving children and families in economic ruins."
Mixed-Sex Training Disagreements
Questions over gender-integrated training were raised during the sexual harassment hearings in Aberdeen Proving Ground, Maryland, and Fort Leonard Wood, Missouri. Women’s rights groups said there was no basis for linking sexual harassment in the military to gender-integration. On the other side of the argument is Elaine Donnelly, President of the Center for Military Readiness, a center specializing in military personnel issues, who says:
After a five-year trial ending in 1982, gender-integrated basic training was declared a failure. Women were suffering excessive injuries, and men were not being challenged enough. Nevertheless, the Clinton administration revived the program in 1994, with no congressional oversight or convincing justification. To avoid failure this time around, proponents have simply redefined success, in terms of women’s morale. To accommodate women’s capabilities, physical training components have been reduced or gender-normed, less-demanding requirements have been assigned greater importance, and focus groups measure "cohesion" in terms of touchy-feely emotions.
On June 8, 1998, Defense Secretary William S. Cohen recommended that, except for the Marine Corps, men and women of the armed services undergo basic training together. This recommendation was made despite strong objections from members of Congress and in opposition to the recommendations of his hand-picked panel, chaired by former Sen. Nancy Kassebaum Baker (R-KS), who served from 1978 to 1997.
The Kassebaum Baker Panel was appointed by Cohen in June 1997, and its report was released on December 16, 1997. This committee, the Federal Advisory Committee on Gender-Integrated Training and Related Issues, was composed of retired general and flag officers from each of the four services, university provosts and professors, a journalist, and a former Assistant Attorney General for Civil Rights. The committee unanimously recommended segregating men and women in the barracks and in the smallest basic training units—Army platoons, Navy divisions, and Air Force flights. The report had other recommendations, including: emphasizing patriotism in recruiting ads instead of financial rewards; increasing the number of female recruiters and trainees; toughening of basic training requirements; and enforcing consistent standards for men and women.
Upon release of the report, House leaders were urged to push for the enactment of Rep. Roscoe G. Bartlett’s (R-MD) bill (H.R. 1559) that would ban mixed-gender basic training. Others, particularly on the Senate side, held different views.
Sen. Olympia J. Snowe (R-ME) said, "The report represents a disturbing step backwards for the military, one that can only result in building barriers between men and women in the military that will ultimately make them a less cohesive fighting force."
On May 6, 1998, the House’s National Security Committee decided that military recruits should be housed and trained separately to prevent sexual harassment and distraction. The committee bill, H.R. 3616, which incorporates the thrust of Rep. Bartlett’s bill, would require separate training of men and women and the housing of them in separate barracks commencing April 1999, with conversion complete by 2001. It passed the House on May 21, 1998 by a vote of 357-60.
However, the Senate’s bill (S. 2057) would prohibit any changes in the existing policy until the newly formed Congressional Commission on Military Training and Gender-Related Issues files a report. This commission was established by P.L. 105-85, but the members were not selected until February and include several people of sharply conflicting views of women in the military. The report of the commission is due in September, but S. 2057 would delay the report until January 31, 1999.
All is not serene in the Armed Services Committee. An amendment to the Defense Authorization bill sponsored by Sen. Sam Brownbeck (R-KS) and several other senators would mirror legislation already adopted by the House requiring boot camps to separate men and women in their sleeping areas after hours. Such a measure would be a modest first step to minimize a problem that is not going away, but it was defeated on June 24, 1998.
Sen. Robert C. Byrd (D-WV) offered an amendment on June 25 to end not only coed barracks and after hour visits but also integrated training for male and female recruits. The amendment was defeated, but Sen. Byrd had this to say, "one looming fact...our military is not an equal employment opportunity commission." The Senate passed the Defense Authorization bill on June 25, 1998, by a vote of 88-4. Conferees from the Senate and House are meeting to work out their differences.
In his remarks on June 8, Secretary Cohen said he will try to dissuade members of Congress from separating men and women in basic training. He said, "One thing is clear: we cannot run a military today without women, and our goal is to find ways to make men and women to train and work better together." In response, Rep. Bartlett issued a statement accusing Mr. Cohen of "abdication" to the demands of "political correctness, rather than military readiness." Yet Sen. Snowe was supportive, saying "Secretary Cohen’s decision properly recognizes that the war fighters of tomorrow must train and live together as they would operate in the field or fleet."
While Secretary Cohen bristled at repeated suggestions that his decisions were based on considerations of political correctness, he may be facing another Aberdeen-sized scandal. Just a few months ago, he was lauding Great Lakes, the Navy’s only boot camp, as a role model for gender-integrated training. But in a May 8 article, the Chicago Tribune reported that five drill instructors at Great Lakes, called recruit division commanders in the Navy, have been charged with fraternization, obstruction of justice, abuse of authority, and various kinds of sexual misconduct. According to Rep. Bartlett, charges include voluntary sex games in exchange for special favors, coercive oral sex, and the impregnation of a female trainee by one of her instructors.
A Wall Street Journal article of July 17, 1998, reported that one Great Lakes petty officer is accused of throwing a mattress on the barracks floor and ordering female trainees to undress. Another petty officer is accused of providing privileged treatment to female trainees in exchange for sexual favors. The article is also critical of the Senate action on gender separation in barracks and mixed-sex training, blaming heavy lobbying by the Pentagon in support of the Clinton policy for the defeat of the Brownbeck and Byrd amendments. CL