When scandal erupted in 2007 over allegations of sexual abuse at the West Texas State School, it was assumed by many to be a horrifying aberration. Juveniles were subject to sexual abuse not only by other inmates but by the very supervisors charged with overseeing their rehabilitation.

According to recent reports indicate the problem of sexual abuse in juvenile detention centers is prevalent on a national scale. In Sexual Abuse in State Lock-ups, Emily Ramshaw notes:

In the National Survey of Youth in Custody, conducted during 2008 and 2009 by the U.S. Bureau of Justice Statistics, roughly 12 percent of incarcerated youth nationwide reported being forced into sex or sexual contact in custody. Of the 1,765 Texas youth offenders polled, about 20 percent reported being victims of sexual abuse. One Texas facility — the Corsicana Residential Treatment Center — had the second highest sexual abuse rate among large youth lockups, at nearly 32 percent.

A significant part of the problem, as noted in The Crisis of Juvenile Prison Rape: A New Report, is that these institutional victimizers are rarely punished:

Nationally, however, fewer than half of the corrections officials whose sexual abuse of juveniles is confirmed are referred for prosecution, and almost none are seriously punished. Although it is a crime for staff to have sex with inmates in all 50 states, prosecutors rarely take on such cases. As children’s advocate Isela Gutierrez put it to The Texas Observer, “local prosecutors don’t consider these kids to be their constituents.” A quarter of all known staff predators in youth facilities are allowed to keep their positions.

False reporting is bound to be a problem and difficult to determine, but the numbers indicate a problem that can simply no longer be ignored by officials charged with their care.

• David Kaiser and Lovisa Stannow, The Crisis of Juvenile Prison Rape: A New Report, New York Review of Books (January 7, 2010)
• Emily Ramshaw, Sexual Abuse in State Lock-ups, Texas Tribune (January 7, 2010)

The Oscar-winning film director was arrested on Sunday in Zurich on a 31-year-old warrant issued in the U.S. for having sex with a 13-year-old girl in 1977. In an interview last year, the victim made a surprising observation:

We pressed charges, and he pleaded guilty. A plea bargain was agreed to by his lawyer, my lawyer and the district attorney, and it was approved by the judge. But to our amazement, at the last minute the judge went back on his word and refused to honor the deal.

Worried that he was going to have to spend 50 years in prison — rather than just time already served — Mr. Polanski fled the country. He’s never been back, and I haven’t seen him or spoken to him since.

Looking back, there can be no question that he did something awful. It was a terrible thing to do to a young girl. But it was also 25 years ago — 26 years next month. And, honestly, the publicity surrounding it was so traumatic that what he did to me seemed to pale in comparison.

Polanski’s crime was heinous. His victim’s grand jury testimony was not merely of a consensual act made criminal by statutory age limits but multiple instances of forcible rape over her frequent and strenuous objections. For her now to describe the publicity surrounding it as more traumatic than the rape itself says volumes about the potential threat the media’s actions can pose to child victims. She has continually requested that the Los Angeles D.A. drop the charges and complains that “the continued publication of “lurid” details about the incident “causes harm to me, my husband and children”.

The press is hotly debating the punishment Polanski’s crime deserves. The value of the prosecution of Polanski in deterring others from similar acts is significant. Lost, however, is the lesson for law enforcement, the judiciary and the press on their duty to inflict no more harm on a minor victim than has already been inflicted.

CNN had a segment on the use of support dogs in assisting children in testifying in the courtroom. They follow Lynn and Dory a San Diego Police Officer and a trained service dog, respectively, in a sexual abuse case that required a young girl to testify about on-going sexual abuse in front of the perpetrator, her grandfather.

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An exhaustively researched report on the safety of the web is the result of a year of work for the Internet Safety Technical Task Force. The report reveals some surprises about just how safe the web and social networks really are for minors, and some recommendations for dealing with sexual predators, cyberbullying, and access to explicit content. Members of the Internet Safety Technical Task Force discuss their findings in a podcast made available below by MediaBerkman, the Berkman Center for Internet & Society Podcast.

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The discussion follows a report by the Internet Safety Technical Task Force: Enhancing Child Safety and Online Technologies. Among their findings on risk and prevention are:

• Sexual predation on minors by adults, both online and offline, remains a concern. Sexual predation in all its forms, including when it involves statutory rape, is an abhorrent crime. Much of the research based on law-enforcement cases involving Internet-related child exploitation predated the rise of social networks. This research found that cases typically involved post-pubescent youth who were aware that they were meeting an adult male for the purpose of engaging in sexual activity. The Task Force notes that more research specifically needs to be done concerning the activities of sex offenders in social network sites and other online environments, and encourages law enforcement to work with researchers to make more data available for this purpose. Youth report sexual solicitation of minors by minors more frequently, but these incidents, too, are understudied, underreported to law enforcement, and not part of most conversations about online safety.
• Bullying and harassment, most often by peers, are the most frequent threats that minors face, both online and offline.
• The Internet increases the availability of harmful, problematic and illegal content, but does not always increase minors’ exposure. Unwanted exposure to pornography does occur online, but those most likely to be exposed are those seeking it out, such as older male minors. Most research focuses on adult pornography and violent content, but there are also concerns about other content, including child pornography and the violent, pornographic, and other problematic content that youth themselves generate.
• The risk profile for the use of different genres of social media depends on the type of risk, common uses by minors, and the psychosocial makeup of minors who use them. Social network sites are not the most common space for solicitation and unwanted exposure to problematic content, but are frequently used in peer-to-peer harassment, most likely because they are broadly adopted by minors and are used primarily to reinforce pre-existing social relations.
• Minors are not equally at risk online. Those who are most at risk often engage in risky behaviors and have difficulties in other parts of their lives. The psychosocial makeup of and family dynamics surrounding particular minors are better predictors of risk than the use of specific media or technologies.
• Although much is known about these issues, many areas still require further research. For example, too little is known about the interplay among risks and the role that minors themselves play in contributing to unsafe environments.

It was announced on the SCOTUSblog that the state of Louisiana filed a Petition for Rehearing on Monday for the case Kennedy v. Louisiana. In this case, the Supreme Court ruled that capital punishment for a defendant convicted of raping a child violates the Eighth Amendment. The Supreme Court reached its decision by arguing that there was a national consensus against imposing the death penalty for these crimes due to the fact that only six states allowed this use of the death penalty.

However, since the ruling, a legal blogger has pointed out that the federal government passed a law in 2006 allowing for this use of the death penalty in the military. Amazingly, the plaintiff, the defendant, the Court Majority and the Dissent all failed to mention this law during the arguments and the decision of the case. As a result, the state of Louisiana is requesting that the Court reconsider its ruling since the discovery of a federal law allowing this use of the death penalty may undermine the Court’s argument of a national consensus against it. However, Louisiana recognized that even if the Court agrees to reconsider its ruling, the ruling may still be upheld due to the Court’s independent judgment against this use of the death penalty.

Please click here to see the Petition for Rehearing.

From the SCOTUSblog:

The state of Louisiana on Monday asked the Supreme Court to reconsider its ruling a month ago striking down the death penalty for the crime of child rape. The rehearing petition, citing an omission in the Court’s opinion of any mention of a federal law on that issue, was filed late Monday afternoon. The petition in Kennedy v. Louisiana (07-343) can be found here.

Noting that the Court “almost never grants petitions for rehearing,” the state’s filing said this was “the rare exception.” It cited an 1875 ruling (Ambler v. Whipple), saying that an omission “material to the decision of the case” makes “a strong appeal for reargument.”

The petition said that either the rehearing should be granted, or the Court should “first seek the views” of the U.S. Solicitor General. Earlier, after the discovery of the omitted statute from the Court’s opinion, the Solicitor General’s office said that, if a rehearing plea were filed, it would examine it and “consider what steps are appropriate.”

Under the Court’s rules, a rehearing petition is not subject to oral argument and will not be granted except by a majority of the Court “at the instance of a Justice who concurred in the judgment or decision.” The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so. The Court’s rules add that, unless there are “extraordinary circumstances,” rehearing will not be granted unless a response is first requested.

The decision in the Louisiana case, issued on June 25, came on a vote of 5-4, with Justice Anthony M. Kennedy writing for the majority. One of those five would have to support rehearing, presumably along with the four dissenters, for that to happen.

The Court’s decision had two parts: a survey of laws and official actions, leading the Court to conclude that there was a consensus against the death penalty for child rape, and a separate expression of the Court’s own “independent judgment” about whether capital punishment should ever be available for a crime that did not result in the victim’s death — a point on which the Court said no.

In the first part, the Court noted the absence of any federal law imposing a death penalty for child rape. After the decision was issued, a military law expert noted that omission. The expert noted a 2006 law by Congress which, the expert said, authorized the death penalty for rape of a child under military law — the law that prescribes crimes and penalties for members of the military services.

A spate of publicity, beginning in The New York Times, led the U.S. Solicitor General’s office to notify the Court of the omission, and to offer to comment on it, if asked. The government was not a party in the case, but it said it should have noticed the fact of the federal law’s existence and told the Court.

Monday was the deadline for Louisiana to seek rehearing of the case. It did so in a petition signed by counsel of record, Georgetown law professor Neal K. Katyal.

The death row inmate involved in the case, Patrick Kennedy, was represented by Stanford law professor Jeffrey L. Fisher. On Monday, responding to media inquiries, Fisher issued a statement saying the 2006 provision could not have applied to a civilian like Kennedy, and, in any event, that provision may not even remain valid.

The rehearing plea said that the omission would bear not only on the Court’s discussion of a “national consensus” against the death penalty for child rape, but also would have an effect on the part of the ruling in which the Justices relied on “independent judgment.”

Louisiana conceded that the Court might reach the same decision again if it reheard the case, but said rehearing was warranted because that “protects the public’s trust that the Court has before it all relevant information before reaching a final decision,” it “safeguards the perception of fairness,” and it “ensures that the Court’s final decision accurately reflects the state of facts and the law.”

If the Court believes that its decision could stand alone on the exercise of “independent judgment,” that should still lead to rehearing, because, the petition argued, that would make the “national consensus” calculus less important in future cases on applying the death penalty.

A denial of rehearing, the petition argued, would sow confusion about which side of the Court’s calculus weighed the most.