Commentary by San Diego Sex Crimes Defense & Criminal Attorney Sam Spital:
“On Monday, December 17, 2012, KNBC Channel 7 online edition contained a story regarding a hearing before the United States District Court and the validity of a recent 81% voter-approved initiative commonly referred to as Proposition 35 requiring registered sex offenders (RSO’s) to give authorities a list of their Internet providers and screen names. Currently there are about 73,000 RSO’s in the California Registry, and many of their convictions had nothing to do with using the internet.
The ACLU sued and contended the provision violates equal protection, due process and free speech of sex offenders pursuant to the U.S. Constitution. Thereafter, the Federal District Court Judge issued a temporary restraining order blocking the enforcement of that portion of the new law. Now, the Federal Court will decide the nature and scope of free speech rights of such defendants, and whether registered sex offenders must reveal their online information such as email addresses, usernames, social media passwords and their Internet service providers to law-enforcement officials is lawful. The District Court case does not impact the increased sentences (longer prison terms) for convictions of human trafficking, nor that these convicted defendants must register as sex offenders.
The position of the Attorney General of the State of California is that law enforcement needs this information to investigate sex crimes and prevent them before they take place, also claiming this information is not a public record. However, this is a slippery slope in that the next thing the government will seek is to monitor everything we view online, including the books we purchase and read.”
COMMENTARY BY CRIMINAL DEFENSE ATTORNEY SAM SPITAL:
“The article published in the UT San Diego news on November 6, 2012 described the potentially unintended result of the October, 2011 legislation that authorized a transfer of inmates from California State Prisons to local County Jails. Thereafter, many were released, later violated the law but were not placed in custody. In particular, nearly 500 sex offenders were arrested, but were not jailed because of the lack of space in local facilities.
This is an extremely serious problem since the band aid approach to incarceration has raised huge concerns for the public safety. The reporter noted an example of one registered sex offender who violated parole, yet was not send back to prison before he killed two teenagers in San Diego. The conundrum facing the judicial system is trying to evaluate inmates for parole or probation and discern which ones represent the least risk of recidivism, as it is hoped our penal system helps them rehabilitate to become productive citizens in society. The challenge is to balance the desire to provide a ‘second chance’ with those examples of inmates that cannot be trusted and become repeat offenders.”
SAM SPITAL, Criminal Defense Lawyer
“The Medical Board of California on September 20, 2012, reported its investigation of a physician who practices OB-GYN in two neighboring communities in Los Angeles, the community of Northridge and Van Nuys, who was arrested on two felony counts of Sexual Penetration with a Foreign Object-Unconscious, a violation of California Penal Code section 289 (d).This section is used by the prosecution in cases in which the victim is unaware, did not know or perceive, or was not cognizant of the criminal act. A conviction of this offense requires the defendant to register with the Police or Sheriff as a sex offender for life pursuant to PC 290, as well as to provide specimens and samples. No other information or facts were disclosed. For Online Registration under Megan’s Law, see: http://meganslaw.ca.gov/registration/law.htm
If the facts disclose sufficient evidence of other illegal acts, it is still possible the prosecution may file additional charges, such as a violation of Business & Professions Code 729, which is sexual exploitation of a patient; as well as or in the alternative, a violation of Penal Code section 243.4 (c), which is Sexual Battery for a Professional Purpose. The latter is commonly charged when a doctor touches a patient without consent for his own sexual arousal &/or gratification and the contact was under the pretense it was for a professional purpose.
One needs to be mindful that a suspect who has been arrested is innocent until proven guilty. Moreover, a perusal of the internet revealed the physician has been licensed since 1998, graduated from USC School of Medicine, is Board Certified in Obstetrics and Gynecology; is affiliated with eight hospitals; is fluent in English, Farsi, Persian and Spanish; has had no prior Medical Board or hospital disciplinary action; and there are no reportable malpractice settlements or judgments.”
SAM SPITAL, CRIMINAL LAWYER