November 21, 2011
North Carolina sex offender sentenced 5.5 to 7.5 years(!) for Facebook friending of victim
Because I am not a First Amendment expert, I am not sure if there are any viable constitutional arguments against punishing persons for using Facebook. But as a sentencing expert, I am sure that this local story from North Carolina highlights how severe some punishments can be for sex offenders who use social media in prohibited ways. Here are the details:
A convicted sex offender was sentenced to 66-89 months in prison Thursday after officials said he sent a Facebook "friend request" to one of his victims. Victor Terrell Gaston, 36, of Reidsville, pleaded guilty to one count of using social media as a sex offender in Rockingham County Superior Court. Judge Stuart Albright sentenced his as a habitual offender.
Officials say Gaston sent the request on July 4, exactly 10 years after the offense occurred in 2001. Gaston had been ordered to not have contact with the victim. Gaston was arrested three days after sending the request. Officers said he had been using Facebook for about two weeks.
Gaston had been a registered sex offender since November 26, 2003. He has previously been convicted of charges involving assault, larceny, indecent liberties with a child and burglary.
Rockingham County Chief Assistant District Attorney Julia Wolf Hejazi said it is important to keep sex offenders away from social media websites. "Victims of sexual assaults have a right to be left alone, and this law helps to protect their privacy," Hejazi said, in a press release.
Some related posts:
- "Facebook membership could prove costly for sex offender"
- Should all sex offenders be barred from Facebook and MySpace?
- Is it constitutional to criminalize having a Facebook page?
- Should a prison sentence necessarily halt all access to all social media for all purposes?
UPDATE: This recent AP article, which is headlined "Inmates harass victims via Facebook," highlights why the next bit important criminal law specialty may become social media and crime and punishment. Here is an excerpt:
Across the U.S. and beyond, inmates are using social networks and the growing numbers of smartphones smuggled into prisons and jails to harass their victims or accusers and intimidate witnesses. California corrections officials who monitor social networking sites said they have found many instances in which inmates taunted victims or made unwanted sexual advances....
"The ability to have these kinds of contacts is increasing exponentially. In many ways, the law has not caught up with these changing technologies," said Rob Bovett, an Oregon district attorney...
Timothy Heaphy, U.S. attorney for the Western District of Virginia, said criminals' use of social networks to reach witnesses has made his job harder. "We deal every day with witnesses who are afraid of being identified," he said. "If there are increased instances where folks who are incarcerated can reach outside the walls of the jail, that's going to make it more difficult for us to get cooperation." ...
The issue has emerged as cell phones have proliferated behind bars. In California, home to the nation's largest inmate population, the corrections department confiscated 12,625 phones in just 10 months this year. Six years ago, they found just 261. The number of phones confiscated by the federal Bureau of Prisons has doubled since 2008, to 3,684 last year....
In the old days, those behind bars would have to enlist a relative or friend to harass or intimidate to get around no-contact orders. Social networks now cut out the middle man....
Last June, Oregon legislators approved a law prohibiting inmates from contacting their domestic violence victims from behind bars. In California, prison officials are working with Facebook to identify inmate accounts and take them down. But that only generally happens only after the damage is done.
November 21, 2011 at 11:07 AM | Permalink
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this is nothing but another ILLEGAL after the fact punishment. That is espeicaly damaging since the is one of the new ways ALL americans now communicate.
Plus of course it's a USELESS law as well if you read the article!
"Gaston had been ordered to not have contact with the victim. Gaston was arrested three days after sending the request."
why the charge under the new illegal law. Why not just hammer him on the no-contact order he's violated!
Posted by: rodsmith | Nov 21, 2011 1:41:51 PM
One question that I have is that if he had been only using facebook for two weeks did he really understand that a friend request would violate the no contact order. As someone who does not use Facebook I know that I personally would not draw that connection between the two. But maybe this guy has used social media before to get victims so I cannot say if that's an issue in this case or not.
So what really missing from this article is context. If this guy had been using the internet/social media before to grab victims maybe these charges and this sentence makes sense.
Posted by: Daniel | Nov 21, 2011 1:57:58 PM
The question I have is what would a normal sentence be if he called or wrote a letter? If doing it by Facebook is more, that indeed seems over the top.
That said, it seems excessive anyway unless there was some type of threat, stress, or trauma induced.
Posted by: TarlsQtr | Nov 21, 2011 2:36:56 PM
If the requirement was in place before the violation, it is not an ex post facto law. Also, he WAS 'hammered' on violating the no contact law. The friend request was deemed a contact. Don't know why the penalty is "useless" either.
As to the 1A, it is a specific use of Facebook that is being targeted here. He did not merely visit the page but sent a "friend" request; that is a virtual contact to the person, like calling the person, mailing a letter or making a call. I'm not sure what is deemed specifically 1A worthy here.
It seems an excessive penalty for a single violation of this sort, specifically since it was not face to face. I wonder if there is not more to the story.
Posted by: Joe | Nov 21, 2011 5:38:01 PM
I would be inclined to say that statutes that essentially cut off entire groups of people from access to social media -- especially given how intertwined social media is becoming with politics -- is probably a violation of free speech rights. Surely there are ways to prevent crime without violating constitutional rights, such as prohibiting the use of an electronic communication device to solicit sex from a minor (which, GASP, is already actually a crime and doesn't actually violate anyone's constitutional rights).
Oh, but wait, we're talking about sex offenders. Nevermind, then. Carry on!
Posted by: Guy | Nov 21, 2011 9:17:58 PM
I suppose it's possible that the offender tried to establish contact with the victim for some reason other than to attempt another go-round. On the other hand, it's about equally possible that I will make the Olympic team next year.
If this guy can't get the message to STOP, then he assumes the risk. It's hard to imagine an incident that's easier to avoid commiting.
Posted by: Bill Otis | Nov 21, 2011 11:33:18 PM
sorry JOE but the illegal requiremetn i'm talking about IS the facebook a.k.a any internet accesss REQUIRMENT the nazis' in nc have setup. THAT's the retroactive PUNISHMENT i'm talking about. IT's especially telling that the U.S. SUPREME court has ruled americans have a right to anonymous speech! such blanket restrictions are completley ILLEGALY otherwise it would be perfectly OK for the govt to pull the same shit with the media!
Posted by: rodsmith | Nov 22, 2011 12:32:11 AM
NO → Should all sex offenders be barred from Facebook and MySpace?
PROBABLY NOT → Is it constitutional to criminalize having a Facebook page?
NO → Should a prison sentence necessarily halt all access to all social media for all purposes?
Posted by: JAG | Nov 22, 2011 10:48:22 AM
I have no issues with SO's using social media - but - friending a victim, really?
Posted by: Huh? | Nov 22, 2011 9:51:43 PM
The REAL crime is contacting a victim he should not be contacting. It would be a crime had he phoned, walked up onto her in the street, rang her doorbell, etc.
But as Internet access becomes the dominant form of interaction, prohibiting former offenders (those off parole, specifically) from social networking sites will ultimately become an overwhelming constitutional issue. Perhaps technology will advance so all digital communication can be bio-recognized, but until that point this is definitely one slippery slope that has advanced to freefall stage.
Posted by: Eric Knight | Nov 22, 2011 10:18:03 PM
Having just re-watched Downfall, the "Nazi" reference doesn't really appeal but I appreciate the clarification. I still miss the point -- the "contact" provision was there beforehand. Internet "contact" is a form of contact. Where is the retroactive punishment? The person has freedom of association and travel too but this doesn't mean every protection order that bars certain contact is unconstitutional. He still can "anonymously" go online any number of ways.
Posted by: Joe | Nov 23, 2011 12:00:27 PM
god joe! wake up and smell the coffee!
i'm not arguing about the no-contact order...those are perfectly legal!
i'm talking about the NO FACEBOOK or NO INTERNET access FOREVER that NC has in place! THAT is ILLEGAL based on any number of U.S. SUPREME Court Decisons about the rights to americans anonymous speech and the expost portion of both the U.S. CONSTUTION and the one of North Carolina!
Posted by: rodsmith | Nov 23, 2011 6:36:50 PM
if they had hammered him for the "Contact Violation" no matter HOW he did it. i'd have never said a word! my problem is they hammered hiim for the SOCIAL NETWORK ACCESS!
Posted by: rodsmith | Nov 23, 2011 6:38:07 PM
what's really telling is this!
"A convicted sex offender was sentenced to 66-89 months in prison Thursday after officials said he sent a Facebook "friend request" to one of his victims."
He just got 7 1/2 YEARS for using a social network! NOT a thing in there about a no-contact charge!
and yes as a SEX CRIMINAL he WILL do the whole 7.5 years!
Posted by: rodsmith | Nov 23, 2011 6:40:19 PM
First, even after two coffees, I still don't see the "ex post facto" part. If a law is passed that disallows physicians from doing something, and a person who was a physician since 2003 suddenly can't do something, and he does it, it is not an issue. A law in in place saying sex offenders can't use social media sites. They didn't charge him with something that only became wrong after he committed the act (contact).
Second, the guy was arrested only after he contacted the victim. The "Nazis" didn't arrest him for emailing his mom or checking his library records online. So, where does it say NC blocks him from using the Internet, including anonymously, down to check government websites?
The concern is "social media" sites, not the Internet writ large. Again, him personally, they only arrested once he contacted the victim. The very title of the article: "Man Sentenced for Sending Facebook Friend Request to Sex Victim." Yes, looking into it, the law targets use of social media generally and Facebook policy also blocks sex offenders from having accounts. Seeing the ease at contact once you enter facebook, it is not really "Nazi" behavior to have such a policy. And, again, in his case, though he pled to that, the REASON he was charged was because he actually contacted the person.
The USSC does not ban localities to keep people who are convicted sex offenders from certain public places others have a constitutional right to go and it is very unclear that virtual places with like concerns like Facebook would be different. Again, I think the actual sentence excessive. As with gun and voting rights, I also think there should be some cut-off, not a lifetime ban regarding felons in cases of this sort, at least under certain conditions.
But, (1) don't see the ex post facto law (2) don't see the INTERNET ban (3) the police in this case actually targeted him for contacting the victim (4) though it might be excessive, don't really see it as tyranny to keep sex offenders off social media sites -- his actions here doesn't really convince me otherwise (5) given the provision targets sex offenders and only for social media websites, it looks like a narrow enough law to survive USSC scrutiny. Other laws allow such treatment of activity that for the average person is protected speech.
Posted by: Joe | Nov 23, 2011 9:52:58 PM
well joe that's probably becasue your not really looking since you DON'T WANT to know!
not this statment
"Victor Terrell Gaston, 36, of Reidsville, pleaded guilty to one count of using social media as a sex offender in Rockingham County Superior Court."
It doesn't say he plaed to a no-contact violation! it says he plead to USING SOCIAL MEDIA AS A SEX OFFENDER!
plus the expost part comes in when they used PAST ACTION to add a NEW PUNISHMENT OR CONDITION to an OLD CRIME!
sorry but LEGALLY under our constution once they passed a law that said "BECASUE of what you did in the past...YOU CAN NOW NO LONGER DO "X" they violated the constution!
as for your statement here!
"The USSC does not ban localities to keep people who are convicted sex offenders from certain public places others have a constitutional right to go and it is very unclear that virtual places with like concerns like Facebook would be different"
ACTUALLY in the only REAL U.S. SUPREME COURT decison on the registry in 2002 They in fact said one of the reasons it was legal that by a squeaker of a 5-4 vote was BECASUE IT WAS NOT LIKE PROBATION OR PAROLE and that IN FACT the individuals had NO INPERSON REGISTRATION REQUIRMENT, had NO LIVING OR WORKING RESTRICTIONS! that they were IN FACT able to LIVE AND WORK where THEY WANTED without SUPERVISON!
THAT was the REGISTRY the USSC said WAS LEGAL. What we have now is an ILLEGAL EXPOST LIFETIME PAROLE/PROBATION!
the ONLY things that have changed is the location they report and HOW often!
instead of once a month at the probation office it's anywhere from once a week to once a year at the local police station.
from having a probation officer who has the authority to tell you where you can live or work...to a nazi wannabe politician coming up with a new so called "civil" law every 6-8 months!
don't belive me!
"Also unavailing is that court’s assertion that the periodic update requirement imposed an affirmative disability. The Act, on its face, does not require these updates to be made in person. The holding that the registration system is parallel to probation or supervised release is rejected because, in contrast to probationers and supervised releasees, offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision."
it's especially telling that the STATE in that decison that CREATED THE PUBLIC REGISTRY has since actualy overruled the u.s. supreme court and ruled in the same case that the registry has in FACT as well as LAW become a punishment therefore it is illegal when applied to ANYONE who's crime predated it's enactment!
the state has NOT appealed that decsion back to the USSC!
Posted by: rodsmith | Nov 23, 2011 10:11:09 PM
"It doesn't say he plaed to a no-contact violation! it says he plead to USING SOCIAL MEDIA AS A SEX OFFENDER!"
I already said that. I also said that the police didn't arrest him for it -- he was arrested for contacting the victim and was allowed to plea to a lesser offense. If the sentence fit the crime, the plea might have been more significant than it was. If the law is overbroad, in his case, it was applied narrowly.
"plus the ex post part comes in when they used PAST ACTION to add a NEW PUNISHMENT OR CONDITION to an OLD CRIME!"
First, I don't know what the conditions was on sex offenders when he was released. If the conditions included some general statement on keeping away from certain locations of a social nature (like local singles clubs or parks), as applied to him, the social media ban could very well just be a specification of a general barrier.
Second, he is a registered sex offender. That is an ongoing status. The state is allowed to tinker with the regulation of sex offenders as long as it apply to prospective actions. He is being charged for something NEW he is doing.
As to the Supreme Court, I'm aware of the various rulings on sex offenders. Stevens in dissent in Smith (and I agree; but it was 6-3) notes the problem was that the law applied to those who "were tried and convicted before the legislation was enacted." But, the person here WAS tried and convicted as a sex offender before being put on the registry here. The question then becomes what ways the state can limit said persons liberties, particularly when they are given fair notice of the requirements and breach them AFTER the requirements are set.
If a sex offender is released in 2003 and put on a registry with the finding that s/he could not contact certain people & as a necessary part of that requirement certain areas are off limits, and the invention of different form of such contact comes about, such as social media not existing at the time, it is very unclear to me that such a regulation can't be passed.
You also didn't refute my point that sex offenders (putting aside the ex post facto issue) can be blocked from doing certain things that the average person has a constitutional right to do. The SC did not hold barriers from parks (a 1A right) near schools are unconstitutional.
Even the ruling cited isn't quite on point. Ginsburg in dissent notes "past crime alone, not current dangerousness" was the issue. I don't know if the state here treats sex offenders such as him as currently dangerous or not. Also, he is being targeted not merely for "past crime alone" but current actions. His inability to use social media -- not the INTERNET as a whole -- involves much less stigma than the public info and "significant affirmative obligations" at issue there. Per Ginsburg's dissent, it is instead specifically "keyed" to a certain at risk behavior, social media sites, and if he does not go there, he can remain quite anonymous regarding the point.
Of course, if he didn't remain "anonymous" -- he used his actual name. If he was truly anonymous and used a public computer somewhere, it is unlikely he even would be in prison.
Posted by: Joe | Nov 24, 2011 9:17:46 AM
"You also didn't refute my point that sex offenders (putting aside the ex post facto issue) can be blocked from doing certain things that the average person has a constitutional right to do. The SC did not hold barriers from parks (a 1A right) near schools are unconstitutional."
actually i have. LEGALLY under our CONSTUTION once he completed his COURT ORDERED SENTENCE....that was it! LEGALLY they have no more right to tell him what to do than they have to walk into YOUR home and tell you hey we have passed anew law. You now have 48hrs to GET OUT OR GO TO JAIL!
as for the conditons under which he was senteced! that one i'm not sure if most states change the laws every 6-8 months covering the EX CONS convicted of sex crimes THEN ILLEGALY apply them to those CONVICTED BEFORE THEIR PASSAGE!
Posted by: rodsmith | Nov 24, 2011 11:33:50 AM
Forget the fact that he contacted the victim 10 years to the day after the original offense occurred. He was probably just nostalgic. He should go to prison for being that tacky alone.
Posted by: Bill B. | Nov 28, 2011 5:35:16 PM
"Forget the fact that he contacted the victim 10 years to the day after the original offense occurred. He was probably just nostalgic. He should go to prison for being that tacky alone."
True as long as it was for a REAL crime! you know....VIOLATING the NO-CONTACT order! Not an illegal blanket restriction on his first amendment right to free speech and his right to free assembly...which these days is done ON THE INTERENT! this blog is a PRIME EXAMPLE!
Posted by: rodsmith | Nov 29, 2011 3:56:12 PM