A sex offender's free expression -- Man on registry challenges law preventing him from photographing minors
RACINE - A local man has raised a free speech challenge to a state law that prevents anyone on the sex offender registry from taking photographs of minors without their parent's permission.
_____, of the Town of Burlington, is on the sex offender registry, for a 1991 conviction of second-degree sexual assault of a child. Details about that conviction were not available from Waushara County officials.
____ was arrested last year after someone saw him taking photographs of children playing on a swim raft in Browns Lake.
Wisconsin law prohibits anyone on the sex offender registry from taking photographs of children unless they have received consent from the child's parent or guardian. Witnesses told police that ____ was on a pontoon boat with a telephoto lens, taking photographs of a group of girls playing on the raft. When officers talked to the girls' parents, they said they had not given _____ permission to take any pictures.
He was charged with four counts of being a registered sex offender who intentionally took photographs of a minor without consent of the child's parent or guardian.
____'s attorney, John Birdsall, filed two motions asking for dismissal of the charges. In them he argues that the statute is too broad, and infringes upon his client's right to free expression through photography, and that the statute enacted eight years after _____ completed serving his sentence amounts to a retroactive punishment for his crime.
Birdsall said the law is too broad because it "prohibits (____) from taking or possessing visual images that are in no way related to the sexual exploitation of children."
For example, Birdsall claims the statute makes no exceptions for mistakes made in a subject's perceived age or for things like a photograph that contains a single underage child in a large group of adults.
Birdsall went on to say the law does nothing to prevent a sex offender from paying a parent or guardian money to obtain consent to take photographs that came close to being pornography, while preventing the registrant from being allowed to photograph a football game for a newspaper.
He also notes that if a registrant came upon a crime scene or emergency situation where a minor was involved, the statute effectively prohibits them from "pull(ing) out their cell phone and preserv(ing) evidence by photographing the event" without subjecting themselves to prosecution.
"The potential list of absurd results inherent in the consent provisions of the statute is endless," Birdsall wrote.
In the other motion, Birdsall says that the law should not apply to ____ because it was enacted after his sentence had ended. ____ was sentenced to six years probation for his original offense, and was required to register as a sex offender starting in September 1997.
His attorney wrote that ____ appeared to have complied with registry requirements.
In 2001 he was told he had to register as a sex offender for the rest of his life, and was told in May 2007 that he was now prohibited from taking photographs or videotapes of anyone younger than 17 without the consent of the minor's parent or guardian.
Birdsall argues that the additional requirements enacted in 2006 should not retroactively apply to people who, like ____, had to register before that date.
He said ____ also plans to challenge the requirement that he register for life, when he was originally told he would have to register for 15 years.
A copy of the motions has been filed with the Wisconsin Attorney General; that office has yet to respond. ____'s jury trial is set for July 20. ..Source.. JANINE ANDERSON
Judge: Ruling against sex offender stands
Burlington-area man took photos of children in '09 without parents' consent
RACINE - A Town of Burlington man unsuccessfully challenged a state law that prohibits sex offenders from photographing children without their parents' consent, after he was charged here for doing exactly that.
____, of the 3000 block of Cottonwood Court, is on the sex offender registry for a 1991 conviction from Washburn County for sexual assault of a child. He was on a pontoon boat on Browns Lake on July 11, 2009, when he allegedly used a telephoto lens to photograph teen and preteen girls who were on a swim raft.
Other people on the lake that day reported his actions to law enforcement. When asked, the girls' parents told law enforcement they had not given permission to photograph their daughters.
Defense attorney John Birdsall filed several motions challenging the charges against his client. He argued the statute is too broad and infringes upon his client's right to free expression through photography, and that the statute enacted eight years after completed serving his sentence amounts to retroactive punishment for his crime.
But Circuit Court Judge Gene Gasiorkiewicz said legislators are able to pass laws restricting certain rights in the interest of protecting the public. Gasiorkiewicz said the statute appropriately puts the restriction on a small group of people - sex offenders on the registry - and gives them the ability to get around the restriction by getting permission from parents.
This is appropriate, Gasiorkiewicz said, in part because of the high re-offense rate for sex offenders. He read from several studies, and said those showed "the mere taking of photos of children in swimwear can serve as a source of arousal with respect to known sex offenders."
He said he believes the restriction also protects sex offenders. This kind of prohibition, he told ____, is also a treatment strategy "to help you by keeping yourself away from situations ... which will create you back into a situation where you may be aroused or get back into criminal activity," he said.
Taking pictures of children, Gasiorkiewicz said, even ones that are not suggestive, "may be a pretext to getting engaged with (the children), or getting them involved with the sex offender."
Birdsall said they intend to appeal the judge's decision. He believes this is the first time anyone has challenged this law in court. ..Source.. by JANINE ANDERSON
Sex offender avoids jail sentence
He was caught taking photos of swimmers
A registered sex offender from Burlington was spared jail time, but was ordered to comply with a lengthy list of conditions, in a ruling Tuesday from a nearly 2-year-old case that involved photographing minors swimming on Browns Lake.
Racine County Circuit Court Judge Eugene Gasiorkiewicz said he was withholding sentencing for ____, but placed him on a two-year probation and ordered him to pay $1,000 in fines and court costs.
____ was arrested in July 2009 after taking photos of four teenage girls on a swimming platform near Brandy Bay at the south end of Browns Lake. At the time, witnesses reportedly saw _____ taking the photos from a pontoon boat and brought it to the attention of a Town of Burlington Water Patrol officer.
Gasiorkiewicz's provisions Tuesday also included a mandate he continue to seek therapy - a measure he already had been taking on his own accord. He also is to have no contact with the victims or any other minors who are not related, stay current with the state's sex offender laws and refrain from having a computer that connects to the Internet.
While delivering his ruling, Gasiorkiewicz said the conditions are an effort not only to protect the public at large, but _____ himself.
"You need to make better decisions," Gasiorkiewicz said. "You need to find those things in your life that are harmful ... and avoid them. The law is set up to protect children so they can be just that - carefree children."
____'s attorney, John Birdsall, had presented Gasiorkiewicz with numerous letters from family, friends and clergy that vouched for ____'s character. Birdsall said ____'s actions of two years ago were a reflection of his not fully understanding sex offender laws.
"There seems to have been this constant theme ... that he's not taking responsibility for his actions when, in fact, he has," Birdsall said. "He claimed ignorance, and when he learned he was not taking responsibility for his actions he pled guilty."
Birdsall said ____ is an avid photographer, with more than 40,000 images in his portfolio, and was out on the lake photographing sunsets that particular day.
"The attempt to paint him as a perverted guy on the lake is completely the opposite of what his family and friends say," Birdsall said. "He didn't legitimately understand the law, and he's very remorseful about this."
_____ spoke briefly prior to the judge's ruling. "I had absolutely no intent to cause anyone harm," he said. "I am truly sorry that my actions caused distress and concern for people. I know now that this is against the law. I don't want anyone upset or hurt."
___'s sex offender status stems from a 1991 conviction of second-degree sexual assault of a child in Washburn County. ..Source.. by Dave Fidlin