Bizarre Court Decision: Child Molesters Can Visit Children

By Lauren Smiley Fri., Feb. 18 2011 at 4:45 PM

Sure, you can visit the children....

It's rare that the letter of the law undermines common sense so drastically as in a ruling that came down from the California Court of Appeals this month.

According to the ruling, convicted child molesters could have visitation rights with their victims as long they never served a prison term for molesting them.

This decision came down in People v. Miguel Ochoa in the California Court of Appeals in San Joaquin County. As part of a plea bargain in Ochoa's Superior Court case, the court dropped the sex offense charge involving a girl referred to as Ang. in court documents. Still Ochoa agreed to pay restitution to her.

Ochoa pleaded guilty to sex offenses against two other girls.
The lower court said Ochoa was not allowed to visit Ang, nor any of the other girls involved in his alleged crimes. The penal code section regarding visitation rights of sex offenders states: Whenever "a person is sentenced to the state prison on or after January 1, 1993, for [certain sex offenses], and the victim of one or more of those offenses is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim."

So Ochoa then appealed to the court of appeals. The justices wrote: "The issue here is whether the statute's prohibition on visitation includes only child victims of offenses for which a defendant was sentenced to prison. Based on the plain language of the statute, the answer is 'yes.'"

The justices seem to provide the courts with an 'out': "We are not called upon here to discuss other laws that may authorize a trial court to limit or prohibit contact between sex offenders and child victims in appropriate circumstances."

In other words: maybe another law would close this loophole and keep child molesters away from visiting kids.

Doesn't that just make everyone feel better?

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Tags:

child molesters, no-visitation order, sex offenders, visitation rights

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Dr David Kenneth CochraneRegisteredSex Offender Six Counts of rape including minors, three counts ofindecent assault all involving patients dating back to the earlymillennium. Psychiatrist 6 months in Jail, 2 years probation,including 6 month license suspension. North Bay Canada Ontario andnow re-employed for the regional health centre.

Lakilgore Kilgore8

Are they all nuts? I thought Massachusetts was a nutty liberal state but California is definitely a close second. Why don't they just say, have at it boys, and let them do what they do so well,take away the sane life of a child.

Anda

Or is it a heavy and heartening hint from an Appeal Court that NEXT time a Court NEEDS to be CALLED upon to APPLY w h i c h law - that MAY authorize a trial court to limit or prohibit contact between sex offenders and child victims in appropriate circumstances.

Not called upon to DISCUSS some law not yet invoked ? Was that court really bound and limited to application of the statute no longer in question ?? This brazen Appeal seems to have succeeded upon the wording of the statute. Other laws were almost discussed, but was the Appeal upon the wording of that Statute applied to prohibit contact?

Cunning, there being no further need to protect a child as a witness still in process, some guilt being admitted, restitution agreed. WHY was this other law not invoked then and there?

Anda

I can hear the man chuckling as he thinks, 3 down, 2 to go. I would also like to know why, after 5 days, the Appeal Court changed its mind about publishing this record :"The opinion in the above-entitled matter filed February 2, 2011, was not certified for publication in the Official Reports. For good cause it appears now that the opinion should be published in the Official Reports and it is so ordered (February 7th, 2011).

On February 2nd the Court of Appeal explains that of the 5 protected targets, only 3 were of sex offenses, so the Statute cannot apply to D., and V.; and of the 3 targeted with sex offenses, only 2 obtained the offender a prison sentence so the Statute can apply to M., and Ann. : but not to Ang., who did not obtain the offender a prison sentence.

The People had argued that Ang.'s no-visitation order should stand as justified for 3 reasons =

1. because the offender had entered his plea with a Harvey waiver, allowing the trial court to determine appropriate disposition (for the offense being convicted) in consideration of facts underlying those counts dismissed

2. because the offender had agreed to pay restitution to Ang., (even though the counts pertaining to her were being dismissed).

3. because the offender had pleaded an admission of offence entitling her to restitution, although those counts were being dismissed.

But the Appeal Court require a conviction with prison sentence for a non-visitation order under that Statute, however evidential the suggestion of such an offence against Ang., and even if the offender had entered a Harvey waiver, and despite his admission. So Ang.'s part of that non-visitation order was struck out too, along with D.'s and V.'s. The modified non-visitation order was affirmed to protect only M., and Ann. The Appeal Court maintains that this is the intended letter of the law, such that they have no choice.

The Harvey waiver comes from People v. Harvey (1979) supra 25 Cal.3d 754.

Its permissible consideration comes from People v. Moser (1996) 50 Cal.App.4th 130, 132-133.