Sanction Disagreement For Sex Offense
An attorney who was convicted of misdemeanor attempted criminal sex act in the third degree as a result of his participation in sexually explicit chat room conversations with a person that he believed was a 13 year old girl was suspended for at least three years by the New York Appellate Division for the First Judicial Department. The factors that the court found justified a sanction other than disbarment:
Upon our review of these precedents, and our consideration of thenature and severity of respondent’s offense, the aggravating andmitigating circumstances, and the impact of such offense on the bar andpublic, we conclude that the Hearing Panel’s recommendation of asuspension of three years, or until the conclusion of respondent’sprobationary period, whichever is longer, is appropriate. As noted,misdemeanor convictions involving sexual solicitation of minors that donot involve sexual contact generally result in a suspension, notdisbarment. Further, even if weagreed with the dissent that the offense, by itself, would ordinarilyrequire disbarment, the substantial and credible mitigation evidenceoffered by respondent in this case requires us to consider a lesser sanction.From the beginning, respondent has admitted responsibility for hisactions and has taken “uncommon” efforts to rehabilitate himself. Afterhis arrest, he voluntarily entered sex offender treatment and allevidence in the record supports the therapist’s opinions that suchtherapy appears to be working and that the likelihood of respondentrepeating the misconduct was “low.” Further, respondent cooperated withthe criminal investigation and with Committee staff in theirinvestigations, and he has no prior disciplinary record.
As the majority notes, a dissent would impose disbarment and sets out the circumstances in greater detail:
It is uncontested that in July 2004, while using his law officecomputer, respondent, then thirty-years old and a patent lawyer, loggedonto an internet instant-messaging service and entered a chat roomspecifically targeting “older men and younger women.” He commenced anonline conversation with a female who claimed she was thirteen and whopurportedly lived with her mother on Long Island but who was, in fact,a police officer. The chat room was “sexually oriented” and there was”significant sexual content” in the six separate conversations thatfollowed over a period of three months. On October 16, 2004, afterthree months of these sexually explicit conversations, respondent, infurther online conversations, arranged to meet the girl the next day atthe Ronkonkoma train station in Suffolk County. They exchanged photosover the internet to ensure that they could identify each other so asto consummate their pre-arranged sexual liaison.
On October 17, 2004, respondent traveled on the Long IslandRailroad from Manhattan to Ronkonkoma, admittedly “to engage in an oralsexual act” with a female whom he believed to be a thirteen-year-oldgirl. Upon his arrival he was arrested. At that point, he learned forthe first time that the thirteen-year-old girl with whom he hadanticipated having sex was actually a Suffolk County police detective.
The dissenting justice decries the random choice of sanction with the following footnote:
This seemingly random assignment of sanction recalls Justice Scalia’s dissent in Dickerson v. United States(530 U.S. 428, 455, 120 S.Ct. 2326, 2342, 147 L.Ed.2d 405, 427 [2000]):”The issue, however, is not whether court rules are mutable’; theyassuredly are. It is not whether, in the light of variouscircumstances,’ they can be modified’; they assuredly can. The issue iswhether, as mutated and modified, they must make sense.The requirement that they do so is the only thing that prevents thisCourt from being some sort of nine-headed Caesar, giving thumbs-up orthumbs-down to whatever outcome, case by case, suits or offends itscollective fancy.” The instant case demonstrates the danger of thisCourt becoming, to paraphrase Justice Scalia, a five-headed Caesar.
(Mike Frisch)