Articles Posted in Criminal

Indiana, and Indianapolis in particular, is a hub for sex trafficking. Victims of human trafficking, including both sex trafficking and labor trafficking, are often convicted of crimes committed while they’re under the control or influence of the trafficker. The first thing that likely comes to mind is that victims are convicted of prostitution. That may be true (although known victims of sex trafficking cannot be convicted of prostitution), but they’re also convicted of recruiting others into prostitution (promoting prostitution), of theft, of drug charges, of firearms charges, of crimes of fraud…almost anything.

In 2017, the Indiana General Assembly passed a bill to provide relief that even many criminal defense lawyers don’t know about that allows victims of human trafficking who are convicted of crimes to have their convictions vacated. When a conviction is vacated, it is as if the conviction never happened. That’s different from, and even better than, an expungement. An expungement removes the public records of the conviction, but vacating the conviction is as if it never happened.

The word “trafficking” sometimes makes people think of a person moved from one place to another and forced into prostitution. Sometimes that’s the way it works, but not always. The definition of human trafficking is much broader than that and includes both sex trafficking and labor trafficking.

Reporting Child Abuse Indiana has a simple statutory requirement to report abused or neglected children. Indiana Code § 31-33-5-1 provides:

[A]n individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article.

The report may be written or oral, and it may be made either to the Indiana Department of Child Services (DCS) or to a law enforcement agency. Indiana Code § 31-33-5-2. DCS operates a toll-free hotline, 1-800-800-5556, that accepts reports of child abuse or neglect 24 hours a day. DCS allows these reports to be made anonymously. Knowingly failing to report one’s belief that a child is a victim of child abuse or neglect is a Class B misdemeanor. Indiana Code § 31-33-22-1.

Update: On November 13, 2018, the Safe Sport Center dismissed the disciplinary action against Naddour, and he was removed from USAG’s list of suspended members on November 14. He does not intend to make any other public statements regarding the matter.

On June 20, 2018, USA Gymnastics (“USAG”) suspended Alex Naddour, member of the 2016 U.S. Olympics team in men’s gymnastics and a member of the current Senior National Team, pending the resolution of allegations of sexual misconduct. His suspension prohibits him from participating in any USAG activities.

The United States Olympic Committee (“USOC”) is responsible for, among other things, establishing programs to develop world class athletes in the Olympic sports. To that end, USOC has designated 47 organizations as national governing bodies (“NGBs”), each with responsibility for one or more sports. USAG, a nonprofit corporation headquartered in Indianapolis, is the NGB for several types of gymnastics.

Last July, the Indiana Court of Appeals decided Rogers v. State, 60 N.E.3d 256 (Ind. Ct. App. 2016), in which the attorney for a criminal defendant had deposed an employee of a charitable organization who held a degree in social work from an accredited university but not a license from the Behavioral Health and Human Services Licensing Board of the Indiana Professional Licensing Agency. The attorney for the organization advised the social worker not to answer certain questions on the grounds that the information was subject to the privilege for communications between a social worker and her client. The defendant filed a motion to compel the social worker to answer the questions, and the court denied the motion. The court gave the defendant permission to file an interlocutory appeal with the Indiana Court of Appeals, which reversed the trial court’s decision, holding that the privilege does not apply to unlicensed social workers. The State sought transfer to the Indiana Supreme Court, which held oral argument before denying transfer. Because transfer was denied, the decision of the Court of Appeals is now final.

Ind. Code 23-25.6-6-1 provides that, with some exceptions, a “counselor” cannot be compelled to disclose communications with a client. Counselor is defined by Ind. Code 25-23.6-1-3.8 as “a social worker, a clinical social worker, a marriage and family therapist, a mental health counselor, an addiction counselor, or a clinical addiction counselor who is licensed under this article.” The question put to the Court of Appeals was one of statutory interpretation: Does the phrase “who is licensed under this article” apply to all six professions in the list, or does it apply only to the last one, clinical addition counselors?

In arguing that the modifying phrase applied only to the last item in the list, the State relied in part on a canon of statutory construction (i.e., a rule a court sometimes uses as a guideline for interpreting statutes) called the doctrine of the last antecedent, which says that when a list of nouns is followed by a modifier, the modifier is presumed to apply only to the last one in the list (i.e., the “last antecedent”) unless there is a comma between the last item and the modifier. Because there is no comma between “clinical addiction counselor” and “who is licensed under this article,” the State argued, the phrase does not apply to “social worker.” Therefore, an unlicensed social worker is within the definition of “counselor;” and the privilege applies.

Ordinarily, I leave this area of the law to the my partner, Susan Rayl, but today (well, yesterday by the time I’m writing this) the Indiana Supreme Court issued a decision, written by Justice Stephen David, that caught my attention. In Bond v. State, the Court held that the defendant’s confession was involuntary, and therefore inadmissible as evidence against him, because it was obtained through interrogation by a police officer who told the defendant, an African American from Gary, Indiana, that his race would prevent him from getting an impartial jury or a fair trial.

The officer’s interrogation strategy was to persuade the defendant that the police knew he was guilty and that the only way he could improve his situation was to confess. Over a period of three hours, the officer suggested that the defendant might be charged with a less serious crime if he confessed and told the defendant that a confession would allow him to see his children and talk to his mother. Then, about two hours into the interrogation, the officer told the defendant:

[d]on’t let twelve people who are from Schererville, Crown Point–white people, Hispanic people, other people that aren’t from Gary, from your part of the hood–judge you. Because they’re not gonna put people on there who are from your neck of the woods. You know that. They’re not gonna be the ones to decide what happens to you. You know that. I know that. Everybody knows that. All they’re gonna see is, oh, look at this, another young motherf***** who didn’t give a f***.