Sex offenders winning on appeal

PROVIDENCE, R.I. (WPRI) - Rhode Island courts side with convicted sex offenders more than half the time when asked to reduce their offense level, in some cases preventing their communities from being notified they live there, a Target 12 investigation reveals.

According to records from the Sex Offender Community Notification Unit, a magistrate judge has overturned 58 percent of classifications given to offenders in the last year.

Sex Offenders are given a classification by the Sex Offender Board of Review, an eight-member panel that uses a formula to determine the persons’ likelihood they will re-offend. Offenders deemed a "level III" are at a high risk to re-offend, "level II" a moderate risk and "level I" a low risk. The classifications also determine whether or not the public is notified of their existence.

• Interactive: Rhode Island Sex Offender Laws

The public is made aware of "level III" and "level II" sex offenders on the state's website and local police departments notify neighbors if one is residing in the area. Records indicate since March of 2011, Special Magistrate Patrick Burke has heard 33 sex offender classification appeals. Of those, he has lowered 19 of them:

• 14 offenders were lowered from a "level II" to a "level I"
• 3 offenders were lowered from a "level III" to a "level I"
• 2 offenders were lowered from a "level III" to a "level II"

Records from the Sex Offender Community Notification Unit show the previous judge overturned about 50 percent of appeals.

Court spokesman Craig Berke said Magistrate Burke does not allow cameras into his courtroom and denied Target 12's request for an interview. But in a statement, Berke said there is no overriding philosophy that is in contrast to the decisions made by the Sex Offender Board of Review.

"It is an appeal process and not simply a rubber stamp of the board's decision," Berke said in the statement. "In each separate case, it is the magistrate's responsibility to follow the rule of law, to weigh the evidence presented, and to make a judgment to the best of his or her ability."

A Father's Fight

One man is on the front lines of the controversial sex offender appeals process.

In 2006 he learned both his daughters had been molested by someone close to the family. The father – whose identity Eyewitness News his not revealing to protect the names of the victims – said his girls kept the horrible secrets from their parents, until one of them began to fall apart.

"She was cutting herself and she was trying to hurt herself," he said.

When the family learned of the molestation, he said they immediately reported it to the police.

"The worst experience that I ever had as a father in my life was hearing the cries from my daughter as she was being interviewed by the police," he said. "It was absolute hell."

Eventually the man accused of sexually assaulting his children pleaded no contest to two counts of child molestation and three counts of sexual assault. Two additional counts of child molestation were dropped in the plea deal.

As a result of the agreement with the Attorney General's office, the father said the offender did not receive prison time and was sentenced to a nine year suspended sentence. He said the family was at peace with the decision because he was told the convicted child molester would be a deemed a "level II" offender and be subject to community notification.

For a short time he was, but the offender quickly appealed the decision by the Sex Offender Board of Review, and won in state court.

His classification was dropped to a "level I," meaning he would not appear on the state's sex offender website and neighbors would be in the dark about his presence.

"People have the right to know that someone who has sexually assaulted two people is in their neighborhood," the father said. "You can make peace with yourself after a while with things that have happened, but the fact of the matter is you have someone who committed heinous crimes against two individuals and he was not punished adequately."

He said the family was never told when the offender was going before the judge to argue to have his classification lowered and they were never afforded the opportunity to testify against the request.
"Absolutely not," he said. "[Our voice] was never heard."

In the statement, Berke said the magistrate can refer to transcripts and the case file to get the victim's side of the story.

"The Court has great compassion for the victims, who previously have had the opportunity to tell the sentencing judges the impact the offenses have had on their lives," Berke said in the statement. "The magistrate's focus, however, is to determine the likelihood of the defendant to re-offend."

A Target 12 review of the file in this case shows the magistrate relied on arguments made by the sex offender's defense attorney, a letter from a therapist and notes from the Sex Offender Board of Review. Included in the file was the transcript from the interview the two girls gave