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Commentary to the RAI …cont

The question of whether child pornography defendants should be scored with RAI points because the “relationship” between the defendant and his victims is one of a “stranger” was addressed by the Court of Appeals in a case. In the said case, the defendant argued that such points were not justified because the “stranger” risk factor was intended to apply only to contact offenses. In analyzing the issue, the Court first looked at the Commentary to the RAI written by the Board. The Commentary asserts that one of the primary reasons for adding points for stranger victims is that “the need for community notification is generally greater when the offender strikes at persons who do not know him well”

The Court went on to note that the assessment of points for stranger victims in child molestation cases produce “a seemingly anomalous result, one the authors of the Guidelines may not have intended or foreseen”.

In another case, the Court explained why the “stranger” factor was not written with a view towards child pornography cases. The RAI was written in January of 1996 and slightly revised in a manner not relevant here in 1997. The current version of the Commentary was published in 2006 but the 2006 Commentary modified the original instrument only to include updated statutory language and clarification. The 2006 version of the Commentary lists 36 articles upon which the RAI is based. The most recent of these articles was published in 1995. The most significant research and learning in the field of sex offender risk assessment, however, has occurred during the ensuring 17 years. New York’s child pornography statute was enacted shortly after the RAI was promulgated. The simple possession of child pornography was not a crime under New York law when the “stranger” factor was written. The instrument thus was obviously not written, as the Court of Appeals surmised, with “possessors of child pornography in mind”.

Despite its concerns, the Court of Appeals in a case law held that points for stranger victims had to be assessed under the RAI in the case before it because to do otherwise would be to “distort the text of [RAI] factor 7 to avoid an unjust result in cases like this”. The remedy, the Court held, in cases where the RAI s point scoring system led to an inappropriate result was for a court to depart downward to an appropriate risk level.

To Be Cont…

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