Sandusky's Mens Rea

With certain conduct, the same action may be criminal or not, depending on the intent of the person who performed it. This is basic criminal law, and in the first year of law school, students historically have learned a Latin term for criminal intent: mens rea.

The Jerry Sandusky juvenile sex abuse case is a recent reminder of this basic principle. Some of the charges were for clearly prohibited acts, such as oral or anal sex with a minor. Other charges, however, were for conduct involving overt but somewhat ambiguous acts, such as touching in the shower.

Before the jury began its deliberations, the judge gave clear instructions about what constituted a criminal mental state.

“It is not necessarily a crime for a man to take a shower with a boy, wash a boy’s hair, lather his shoulders, or engage in back rubbing or back cracking,” the judge said. “What makes this kind of ambiguous contact a crime is the intent with which it is done. You must determine it is an act of lust.”

And that, indeed, is what the jury found. On virtually all of the charges involving “ambiguous conduct,” the jury found Sandusky guilty of actions motivated by lust.

What Does a Sex Offender Look Like?

A terrible nursing home abuse case came to light in 2008 in Albert Lea, a town of 25,000 people in southern Minnesota, a couple of hours from the Twin Cities.

Investigators from the state Health Department found that six aides at the Good Samaritan home in Albert Lea physically and sexually abused as many as 15 residents who struggled with Alzheimer's disease or other forms of dementia. Four of the six aides were juveniles. Their cases were handled in the juvenile system, where they were determined to have failed to report the abuse.

The other two aids - Brianna Broitzman, now 21, and Ashton Larson, 20, are being prosecuted in the adult system. Broitzman recently agreed to an Alford plea, which means she still asserts innocence but concedes there is enough evidence to convict her of gross misdemeanor disorderly conduct concering three of the victims. She will be sentenced on October 22. Larson's case is still pending, with a trial date not yet set.

The alleged conduct was deeply and egregiously offensive. Spitting in a resident's mouth. Jabbing the breasts. Sticking a finger up the rectum. Getting in bed with a resident and miming sexual intercourse. Not just disgusting, but shocking - and criminal.

In the Star Tribune account of Brianna Broitzman's plea, Iris Freeman, a law professor from St. Paul, pointed out that the Albert Lea case overwhelmed the previous stereotypes of a likely sex offender profile. For the abuse was perpetrated not by menacing, misfit men, with unappealing mug shots, but by nubile young women with appealing yearbook photos. Appealing photos that the online version of the Star Trib was happy to use.

Did the print version of the story refrain from spotlighting the fetching photos? I certainly hope so, but my wife and I now carry only a weekend subscription.