Category Archives: AISE (American Intercultural Student Exchange)

2012 Mar 20: Bag Facaden – Misbrugt i værtsfamilien

Skrevet af: Christian Rask

20. marts 2012 kl. 20:00 på DR1  Flere danske unge er blevet misbrugt af deres værtsfar i forbindelse med udvekslingsophold til USA. Det afslører DR-programmet ‘Bag Facaden’.

I Bag Facaden fortæller en række unge om drømmerejser, der udviklede sig til et mareridt. Og sagerne handler ikke kun om sexovergreb. Nogle unge er havnet hos fattige amerikanske familier, der ikke havde råd til mad. Eller hos familier, der slår deres egne børn og undertrykker dem psykisk.

Den seneste og mest alvorlige af sagerne handler om placeringen af en 16-årig dreng hos en amerikansk værtsfar, der efterfølgende blev dømt for gentagne seksuelle overgreb. Sagen blev aldrig indberettet til de danske myndigheder af Interstudies, firmaet bag opholdet.

I en anden af sagerne ville organisationen STS, Student Travel Schools, kun udbetale en delvis godtgørelse til familien og en dengang ligeledes 16-årig dreng, hvis de underskrev en tavshedsklausul. Også han blev placeret hos en enlig mand og udsat for overgreb.

– Jeg er harm over, at de ville have mig til at tie stille om de overgreb, jeg blev udsat for. Folk skal høre om dem, så de ved, hvad de kan risikere, siger Nicklas i dag.

Hemmeligholdelse
Unge danskere kan vælge mellem i alt 10 godkendte udvekslingsorganisationer. De unge placeres hos en værtsfamilie – og betaler typisk 50-60.000 kr. for en samlet pakke mens staten støtter med 10.000 kr. pr. ophold. Hos kontrolmyndigheden, Styrelsen for Uddannelse og Internationalisering, SUI, ser man meget alvorligt på hemmeligholdelsen af sagerne om seksuelle overgreb.

– Vi kan selvfølgelig ikke acceptere, at man hemmeligholder så kritisable forhold, siger Mikkel Buchter, kontorchef i SUI, der nu vil indføre et skærpet tilsyn med Interstudies.

Året efter, at sagen om Nicklas blev lukket ned af STS, blev en 17-årig pige udsat for to grove seksuelle overgreb af sin værtsfar. Her havde STS benyttet samme partner i USA til at finde værtsfamilien. Den nuværende chef for STS beklager sagsforløbet:

– Det var en fejlbeslutning. Vi arbejder ikke længere sammen med den organisation i USA, der stod for anbringelserne, siger John Cedergårdh, general manager i STS.

STS er ikke blevet godkendt i år efter flere kritisable sager, hvor unge blandt andet blev sendt til områder i Sydafrika med høj kriminalitet.

Drømmerejser blev til mareridt
Unge fra hele verden søger hvert år til USA på udvekslingsophold. Det har ifølge Bag Facadens kilder ført til mangel på egnede værtsfamilier – og en utilstrækkelig screening af familierne.

Flere unge, som får problemer under opholdet, har oplevet, at de kun må have begrænset kontakt til familien hjemme. Da 17-årige Stina fik problemer, blandt andet fordi familien slog sine børn, og hun måtte fjernes med hjælp fra politiet, blev hun bedt om at underskrive en kontrakt, der begrænsede hendes kontakt til familien og til dem i USA, der hjalp hende.

– Vi blev svigtet af Interstudies, da der begyndte at opstå problemer, siger Bettina Hjortshøj, mor til Stina.

Direktør i Interstudies, Anette Sørensen, meddeler, at hun ikke ønsker at kommentere de enkelte sager i medierne.

Men Bettina Hjortshøj mener, at firmaet har et alvorligt troværdighedsproblem.

–  Den tillid og det sikkerhedsnet, vi havde betalt for – det var ikke til stede, da vi fik brug for det, siger hun.

Op mod 1000 danske unge rejser hvert år ud som udvekslingsstuderende. Af dem får i gennemsnit 50 så problematisk et ophold, at de rejser hjem før tid.

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2003 Apr 26: Local student exchange group reprimanded

2005 Aug 02: Robert Medley convicted for sexual battery

2013 Mar 19: John E. Hamilton v. Commonwealth of Virginia

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2005 Aug 02: Medley sentenced for sexual battery

ROBERT MEDLEY / Robert Lee Medley
Offender Number: 0907745
Probation/Parole/Post Release Status: INACTIVE
Gender: MALE
Race: WHITE
Ethnic Group: EUROPEAN/N.AM./AUSTR
Birth Date: 07/02/1969

Most Recent Period of Supervision Record
Sentence Number: 01-001 Commitment Type: PROBATION/PAROLE
Conviction Date: 08/02/2005 County Of Conviction: HENDERSON
Punishment Type: COMMUNITY SS (DCC)
Sentence Type 1: PROBATION
Sentence Type 2: SUSPENDED SENTENCE
Sentence Type 3: COUNTY JAIL
Commitment Docket# Offense (Qualifier) Offense Date Type Sentencing
Penalty
Class Code
INITIAL 05000733 SEXUAL BATTERY (PRINCIPAL) 09/01/2004 MISD. CLASS A1 MISDEMEANOR SS

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Comment from DR1 (Danish television) re NBC’s exchange student documentary

2003 Apr 26: AISE reprimanded by US Department of State

This article has been removed from the original site

By Leslie Wolf Branscomb
UNION-TRIBUNE STAFF WRITER

April 26, 2003

A venerable San Diego-based student exchange organization has been reprimanded by the State Department for violating federal regulations that protect students visiting from abroad. The punishment was based on complaints filed by three foreign students who lived in San Diego until recently. They complained of being shuttled from home to home, forced into overcrowded and dirty houses, and – in the worst case – one was sexually molested by his host.

The State Department confirmed this week that American Intercultural Student Exchange of La Jolla, or AISE, has been formally sanctioned, put on probation for a year and required to implement a corrective plan.

“It comes as a wake-up call,” said Anne Ring, president of the organization, which she helped found in 1981.

The nonprofit organization bills itself as the nation’s third-largest student exchange program.

“It means they’re going to obviously be watching us closely, which is fine,” she said. “We’ve always had such a good reputation. I hope, and I know, that it won’t happen again.”

Ring said two employees – a local area representative and the regional coordinator for the Western states – have resigned under mutual agreement with the company.

The organization has hired a new U.S. director of field services, who will be in charge of ensuring that all employees are trained and the paperwork is done, she said.

The sanctions were based on the accusations of students from Thailand, Denmark and Germany who at one point lived in the same Tierrasanta home.

Through a classmate at Serra High School, they met a lawyer, Sally Arguilez Smith, who alerted the State Department to the problems the three were experiencing.

“Exchange students bring so much to our country, and they should be treated well, and know that the laws protect them,” Smith said upon learning of the sanctions. “AISE has acted atrociously, and they deserved more serious sanctions.”

One of the students is living with Smith. Another has moved to Los Angeles County and the third has gone home.

Denis Sladkov, an 18-year-old from Germany, said he lived in five homes in five months. “It seems like they just want to take as many exchange students as possible and, then, when they get here, find a home,” Sladkov said.

At his first home in Twentynine Palms, Sladkov said, there were fire ants in his bed and the house smelled of dirty dogs. Then, he said, he was placed with a couple that had marital and drug problems.

He was eventually moved to a Navy housing complex in Tierrasanta, where he lived with Racheal Rivera and her husband, their four young children and two other exchange students.

The situation was tense, Sladkov said, and the students spent most of their time doing housework and child care for the hosts, who seemed to not have the time or money to feed and care for the teenagers.

Sladkov said that he, like the others, was threatened with deportation by various employees of the organization when he complained.

Unhappy and tired of moving, Sladkov dropped out of school and returned to Germany in January.

The State Department identified Racheal Rivera as one of the program’s employees who violated federal rules by having more than one student per home and not keeping complete files on the students.

Rivera said this year that the organization kept dumping students on her. “They said it was my job, and if I didn’t take them they would have no place to go,” she said.

One home to another

Mary Vattanasiriporn, a 16-year-old from Thailand, lived with four families in as many months.Her first hosts, the Holts, lived in the northern Montana town of Havre. They had nine children of their own, and Mary shared a room with a student from China.

Mary said the house was filthy. They had no door locks, no privacy and the family’s teenage boys sometimes barged in while they showered. The girls held the door shut for each other when they used the bathroom and slept in their clothes.

Upon hearing Mary’s complaints, her parents tracked down a Thai girl who lived with the Holts the year before. She e-mailed them her photos of the Holt house, which showed rooms piled high with debris and walls with exposed wiring and insulation.

American Intercultural Student Exchange representative Penny Velk was sent to take the two girls from the home. Velk said she had to call the police when the host father became angry, and she was fired from the organization as a result.

Roger Holt said afterward that his house is “pretty shabby” and might seem “chaotic” to an outsider. But Holt said his family would rather take students sightseeing than clean house.

“We’re not into cars and clothes and fancy houses,” Holt said.

He contends the exchange students were spoiled and misled by recruiters. “AISE sells a package to the kids that doesn’t bear a whole lot of resemblance to reality,” Holt said. “Everyone thinks they’re going to Hollywood or Disneyland, then they end up in the hinterlands.”

Velk took the girls to the home of Kelly Toldness in Havre. Toldness recalled that Mary seemed surprised to find clean drinking glasses in her kitchen, and it pained her to think of what the girls’ first impression of America had been.

Toldness wanted to become their host, but said a student exchange representative who was a friend of the Holts accused her of kidnapping and called her home “a hostile environment.” The girls were removed by the organization 10 days later.

Mary ended up with the Riveras. There, she said, she slept in an unheated garage with newspaper covering the windows and was sick all winter.

Smith asked Mary to come live with her.

Smith said Rivera agreed. But it made Smith angry that no one from the exchange organization interviewed her or inspected her home for a month.

“You don’t just hand a kid over to a total stranger in a foreign country,” Smith said.

A student exchange representative at one point sent Mary an e-mail asking where she was and requesting her new host’s name and address. Mary later received an anonymous phone call warning her to stop complaining about the organization.

From Denmark

The boy from Denmark also lived with Smith briefly, before his parents sent him to live with family friends in Pomona.His father said their son dreamed of playing high school football in America, so they enrolled him in the student exchange program.

“It’s quite a glossy, shiny literature which assures us that our children will be taken care of, that it’s safe and they will have a good experience in the U.S.,” said the boy’s father.

The teen’s parents were concerned when their son was placed with a 53-year-old single man in Riverside, but student exchange officials vouched for David Goodhead.

“They said he was a wonderful man who really would give your children a once-in-a-lifetime experience,” the father said.

The boy was in the United States for three weeks when Goodhead molested him while camping in Yosemite. (It is the policy of the Union-Tribune  to withhold the names of minors who are victims of sexual assault.)

Because Goodhead insisted that the student speak English when calling home, the boy surreptitiously sent a text message in Danish on his mobile phone to inform his parents about what had happened.

His parents said the student exchange organization did not respond to their frantic phone calls for 48 hours, despite assurances that emergencies are handled around the clock.

Goodhead was arrested and the boy removed from his custody. But, the father said, nearly a week passed before the exchange organization told them where his son was taken.

Goodhead was charged in U.S. District Court with two misdemeanor counts of engaging in unsolicited sexual conduct. On Feb. 11, he pleaded guilty to one of the charges, and is scheduled to be sentenced next month. He could receive up to six months in jail and a $5,000 fine.

Goodhead is free on bail and maintains a Web site with photos and descriptions of his nine previous exchange students. All are European boys, most of them blond like the student from Denmark, whose picture has been removed.

Laurel O’Rourke, the organization’s director of counseling, said the company does not do background checks on potential hosts, but did check on Goodhead after his arrest.

“He has hosted before and there had never ever been any sort of sexual innuendo,” she said. However, O’Rourke said, “He won’t have another student of ours.”

The Danish boy’s new host mother, Nancy Osgood, said she expected the exchange organization to inspect her home thoroughly.

But, she said, the inspection was cursory and the representative didn’t even ask to see where the boy would sleep. “It seems like they’re moving these kids around like chess pieces,” she said later.

Penny Velk, the former Montana representative, said she wasn’t well-screened before hosting her first student. “This woman just came in and glanced around and said, ‘Fine,’ ” Velk said. “She said she had to place three kids, and anybody who wanted a kid, she was going to give it to them.”

Velk said her daughter was an exchange student with the program last year in Australia, and she was moved three times. She said her daughter’s first host father was an alcoholic who made passes at the girl, and the second family spoke only Portuguese.

“There’s a total lack of communication,” Velk said of the program. “They just place kids and if they’ve got their money, they don’t give a damn.

“Now our son wants to be an exchange student, and I just can’t see spending $10,000 and you don’t know if you’re going to end up in a really rotten home or a nice home,” Velk said.

Thousands of students

The three students who complained to the State Department said their families paid between $7,000 and $10,000 for the exchange program.Student exchange spokeswoman Doris Lee McCoy said the company collects about $2,000 per student and still must raise funds to pay for advertising and staff.

The remainder of the fee, she said, is collected by the overseas agencies that recruit the foreign students.

Host families are not paid.

There are now about 32,000 high school students nationwide enrolled in foreign exchange programs with 75 agencies, according to Stanley Colvin, the State Department’s coordinator of foreign exchange programs.

“With that many students, there’s going to be an occasional dust-up,” Colvin said. “By and large, high school exchanges are not problematic.”

The State Department typically receives up to 10 complaints a year, he said. So for three to come from one organization was notable, and that’s what prompted the investigation, Colvin said.

The organization said it has arranged exchanges for more than 30,000 students. “The vast majority have wonderful experiences, thanks mainly to the hospitality and generosity of the American families,” said Ring.

American Intercultural Student Exchange officials said they usually bring about 3,000 foreign students to the United States a year, but that number has dropped to fewer than 1,000 this school year.

They attribute the decline to parents’ unwillingness to let their children travel overseas after the terrorist attacks of Sept. 11, 2001. Former employees say Americans’ fear of foreigners has made it increasingly difficult to find host families.

The organization’s officials declined to discuss individual students, citing privacy concerns.

However, counselor O’Rourke said most student complaints can be attributed to homesickness, culture shock or the teens’ misconception that all Americans live like the rich celebrities they see on TV.

Student unhappiness peaks right around the holidays, O’Rourke said, but most problems are soon resolved with counseling and “tender loving care.”

Organization spokeswoman Doris Lee McCoy said teen-agers tend to be volatile, and some situations are made worse by language barriers and unrealistic expectations. “We have had some students that were pretty pampered” in their home countries, she said.

“Yes, there can be a few glitches. We’re dealing with human beings and they’re not perfect,” McCoy said. “But I know that by the end they will be homesick for their American families, and they will have learned more in that one year than ever before.”


Leslie Branscomb:
(619) 498-6630; leslie.branscomb@uniontrib.com

Comment from DR1 (Danish television) re NBC’s exchange student documentary

Foreign Exchange Students Sexually Abused In Program Overseen by State Department

Dear NBC / Rock Center,

We here at National Danish TV just found out, that you have produced the same story as we did, about exchange students being victims of sexual abuse in American host families. We broadcast our documentary tonight. Our stories might interest you. We asked CIEST what they intended to do about it (see below). This is already a huge story here in Denmark, and tonight after our broadcast the minister concerned will go on the news demanding that action is taken in the exchange student travel organizations to prevent these cases.

Here is our mail to CSIET:

To CIEST,

We would like to draw your attention to the following:

We are broadcasting a documentary (20th of March on National Danish TV) about Danish exchange-students, who were sexually abused during stay with American host families. We have three cases:

1) The case of 16 year old Nicklas Rassing, who was abused by David Goodhead, Riverside, California, sentencing details from May 2003: 5 month in jail, $ 1500 fine.

2) The Case of 17 year old xxx (name known to us), who was abused by Robert Medley, Henderson County, North Carolina, sentencing details from August 2nd 2005: Sexual Battery, class A1 misdemeanor.

3) The case of 16 year old xxx (name known to us), who was abused by John Hamilton, Fairfax County, Virginia, sentencing details from June 2011: 55 years in jail (5 of which had to do with the Danish case).

This raises some questions about the approval of AISE by CSIET, because AISE in all three cases found the host families:

– Were these cases of sexual abuse reported to CSIET by AISE? And if so, what consequence did it have?

– We understand, that AISE were blacklisted by CSIET in 2003 because of the Rassing-case. How come the two next cases did not get AISE blacklisted the following years?

– Have CSIET received or noticed other cases regarding AISE and sexual abuse of exchange students?

The two missing names can be provided, but AISE has had a mail correspondence with us about the cases, so there is no dispute about identifying the students.

We look forward to your response.

Kind regards,

Michael Klint

Journalist / producer
National Danish Broadcast Corporation

Documentary, DR, DR Byen
Emil Holms Kanal 20, opg.1.3
DK-0999 Copenhagen C

Denmark

Mail: mikl@dr.dk
Phone: +45 3520 3040

Phone, desk: +45 3520 2958

Mob: +45 5191 2220

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2003 Apr 26: Local student exchange group reprimanded

2013 Mar 19: John E. Hamilton v. Commonwealth of Virginia

2013 Mar 19: Hamilton appeals sentence

COURT OF APPEALS OF VIRGINIA

Present:   Judges Beales, Alston and Senior Judge Willis
Argued by teleconference

JOHN E. HAMILTON                                                       OPINION BY
v.     Record No. 1922-11-4                      JUDGE ROSSIE D. ALSTON, JR.
MARCH 19, 2013
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Brett A. Kassabian, Judge

Karin Kissiah (Kissiah & Schaefer, PLLC, on briefs), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

        John E. Hamilton (“defendant”) appeals the trial court’s denial of his motion for a new sentencing.  On appeal, defendant contends that the trial court did not properly follow the procedures in Code § 9.1-902(H) and, accordingly, his case should be remanded for compliance with Code § 9.1-902(H).1  Because we find that the trial court substantially complied with Code § 9.1-902(H), we affirm the trial court’s denial of defendant’s motion for a new sentencing.

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1 Code § 9.1-902(H) states:
Prior to entering judgment of conviction of an offense for which registration is required if the victim of the offense was a minor, physically helpless, or mentally incapacitated, the court shall determine by a preponderance of the evidence whether the victim of the offense was a minor, physically helpless or mentally incapacitated, as defined in [Code] § 18.2-67.10, and shall also determine the age of the victim at the time of the offense if it determines the victim to be a minor.  Upon such a determination the court shall advise the defendant of its determination and of the defendant’s right to withdraw a plea of guilty or nolo contendere.  If the defendant chooses to withdraw his plea of guilty or of nolo contendere, his case shall be heard by another judge, unless the parties agree otherwise.

– 2 –

BACKGROUND

           On appeal from the trial court’s denial of defendant’s motion for a new sentencing, this Court views the evidence “in the light most favorable to the Commonwealth, and accord[s] the Commonwealth the benefit of all inferences fairly deducible from the evidence.”  Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008) (internal citation and quotation marks omitted).

So viewed, the evidence indicated that defendant was indicted on five separate felony charges, consisting of two counts of aggravated sexual battery, two counts of indecent liberties, and one count of crimes against nature.  During a hearing in the trial court on March 29, 2011, defendant entered a plea of guilty to each of the five felony charges.  During the hearing, the trial court read the indictments, which stated the ages of each of the victims in the separate indictments, to defendant.  Defendant pleaded guilty to each of the charges.  Thereafter, the trial court considered the plea of guilty forms that defendant signed.  Defendant’s counsel informed the trial court that prior to the hearing defendant had reviewed with counsel a form identical to those presented to the trial court except for item 11 of the plea form; the paragraph informing defendant of the requirement that he register as a sex offender based on his conviction for each charge.  The trial court addressed defendant on this point and asked defendant if he had been given a chance to read “that particular identical aspect of each one of these forms,” to which defendant responded, “[Y]es.”  The trial court then asked defendant if he still intended to enter pleas of guilty to each of the five felonies, and defendant responded affirmatively.

           Following the plea colloquy, the Commonwealth proffered the facts of the case.  These facts indicated that defendant sexually abused multiple boys while holding a position as a baseball coach and as a host to a foreign exchange student.  The investigation of the charges against defendant began in 2009 when K.E. reported to the Fairfax County Police Department

– 3 –

that defendant sexually molested him when he was twelve years old.  A detective followed up on this report by going to defendant’s residence where F.G., a sixteen-year-old foreign exchange
student, answered the door.  Later in the investigation, F.G. reported that defendant massaged him “which ended in fellatio and anal intercourse.”

          The Commonwealth also proffered that as part of its investigation, the Fairfax County Police Department issued a press release seeking additional information from individuals who may have had contact with defendant.  Following this press release, additional witnesses came forward.  J.C. reported that defendant exposed himself to and performed sexual acts on him when J.C. was between ten and thirteen years old.  T.T. and P.V. reported similar conduct involving defendant had occurred when they were minors.
Following the Commonwealth’s proffer, the trial court accepted defendant’s plea of guilty, noting it did so based on defendant’s pleas and the proffered evidence.  On June 24, 2011, the trial court sentenced defendant to a total of fifty-five years’ imprisonment for the five felony offenses.

          On July 14, 2011, defendant filed a motion for a new sentencing hearing.  Defendant claimed that the provisions of Code § 9.1-902(H) applied to each of his convictions and were not followed at the sentencing hearing and that the sentence was thus voidable.

          On August 26, 2011, the trial court held a hearing on defendant’s motion for a new sentencing.  The trial court first concluded that Code § 9.1-902(H) applied only to defendant’s conviction for crimes against nature in violation of Code § 18.2-361(A).  The trial court then denied defendant’s request for a new sentencing.  In doing so, the trial court noted that the true purpose of Code § 9.1-902(H) “is to put the defendant on notice at the time of his plea and conviction that this conviction mandates or requires registration.”

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The trial court found that the defendant’s plea satisfied the purpose of Code § 9.1-902(H) because he was repeatedly notified by the trial court of the registration requirement and he signed a written plea form that stated, “I understand that this conviction is for an offense for which registration is required.”  Further, according to the trial court, the evidence proffered by the Commonwealth demonstrated that the victim in the felony offense pertaining to the violation of Code § 18.2-361(A), F.G., was sixteen.  The trial court concluded that the lack of a specific determination of the minor status of the victim and notification of the right to withdraw the plea was harmless error.2

This appeal followed.

2 The trial court identified two rationales for denying defendant’s request for a new sentencing hearing.  Initially, the trial court concluded that the remedial purpose of Code § 9.1-902(H) was satisfied because defendant pleaded guilty with the knowledge that his felony convictions would require him to register as a sexual offender.  Notwithstanding that reasoning, the trial court also concluded that even if it inadvertently violated Code § 9.1-902(H), such error was harmless in the context of this case.  
         Upon our review, we find that both rationales possess some foothold in our case law.  See J.B. v. Brunty, 21 Va. App. 300, 305, 464 S.E.2d 166, 169 (1995) (“Thus, we find the harmless error analysis employed in Jamborsky [v. Baskins, 247 Va. 506, 442 S.E.2d 636 (1994)], in finding none of the defendant’s rights was infringed as a result of the delay in the circuit court’s assumption of jurisdiction over the charges is applicable here.”); see also Weathers v. Commonwealth, 262 Va. 803, 805-06, 553 S.E.2d 729, 730 (2001) (providing that substantial compliance with the notice provisions of Code § 19.2-295.1 is sufficient absent any prejudice demonstrated by the defendant).  However, we find the substantial compliance rationale better suited to address the issue raised in this case.  While public officials should endeavor to strenuously comply with procedural statutes, it has long been the rule that “[a] statute directing the mode of proceedings by public officers is to be deemed directory, and precise compliance is not to be deemed essential to the validity of the proceedings . . . .”  Jamborsky, 247 Va. at 511, 442 S.E.2d at 638 (quoting Commonwealth v. Rafferty, 241 Va. 319, 324, 402 S.E.2d 17, 20 (1991)).  Accordingly, because we find that the trial court accomplished the purpose of Code § 9.1-902(H), though not in the precise manner detailed in the relevant statute, we find no initial error by the trial court from which to conduct a harmless error analysis.  Moreover, because precise compliance with a procedural statute is not required, to warrant reversal a defendant must affirmatively show that the trial court’s failure to precisely comply with the statute resulted in some harm or prejudice.  See Marrison v. Fairfax Cnty. Dep’t of Family Servs., 59 Va. App. 61, 68-69, 717 S.E.2d 146, 150 (2011) (“[T]he failure to follow a procedural requirement will not prevent a court from exercising its subject matter jurisdiction unless a party can show ‘some harm or prejudice caused by the failure’ to follow the procedural requirement.” (quoting Carter v. Ancel, 28 Va. App. 76, 79, 502 S.E.2d 149, 151 (1998))).  Thus, eschewing a harmless error

– 5 –

ANALYSIS

          “This appeal presents a matter of statutory interpretation and is subject to de novo review by this Court.”  Commonwealth v. Barker, 275 Va. 529, 536, 659 S.E.2d 502, 504 (2008) (citing Wright v. Commonwealth, 275 Va. 77, 80-81, 655 S.E.2d 7, 9 (2008)).

A.  Applicability of Code § 9.1-902(H) to Defendant’s Convictions Code § 9.1-902(H) states in pertinent part that,

[p]rior to entering judgment of conviction of an offense for which registration is required if the victim of the offense was a minor . . . the court shall determine by a preponderance of the evidence whether the victim of the offense was a minor . . . as defined in [Code] § 18.2-67.10, and shall also determine the age of the victim at the time of the offense if it determines the victim to be a minor.  Upon such a determination the court shall advise the defendant of its determination and of the defendant’s right to withdraw a plea of guilty . . . .  If the defendant chooses to withdraw his plea of guilty . . . his case shall be heard by another judge, unless the parties agree otherwise.

         On appeal, defendant argues that the trial court erred with respect to each of his five convictions in failing to find by a preponderance of the evidence that defendant’s victims were minors and in failing to advise defendant of his right to withdraw his pleas of guilty. We disagree.

          When interpreting statutes, courts “ascertain and give effect to the intention of the legislature.”  That intent is usually self-evident from the words used in the statute.  Consequently, courts apply the plain language of a statute unless the terms are ambiguous, or applying the plain language would lead to an absurd result.


analysis for consideration of whether the trial court substantially complied with the challenged statute preserves defendant’s burden on appeal.  See DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 543 (1987) (finding that the burden is on appellant to show that the trial court erred); cf. Montgomery v. Commonwealth, 56 Va. App. 695, 702, 696 S.E.2d 261, 264 (2010) (“[T]he principle is well established that the Commonwealth bears the burden of proving the error was harmless.”).  Accordingly, we focus the analysis herein on whether the trial court substantially complied with Code § 9.1-902(H).

– 6 –

Barker, 275 Va. at 536, 659 S.E.2d at 504 (quoting Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 925 (2006) (citations omitted)).

Defendant asserts that the procedure detailed in Code § 9.1-902(H) applies seriatim to each of his five felony convictions because Code § 9.1-902(H) applies to “all charges where the victim was a minor.”  However, the plain language of the statute demonstrates that subsection H is not implicated by every offense where a minor is involved. Code § 9.1-902(A) identifies the offenses for which registration as a sex offender is required and includes, inter alia, criminal homicide, murder, a sexually violent offense, and any offense listed in subsection B of Code § 9.1-902.  The majority of these offenses requires registration automatically, regardless of any finding concerning the victim’s age, physical status, or mental capacity.  See Code § 9.1-902(B)(1) and 9.1-902(E).  Code § 9.1-902(B)(2), however, identifies a subset of offenses that require registration only “[w]here the victim [was] a minor or
[was] physically helpless or mentally incapacitated” and certain crimes are attempted or committed, including violations of Code § 18.2-361.  Code § 9.1-902(H) addresses the offenses identified in subsection (B)(2), i.e., the offenses that require registration because the victim was a minor.  Code § 9.1-902(H) (detailing the procedure a trial court shall conduct “[p]rior to entering judgment of conviction of an offense for which registration is required if the victim of the offense was a minor, physically helpless, or mentally incapacitated” (emphasis added)).

Here, defendant’s conviction for crimes against nature in violation of Code § 18.2-361 is the only offense for which registration is required under subsection (B)(2) of Code § 9.1-902.
Accordingly, defendant’s conviction for crimes against nature is the only offense that implicates Code § 9.1-902(H), and the only offense for which the trial court was required to “determine by a preponderance of the evidence whether the victim of the offense was a minor,” and upon such a determination, “advise the defendant of its determination and of the defendant’s right to

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withdraw a plea of guilty or nolo contendere.”  Code § 9.1-902(H).  For the foregoing reasons, we limit our consideration of whether the trial court erred in failing to follow the procedures detailed in Code § 9.1-902(H) to defendant’s conviction for crimes against nature.

B.  Alleged Violation of Code § 9.1-902(H)

          Defendant asserts that he was harmed by the trial court’s failure to comply with Code § 9.1-902(H) because he was unaware of his right to withdraw his guilty plea.  Defendant alleges that error denied him a substantive right, the right to withdraw a guilty plea created by Code § 9.1-902(H), and constitutes a structural error that is not subject to harmless error analysis.

         Assuming arguendo that Code § 9.1-902(H) grants defendant a substantive right to withdraw his guilty plea, we nevertheless hold that Code § 9.1-902(H)’s requirement that the trial court determine that the victim was a minor and advise the defendant of his right to
withdraw his guilty plea is procedural in nature.3

         As the Virginia Supreme Court has previously held, “[t]he use of ‘shall,’ in a statute requiring action by a public official, is directory and not mandatory unless the statute manifests a contrary intent.”  Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994).  To determine whether a statute expresses a contrary intent, this Court must determine whether the statute contains “prohibitory or limiting language.”  Id.  Absent such language, “the failure to

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3 A trial court’s failure to comply with a statute may, at times, touch upon a defendant’s substantive right.  But, mere contact, standing alone, does not render a statute mandatory and jurisdictional.  See Lebedun v. Commonwealth, 27 Va. App. 697, 718, 501 S.E.2d 427, 437 (1998) (finding no error where “[t]he Commonwealth’s failure to strictly comply with the procedural requirements of [the challenged statute] violated no substantive right and did not prejudice [the defendant] . . .”); Howerton v. Commonwealth, 36 Va. App. 205, 211, 548 S.E.2d 914, 916-17 (2001) (“We have held that compliance with [the challenged statute] relating to procedures for instituting proceedings against juveniles is mandatory and jurisdictional.  The failure to strictly follow the notice procedures contained in the Code deny the defendant a substantive right.”); Caccioppo v. Commonwealth, 20 Va. App. 534, 537, 458 S.E.2d 592, 594 (1995) (“Such provisions are ‘procedural in nature’ and ‘precise compliance is not to be deemed essential to the validity of the proceedings,’ absent infringement of a substantive right.” (quoting Jamborsky, 247 Va. at 511, 442 S.E.2d at 638).

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follow a procedural requirement will not prevent a court from exercising its subject matter jurisdiction unless a party can show ‘some harm or prejudice caused by the failure’ to follow the procedural requirement.”  Marrison v. Fairfax Cnty. Dep’t of Family Servs., 59 Va. App. 61, 68-69, 717 S.E.2d 146, 150 (2011) (quoting Carter v. Ancel, 28 Va. App. 76, 79, 502 S.E.2d 149, 151 (1998)).

         In the present case, Code § 9.1-902(H) contains no prohibitory or limiting language that prevents the trial court from convicting and sentencing a defendant without first determining that a victim was a minor and advising the defendant of his right to withdraw his plea of guilty. “Absent such limiting language, the provision at issue is directory and procedural, rather than mandatory and jurisdictional.”  Jamborsky, 247 Va. at 511, 442 S.E.2d at 639.

          Having reached this conclusion, it follows that defendant cannot prevail in this appeal “unless [he] can show ‘some harm or prejudice caused by the failure’” to follow Code § 9.1-902(H).  See Marrison, 59 Va. App. at 68-69, 717 S.E.2d at 150 (quoting Carter, 28 Va. App. at 79, 502 S.E.2d at 151).  Thus, if the trial court substantially complied with the challenged statutory provision, absent attendant harm, defendant cannot prevail.  See Weathers v. Commonwealth, 262 Va. 803, 805-06, 553 S.E.2d 729, 730 (2001).

          After reviewing the record and the evidence in this case, we find that the trial court’s failure to apprise defendant of his right to withdraw his guilty plea did not infringe or deny his right to withdraw his guilty plea.  In reaching this conclusion, we note that, although defendant was aware of Code § 9.1-902(H) and referenced the stat ute in his motion for a new sentencing hearing, defendant did not seek to withdraw his guilty plea either before or after his sentencing event.  Because defendant was aware of his right to withdraw his guilty plea but did not pursue it, we find that the trial court’s failure to apprise defendant of his right to withdraw his guilty plea did not deny or infringe defendant’s substantive right.

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          Additionally, we find that the trial court’s failure to advise defendant of his right to withdraw his plea is not structural error.  See Ray v. Commonwealth, 55 Va. App. 647, 651, 688 S.E.2d 879, 881 (2010) (“Structural error exists only in a very limited class of cases in which the error affects the very framework within which the trial proceeds in a manner that defies analysis by harmless error standards because it undermines the entire adjudicatory framework of a criminal trial.” (citations and internal quotation marks omitted)); see also Campbell v. Campbell, 49 Va. App. 498, 505 n.4, 642 S.E.2d 769, 773 n.4 (2007) (“Generally, structural error is limited to error that deprives a litigant of a constitutional right.”).  Rather, for the reasons stated above, we hold that the requirement to advise defendant of his right to withdraw his guilty plea was procedural and directory.

         Finally, we find that the record demonstrates substantial compliance with the challenged portion of the statute.  See Weathers, 262 Va. at 805, 553 S.E.2d at 730 (providing that substantial compliance with the notice provisions of Code § 19.2-295.1 is sufficient absent any prejudice demonstrated by the defendant).  As we read the plain language of the statute, Code § 9.1-902(H) is designed to ensure that a defendant is aware that pleading guilty to an offense listed in Code § 9.1-902(B)(2) may also, if the victim is a minor, physically helpless, or mentally incapacitated, require the defendant to register as a sex offender.  Because registration is dependent on a factual predicate that is separate from the elements of the offense to which the defendant is pleading, Code § 9.1-902(H) requires the trial court to determine that the victim was a minor and, upon such a finding, to advise the defendant of his right to withdraw his plea of guilty “[p]rior to entering judgment of conviction.”  In application, Code § 9.1-902(H) ensures that the defendant has notice of the registration requirement before his plea is finalized.

        While the trial court did not precisely follow the directions of Code § 9.1-902(H) in this case, defendant was aware prior to pleading guilty that the victim in the case was a minor and

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that conviction of the offense would require him to register as a sexual offender.  The trial court read to defendant the indictment for the crimes against nature charge, which stated that the victim, F.G., was sixteen years old.  The trial court also informed defendant of the registration requirement, and defendant acknowledged this fact during the plea colloquy and in the signed “Plea of Guilty to a Felony” form memorializing his understanding.  Moreover, defendant has not pointed to any prejudice he has suffered by the trial court’s failure to strictly comply with the language of Code § 9.1-902(H).  “Accordingly, we hold that, although the statute means what it says and its directions should be followed, there has been substantial compliance with it in this case,” and defendant’s conviction and sentencing were proper, “there having been no showing of prejudice to [defendant].”  Weathers, 262 Va. at 805-06, 553 S.E.2d at 730.

CONCLUSION

          Assuming without deciding that Code § 9.1-902(H) creates a substantive right to withdraw a guilty plea and the trial court failed to apprise defendant of this right, because we find that the trial court substantially complied with the challenged statute, we affirm defendant’s conviction.

Affirmed.

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2012 Mar 20: Misbrug af udvekslingsstudenter hemmligholdes (Danish)

2011 Jun 27: John E Hamilton, deemed sexual predator

2012 Mar 20: Misbrug av udvekslingsstudenter

I programmet Bag Facaden afsløres det at flere danske udvekslingsstudenter er blevet seksuelt misbrugt, men at deres sager ikke er indberettet til de danske myndigheder.

20. Mar. 2012 kl. 11:54 Opdateret 20. Mar. 2012 kl. 12:34

I aften bringer DR 1 historien om, at danske unge, der er taget til USA for at få en oplevelse for livet, kommer hjem med ar på sjælen. Det sker bl.a. fordi, der findes eksempler på unge, der misbruges seksuelt af deres værtsfamilier.

Det er programmet Bag Facaden, der kommer med afsløringerne. Værten Maria Andersen har været en tur i Go’Morgen P3 for at fortælle om historierne om nogen af de 1000 unge danskere, der hvert år tager et skoleår til udlandet.

“Nogen af de problemer, de fortæller om, er at de ender hos en værtsfamilie, der ikke har ressourcer hverken menneskeligt eller økonomisk til at have de unge. De får måske deres værtsfamilie få dage før de skal af sted, og værtsfamilien er helt uforberedt på, at de kommer. Og så har vi set eksempler på, at de unge er endt i værtsfamilier, hvor de er blevet udsat for seksuelt misbrug”, siger Maria Andersen om afsløringerne i aftenens udsendelse.

Sag endte med fængselsstraf på 55 år

En af sagerne er endt med en fængselsdom på 55 år til en amerikanske mand, der bl.a. har misbrugt en dansk dreng, der skulle have haft en god oplevelse i USA. Bag Facaden havde søgt aktindsigt i sagen herhjemme, men her var der ikke noget at hente, for sagen er aldrig blevet indberettet til de danske myndigheder. Til gengæld møder Maria Andersen den amerikanske efterforsker, der kan fortælle om de grelle eksempler.

Andre eksempler handler om også om seksuelle overgreb, og i et tilfælde er en 16-årig blev bedt om at underskrive en tavshedsklausul, før han og hans forældre kunne få penge tilbage for opholdet. Bag disse ophold står organisationen STS, der ikke længere er er godkendt af de danske myndigheder efter sager, hvor eleverne blev sendt til kriminelle områder i Sydamerika.

Maria Andersen påpeger dog at de fleste jo har et godt ophold, men når det går galt er der en tendens til at skjule sandheden for myndighederne.

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2011 Jun 27: John E Hamilton, deemed sexual predator

2009 Oct 29: How did indicted Hamilton, sex offender, get away?

Gale Curcio By Gale Curcio

Posted on Oct 29,2009

ALEXANDRIA, VA – Parents of John E. Hamilton’s victims came to the Fairfax County Courthouse the first week of October looking for justice and closure. Instead they got another blow when they realized that the former Alexandria Little League coach indicted with sexual crimes against as many as 10 children wasn’t going to show for his plea hearing.

Hamilton, 37, failed to appear for a scheduled court date on Wednesday, Oct. 7. As a result, a bench warrant was issued for his arrest and nationwide extradition has been authorized. Fairfax County police detectives are asking for the public’s assistance in locating Hamilton, who’s believed to be somewhere in Europe.

The parents of Hamilton’s victims, who agreed to speak with Local Kicks only if they were not identified, are now questioning why bail was set so low; why he was not sent back to jail when his bond was revoked, and why his passport wasn’t taken away.

“I never realized how important closure was,” one of the victims’ mothers said. “It’s sad that this man was allowed to leave the country. The bond was set so low – the legal system is discouraging.”

Her son was one of three boys scheduled to appear at Hamilton’s sentencing; it would have been their chance to finally confront him for what he had done. She didn’t know that her son had been victimized until the news came out and her son shared with her what had happened to him.

That same mother also asked, “How could this have happened? Why didn’t they take his passport? I feel like they failed me.”

The investigation into Hamilton’s sexual misconduct began in late February, when a 24-year-old victim of a sexual crime came forward after 12 years. Detectives from the Fairfax County Police Child Investigations Unit, assisted by FBI agents, conducted the investigation that led to the arrest of Hamilton.

According to the affadavit given by the male victim, who was 12 years old at the time of the offense, Hamilton engaged in inappropriate sexual conduct with him periodically from March to July 1997. Hamilton was a Little League baseball coach for the Fort Hunt Youth Athletic Association at that time.

During the investigation, detectives learned that Hamilton currently had a 16-year-old, foreign exchange student living with him. That student was removed from the home by authorities.

In May, Fairfax County police charged Hamilton with six felonies involving sexual crimes against children. Following his arrest, Hamilton, was initially held without bond. However, he was later released from jail on $32,000 bond.

In June, a grand jury indicted Hamilton and bond was set. It was revoked when he contacted one of his alleged victims, but he was not sent back to jail. Hamilton was scheduled to enter a guilty plea two weeks ago, but he failed to appear.

The victims’ parents are not only asking about what they see as the court’s failure to keep Hamilton from running, but also wonder how he was able to get away with what he did for nearly 20 years.

“He was a regular figure in the sports community, and there were plenty of people who questioned, suspected, wondered and thought something was odd, but when all was said and done, nothing was done about it,” said one aggrieved parent.

Not only did Hamilton coach baseball and Little League for many years, but he was also a coach at West Potomac High School for one season and Bishop Ireton for another season. He was allegedly let go from Bishop Ireton amid allegations of inappropriate actions towards minors, said one of the parents.

One of the mothers, whose two sons played Little League and baseball for years, told Local Kicks: “We got to know him, but he seemed creepy to us – he was always mentoring a kid. He used to invite kids over to spend the night. There were always rumors, but nobody ever confronted him.”

Even 2nd Lt. John Brennan, a Fairfax County police officer for more than two decades, said, “I’d like to say I saw something, but I didn’t.”

Brennan’s son played under Hamilton’s tutelage for one Little League tournament. He added: “We had a great group of kids. I saw nothing.”

Photo by Gale Curcio/Local Kicks <br /> <br />Indicted child sex offender John Hamilton's mother is the owner and operator of Wick's Sport Lettering in Alexandria. His brother works there as well. Police say they suspect that the two may have aided in Hamilton's escape from the country. He was last seen at the Frankfurt International Airport in early September with his mother. Photo by Gale Curcio/Local Kicks

Indicted child sex offender John Hamilton’s mother is the owner and operator of Wick’s Sport Lettering in Alexandria. His brother works there as well. Police say they suspect that the two may have aided in Hamilton’s escape from the country. He was last seen at the Frankfurt International Airport in early September with his mother.

When asked about how Hamilton could escape the clutches of the legal system, Brennan responded: “Once the police department investigates a case, it goes into the legal system. The bond is set by a magistrate; the bond reduction by a judge. Once we’re done with the case, it’s out of our hands. If police had anything to do with bonds, there would be no bad guys on the streets. I tell my guys – just do the right thing. What happens in court happens in court.”

Brennan said that Detective Jeremy Hinson, who worked the case, did as much as he could and by securing Hamilton’s indictment “did great” by all the victims.

“If it weren’t for Hinson, Hamilton never would have gone to a plea deal,” Brennan said. “He is a good cop and digs into his cases. Hinson did everything that he could.”

When Hamilton failed to appear for his hearing, Assistant Commonwealth’s Attorney Ian Rodway asked Judge Randy Bellows to issue an expedited bench warrant for Hamilton’s arrest.

Bellows agreed and issued the bench warrant. He also recommended that when Hamilton is found and re-arrested, that he be held without bond. Nationwide extradition was also authorized, but it has now come to light that Hamilton has left the country

A police source told Local Kicks that Rose Hamilton, the owner and operator of Wick’s Sporting Goods located on Route 1 in Alexandria, helped Hamilton to escape.

The global police network, INTERPOL, said in a statement that Rose Hamilton and her son John went to Frankfurt, Germany in September; she returned but apparently he did not. INTERPOL has now joined the worldwide manhunt. Hamilton was last seen on Sept. 8 at the Frankfurt am Main International Airport in Frankfurt, Germany.

While he could be anywhere, the police source said they are focusing on Germany and Denmark. He said they feel that Hamilton could easily blend in Denmark, given his 6’2” frame; it’s also the home country of one of his alleged victims.

The parents of victims expressed outrage that both Hamilton’s mother and his brother allegedly helped Hamilton leave the country. Rose Hamilton is owner and operator of Wick’s Sporting Goods and David Hamilton works there as well. The police said they suspected that each of them gave him $10,000 to flee to Europe.

Ironically, Wicks has supplied custom decorated sports apparel to just about every sports team in the Greater Alexandria area. On Wednesday, approached by a reporter, none of the store clerks or Rose or David Hamilton would speak with Local Kicks, declining comment unless both were present and consented.

On Wednesday, William M. “Bud” Walker, Jr., a Fairfax County Police Spokesman, said that there were no new developments in the case. Walker urged that the public contact them if they have any information about Hamilton’s whereabouts.

“It would go a long way if she would come forward,” said one of the parents, who asked not to be identified. “There should be consequences for what the mother supposedly did. John had no money; he never would have been able to leave the country if his mother hadn’t given it to him.”

Yet another woman said, “We did a lot of business with them; Rose Hamilton seemed normal to me.”

Brennan and others are concerned that the abuse might continue overseas.

“My greatest fear is that John Hamilton is going to set up shop somewhere else,” he said. “This guy’s got to pay for this.”

The mother of one of the victims said, “He will do this again – he can’t help himself. He won’t stop. I want him caught.”

Anyone with information is asked to call Crime Solvers by phone at 1-866-411-TIPS (8477), e-mail at www.fairfaxcrimesolvers.org or text “TIP187” plus your message to CRIMES/274637. You may also call Detective J. Hinson at 703-246-7523 or the Fairfax County Police Department at 703-691-2131. 

While 10 abuse survivors have come forward, law enforcement officials say they know there are more. The investigation continues and additional charges are possible. America’s Most Wanted plans to film a segment in November; they are asking for anyone who knows of Hamilton or his activities to please call 1-800-CRIME-TV.

(differences added by me)

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2009 Jun 5: Additional Victims Emerge In John Hamilton Sex Offense Case