Teresa Brugliera, Offender ID W47605, is serving a life sentence in a Massachusetts prison. He has court-ordered treatment for his gender identity disorder.
On October 5, 1997, Dezeray Marie Roblero-Barrios (real name Wesley Ross Mullins) attempted to sexually assault a six-year-old boy in a K-Mart restroom. On February 9, 1998, Barrios pleaded guilty to second-degree assault and attempted second-degree criminal sexual conduct in relation to this incident. He was sentenced to serve a total of 36 months imprisonment.
Barrios was released from prison on October 4, 2000, and was transferred directly to the custody of the Minnesota Sex Offender Program (MSOP) pending the outcome of a petition to commit him as a sexual psychopathic personality (SPP) and as a sexually dangerous person (SDP). In June 2001, the district court committed Barrios indeterminately as a sexually dangerous person. In July 2001, Barrios was sent back to prison for violating his parole by assaulting a staff member at MSOP. He returned to MSOP on April 19, 2005. During his commitment, Barrios legally changed his name from Wesley Ross Mullins to Dezeray Marie Roblero-Barrios because he says he feels like a woman trapped in a man’s body.
Besides the assault at K-Mart, Barrios has admitted to sexually assaulting four other children. At age 13, he sexually molested a five-year-old relative. At age 14 or 15, he sexually assaulted an 11-or 12-year-old girl who he was babysitting. At age 15, he had anal intercourse with an eight-year-old boy. At the time, Barrios was the boy’s Sunday-school teacher, and he repeatedly molested the boy during a two-year period. At age 22, he sexually assaulted a 15-year-old girl several times after having consensual sex with her once. Before entering prison, he began a sexual “relationship” with a 14-year old boy and maintained this relationship while in prison. Barrios has recanted many of these stories but has consistently maintained a lack of remorse for his offenses. For instance, he has claimed that the five-year-old initiated the abuse by touching his penis, and that his abuse of the 14-year-old was not a sexual offense because it was a “love relationship.”
On July 25, 2007, a special review board heard Barrios’s petition for full or provisional discharge from civil commitment. Dr. Elizabeth J. Barbo, Ph.D., L.P., Director of Psychology at MSOP, prepared an evaluation for the board’s consideration. The State Operated Forensic Services also prepared a “Risk Appraisal” for the board’s review. The appraisal placed Barrios in the group with the highest rate of sexually violent recidivism, and indicated that he had a higher-than-average risk for violent recidivism. The review board found that Barrios was not participating in treatment because he could not control his behavior and was often placed in isolation as a consequence. At the time of this hearing, Barrios had pending felony assault charges. Following the recommendation of the review board, the commissioner denied Barrios’s petition for provisional discharge, and Barrios appealed.
On March 21, 2008, a judicial appeal panel heard Barrios’s appeal. Barrios testified that he was seeking provisional discharge, that he had not completed sex-offender treatment, and that he would like to seek treatment at Alpha House or the Pride Institute if he were provisionally discharged. He expressed concern that he would not be able to receive therapy for his gender identity issues if he remained at MSOP. He also testified that he pleaded guilty in August of 2007 to a felony assault, that none of the programs in his discharge plan had actually accepted him, and that he did not have the assistance or approval of his case manager or MSOP staff members in creating the plan.
The appeal panel concluded that Barrios had not established a prima facie case that he was capable of making an acceptable adjustment to open society, finding he continued to need treatment in the MSOP setting, and that his provisional discharge plan did not adequately protect the public. Therefore, it granted the state’s motion to dismiss and affirmed the commissioner’s order denying Barrios’s release. Barrios appealed to this court.
The panel also considered 18 exhibits, none of which recommended that Barrios be released, and most of which characterized him as impulsive, violent, unresponsive to treatment, and lacking remorse or insight into his behavior. A forensic psychiatrist, Dr. Robin R. Ballina, M.D., J.D., prepared a “Risk Appraisal” for Barrios in June of 2007. In the appraisal, she described Barrios’s lack of remorse and his “generally nonparticipatory” and “disruptive” behaviors in his groups. A summary of Barrios’s history in the prison system lists about 40 behavioral incidents between 1999 and 2005, and ten such incidents at MSOP from 2000 to 2001 and 2005 to 2006. Nearly all of these incidents involved threatening or assaultive behavior, and some involved sexually inappropriate behavior. Barrios has had 11 more documented rule violations since January 2007, including the fourth-degree assault charge and exposing his genitalia to staff members at MSOP. Dr. Barbo’s report concluded that “[i]t is the opinion of his treatment team and this examiner that [Barrios] continues to require the highly structured and supervised setting of an inpatient placement . . . Mr. Roblero-Barrios’s petition for a provisional discharge . . . is currently without the support of the MSOP treatment team.”
Based on the testimony and exhibits introduced, the appeal panel made the following findings: “To date, no programs have indicated a willingness to accept him and acceptance is unlikely until it is recommended by the MSOP treatment team”; “[h]is treatment team did not assist with creation of the discharge plan and they do not support it at this time”; he “needs to complete chemical dependency treatment”; “MSOP does not offer treatment for Gender Identity issues and Mr. Roblero-Barrios will have to defer that until he is released to the community”; “[a]s an untreated sex offender, [he] presents a high risk to reoffend”; and Barrios “has an extensive history of assaultive, disruptive behaviors, attempted assaults, sexually inappropriate conduct, and threats while hospitalized in the MSOP.”
All of the appeal panel’s conclusions are supported by Barrios’s own testimony: he has not finished any treatment for his pedophilia and chemical dependency, he continues to engage in assaultive behavior, no program has accepted him, and no program is likely to accept him because his treatment team does not believe he is ready to be discharged. Barrios failed to provide the panel with any explanation for why he is no longer dangerous to others or in need of in-patient treatment. Rather, he merely expressed his desire to attend different programs. All of the testimony and exhibits led the panel to properly conclude that Barrios failed to make a showing that he was ready to be provisionally discharged.
In 1998, a transgender woman lost his claim that his gender identity disorder should result in a reduced sentence for child sexual abuse.
Daniel Turner was convicted of criminal charges in Michigan arising after an incident involving the kidnapping and molestation of a child. Turner argued that he was denied effective assistance of counsel when his trial counsel failed to investigate and develop a diminished capacity defense. Turner argued that his apparent gender identity disorder and the complainant’s testimony that he urinated on her supported such a defense. From the record, it appears that Daniel would dress as a woman and expressed dislike at being male and wanted to become female. However, Daniel does not indicate how this would render him incapable of appreciating the wrongfulness of child sexual abuse or of conforming his conduct to the law in this regard. Daniel has shown no correlation between having a gender identity disorder and committing child sexual abuse. Moreover, while Daniel Turner’s conduct in this case was particularly repulsive, it does little to show that he lacked the capacity to control his actions so as to support such a defense. Accordingly, the court concluded that Daniel did not show either that counsel performed unreasonably by failing to present a diminished capacity defense or that there is a reasonable probability that the outcome of the trial would have been different if such a defense had been proffered. Thus, he did not establish ineffective assistance of counsel.
On December 2, 2004, Thomas Lamb’s case came before the Kansas Parole Board. Lamb, a convicted rapist, murderer and kidnapper, had provided the Board with several letters vouching for his fitness for parole and his need for sexual reassignment treatment. The Board made the following findings:
“After considering all statutory factors … the decision of the Kansas Parole Board is: Pass to September 2009. Rec: individual therapy for any ongoing issues regarding Axis I diagnosis. Pass reasons: serious nature and circumstances of crime, violent nature of crime, two (2) times in prison, failure on parole, objections regarding parole. Extended pass reasons: Inmate has been sentenced for a class A or B felony or an off grid felony and the board makes a special finding that a subsequent parole hearing should be deferred for 5 years, because it is not reasonable to expect that parole would be granted at a hearing if held before then, for the reasons indicated below: Offender has three consecutive life sentences.”
Lamb appealed, alleging that the Board acted vindictively in recommending he seek therapy for Gender Identity Disorder (GID) in light of Lamb’s inability to obtain sexual reassignment surgery, female hormone therapy, or real life experiences living as a member of the opposite gender while incarcerated.
The district court denied the petition without a hearing. The court held the Board had not acted vindictively and, in fact, the Board’s recommendation that Lamb seek therapy for his GID indicated the Board was sensitive to Lamb’s condition. Lamb appealed again.
Lamb claimed the Board acted arbitrarily and capriciously because (1) no evidence was presented to contradict Lamb’s letters of support; and (2) the Board recommended he receive counseling for GID, but he is unable to obtain proper treatment while he is incarcerated.
The court affirmed the Board’s decision based on the serious nature of Lamb’s crime, his recidivism, his prior failure on parole, and the objections raised to his parole.
As for Lamb’s diagnosis with GID, since the condition was not considered a basis to deny parole, it cannot provide a basis to find the Board acted arbitrarily or capriciously. Moreover, the Board did not indicate Lamb would have to seek treatment for his GID in order to be eligible for parole in 2009.
Lamb claimed the Board’s failure to parole him so that he may pursue sexual reassignment treatment is shocking and intolerable, and thus was a mistreatment of a constitutional stature. He cited Kosilek v. Maloney, 221 F.Supp. 2d 156, 165-67 (D. Mass. 2002), which examined and confirmed the legitimacy of transsexualism as a serious medical condition and sexual reassignment surgery as an effective treatment for this condition.
The court found that consideration of this issue was inappropriate in a petition attacking a decision of the Board. The Department of Corrections is responsible for the policy that prevents Lamb from receiving sexual reassignment treatment. Although the Board may, in its discretion, grant parole for hospitalization, it is not required to do so. In order for the denial of medical care to reach the level of shocking and intolerable mistreatment of a constitutional stature, the petitioner must demonstrate acts or omissions sufficiently harmful to evidence deliberate indifference to his or her serious medical needs. Lamb did not allege that prison officials were deliberately indifferent to his condition; therefore, the district court correctly dismissed the petition.
Lee Gustafson entered no contest pleas to one count of repeated sexual assault of a child and one count of second-degree sexual assault of another child. The court imposed concurrent sentences totaling four years’ initial confinement and five years’ extended supervision. Instead, citing new factors, he requested a reduced sentence of two years, six months’ initial confinement and six years, six months’ extended supervision. The circuit court denied the motion without a hearing and denied Gustafson’s motion for reconsideration. Gustafson appealled, contending that the sentencing court erred by not considering his diagnosis of gender identity disorder as a factor that would apparently justify a reduced sentence.
The appellate court rejected his arguments, finding that the lower court appropriately considered the seriousness of the offenses, Gustafson’s character and the need to protect the public. The court noted that Gustafson took advantage of the young victims placed in his trust, and it appropriately imposed a sentence to deter him from victimizing other children. The court concluded it would unduly depreciate the seriousness of the offenses to place Gustafson on probation. Gustafson notes his lack of a prior record, his admission to the crimes, the steps he took to change his behavior before involvement of the legal system and his age at the time the offenses occurred. All of these mitigating factors explain Gustafson’s relatively lenient sentence. The court could have imposed consecutive prison terms totaling 100 years’ imprisonment. Gustafson asserts intensive treatment provided only in a prison setting is not necessary and the court placed too much weight on the seriousness of the offense and the need to protect the public. The weight to be given these factors is solely within the sentencing court’s discretion.
Gustafson’s postconviction diagnosis of gender identity disorder is not a new factor. A new factor is a fact highly relevant to the imposition of sentence, but not known to the trial judge at the time of sentencing, either because it was not then in existence or because it was unknowingly overlooked by all of the parties. Gustafson’s gender identity issues were facts in existence at the time of sentencing and were addressed in the presentence investigation report. Gustafson was also personally aware of these issues. Therefore, the gender identity disorder was not overlooked by the sentencing court and was not unknowingly overlooked by all of the parties. Gustafson’s motion does not identify anything about a formal diagnosis occurring after sentencing that would be more meaningful to the imposition of sentence than the information already provided at the time of sentencing. The sentencing court did not consider Gustafson’s gender identity issues to be either an aggravating or mitigating factor. The disorder, whether formally diagnosed or not, was not highly relevant to the sentences imposed.
Katelyn Findlay is a man serving his sentence for robbery in a women’s prison because he “feels like a woman.”
A murderer won taxpayer funding for a High Court case in which he demanded the right to wear a woman’s wig in jail. Craig Hudson – who is serving a life sentence for torturing and killing his wife – said he wanted to change sex and protested that without a female wig he would look like a ‘bald drag artiste’. The claim, paid for through legal aid, will result in a prison service review of the right of transgender prisoners to wear wigs and outsize women’s clothes. In a ruling, Judge Jeremy Richardson QC accepted the argument of governors at maximum security Frankland prison, Durham, who told the court wigs are banned because prisoners can use them as a disguise in escape attempts.
The Connecticut Department of Insurance issued a Bulletin directing insurance companies to ensure that there is no discrimination against insured individuals with gender dysphoria and ensure that individuals are not denied access to “medically necessary care because of the individual’s gender identity or gender expression.”
The highest court in New Hampshire has sanctioned the ability of Men to take photographs of Girls despite the complaints of the Girls and their parents, thus protecting the rights of perverted Men over the right of Girls to move freely in the world.
On July 6, 2011, a female patron at Canobie Lake Park informed a park security officer that she had just left one of the park’s water attractions because she felt uncomfortable seeing an adult male use his cellular telephone to take photographs of young children. The security officer went to the attraction and observed David Lantagne (the “defendant”) , a man undergoing treatment for gender identity disorder, repeatedly moving his cell phone to the side of his leg, aiming it toward other patrons (including juveniles), and then bringing it to a position where he could view it. Most, if not all, of the patrons at the attraction wore bathing suits.
Park security called a Salem police officer to the scene, asked the defendant if he would agree to speak with the officer, and, when he agreed, brought the defendant to the officer. As the park security officer accompanied the defendant to the police officer, the security officer saw the defendant “frantically” tapping the keys of his cell phone. Fearing that the defendant was deleting photographs from his cell phone, the security officer asked the defendant if he would agree to hand him the phone. When the defendant gave his phone to the security officer, the security officer observed the “backsides” of young girls in bathing suits on the phone’s screen.
Park security handed the phone to the police officer, who then asked the defendant for his identification. Meanwhile, the security officer advised the defendant of his observations, and the defendant admitted that he had been using his phone to take photographs of girls eleven or twelve years old. Upon further questioning by the security officer, the defendant admitted that he is attracted to young girls, that he has a problem, and that he needs professional help. The defendant further admitted that he had previously taken similar photographs at the park and at a local mall. He also admitted that he downloads photographs from his cell phone to his home computer. At that point, the police officer arrested the defendant for disorderly conduct.
The defendant was transported to the Salem Police Department, where detectives interviewed him. After several hours, the defendant admitted that he possessed child pornography on a computer and related equipment stored in his bedroom. The detectives then obtained search warrants for the defendant’s bedroom and computer equipment, seeking evidence of child pornography and child sexual abuse images. Subsequent analysis of the computer equipment seized from the defendant’s home pursuant to those warrants uncovered the images that are the subject of the defendant’s conviction at issue in this appeal. According to the defendant, and not disputed by the State, the original disorderly conduct charge was never pursued.
Before trial, the defendant moved to suppress the evidence obtained following his arrest for disorderly conduct, arguing, among other things, that the arrest was unconstitutional because it lacked probable cause sufficient to satisfy the State and Federal Constitutions. The trial court disagreed, finding that there was probable cause for the defendant’s arrest because the police “had information that Defendant had taken pictures of young girls” and had stored those pictures on his cell phone and home computer. The trial court reasoned that because “there had been complaints about Defendant by other Park patrons, it was likely that if [he] was not arrested, further damage could occur.” The court concluded that “these facts, taken as a whole, provided [the police] with probable cause to arrest Defendant.” However, the trial court did not identify the crime for which the police had probable cause to arrest.
The State argues that the officer had probable cause to arrest the defendant. A person is guilty of disorderly conduct if he or she “[e]ngages in fighting or in violent, tumultuous or threatening behavior in a public place.” Specifically, the State asserts that there was probable cause to believe that the defendant engaged in “threatening” behavior by surreptitiously photographing the backsides of children, causing at least one patron discomfort.
The court concluded that photographing properly-attired children in an open and public portion of Canobie Lake Park, regardless of whether the photographs were of the children’s backsides, were taken surreptitiously, or would be uploaded to a computer,
would not have warranted a reasonable belief that the photographer posed a threat of imminent harm to any patrons, including the children. Accordingly, the court reversed Latagne’s conviction.