One question. Why was Sison NOT referred to a DA for criminal charges? If not was it a plea bargain or was the accusation deemed not credible or strong enough for referral?
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The probable answer might be a different standard of proof.
Crimes must be proven beyond a reasonable doubt.
The civil standard of proof âmore probable than notâ applies to a USCG license revocation action.
As I recall, and I may misremember, the US Attorney declined prosecution.
The agreement to surrender his license may have included a non-prosecution agreement.
If the USCG had gone forward with a license revocation action that would have turned in a complicated rape case within the license revocation proceeding.
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Or any elected official. Of all the jobs that have the power to destroy lives at all levels that one puts us at greatest risk.
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Good point. I need to actually read the 46CFR cite, but it appears the language specifically requires âconvictionâ.
Conviction on its face should mean the criminal legal definition, maybe not?
Please God, No
It not a CFR. Itâs a statue passed by Congress 46 USC 7511, et seq. incorporates other statutes by reference, and will take some time and effort to understand.
The legal pecking order is:
Constitution
Statutes
Regulations (CFRs)
These are interpreted by court cases. Some cases are binding precedents, others are merely persuasive. The courts get the last say on what the law is.
I donât know what the USCGâs definition of âconvictionâ will be for this statute.
We have discussed the USCGâs definition of âconvictionâ for purposes of the drunk driving statute several times before (use the search function).
âConvictionâ for purposes of the drunk diving statute, includes plea bargains, deferred prosecution agreements, or anything that imposes a legal burden on the defendant.
Thatâs probably a good guide post to the definition of âconvictionâ for purposes of the sex offender statute.
No. 7511 did not give a mandate to the Coast Guard to go after sex offenders. There are three different processes going on here:
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Criminal prosecution. The US attorney (DOJ) decides whether or not to initiate criminal charges against a mariner. While the Coast Guard may investigate and refer the case to the US Attorney, the decision on whether to proceed is made by DOJ. While there are a number of factors considered, the high standard of proof required in criminal cases can make it difficult to win a conviction.
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The second process is the existing suspension and revocation process with the added authority of 46 USC 7704a. It is slightly different wording than 46 USC 7511. It does not require a criminal conviction. Mariner is entitled to a hearing before an administrative law judge. The Coast Guard must prove by a preponderance of the evidence that the mariner committed sexual assault. It is not a criminal proceeding, it is only administrative. Basically, the only action the Judge can take is against the marinerâs credential. There are no fines or incarceration at stake.
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Finally, 46 USC 7511 comes into play when a mariner applies for a credential whether an original, renewal, or raise of grade. It only applies when there is a conviction that meets the criteria in the statute. Subsection (a) removes all discretion. If you have a covered conviction, you may not be issued a credential regardless of how when it was, what the circumstances were, or how long you have held a credential. Subsection (b) offers some discretion, but most sexual assault related offenses would not fall under subsection (b).
So we do not go after mariners under 7511, it only applies when they come to us with an application.
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Yes, I understand.
The USCG is only mandated by Congress under 46 USC 7511 et seq to bar all applicantâs for an original, renewal, or replacement MMC, or an additional endorsement â who are convicted sex offenders.
The application triggers USCG sex offender screening, and potentially MMC suspension or revocation.
Put another way: the USCG does not âgo afterâ sex offenders; it merely âlies in waitâ for sex offenders to submit applications.
As long as a sex offender does not submit an application, the USCG will not discover him, or take any action against him.
A sex offender would be wise not to submit an application, and just let his MMC expire.
Years ago I sailed with a kidnapper and bank robber who had done 20 years in Club Fed for his sins⌠his younger brother was married to the girl who handled manning for the companyâs ships. The man was combative, confrontational, protected, and somehow got an OSâs papers.
Ships are still an isolated environment, and given a choice, nobody wants a sexual degenerate with a history of low impulse control as a coworker. That whole analogy about a drop of water in a sewage tank being sewage tank, and a drop of sewage in a water tank also making a sewage tank. Morale aboard is already low industrywide. This is a good chance to improve quality of life aboard.
Will someone who reformed decades ago be hurt by this? Possibly yes. Will it be better for every one of us who isnât a rapist? Also yes.
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What other criminal convictions bar you from obtaining or renewing an MMC indefinitely?
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The reason Sison agreed to give up his license is obvious.
The USCG only has to prove its case in a civil license revocation proceeding by a âpreponderance of the evidenceâ (more likely than not) standard.
The USCG would have called Sison as a witness.
That would have forced Sison to make a critical choice: tell his story of denial, or plead the 5th Amendment to every question.
Taking the 5th would have created an inference in the license revocation proceeding that Sison did it, and it would have deprived him of his own favorable testimony. He probably would have lost in the license revocation proceeding.
If he chose to testify, anything he said could have been used against him later in a criminal prosecution. The US Attorney had already declined to prosecute the criminal rape case for lack of evidence, but Sisonâs testimony in the license revocation proceeding might have given the US Attorney enough evidence to reconsider and prosecute.
I donât know if Sison got a non-prosecution agreement from the US Attorney in exchange for agreeing to surrender his license, but I suspect that he did.
You may remember that Bill Cosby choose to testify in a civil case, and that testimony got him convicted years later in a criminal rape case. However, that conviction was overturned on appeal based upon the state violating a previous non-prosecution agreement.
Sison basically had no choice but to give up his license.
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I remember hearing about how a high schooler was charged with statutory rape even though a girl tricked him into him believing she was 18 but was a year or two younger (canât remember exactly) She and her family even said she didnât want him punished but he was still charged and had to register as a sex offender. I think there is a lot of variation state by state on age of consent / statutory rape charges. For example if an 18 year old has sex with a 17 year old on some states isnât a sex crime while other states there a Romeo and Juliet laws or whatever. This federal law probably needs more clarification for equal application among all states.
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You are absolutely correct, my comment was not directly thread relevant, however thank you for shining light indirectly on my question.
Actually they have the lowest reoffense rate of any criminal, other than murder. Also factor in that what is a sex offense in one state is not in another and the Fed law is different than many states. They wrote in a loop hole of comparable offense for that. So while a mariner might not have been charged under the Federal law they can use a state law to bypass that. What you peed in public and someone saw you? And that is a sex crime in your state, poof license gone.