New York Criminal Lawyer Blog
A woman approached a group of children in a park, grabbed the arm of an eight-year-old girl and tried to pull her away; her motive, as far as it can be inferred from the record, was to replace one of her own children, of whom she had lost custody. She pleaded guilty to attempted kidnapping.
A man became angry when his girlfriend asked him to leave her apartment, and locked the girlfriend in that apartment, with her one- and two-year-old children, for several days. The man was convicted, among other things, of the unlawful imprisonment of each of the children.
Another man was the employer of a prostitute who tried to quit her job; he reacted by abducting the woman’s son and telling her he would kill the child if she did not continue to work for him. The man pleaded guilty to attempted kidnapping.
Supreme Court required all three defendants to register under the Sex Offender Registration Act (SORA) despite their protests that they were not sex offenders as that term is commonly understood, and so could not constitutionally be subjected to sex offender registration. The Appellate Division affirmed Supreme Court’s orders. The defendants appeal as of right. It is not disputed that these three defendants are within the definition of sex offender as the statute is written.
SORA requires all people included in this definition to register as sex crimes offenders with the Division of Criminal Justice Services. Among the consequences of registration are: the registrant’s name, address, photograph and fingerprints remain on file with the Division; the registrant must verify his address annually to the Division, and must appear periodically at a law enforcement agency to provide a current photograph; local law enforcement agencies are notified when a registrant moves into their jurisdiction; and any caller inquiring about a named individual will be told if that person is a registered sex offender. In addition, registrants found to be at moderate or high risk of reoffending are listed in a directory available on the Internet, containing, among other information, their photographs, addresses, places of employment, and the nature of their crimes.
The defendants claim that their rights to due process of law and equal protection of the laws under the federal and state constitutions are violated by requiring them to register under SORA, because the crimes underlying their registration involve no actual, intended or threatened sexual misconduct. The People acknowledge that there is no evidence of sexual misconduct in any of these cases; they say that the possibility of a sexual motive, or threatened sexual misconduct, cannot be ruled out. But even on the contrary assumption—on the assumption that there was no actual or potential sexual aspect in any of these crimes—we hold that defendants’ constitutional rights have not been violated. We find their equal protection claims to be obviously lacking in merit, and we analyze only the due process issues.
The defendants’ principal claim is, in essence, that the State has denied them substantive due process by officially attaching to them a label that is false or misleading. The defendants do not dispute that they have committed crimes which warrant finding them a danger to the public, and specifically to children; nor do they dispute that the State could constitutionally require them to register, to keep law enforcement authorities aware of their locations, to be identified to the public as dangerous, and to suffer the other statutory consequences of sex offender registration, apart from the name “sex offender.” Defendants assert that registrants under SORA are sometimes subjected to parole or other conditions that are inappropriate for those guilty of no sexual misconduct; for example, they say that some registrants are required to undergo therapy for psychosexual disorders. But the statute itself does not impose such requirements, and defendants do not complain of any parole conditions that were actually imposed on them. Their complaint is with the name under which they are registered. If the State required them to register, for example, as child pornography predators, they would concededly have no constitutional complaint.
Thus, the interest the defendants assert is in not having their admittedly serious crimes mischaracterized in a way that is arguably even more stigmatizing, or more frightening to the community, than a correct designation would be.
But while defendants may be asserting a liberty interest, we conclude that they are not asserting a fundamental right, as due process cases use that term. All infringements of liberty by the State must be tested under the due process clause, but where no fundamental right is infringed legislation is valid if it is rationally related to legitimate government interests. Fundamental rights are those “deeply rooted in this Nation’s history and tradition. The right not to have a misleading label attached to one’s serious crime is not fundamental in this sense, and we therefore apply the rational basis test to defendants’ claims.
The governmental interest advanced by SORA is, of course, the protection of the community against people who have shown themselves capable of committing sex crimes. The particular provisions of SORA at issue here were obviously designed to protect children from such crimes. We find the challenged legislation rationally related to this legitimate governmental interest.
SORA was enacted in 1995, the year after the enactment of a federal statute which conditioned certain federal funding on states’ enactment of legislation requiring the registration of sexually violent offenders and people who committed sex crimes against children. The Legislature sought, in enacting SORA and in including the kidnapping and unlawful imprisonment of children by nonparents among the crimes requiring registration, SORA followed the federal statute’s requirements. As defendants point out, however, the Jacob Wetterling Act does not require attaching the label sex offender to the perpetrators of these crimes. That was the New York Legislature’s choice.
In making this choice, the Legislature could rationally have relied on the fact that a great many criminal cases of kidnapping or unlawful imprisonment of children are indeed sex offenses. A study published in 1990 concluded that about two-thirds or so of the Non-Family Abductions involved sexual assaults. A more recent study found the frequency to be lower, but still quite high: in 46% of the nonfamily abductions studied, the perpetrator had sexually assaulted the child.
These statistics refer to what the reports’ authors identified as actual sexual assaults. But the Legislature could rationally have found that the statistics understate the problem. It could have found that sexual assault occurs in many cases where there is no direct evidence of it—in cases where the victim is killed, or remains missing, or is unable or unwilling to recount his or her ordeal. Indeed, in the case Congress chose as a prototype—the kidnapping of 11-year-old Jacob Wetterling—there is, as one of the Supreme Court opinions now before us points out, no evidence of sexual assault; the perpetrator simply disappeared with Jacob, and neither has ever been found. The Legislature could also have found that, in many cases, the offender intends a sexual assault that is prevented only by the offender’s arrest or the escape of the victim. And the Legislature could have found that a child cut off from the safety of everyday surroundings is vulnerable to sexual abuse even if the offender’s sexual desires are not the motive of the criminal act. A kidnapper may plan to prostitute a child, or may seize an unplanned for opportunity to do so.
In short, the Legislature had a rational basis for concluding that, in the large majority of cases where people kidnap or unlawfully imprison other people’s children, the children either are sexually assaulted or are in danger of sexual assault. In light of this, it was plainly rational for the Legislature to provide that, as a general rule, people guilty of such criminal acts should be classified as sex offenders. The court therefore reject as without merit the contention—made by the woman, but not the other two defendants in these cases—that the classification is unconstitutional on its face. The more substantial question is whether it is unconstitutional to apply the definition to the minority of cases—perhaps a small minority, but in which the present cases are included—in which there was neither a sexual assault nor any discernible risk of one. The Legislature might well have made such cases an exception to the requirement that the convicted people register as sex offenders, but we conclude that it acted rationally in not doing so.
The rational basis test is not a demanding one. We have repeatedly quoted the United States Supreme Court’s description of it as a paradigm of judicial restraint. There is a strong presumption that legislative enactments are constitutional, and a party contending otherwise bears the heavy burden of showing that a statute is so unrelated to the achievement of any combination of legitimate purposes as to be irrational. Domestic violence was not charged.
The defendants here cannot carry that burden. In deciding not to exclude defendants and others similarly situated from the category of sex offenders, the Legislature could have considered not only that cases where the term is unmerited are few, but also that the process of separating those cases from the majority in which it is justified is difficult, cumbersome and prone to error. It could rationally have found that the administrative burden and the risk that some dangerous sex offenders would escape registration, justified a hard and fast rule, with no exceptions. Considering that no fundamental right is at stake—the defendants are suffering no worse injustice than being called “sex offenders” instead of child predators—the Legislature could constitutionally provide that all those convicted of kidnapping or unlawfully imprisoning children not their own, or of attempting to commit those crimes, be conclusively deemed sex offenders.
In the first man’s case, another issue must be decided. While the woman and the other man were adjudicated level one (low risk) sex offenders, the first man was found to be level three (high risk). He acknowledges that the designation is supported by a numerical calculation made in accordance with guidelines promulgated by the Board of Examiners of Sex Offenders, but argues that the courts below abused their discretion in not departing from the guideline level, since the crimes that gave rise to the adjudication did not involve sex. The court finds no abuse of discretion.
The first man has a long record of violent conduct, including sexual violence. Before the offenses involved in the present case (which occurred in 1987 and for which he was incarcerated until 2006), he had been convicted of reckless endangerment for setting fire to a former girlfriend’s house; attempted first degree assault, for attacking with a bottle someone who intervened in a fight between him and his girlfriend; and sexual misconduct, in a case where he had been charged with forcing a 16-year-old girl to have intercourse. A case summary prepared by the Board of Examiners of Sex Offenders reports that in 2000, while he was incarcerated, he was the subject of a serious Tier III Sex Offense. It is, no doubt, ironic that the crimes leading to the first man’s registration apparently had no sexual element, but we cannot say on this record that it was an abuse of discretion to conclude that there is a high risk he will commit a sex crime in the future. Accordingly, the orders of the Appellate Division should be affirmed, without costs.
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