Ethical Dilemmas: Sex Offender Registration

I have worked on a number of sex offender cases, some in the initial defense, and some later on, dealing with the repercussions. The most memorable was a man who was convicted of statutory rape, required to register as a sex offender, later married the girl and had two children with her. He lives in a relatively small town, and word of his forced registration got out. He was fired from his job and has been unable to obtain another. To add insult to injury, his children’s school had him escorted from the grounds by a police officer. Apparently, they had a policy that no sex offenders would be allowed on school property, even to attend a parent teacher conference or a scholastic event which his child participated.

Now its not that I don’t think some sex offenders continue to pose a danger to some portion of society. But once a person has served their time, paid their debt, is it fair of society to shun them forever? We are guilty of this on a number of issues, including felon disenfranchisement in voting, felons owning firearms, and prevention of felons from obtaining certain jobs. These people are all perceived as an ongoing threat to society, but not sufficiently so to keep them locked away from it. I object to almost all of these laws, no matter the state or the severity, simply on a moral ground.

The sex offender issue came up recently in a United States Supreme Court case, Reynolds v. US. In Reynolds, a sex offender was convicted prior to federal law being passed requiring registration. Reynolds registered in 2005, and maintained registration in Missouri, until he decided to move to Pennsylvania, in 2007. There, he did not register, which is contrary to a Federal law, Sex Offender Registration and Notification Act (SORNA,) requiring all sex offenders to register with police where they live and work, no matter where they were convicted, and no matter when.

The issue is that Reynolds was convicted before SORNA was passed, and it is only a decision by the Attorney General which stands as interpreting the law as requiring registration no matter when the person was convicted. So that creates 2 questions: 1. Did the Act require registration no matter when convicted, and 2. Does the text of the statute, which give the Attorney General power of interpretation, allow him to determine that the law applies to all no matter what.

The Court examined whether the act, in and of itself, could require all offenders to register, even if conviction occurred before SORNA was passed. The Third Circuit determined that that was indeed what the law required. The Supreme Court disagreed. The Court stated that the Act itself did not require offenders to register. However, the Court also determined that the statute didn’t require registration of prior offenders unless and until the Attorney General stated otherwise.

Although part of the Third Circuit has been overturned, Reynolds still has to return and argue whether the Attorney General’s absolute rule of registration is valid. If the lower courts disagree with him on the validity of the Attorney General’s rule, then Reynolds still loses the case, and he, along with thousands of others, must register as sex offenders even if convicted thirty years ago of urinating in an alley.

I have worked with many unsavory characters in my time as a lawyer, some more likely to repeat an offense than others. But, just as our judicial system states that one is innocent until proven guilty, shouldn’t we give people the benefit of the doubt regarding repetition of offense? Is it right that my former client couldn’t go pick up his kids at school without being arrested? Is it right that we automatically condemn certain people, without considering circumstance and without hesitation? The Supreme Court doesn’t want to comment on that issue just yet.