60 RI Bar J., No. 3, Pg. 17. The New Scarlet Letter: Are We Taking The Sex Offender Label Too Far?.

• Author: Katharine Godin, Esq.

Rhode Island Bar Journal

Volume 60.

60 RI Bar J., No. 3, Pg. 17.

The New Scarlet Letter: Are We Taking The Sex Offender Label Too Far?

Rhode Island Bar Journal60 RI Bar J., No. 3, Pg. 13November / December 2011The New Scarlet Letter: Are We Taking The Sex Offender Label Too Far?Katharine Godin, Esq.Every reasonable person would agree that such sex crimes as child molestation and rape are deplorable, and that those who commit such crimes should be punished. Sadly, our practical judgment as a society has become clouded due to the emotional reaction to sex offenders. States, as well as the federal government, are quick to enact incredibly harsh, costly and mostly ineffective pieces of legislation in an attempt to assure the public that the government is not soft on sex offenders.

The following provides a brief overview of the history of sex offender registration and community notification, as well as a short summary of Rhode Island's current system, before discussing proposed legislation to implement the federal Adam Walsh Act (AWA). This article also highlights the major concerns with enacting sex offender registration and community notification legislation in general and, more specifically, the implications of enacting the AWA, not just for the individual sex offender, but also for the general public.

History

Stories about pedophiles lurking in the bushes and attacking children have led to increasingly restrictive requirements on those deemed sex offenders. Nationwide sex offender registration was enacted in the early 1990s to keep track of and inform citizens about the risk sex offenders pose to the community. Since then, various states and the Federal Government have imposed increasingly severe restrictions on sex offenders in the hope that restricting almost every aspect of an offender's life will prevent the offender from re-offending.

In 1994, the Jacob Wetterling Act went into effect, which required each state to create and maintain a database of all sex offenders living in the state.(fn1) The legislation was named after an eleven year-old boy who went missing in Minnesota in 1989 and remains missing to this day.(fn2) Two years later, Megan's Law was enacted, requiring the states to not only maintain their databases (registries), but also notify the community of the sex offenders' existence.(fn3) This piece of legislation was named after Megan Nicole Kanka, a seven year old who was raped in murdered in 1994 in New Jersey.(fn4)

In 2006, President Bush signed the Adam Walsh Act (AWA) into law, named after the son of America's Most Wanted Host John Walsh.(fn5) Instead of once again tightening the requirements of the Jacob Wetterling Act, the AWA replaces the system entirely In addition to increased penalties for sex offenses charged in federal court, the AWA required all states to implement the new registration and community notification system or risk losing 10% of federal Byrne Grant money Since that time, the federal government has been granting states extensions to comply, and the Department of Justice has been collaborating with local prosecuting agencies and law enforcement to resolve some local government's concerns with implementing the act Bills have been introduced to the Rhode Island House and Senate Judiciary Committees for the last several years but, each year, the bills have failed to become state law for several good reasons.(fn6)

Rhode Island's Sex Offender Registration and Community Notification Act

Presently, Rhode Island's Sex Offender Registration and Community Notification Act (SORCNA) classifies an offender after considering over a dozen factors including: the facts of the offense(s); static risk assessment test(s); the offender's prior criminal history; his or her employment, educational and social stability; and whether the offender participated in sex offender treatment.(fn7)

The Rhode Island Parole Board Sexual Offender Community Notification Unit (SOCNU) interviews the offender without his or her attorney present, performs an assessment of the offender's risk assessment and classifies the offender as a Level 1, 2 or 3. The offender then receives notification of his level and, if the level is a 2 or 3, his or her opportunity to appeal the classification in Superior Court.(fn8)

At the hearing, the State must present a prima facie case that the SOCNU used a valid risk assessment tool and reasonable means to collect the information used in the risk assessment.(fn9) Once the State has presented its case, the Court must affirm, unless the offender proves, by a preponderance of the evidence, that the SOCNU did not comply with statutory law or its own guidelines to classify the offender.(fn10)

The current registration and community notification law has been challenged on constitutional grounds. In State v. Germane, the Rhode Island Supreme Court ruled that, as applied, the law did not deprive that particular offender of due process.(fn11) However, the Court went on to explain:

While the present appellant was not deprived of his constitutional right to...