PA: Appellate Court finds registration violates right to reputation under Pennsylvania Constitution in as applied case.
Before you get too excited, this is an as-applied case, meaning the decision only benefits the person challenging and not everyone on the Pennsylvania registry, but it’s a win nonetheless, and a win on a novel argument, so it’s good news.
A Pennsylvania intermediate court found that SORNA violates an individual’s right to reputation under Article I, Section 1 of the Pennsylvania Constitution by creating an irrebuttable presumption that she poses a high risk of committing additional sexual offenses. The law says, “[s]exual offenders pose a high risk of committing additional sexual offenses and protection of the public from this type of offender is a paramount governmental interest.”, but the Court found that when it came down to the circumstances of this case, it was unjust to consider the defendant as “posing a high risk of committing additional sexual offenses” when she hadn’t actually committed a sexual offense in the first place.
Pennsylvania, like several other states, require sex offender registration when convicted of certain crimes (in this case interference with custody of children), even if they don’t have a sexual component. The law reads, “A person commits an offense if he knowingly or recklessly takes or entices any child under the age of 18 years from the custody of its parent, guardian or other lawful custodian, when he has no privilege to do so.” We have to assume that the language “enticing a child under the age of 18” presumes a sexual element, but here there was none. The underlying case started with custody dispute that went awry and had no sexual objective at all.
The reason this opinion is notable is not that the Court exercised common sense and found that there wasn’t a high risk of future sexual offense when there wasn’t a sexual offense to begin with, but some of the comments made by the court in its opinion as to risk and reputation. First, the court recognized that being on the registry causes damage to one’s reputation. Second, the court recognized that there are tools to “distinguish between low-risk and high-risk sex offenders.” (so you can’t presume that every person convicted of “crime X” is a high risk to offend, and most importantly that “most sex offenders are never re convicted for a sexual offense.”
The court found held that as applied to Appellant, SORNA’s provision that sexual offenders pose a high risk of recidivating is an irrebuttable presumption that clearly, palpably, and plainly violates Appellant’s constitutional right to reputation.
Here’s the decision: http://www.pacourts.us/assets/opinions/Superior/out/J-A16020-20o%20-%20104584404117816213.pdf?cb=1
Does FL have a constitutional right to reputation, or just PA?
Either way, always a win when a court takes risk assessment more seriously than irrebutable presumption.
Kind of hard to see how the same reasoning wouldn’t apply to all registrants. I wonder what the court system would do if all registrants filed as applied challenges.
The collapse of a wall begins with a single grain of sand!
Hope that is not a mixed metaphor; but you get the picture.
I’m sure everyone is going to ask the same question so I’ll go first: Can this decision, especially with the acknowledgment that recidivism can’t be automatically determined simply because of a sex offense, be used for other lawsuits against the registry?
Sure – it’s persuasive but not binding.
As long as it is benefitting someone and it’s a win as well, I’m happy. Of course I wish we can all benefit, but you take what you can. Great news.
This has got to be the crown jewel of registry “F” ups. How do you put someone on the registry for a custody dispute. I at least understand (Not agree) on why I was added to it, even if it was retroactive, but this poor lady to be added to the registry is just insane and beyond stupidity.
I think we should all march in protest against all those horrible custody parents who are a threat to society (YES, sarcasm in the 3rd degree)
Dear FAC,
Does Florida’s constitution have a reputation clause?
It has a right to redress injuries to reputation. Specifically Art. I, § 9 provides “[t]hat all Courts shall be open, and every person for an injury done him, in his lands, goods, person, or reputation, shall have remedy by due course of law; and right, and justice, administered without sale, denial, or delay.”
So it seems that in Florida we do not have a right to reputation but a right to sue in court for our reputation. Maybe that is splitting hairs but Florida’s constitution does not read as clearly as Pennsylvania’s constitution.
In other words, You only have a chance of doing something about it, for them falsely putting you on the registry if you can get a judge to agree with you ,but if a judge were to agree with you he or she would loose their job. Great system!
In March 2016 I wrote an article for the front page of SOSEN titled “Your Reputation and Standing are Protected Liberties”( http://sosen.org/blog/2016/03/13/your-reputation-and-standing-are-protected-liberties.html ) in that article I pointed out that A person’s reputation and standing in the community are a protected liberty interest as described by United States Supreme Court rulings as laid out in the Hawaii Supreme Court decision in State of Hawaii v Bani. Below is an excerpt from the Hawaii Supreme Court decision.
The United States Supreme Court has previously recognized that a person’s reputation is a protected liberty interest under the federal due process clause. Wisconsin v. Constantineau, 400 U.S. 433 (1971) (hereafter “Constantineau”); Board of Regents v. Roth, 408 U.S. 564 (1972) amazing after four years someone finally decided to challenge the constitutional issue of damage to the reputation
Perhaps it would be worthwhile for some of the advocacy organizations to read the article and put together a challenge based on the low recidivism and the damage that is done to a person’s protected liberty interest by damaging their reputation and standing in the community.
Oh one other thing the Hawaii v Bani Case was about community notification and being placed on that community notification. It basically made it so that the state had to prove In court that a person was dangerous before they could place them on community notification.
The main takeaway from this decision is the irrebuttable presumption of dangerousness which can be argued in any state. The problem with registrant’s attorneys is that they believe they must agree to the underlying assumptions written into these registration schemes in order to prevail on a narrower issue, this is why we are receiving these very limited “victories”. In order to prevail, registrant’s attorneys must strike at the underlying assumptions written into these laws.
Despite the various victories in the Michigan decisions, the plaintiff’s attorneys agreed to the underlying principles of registration. The next step is to prove that these underlying assumptions are wrong in order to strike at the very heart of these registration schemes. I have a fair idea of what is going on in Michigan and can say that efforts are in the planning phase to strike at these underlying assumptions. Of course, the research takes time but I am confident that Michigan will be the first state to be forced to take down it’s registry in total.
Does attorneys, in Does v Swearingen (our ex post facto plus challenge), challenge the assumptions underlying the registry.
Detroit
An attorney I spoke with said you have a way better chance of getting off the registry as an individual than you do as a group. The reason why is, as one person, you are just asking to get removed from it. As a group you are asking for the entire registry to be stopped.
Obviously easier to sway a judge on one person coming off on their merits than closing down a money making operation. The problem is, a HUGE percentage of us on the registry can barely afford our daily expenses, so most of us cannot pay for a big attorney bill.
Under most state constitutions, the right to reputation is a either a liberty interest or a property interest (in case law). It is a “natural right” that is inherent and inalienable.
UTAH Const. Art. I, Section I, “All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.”
Utah lost such a case in 2008 because the used to list the “Primary” and “Secondary” victims on an offenders online profile. In State v. Briggs (2008), Mr. Briggs challenged this as a violation of his due process rights because they were depriving him of his inherent LIBERTY interest to reputation without establishing his current dangerousness without a hearing. The Utah Supreme Court agreed, and said the State could only do so after a due process hearing.
Utah took down the information and in the 12 years since has never conducted such hearings. They also put disclaimers on their website that they make no claim of current dangerousness or what type of crimes an offender may commit in the future.
See, also Commonwealth v Gruver (PA 2020), where PA stated it was a PROPERTY interest.
Under federal law there is no such protection. See, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (holding mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty or property interest)
In any case that comes before the court one of the primary things that needs to be pointed out is the fact that the recidivism rate for people on the registry that is the reconviction rate is less than 1% in any given year. While the registry increases at a rate of around 66,000+ a year. The second thing is that the state will attempt to use expert witnesses from the pseudoscience area to prove future dangerousness. Of these experts should be forced to meet the Daubert standard. As laid out in the article Ever have Your Fortune Told? ( http://sosen.org/blog/2019/03/17/ever-have-your-fortune-told-3.html ). This takes care of two areas in a challenge against the registry as a whole violating a person’s constitutional right to their reputation and standing in the community.
Simply put a person has a constitutional right to their reputation.
There is no high reconviction rate for people on the registry so the assumption of dangerousness cannot be made.
Finally attempt to use pseudoscience to prove a person’s dangerousness does not meet the Daubert standard.
Prediction of dangerousness, length of treatment, and psychological damage. http://sosen.org/blog/2019/03/15/prediction-of-dangerousness-length-of-treatment-and-psychological-damage-3.html
I wonder if the prosecution is having serious discussion over the potential consequences in appealing this?
Of course they are. They could create case law that favors us. But, of course, they could create case law that favors them.