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