The Sex Offender Registration Act (SORA), like the Emperor’s New Clothes, is nonsense perpetrated in the name of superior wisdom. It creates a permanent underclass of “sex offenders,” defined as anyone convicted of an offense from a list that includes misdemeanors and offenses not even involving sex. After serving their sentences, “sex offenders” have a hearing where a judge decides whether they pose a high, moderate, or low risk of committing a future sex offense. Persons classified as moderate or high have their names, photographs, addresses and other personal information unrestrictedly available to the public on the Internet sex offender registry. They are hindered for the rest of their lives from finding housing and employment or living a normal civic or family life. This is supposed to make the public safer.
Since its enactment in 1996, SORA has generated an ever-growing accumulation of ill-considered case law that flies in the face of the most basic principles. Uncorroborated, un-cross-examined accusations in police reports and grand jury testimony are regarded as proven facts. Charges that were dismissed in exchange for a guilty plea are considered as if they were convictions. Judges’ personal views about sexual morality are congealed into legal precedent. Prosecutors use SORA hearings as an opportunity to take a second bite at the defendant, humiliating and denigrating persons who have already been punished.
The Court of Appeals has now joined in this attractive practice in People v. Gillotti, a SORA case involving a 19-year old Air Force serviceman who downloaded child pornography when he was in high school. After broadcasting every detail of his psychiatric diagnosis, the Court launches into indignant tub-thumping about the evils of child pornography. The images aren’t pornography, the Court thunders, they’re crime scene photos and anybody looking at them is an accessory. The Court quotes as “emblematic” a woman who was made to pose for pornographic photos when she was nine and says her life is even worse now because people are still looking at them. She’s suuing a man for $3.4 million because he downloaded two of them from the Internet. Paroline v. United States (US 2014).
As Judges Smith and Lippman dissent, none of this has anything to do with risk prediction under SORA. Smith points out that the majority’s premise is that “because child pornography is bad, any negative consequences visited on those who provide a market for it must be good. I think that this approach is more likely to produce emotional satisfaction than to protect any children.” Emotional satisfaction! Fighting words to the four girl judges in the majority!
Gillotti is also a milestone in selective use of science. The Court cites Dr. Somebody’s “Classical Conditioning paradigm” as proving that possessing “multiple images” may indicate a “compulsive cycle.” The Court finds that this “scientific concept” justifies imposing the same points for having two or more dirty pictures as for sexually assaulting two or more persons. This is the same Court that studiously ignores that the point system used in SORA hearings has no scientific basis whatever. We know because we’ve been trying to get leave on that issue since 2003 and can’t get no emotional satisfaction.
Most annoying of all is the Court’s pretense of throwing a sop to SORA defendants by saying they need only prove a “downward departure” from the point score by a preponderance of the evidence. Big deal. The defendant shouldn’t have the burden of proof at all. The point score is nothing but a recommendation, not an interlocutory judgment. A SORA hearing is a proceeding where the State deprives the individual of basic civil liberties. The burden is only and always on the State to show why.