By Mark David Blum, Esq.
Once again we are suffering our lawmakers’ zeal to identify a boogieman in society and then use that evil spirit to rail against in the process of a campaign and to suckle up to voters. In years past, such evils were communists, drug dealers, immigrants, and now today, it is the pedophile.
New York has enacted a law called the Sex Offender Registration Act. (SORA). Boiled down to its gravy, this law requires annual registration of every person convicted of certain sex crimes. Depending on the nature of the crime, there are various levels of offender based on a perceived risk of re-offending. A level one is considered the lowest risk. Levels 3 and above are considered the highest.
The Act requires those convicted to register for extensive periods of years. For example, the lowest risk offender is required to register as a sex offender for a period of 20 years. Every other offender is required to register for life (with the possibility of a Level 2 offender being able get off the list after 30 years). Being a registered sex offender is about the ugliest label you can put on a person. Once that label is affixed, there is no escape and registration and identification and labeling is forever.
I am by no means an expert on this subject and have only confronted the statute twice in context of cases. Based on that limited exposure and on conversations with prosecutors and defense attorneys, I conclude the SORA is the wrong response to a serious problem.
By way of example: Like the once-upon-a-time mandatory sentencing guidelines enacted by Congress, SORA has little wiggle room for individual human conditions. Everybody is branded and handled the same way regardless of who they are or what was their sin.
Compare the recent trial in Oswego of the former Parks Commissioner with a case I have pending here in Onondaga County. In Oswego, the allegation was the Commissioner had sent immoral sexual chats via the internet to young girls. He was not accused of touching, making plans to meet, or engaging in any act that threatened anybody. Notwithstanding his recent acquittal, prior thereto we still had to have the discussion about SORA and his place in it. By using their mathematical formula, that client would have come out between a level one and level two. A hearing would have been required to determine his status and then shoo him off to a lifetime of being branded with the scarlet letter.
Here in Onondaga County, there is a case where a 22 year old is alleged to have had sexual relations with a female under the age of 16. Though not resolved, if this case ends in a conviction, that 22 year old man will be nearly 60 before he may come off the registration list. Whom among us is at 22 as we are at 60? Those who are have wasted 40 years of their life.
But being 22 and a labeled level 1 or 2 sex offender will taint and end this young man’s chance at life. In addition to registration, he will be constantly monitored, restricted in where he can live and work, be chased away from churches, schools, and Halloween, and never be able to come out from under the cloud. He is not accused of homicide, arson, or kidnapping.
In a recent hallway conversation with Donald Dodd, Esq., District Attorney for Oswego County, we talked about SORA and the sorry state of legal affairs that go with it. SORA prevented me from negotiating a plea deal in Oswego and will prevent me from doing so here in Onondaga County. The fear to the client is not the sentence as in neither fact pattern is there a significant risk of incarceration. In both cases, the registration and branding effects are monumental. Mr. Dodd and I both agreed that the only way the Legislature has left prosecutors and defense attorneys to resolve sex cases is to take every one of them to trial.
Each case has to be taken to trial because if the government is going to take your life away from you and brand you for life with the scarlet letter of sex offender, there is no downside to a trial. In fact, there is a tremendous upside because proving a sex case; especially a statutory rape case, is exceedingly difficult on a good day. Fighting the case and requiring the 15 year old girl to come in and give detailed embarrassing testimony is a shameful blight on our court system. Prosecutors and defense attorneys cannot negotiate a disposition that meets the ends of justice. Instead, no deals and no negotiations are going to become the norm and the victimization will continue.
Sex offenders are dangers to society. They pose no more or less of a threat than a murderer, a street thug, a drunk driver, or a burglar. Isolating them as targets during election season is easy as finding someone to defend an accused sexual predator is nearly impossible. How do you oppose a candidate and say, “you are wrong, sex offenders are OK people or at least no different than any other criminal.” Being Americans and coming from the most sexually repressive society in the modern world, it is understandable why people succumb to the hypothetical threat of sexual predators lurking behind every keyboard and bush.
Judges, police, and other experts in the criminal justice system are already complaining about SORA and other identical laws in other states. Because of registration requirements, finding homes is nearly impossible so most registered offenders simply drop off radar. They move, don’t register, and remix into society. Or, they end up homeless and without work or a future and we, the taxpayers, end up supporting them for life. Worse still is that the Courts and police are being used to monitor and track these offenders; to the detriment of current crimes in progress and an already clogged criminal calendar.
Whether you are caught up in the frenzy of the sexual offender or are a rational adult who sees that offender in context of other crimes, you have to see that SORA is not the solution. SORA does nothing to prevent a predator from reoffending. The Act does nothing to bring speedier justice to wrongdoers. Our Legislature has made the normal process of enabling a wrongdoer to come forward and take responsibility for his actions nearly impossible. The impact upon the criminal justice system is only now being felt. In the end, we all suffer.
As the father of a 15 year old child, the same age as the alleged victims in the two cases cited herein, I would probably be blowing fuses should such acts happen to my daughter. But I also have to keep reminding myself that she is a sexual being and like the rest of us, will slowly learn and grown into her sexuality. I don’t relish the thought and in fact, I don’t want to think about it at all. But it will happen no matter what I do to prevent it. Even Carrie’s mom couldn’t stop it.
My discomfort as a father should not be the gold standard by which laws are made. Men have real issues with males and young females whereas when the involved is an older female and younger male, we cheer. This is about sexual bias in the law and the need for men to “protect” their women. Such was the rationale behind our laws that keep women from combat and which serves as the basis for the glass ceiling.
Seems to me that the greater harm to society is not that people are having sex or engaging in acts of violence. Instead, the real danger lurks in how we are making momentary lapses of judgment lifetime sentences and punishment. “Justice” is not being served and society is not one bit safer. In fact, the more we focus on the sexual predator, we take away our attention from murderers, terrorists, and thugs. If the quality of life means anything, it should mean that every American is entitled to a life. SORA does nothing to further that aim. Instead, it gives our politicians a punching bag for their next campaign.
I wait for the day a real savior arrives on scene; one who can run for office on the merits, who can take a stand against unjust laws, and is not afraid to look you in the eye and say “freedom means risk”. Live free or die a slave.
