In a long awaited decision, the Supreme Court of Pennsylvania has ruled that the statutory scheme used in the Commonwealth to designate certain individuals convicted of sexual offenses as sexually violent predators (SVPs) to be lawful.
In Pennsylvania, anyone convicted of any one of the enumerated sexual offenses contained in the Sexual Offender Registration and Notification Act (SORNA), is required to register as a sexual offender for either 15 or 25 years or for the remainder of their lives based on a three tiered registration scheme. In addition to registration, an offender is required to undergo an evaluation conducted by the Sexual Offender Assessment Board (SOAB) who, using designated criteria, makes a recommendation on whether or not to designate the offender as a Sexually Violent Predator (SVP). If the prosecutor seeks the offender to be designated as an SVP, after a hearing, the judge must determine whether or not “clear and convincing evidence” has been presented that the offender is a Sexually Violent Predator.
Being designated an SVP imposes burdens on the offender in addition to having to register as a sexual offender. Aside from being designated as a Sexually Violent Offender, those designated as SVPs are obligated to comply with the registration, notification, and counseling requirements for life. Registration requires SVPs to appear in person every three months to be photographed and to verify compliance with their obligations, as well as an in-person appearance to report any changes to their registration information within three days of the change.
SVPs must submit to the registry their names, residential addresses, IP addresses, phone numbers, social security numbers, employer information, professional licensing information, vehicle information, and birth dates. Failure to comply with the registration requirements is a criminal offense, which is graded as a first or second-degree felony.
Following an SVP’s initial registration, the local police must notify the SVP’s victim regarding the SVP’s name, residence, address of employment, and any address at which the SVP is enrolled as a student. Local police must also notify neighbors, the local county’s children and youth agency director, local school superintendents, local day-care centers and preschool programs, and local colleges and universities regarding the SVP. Such notice must provide the SVP’s name, address, offense for which the SVP was convicted, a statement that the individual has been determined to be an SVP, and a photograph of the SVP.
SVPs are also required to attend monthly counseling sessions in a program approved by the SOAB and are financially responsible for the fees associated with such counseling unless the SVP can prove he or she is unable to make such payments. SVPs must verify their compliance with the counseling requirements during their quarterly in-person verification. Failure to comply with the counseling requirement is a criminal offense, which is graded as a first-degree misdemeanor.
It should be noted that the term Sexually Violent Predator is not defined as violence in the strictest sense. To be designated an SVP, means that the judge has determined that clear and convincing evidence exists that the offender suffers from a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexually violent offenses.
A non-exhaustive list of factors considered include; whether the offense involved multiple victims, whether the individual exceeded the means necessary to achieve the offense, the nature of the sexual contact with the victim, the relationship of the individual to the victim, the age of the victim, whether the offense included a display of unusual cruelty by the individual during the commission of the crime and the mental capacity of the victim.
In the case of Commonwealth v. Butler, the basic issue before the Supreme Court was whether or not “clear and convincing evidence” is the correct burden by which to designate an offender as an SVP, considering that in the underlying criminal case, the burden of proof to prove guilt is “beyond a reasonable doubt”, which is the highest burden of proof in the justice system.
Mr. Butler was convicted of a sexual offense for which he was required to register as a sexual offender, thereafter the trial court conducted a hearing, found that the Commonwealth provided clear and convincing evidence that Mr. Butler was an SVP and ordered that Mr. Butler register as an SVP and adhere to all of the requirements laid out above, for the remainder of his life.
At the same time, the Supreme Court was deciding another very important case regarding SORNA and whether or not sexual offender registration constitutes criminal punishment. As previously discussed here the Supreme Court did determine that requiring offenders to register did constitute a criminal punishment and that the imposition of registration requirements are subject to all of the constitutional protections, rights and duties of the criminal justice system.
Relying on that rational, Mr. Butler appealed his designation as an SVP to the Superior Court, arguing that the “clear and convincing” standard used in his case was unconstitutional in light of SORNA being held to be criminal punishment by the Supreme Court. Mr. Butler asserted that the correct standard should have been “beyond a reasonable doubt” as is the case in the rest of the criminal justice system. The Superior Court agreed with Mr. Butler, in a 2017 ruling the Superior Court held that Pennsylvania’s scheme for designating offenders as SVPs was unconstitutional in light of the Supreme Court’s previous decision that SORNA constituted criminal punishment. Mr. Butler’s designation as an SVP was vacated in a decision that affected cases all over Pennsylvania. The decision, along with a subsequent attempt by the state legislature to “correct” the issue resulted in much uncertainty on how to apply the SVP statute, with decisions on how to proceed being made on a county-by-county basis.
Following the Superior Court’s ruling, the Supreme Court decided to hear the case and in a ruling handed down last week held that although the registration requirements of SORNA are punitive in nature, the heightened restrictions placed on those designated to be SVPs are not punitive, and therefore are not subject to the same constitutional scrutiny as SORNA itself.
The Supreme Court made several distinctions between the registration requirements of SORNA and the registration, notification, and counseling requirements (RNC) of an SVP. In making these distinctions, the Court looked to several factors including the connection to the offense, the culpability for prior criminal conduct, the deterrent effect of the RNC and the purpose of the statute.
The Court found that the RNC requirements are not connected to any offense at all, but are instead based upon a subsequent finding of a mental abnormality or personality disorder. The RNC requirements apply only to SVPs who have been individually determined to suffer from a mental abnormality or personality disorder such that they are highly likely to continue to commit sexually violent offenses.
The Court applied the same reasoning with respect to retribution, which affixes culpability for prior criminal conduct. Because the RNC requirements are not applied to conduct at all, but to an individual’s status as suffering from a serious psychological defect, the requirements are not tied tie culpability or retribution through the justice system.
The Court also concluded that the RNC requirements do not promote deterrence stating that there is an understanding that SVPs, who cannot control their behavior due to a mental abnormality or personality disorder, are unlikely to be deterred from re-offending even by threats of confinement
With these differences in mind, the Court found that the RNC requirements “appear reasonably designed to serve the government’s legitimate goal of enhancing public awareness and ensuring that offenders do not relapse into harmful behavior.”
In the end, the registration requirements of SORNA remain punitive and subject to all of the constitutional protections afforded in all other criminal proceedings, however the scheme used to designate offenders as Sexually Violent Predators is allowed to continue under the lesser protections prescribed in the statute.
If you’re facing a potential sexual criminal offense, the attorneys at Mooney Law will be able to help. Contact us today to schedule a consultation with an attorney experienced in dealing with Pennsylvania’s sex offender registration laws. With 14 offices in Central Pennsylvania, we can schedule convenient consultations for you. During the COVID-19 Pandemic, Mooney Law is offer FREE phone consultations since offices are closed to the public. Call today at 833-MOONEYLAW or 717-200-HELP. Attorney Shawn M. Stottlemyer is an attorney who has dealt with many cases involving Pennsylvania’s sex offender registration requirements.