"The implied purpose of the sex offender registration act, public safety, is not served by requiring an otherwise law-abiding adult to be forever branded as a sex offender because of a juvenile transgression involving consensual sex during a Romeo and Juliet relationship."
Finally, some words of common sense from an appellate court on the topic of sex offender registration. And it gets better.
The Michigan Appellate Court last week held that the requirement of registration as a sex offender could constitute cruel and unusual punishment under the state constitution. Failing to distinguish between a rapist and lovers, the court realized, makes no sense.
Now for the bad news: The case is limited to its facts.
The defendant was eighteen and was romantically involved with his fifteen-year-old girlfriend. The pairing was consensual, and the parents of the parties were aware of the nature and extent of the relationship. In fact, the couple is now married and have a child.
But back in 2004, a teacher found a photograph of the couple together in bed. The young man's hand was on the so-called victim's breast. Authorities were called. DiPiazza was prosecuted. This was a statutory violation of laws against sexual contact and consent was therefore not a defense.
DiPiazza was adjudicated under a a youthful offender program in Michigan that resulted in an erasure of his criminal record. But after this adjudication, the law regarding the sex offender registry was changed, and he was required to register on a public sex offender registry. In other words, he was held out to the world at large as a sexual predator.
Folks on the list live in a harsh world of fear and paranoia. Just a week ago, during Halloween season, I had calls from several folks on the list here in Connecticut. Their homes were vandalized and they were targeted for abuse. Anxious parents checked the Internet to see just where to take their children for Trick or Treat. When they discovered the sex offenders in their midst, trouble followed.
But Mr. DiPiazza was no sex offender. And his lover was no victim. They were young people in love. Is love a crime?
Michigan sensibly offers what many states do not, a way for folks under the age of 21 to escape a criminal conviction for precocious sexual conduct. But Michigan still required these young people to register as sex offenders. Lawmakers sometimes don't reason with acuity.
Attempts to challenge these requirements on grounds of a violation of the Eighth Amendment's prohibition against cruel and unusual punishment typically fail, and failed in this case. The jurisprudence is unrealistic but clear: registration is not punishment; it is a regulatory consequence of a conviction intended to provide the public with notice of potentially harmful people. Practitioners in the federal court know well the pernicious quality of the incident-to-punishment doctrine: just try ask a court to vacate a conviction when a client faces deportation and his lawyer never really explained that pleading guilty is a one way trip out of the country. "Deportation isn't punishment, counsel," the court intones. Really? And I suppose when the Chinese sell the condemned man his bullet the transaction is recorded as a charitable contribution.
Such reasoning is gibberish. And the Michigan Court of Appeals recognized that by finding on the facts of this case that registration was cruel and unusual punishment under the state constitution. "As a result of registering as a sex offender, defendant has been unable to find employment and, in fact, lost two jobs ... He is depressed and, although he finally married [the victim], the opportunity to marry and pursue happiness was withheld because of his inability to find employment ...." The court speaks not enough of the shame and social isolation that comes of being labeled an outcast.
Of course, this case is highly unique and applies to a limited class of registrants. DiPiazza was on the registry even though he took advantage of a youthful offender program that left him with no criminal record. But every state has people on their registration lists who are just like this young man: removing these folks from the registry is just.
This case illustrates the importance of federalism and the vitality of state constitutions as a means of redressing harm when the federal courts refuse to act. A state's constitution may offer rights more expansive that the rights offered by the federal constitution. Michigan's cruel and unusual punishment clause is simply more humane than its federal counterpart.
The DiPiazza case is a rare ray of sunshine in an area of the law beclouded by unreasoning fear. It should inspire practitioners in other states to turn to their state constitutions to look for creative solutions to the legislative mandates that fail to draw common sense distinctions. Perhaps if enough states follow Michigan's lead, the federal Supreme Court will one day understand that labeling a man a criminal for improvident love is cruel and unusual.
People v. DiPiazza. 2009 WL 3644130 (Mich.App.)
Hat tip: Cheryl Carpenter, Redford, Michigan
