New York’s Sex Offender Registration Act (SORA) (Corrections Law § 168-a et seq.) defines a “sex offender” as any person who is convicted of certain enumerated offenses. These offenses of course include offenses one typically thinks of as sex offenses such as rape, sexual abuse, sex trafficking, incest etc. But it also includes a couple of other offenses perhaps not normally thought of as sex offenses. Specifically, SORA provides that one is considered a “sex offender” if convicted of unlawful imprisonment (Penal Law §§ 135.05, 135.10) and kidnapping (Penal Law §§ 135.20, 135.25), “provided the victim of such . . . offense is less than seventeen years old and the offender is not the parent of the victim” (Correction Law S 168-a  [a] [i]).
But what if, in committing an unlawful imprisonment or a kidnapping of a child under 17, there is no evidence of any sexual motivation to the crime; can one still be required to register as a “sex offender?” The Court of Appeals was face with this issue yesterday in People v Knox, 2009 NY Slip Op 01156.
The case actually involved three separate criminal cases. In the first, defendant Judy Knox approached a group of children in a park, grabbed the arm of an eight year old girl and tried to pull her away. Her motive was to replace one of her own children, of whom she had lost custody. Knox pleaded guilty to attempted kidnapping. In the second, defendant Eliezer Cintron became angry when his girlfriend asked him to leave her apartment, and locked the girlfriend in that apartment, along with her one and two-year old children, for several days. Cintron was convicted, among other things, of the unlawful imprisonment of each of the children. In the third, defendant Francis Jackson was the employer of a prostitute who tried to quit her job. He reacted by abducting the woman’s son and telling her he would kill the child if she did not continue to work for him. Jackson pleaded guilty to attempted kidnapping.
All three defendants were required to register under SORA as “sex offenders” even though no sexual misconduct or motivation was present in the evidence. The People in fact acknowledged that there was no evidence of sexual misconduct in these cases.
In their appeal to the Court of Appeals, the defendants argued that being labeled as “sex offenders” violated their constitutional rights to due process of law and equal protection of the law since the label was false or misleading.
The Court of Appeals rejected the defendants’ arguments finding that their constitutional rights were not violated. The Court summarily rejected any equal protection claim, and instead focused on the defendants’ substantive due process claim.
The Court acknowledged that the defendants had a constitutionally protected liberty interest in not being incorrectly labeled. However, the Court found that this interest did not consist of a “fundamental right” under the due process clauses of the State and Federal constitutions. Thus, the Court applied the test of whether the legislation was merely rationally related to legitimate governmental interests.
The Court stated that the governmental interest advanced by the challenged labeling provisions of SORA was the protection of children against people who have shown themselves capable of committing sex crimes. And in finding that people who commit unlawful imprisonment and kidnappers should be labeled as “sex offenders,” the Court found that the Legislature could have rationally relied on the fact that in a great number of cases of kidnapping or unlawful imprisonment of children sex offenses do occur. The Court cited two studies. The first found that two thirds of child abductions involved sexual assaults, and curiously the second, more recent study found that 46% of child abductions involved sexual assault (a probability of 46% of course would mean that it was more likely that a sexual assault would not occur). The Court added that the Legislature could have rationally found that these statistics understated the problem, and that sexual assaults could be occurring in child abductions where there is no direct evidence of such. Thus, the Court stated:
In short, the Legislature had a rational basis for concluding that, in the large majority of cases where people kidnap or unlawfully imprison other people’s children, the children either are sexually assaulted or are in danger of sexual assault. In light of this, it was plainly rational for the Legislature to provide that, as a general rule, people guilty of such crimes should be classified as “sex offenders.”
Finally, the Court concluded that it was also rational for the Legislature not to provide for an exemption from sex offender registration for cases such as the defendants at issue where there was in fact no evidence of sexual misconduct or intent because the Legislature could have considered such cases as few. Also the process of separating those cases from the majority in which the label is justified would be difficult, cumbersome and prone to error. It stated the Legislature could rationally have found that the administrative burden, and the risk that some dangerous sex offenders would escape registration, justified a hard and fast rule, with no exceptions.
Commentary: We all hate sex offenders. And it is a good thing that people who commit sexual crimes, particularly against children, should be required to register, and that this information be accessible to the public. People are empowered when they have better information. But I can’t see how the people are better informed when they are given misleading information. I now know that there are registered “sex offenders” out there who are not in fact sex offenders. This does not give me complete confidence in the sex offender registration system. It would have been easy for the Legislature to create an exemption for the crimes of unlawful imprisonment and kidnapping where there is no evidence of sexual misconduct or intent. Instead, the Legislature determined, in the exercise of its wisdom, that the people would be better served by misleading information.