This post examines an opinion the Missouri Court of Appeals issued recently in a civil case: John Doe, a Missouri man’s alias, brought an action seeking a declaratory judgment “that he not be required to register as a sex offender under the federal or state sex offender registries.” Doe v. Isom, 2014 WL 606555 (MissouriCourt of Appeals 2014). As Wikipedia explains, a declaratory judgment is the
legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties. . . .
As to how Doe came to be on the sex offender registry, the opinion says that in May of 2008,
Doe hacked into the email account of A.R., the 15 year-old-daughter of Doe's ex-girlfriend. Doe discovered a prior email A.R. had sent to her friend, which contained a picture of A.R. touching her genitals. Doe then proceeded to email that photograph to 14 individuals listed in A.R.'s email contact list, as well as blind carbon copying A.R.'s high school principal.
Doe v. Isom, supra. The opinion notes that (i) “A.R. admitted to taking and emailing the picture to her friend”; and (ii) “[i]t was alleged that several of the recipients of the email (which included the photograph) were under the age of 17.” Doe v. Isom, supra.
The opinion also explains that some time after this happened, the
St. Charles County Prosecutor's office filed a Substitute Information in Lieu of Indictment charging Doe with the following six counts: (1) one count of endangering the welfare of a child in the first degree, in violation of Section 568.045; (2) two counts of promoting child pornography to a minor in the second degree, in violation Section 573.035; (3) two counts of promoting child pornography in the second degree, in violation of Section 573.035; and (4) one count of tampering with computer users, in violation of Section 569.099.
On March 24, 2009, Doe pled guilty in the Circuit Court of St. Charles County, to the class C felony of endangering the welfare of a child in the first degree, in violation of Section 568.045, and the class A misdemeanor of tampering with computer users, in violation of Section 569.099. Doe received, inter alia, a suspended execution of sentence and was placed on probation for a term of five years.
Doe v. Isom, supra.
About six months after he pled guilty, Doe’s Probation Officer directed him to the
St. Louis Metropolitan Police Department Sex Offender Registration Office to determine whether Doe was required to register as a sex offender. After a determination that he must register, Doe filed his initial registration with Missouri's Sex Offender Registry on September 11, 2009.
Soon thereafter, Doe filed motions for his removal from the sex offender registries in the Circuit Court of St. Charles County. However, these motions were denied by the trial court in St. Charles County premised upon the reasoning that Doe's removal from the sex offender registry had to be filed in the jurisdiction where Doe resided -- the City of St. Louis.
Doe v. Isom, supra.
Almost three years later, Doe filed a
Petition for Declaratory Judgment for Removal from the Sex Offender Registry and Destruction of Records in the Circuit Court of the City of St. Louis. Doe sought a declaratory judgment that he not be required to register as a sex offender under the federal or state sex offender registries. Almost a year later, on January 30, 2013, the trial court entered an Order and Judgment granting Doe's Petition, finding Doe was not obligated to register under either federal or state law, and that his registration be removed from all sex offender registries.
Doe v. Isom, supra.
Colonel Daniel Isom, Chief of Police for the Metropolitan Police Department, City of St. Louis, the St. Louis Circuit Attorney's Office and the Missouri State Highway Patrol then appealed the declaratory judgment in favor of Doe, which is how this action arose. Doe v. Isom, supra. The opinion refers to them as the “Appellants.” Doe v. Isom, supra.
The Court of Appeals began its analysis of the issues in the case by explaining that in
2006, the United States Congress passed, and the President signed, the Adam Walsh Child Protection and Safety Act of 2006 (`AWA). See Pub.L. No. 109–248 (2006). For the purpose of `protect[ing] the public from sex offenders and offenders against children,’ Title I of AWA . . . created the federal Sex Offender Registration and Notification Act (`SORNA’), 42 U.S. Code § 16901 et seq., a `comprehensive national system for the registration of those offenders.’ 42 U.S. Code § 16901. SORNA `requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries.’ Reynolds v. U.S., 132 S.Ct. 975 (2012). . . .
[T]o accomplish this purpose, SORNA requires states to `maintain a jurisdiction-wide sex offender registry’ that complies with the standards set forth by SORNA. 42 U.S. Code § 16912(a). . . . In Missouri, the corresponding registry to that of SORNA's federal registry has been in force since 1995. R.W. v. Sanders, 168 S.W.3d 65 (Missouri Supreme Court en banc 2005). However, since 1995 there have been substantial amendments to what is known as Missouri's Sex Offender Registration Act (`SORA’), Sections 589.400-589-425. Roe v. Replogle, 408 S .W.3d 759 (Missouri Supreme Court en banc 2013).
Doe v. Isom, supra.
The Appellants made two arguments: First, they argued that the trial court erred in granting Doe’s request for a declaratory judgment because he “is a `sex offender for purposes of SORNA, and is therefore obligated to register under both SORNA and SORA.” Doe v. Isom, supra. Second, they argued that
even if Doe is not deemed a `sex offender’ for purposes of SORNA, the trial court erred in finding Doe did not have an obligation to register under SORA, because the offense to which Doe pled guilty was `sexual in nature.’ Thus, Appellants contend Doe has an obligation to register under SORA, regardless of his registration obligations under SORNA.
Doe v. Isom, supra.
The Court of Appeals began its analysis of the first argument by explaining that the “dispositive question before this Court is whether Doe's guilty plea to endangering the welfare of a child in the first degree, under [Missouri Statutes § 568.045], makes him a `sex offender,’ subject to SORNA's and SORA's registration requirements.” Doe v. Isom, supra. It then explained that SORNA defines a “sex offender” as an
`individual who was convicted of a sex offense.’ 42 U.S .Code § 16911(1). . . . Apart from exceptions not applicable here, `sex offense,’ in turn, is either:
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18;
(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105–119(10 U.S. Code 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).
42 U.S. Code § 16911(5).
The Court of Appeals found that “[u]nder the facts of this case, only subparagraph (ii) . . . could provide a basis to require Doe to register as a sex offender under SORNA”, i.e., was his guilty plea to “`a criminal offense that is specified against a minor?” Doe v. Isom, supra. It explained that in deciding whether Doe qualified as a “sex offender” under that provision, it would address two issues:
(1) we will consider whether a violation of Section 568.045 is a `criminal offense’ as defined by SORNA; and (2) we will decide whether Doe's particular conviction for endangering the welfare of a child in the first degree was `a specified offense against a minor.’
Doe v. Isom, supra.
It found, first, that Doe’s guilty plea to violating Missouri Statutes § 568.945 was a plea to a “criminal offense” under the sex offender statutes. Doe v. Isom, supra. It reached this conclusion because 42 U.S. Code§ 16911(6) defines a “criminal offense” as a “State, local tribal, foreign or military offense”. Doe v. Isom, supra.
The court then took up the second issue, i.e., whether the plea was to a “specified offense against a minor.” Doe v. Isom, supra. It noted that A “a subsequent subsection of SORNA . . . expands the definition of the phrase `specified offense against a minor’ to include `all offenses by child predators [.]’” Doe v. Isom, supra (quoting 42 U.S. Code § 16911(7)) (emphasis in the original). The Court of Appeals explained that it t did not find it necessary to consider whether the offense qualified under any of the other sections of 42 U.S. Code § 16911 because it found the “`catchall provision’” codified in § 16911(7) “to be dispositive” of the issue. Doe v. Isom, supra.
The court then took up the second issue, i.e., whether Doe’s plea to endangering the welfare of a child was a “specified offense against a minor”. Doe v. Isom, supra. The court found that, in addressing this issue, it had to “define `sex offense.’” Doe v. Isom, supra. It noted that
[a]ccording to the United States Attorney General, [the term `sex offense’] `is intended to ensure coverage of convictions under statutes defining sexual offenses in which the status of the victim as a minor is an element of an offense, such as specially defined child molestation or child prostitution offenses, and other offenses prohibiting sexual activity with underage persons.’
Doe v. Isom, supra (quoting Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification, 73 Federal Register 38030–01, 38050 (July 2, 2008)).
The Court of Appeals explained that Doe pled guilty to violating Missouri Statutes § 568.045(1)(1), which makes it a crime to “knowingly” act “in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old”. Doe v. Isom, supra. It then explained that while “this particular crime `is not in and of itself a sexual offense’”, but “the offense of endangering the welfare of a child in the first degree can relate to sexual offenses.” Doe v. Isom, supra (emphasis in the original).
The court then found that Doe’s offense of
endangering the welfare of a child in the first degree, indeed, related to a sexual offense. As referenced in the trial court's Order and Judgment, Doe's offense involved `act[ing] in a manner that created substantial risk to the life and health of A.R., a child less than seventeen years old by disseminating nude pictures of A.R. touching her genitals to her friends, students at her school, and to other adults.’ (emphasis added)
Obviously, the charging document demonstrates that Doe's conduct was not merely tinged with a sexual nature; an adult male circulating nude and provocative images of an individual under the age of seventeen to other individuals clearly constitutes `conduct that by its nature is a sex offense against a minor’ -- the sexually-laced conduct Congress sought to include in SORNA's registration requirements.
Doe v. Isom, supra (emphasis in the original).
The court also rejected Doe’s argument that his conduct was
not `against a minor’ but, rather, was `passive in nature as it pertained to the minor victim.’ Again, we reject this argument because `against a minor’ merely means the conduct as applied to the age of the victim and the `inquiry goes no further than determining whether the victim was a minor.’ U.S. v. Dodge, 597 F.3d 1347 (U.S. Court of Appeals for the 11th Circuit 2010). Here, because no question exists that Doe endangered the welfare of minor, the word `against’ is a non-issue. U.S. v. Dodge, supra.
Doe v. Isom, supra.
Since the Court of Appeals found that “Doe meets the definition of `sex offender’ under SORNA, and is thereby required to register as a sex offender under federal law, Doe is . . . subject to the registration requirements of SORA.” Doe v. Isom, supra. It therefore reversed the trial court’s granting Doe a declaratory judgment in his favor and remanded the case “for a finding consistent with this opinion.” Doe v. Isom, supra.