Saturday, February 26, 2011

Romeo Need Not Register as a Sex Offender

State v. Stamper, 2011 VT 18 (mem.)

A quick case of statutory interpretation for today’s SCOV decision.  In 1999, Defendant was convicted of lewd and lascivious conduct with a child.  At the time, Defendant was 17 and the object of his attention was 15.  Due to the conviction Defendant was registering as a sex offender until 2009.  At that time, he moved and did not update his information with the State.  Upon catching up with Defendant, State charged him with failure to comply with the sex-offender-registry statute.  The trial court agreed with the State that Defendant had failed to comply, and this appeal followed.

On appeal, the only issue is whether an exemption to the sex-offender registry applies.  The exemption allows an individual to avoid the sex offender registry if the conviction was based only the age of the victim and the offender was under the age of 18 while the victim was at least 12 years old.  In other words, if the crime was simply one of youth acting on impulses while they were too young, we are not going to punish them for the rest of their lives by making them register as a sex offender. 

The State argues that because the probable cause affidavit submitted by the police in Defendant’s 1999 conviction showed that the sexual encounter was non-consensual and may have involved some violence this conviction lies outside the exemption.  The SCOV disagrees.  For the SCOV, the issue is what the conviction actually was.  In this case, it was lewd and lascivious conduct with a child, a crime that contains no consent element (it is often called “statutory rape”).  Since the conviction did not include a consent element, the application of Section 5401 is straightforward, and the SCOV will not dive into the supporting facts that were never tried to a jury or included in the conviction.  If the State had wanted, it could have charged Defendant with a consent-based crime.  It did not, and it cannot revisit this decision now through the backdoor.  Defendant’s motion to dismiss is granted. 

The only question that remains with this decision is how long it will take prosecutors to beg the Senate Judiciary Committee to change the law.

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