THE CONSTITUTIONALITY OF STRICT LIABILITY IN SEX OFFENDER REGISTRATION LAWS ∗ CATHERINE L. CARPENTER INTRODUCTION ............................................................................................... 296 I. STATUTORY RAPE ............................................................................... 309 A. The Basics.................................................................................... 309 B. But the Victim Lied and Why it Is Irrelevant: Examining Strict Liability in Statutory Rape........................................................... 315 C. The Impact of Lawrence v. Texas on Strict Liability................... 321 II. A PRIMER ON SEX OFFENDER REGISTRATION LAWS AND THE STRICT LIABILITY OFFENDER.............................................................. 324 A. A Historical Perspective.............................................................. 324 B. Classification Schemes ................................................................ 328 C. Registration Requirements .......................................................... 331 D. Community Notification Under Megan’s Law............................. 336 III. CHALLENGING THE INCLUSION OF STRICT LIABILITY STATUTORY RAPE IN SEX OFFENDER REGISTRATION.............................................. 338 A. General Principles of Constitutionality Affecting Sex Offender Registration Laws........................................................................ 323 1. The Mendoza-Martinez Factors............................................. 338 2. Regulation or Punishment? A Review of Smith v. Doe......... 340 B. Trivializing Dangerousness: The Fallacy Behind Connecticut Department of Public Safety and the Strict Liability Offender ... 344 C. Comparing Procedural Guarantees in Pretrial Detentions and Civil Commitments with Registration Schemes .................... 352 D. Reframing the Issue: Employing Substantive Due Process......... 355 1. Applying the Stigma Plus Test in Loss of Reputation .......... 361 2. The Impact of Lawrence on the Stigma Plus Test................. 365 3. Instructive Analysis: Successful Due Process Challenges .... 366 CONCLUSION................................................................................................... 369 The subject of sex offender registration laws involves a complex interplay of constitutional limitations, individual liberties, and legislative goals aimed at ∗ Professor of Law, Southwestern University School of Law. I would like to thank Southwestern University School of Law for its generous support of this project, and my research assistants Debbie Caroline Carlos, Kyndra Casper, Timothy Fuller, Alberto Jimenez, Jennifer Rutherford, and Fernando Saldivar for their significant research efforts over the last two years. I am also grateful to Professor Joshua Dressler for his continued encouragement of my writing, my colleagues Kelly Strader and Jonathan Miller for their guidance, Sarah Saucedo, Articles Editor at the Boston University Law Review, for her skill and dedication in editing the piece, Erica Carpenter, an inspiration, and Martin, David, and Scott Carpenter, who have given new meaning to the term in-house counsel. 295 296 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:295 assuaging public concern. Indeed, one need only hear the heartbreaking account of a child abducted and assaulted, or murdered by a convicted sex offender, to appreciate a community’s desire to protect its children from predators living among them. Sex offender registration and notification schemes, which are designed to track the offenders and to protect the community, are motivated by justifiable regulatory intentions; nonetheless, legislators may be guilty of overreaching. This article explores the constitutionality of sex offender registration laws as applied to one specific group of convicted sex offenders – the statutory rapist who has been convicted in one of thirty jurisdictions that employs a strict liability framework. Specifically, this article questions whether strict liability provides a sufficient and constitutional framework for the requirement to register as a sex offender. I draw the distinction between a narrowly constructed sex offender registration system designed to protect the public, and a system marked by a net cast so wide that it captures offenders whose predatory behavior or criminal intent was never proven. This article argues that because of the convergence of several factors, including the recent Supreme Court decisions in Connecticut Department of Public Safety v. Doe and Lawrence v. Texas, the sweeping nature of sex offender registration laws unconstitutionally impacts the strict liability offender. “A ‘stigma’ is ‘[a] mark or token of infamy, disgrace, or reproach . .’” – Doe v. Dep’t of Pub. Safety1 INTRODUCTION People are afraid, and it is understandable. One need only hear the heartbreaking account of a child abducted and assaulted, or murdered by a convicted sex offender, to appreciate a community’s desire to protect its children from sexual predators.2 Sex offender registration and community 1 271 F.3d 38, 47 (2d Cir. 2001) (quoting THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1702 (4th ed. 2000)). 2 Sadly, numerous accounts have made national news. For reports in 2005, see Associated Press, Fla. Man Trusted Kidnapping Suspect, WXIA.COM, Jan. 23, 2005, http://www.wxia11.com/news/news_article.aspx?storyid=57832 (concerning the kidnapping of eleven-year-old Adam Kirkirt in Marion County, Florida, in January 2005 by his father’s roommate, Frederick Fretz, a convicted sex offender); Associated Press, Fla. Slay Suspect Charged with Capital Murder, MSNBC.COM, Mar. 21, 2005, (describing convicted sex offender John Evander Couey’s confession to the kidnapping, sexual assault, and murder of nine-year-old Jessica Lunsford) (on file with author); Associated Press, Sex Offender Charged in Iowa Girl’s Death, FOXNEWS.COM, Mar. 28, 2005, http://www.foxnews.com/story/0,2933,151677,00.html (discussing the alleged kidnapping, sexual abuse, and slaying of ten-year-old Jetseta Gage by convicted sex offender Roger Paul Bentley); Police Seek Sex Offender, Missing Girl, CNN.COM, July 23, 2005 (on file with author), (involving eight-year-old girl, Lydia Bethany-Rose Rupp, abducted by sex offender 2006] SEX OFFENDER REGISTRATION LAWS 297 notification statutes3 have been established to track potential recidivists4 and to protect the community from offenders who reside in close proximity.5 The rationale for such statutes has been clearly articulated: public safety is the primary goal.6 The intrusion suffered by the offender is outweighed by the Fernando Aguerro, who lived with the family); Sheriff: Sex Offender Confesses in Killing, CNN.COM, Apr. 17, 2005, http://www.cnn.com/2005/US/04/17/florida.girl/index.html (relating the confession of David Onstott, a convicted sex offender, who admitted murdering thirteen-year-old Sarah Michelle Lunde); Sam Verhovek, Missing Girl Found with Sex- Offender, L.A. TIMES, July 3, 2005, at A20 (detailing the rescue of eight-year-old Shasta Groene from convicted sex offender Joseph Edward Duncan, III, six weeks after she was kidnapped from her home following the brutal murders of her mother, brother, and mother’s boyfriend, with which Duncan has been charged). 3 Sex offender registration requirements enable law-enforcement officials to acquire information concerning persons obligated to register because of prior convictions based on the commission of sex offenses. Community notification statutes authorize dissemination of information concerning a sex offender to prescribed organizations and members of the community. This information may include a photograph, a description of the underlying offense, residence address, place of employment, and vehicle license-plate number. See infra Part II for detailed description and discussion of sex offender registration laws and community notification statutes. 4 According to some reports, there is a likelihood that sexual predators will reoffend. See Doe v. Poritz, 662 A.2d 367, 374-75 (N.J. 1995) (recounting statistical studies on the rate of recidivism among sex offenders). According to the Poritz court: [R]apists recidivate at a rate of 7 to 35%; offenders who molest young girls, at a rate of 10 to 29%, and offenders who molest young boys, at a rate of 13 to 40%. Further, of those who recidivate, many commit their second crime after a long interval without offense. In cases of sex offenders, as compared to other criminals, the propensity to commit crimes does not decrease over time. [I]n one study, 48% of the recidivist sex offenders repeated during the first five years and 52% during the next 17 years. Id. at 374 (citations omitted). One extreme case demonstrates this all too clearly. Convicted child molester, Dean Arthur Schwartzmiller, rearrested in May 2005, is believed to have committed sex crimes against thousands of victims, as demonstrated by meticulous computer logs he kept. See Associated Press, Thousands of Boys Molested? Cops Seek Victims, MSNBC.COM, June 17, 2005, http://www.msnbc.msn.com/id/8247899 (reporting the police discovery of an unregistered sex offender’s logs which suggest that he abused thousands of children over a thirty-year period). 5 See E.B. v. Verniero, 119 F.3d 1077, 1098 (3d Cir. 1997) (“[R]egistration and carefully tailored notification can enable . those likely to encounter a sex offender to be aware of a potential danger and ‘to stay vigilant against possible re-abuse.’” (quoting Artway v. Attorney