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Megan’s Law & Sex Offender Registration in Pennsylvania

November 17, 2011

2. Law, 7. Post-Trial

Megan’s Law & Sex Offender Registration in Pennsylvania

Megan is a Welsh name meaning “little pearl.”  Megan Kanka was 7-years old when she was murdered in 1994.  The murderer raped her before and after he snuffed her.  He had two sexual assault priors, both with little girls (ages 5 and 7), and did a bit under seven years total.  The dude got the death penalty, but NJ later took that off the books.  He was re-sentenced.  Quite interesting, actually:  He got life on the kidnapping, and one day each on the sexual assault and murder.  Those one-day shots run consecutive to the life sentence.  So when he dies, he’ll still have 48 hours to do.

A month after the murder, New Jersey passed the first sex-offender registration law.  It’s interesting to note that although he confessed promptly, he went to trial.  So the sex-offender registration law was in effect before he was found guilty.  Every state and the feds now have such a law.

The train moved swiftly on sex crimes.  Jessica’s Law is geared to keeping offenders incarcerated.  Sarah’s Law opened up the sex-offender database to the public.  Jonathan’s Law opened medical records to parents – aimed at residential mental-health facilities that were keeping abuse quiet.  Here’s Pennsylvania’s site for everything from law citations to offender searches.

Sex offenses, it seems, touch a nerve in our society.  And they should, right?  I’m a parent and a grandparent.  Touch one of my snowflakes and I’ll give you once chance measured in milliseconds to turn yourself in.  Once that time elapses, it’s just you and me.  I bet you I’d get Involuntary Manslaughter, perhaps even mitigated by Self-Defense or Insanity.  I’ be happy with that, and I’m sure most of us feel that way.

But …

I had a client once in the pre-Megan days.  He was 20 or 21 years old.  Was just a kid looking for a few bucks.  One of the county fairs hired him for security.  “Security” was a term of art – yeah, they watched for trouble, but they also doubled as garbage guys and whatever else was needed.  So the fair was over for the night.  Some girls were hanging out.  They hook up.  My guy winds up having sexual relations with a young girl.  It was purely consensual – from an observer’s perspective.  He had no idea how old she was – told me he thought maybe 17.  Turns out she was 15.  Daddy found out and turned the matter over to the police.

Here’s the kid in front of me.  “She wanted it,” he said as probably the one and only time I ever heard that phrase and was OK with it.  He was sincere.  I read him the law – She’s under 16 and you’re four or more years older than her.  He said that he had no idea whatsoever that he was committing a crime, and I believed him.  He fully cooperated, pled out, and got 18 months (I think).  The deal in the law is the competency of a 15-year old – she was too young to understand.  We have to pick some age, so 15 is as good as any for this issue.

Fast forward to the post-Megan days.  Same crime, same repentance, etc.

Involuntary Deviate Sexual Intercourse (18 Pa. C.S. § 3123)
(a) Offense defined – A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant:

  1. By forcible compulsion;
  2. By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
  3. Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring;
  4. Where the person has substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants, or other means for the purpose of preventing resistance;
  5. Who suffers from a mental disability which renders him or her incapable of consent;
  6. Deleted by 2002, Dec. 9, P.L. 1350, No. 162, § 2, effective in 60 days; or
  7. Who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other.

My guy nailed subparagraph 7.  That was the law at the time, and what he pled to.  But now with Megan, his crime would carry something more than the 18 months he got – he would have Lifetime Registration as a sex offender.

Here would be the gig for the rest of his life:

  • Offenders must register with the Pennsylvania State Police upon release from incarceration, upon parole from a state or county correctional facility or upon the commencement of a sentence of intermediate punishment or probation.
  • Offenders are required to notify the Pennsylvania State Police within 48 hours of any change of residence or establishment of an additional residence(s).
  • Offenders are required to notify the Pennsylvania State Police within 48 hours of any change of employer or employment location or the termination of employment.
  • Offenders are required to notify the Pennsylvania State Police within 48 hours of any change of institution or location at which the offender is enrolled as a student, or termination of enrollment.
  • Offenders are required to notify the Pennsylvania State Police within 48 hours of becoming employed or enrolled as a student if the offender has not previously provided that information to the Pennsylvania State Police.
  • Offenders are required to register with the appropriate law enforcement authorities in another state within 48 hours of establishing a residence, obtaining employment, or attending school in another state.
  • Offenders convicted in jurisdictions outside Pennsylvania must register with the Pennsylvania State police within 48 hours of establishing a residence, being employed or becoming a student in Pennsylvania.
  • The occurrence of a natural disaster or other event requiring evacuation of residences shall not relieve an individual of the duty to register or any other duty imposed.

Because … um … he wasn’t careful after a country fair and did something stupid?  We all get the issue when it comes to molesting children.  The cost of re-offending is just chilling.  But we have entered an area, perhaps, of over-reach.

Look at the Penn State University situation.  I haven’t read the Grand-Jury report, but I catch some news.  We have stories supporting and trashing the allegations flying from every direction.  Supposed victims are recanting.  New alleged victims are showing up with lawyer in hand.  And the University flat out fired the two point guys – the University President and the Football Coach.  I have no idea of their culpability, and – frighteningly so – I suspect the Board of Trustees don’t know either.  But someone had to go and quickly in an attempt to get ahead of the story.

As a society, we have zero tolerance for sexual abuse.  That is as it should be.  But in this zero-tolerance mentality, we seem to have stepped away from our innocent-until-proven-guilty morality.  We also seem to have lost any recognition of rehabilitation.  The more punitive the action the better.

So has it helped?  Here’s an Abstract from a 2008 study:

The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. Sentences received prior to the implementation of Megan’s Law were nearly twice as long as those received after the law’s passage, but time served has been approximately the same before and after the law’s enactment. Significantly fewer sexual offenders have been paroled after the implementation of Megan’s Law, largely due to changes in sentencing.

No effect.  None.  It reminds me of the 1974 Martinson study that looked at all the methods employed from 1945 through 1967 to reduce recidivism of criminals.  He concluded that “nothing works.”  (I’m not going down this path, so if you know of his 1978 comments, etc., just move along … I’m making a point).

So what are we getting from lifetime registration, public access to records, and harsher parole standards?  It seems we are achieving a level of comfort that at least we’re doing something.  And to embrace that achievement, we need to ignore the rush to judgment and the times when the heavy hand falls unfairly.

It’s a fair observation that perhaps as recently as 1994, we were doing nothing, and now – just 18 years later, we’re doing a lot.  And that’s good.  The harm in doing nothing cannot be accepted.  But somewhere in the continuum, we need to ensure that what we are doing continues to honor who we are.

People in this country are innocent until proven guilty.  And serving a sentence is “paying your debt to society.”  We can’t find a broad brush that paints well with one crime – molesting children or raping adults – and ignore its ill-fit with other crimes.

I return again to my client.  He was acting like a teenager, and should have been nailed for it.  But he’s probably pushing 40-years old now.  For all this time, he’d be registered as a sex offender – right in that group with the kiddie molesters.  That’s overkill.

But we all know that this area of the law is like touching the third rail in a railroad system – grab it even for a second, and you’re toast.  Politicians that write the laws will never get anywhere close to loosening any of the “safeguards” in place.  It’s going to be the courts that will humanize it, and that’s decades in the making.

We all abhor molesters, kiddie-porn, rapists, and everything in and around those issues.  But politicians have fomented a society so bent on retribution that we no longer wait for the justice system to do its job.  When an attorney fights vigorously on behalf of his or her client, look beyond the charges.  Recognize that when someone is pronounced guilty merely because of the nature of the charges and based upon hearsay at least until the trial, you or your adult child could be next at the defendant’s table.

Here’s a good read on point:  The Invisible Man: How the Sex Offender Registry Results in Social Death.   The last line of the abstract is illuminating: “It follows that the sex offender registry is a repressive governmental control that has concentrated power in the government and criminal laws while shifting power away from informal social controls to result in the social death of those unwanted, those labeled sex offender.”

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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