RICHMOND, Va. (CN) — The Fourth U.S. Circuit Court of Appeals on Thursday heard arguments over whether Virginia’s lifelong sex offender registry requirement after conviction for indecent liberties is unconstitutional.
Two months after a man’s 18th birthday, he had sex with his girlfriend, who was 98 days from turning 15. The man, who is identified as John Doe in court documents, pleaded guilty to the “less serious” offense of indecent liberties.
His attorneys allegedly advised him to plead guilty to the charge but made no mention of Virginia’s sex offender registry, causing him to find out “the hard way.” He challenged the law in federal court in April 2020.
“In 2007, Mr. Doe pled guilty to taking indecent liberties with a minor under the age of 15 in violation of Virginia law. Those guilty pleas triggered the consequences of placement under the highest classification of Virginia’s sex offender registry,” Solicitor General Michelle Kallen of the Virginia Department of Justice told a Fourth Circuit panel on Thursday.
Craig Welkener of Bosson Legal Group PC represented Doe during oral arguments.
He contended that Virginia’s sex offender registry violates the equal protection clause, due process clause and Eighth Amendment of the U.S. Constitution.
“It’s as though Virginia decided to execute attempted murderers, but not actual murderers,” Welkener said.
He told the three-judge panel that Virginia’s law allows certain 18- and 19-year-olds who commit the greater crime of carnal knowledge with a minor to petition to leave the registry 15 years after their offense by seeking a public court hearing on whether they pose a risk to public safety.
But, he said, 18- and 19-year-olds who commit the lesser crime of indecent liberties with a minor are stuck on the registry for life.
Welkener argued that Virginia’s distinction between these two crimes when it comes to the registry is “arbitrary.”
U.S. Circuit Judge A. Marvin Quattlebaum, a Donald Trump nominee, interjected to mention that the two offenses are distinct. If the panel determines that the crimes of carnal knowledge and indecent liberties are substantially different and not similarly situated, Welkener’s equal protection argument may not prevail.
“I disagree to the extent that it distinguishes these two crimes with regard to purpose on the registry,” Welkener responded. “First of all, when comparing the crimes you have to look at the purpose, which is where they rank on the registry. And Virginia has given us their logic on how they make more serious ones more serious.”
A 17-year-old may be convicted of carnal knowledge, but only adults can be convicted of indecent liberties, noted U.S. Circuit Judge Julius Richardson, who is also a Donald Trump nominee.
Senior U.S. Circuit Judge Barbara Keenan asked the attorney to explain why Virginia’s registry policy does not have a rational basis.
“The point is that under equal protection, you have to compare the classes and say, ‘Why is there a distinction between the two classes?’” said Welkner.
Defending the state, Kallen said Doe asserts that, “Given the specific facts of his situation, had he pled guilty to another statute — carnal knowledge — he would have been eligible for classification under a lower tier of the sex offender registry.”
But the solicitor general said that it is uncertain whether Doe would have even qualified for a lesser tier.
“It is important to emphasize that that is not the case for most people convicted of carnal knowledge with 13- or 14-year-olds in Virginia,” Kallen said. “Most adults convicted under this provision are classified under tier 3 just like Mr. Doe.”
Judge Richardson spoke up to mention case law shows that, in some circumstances, different crimes can be similarly situated.
“Doe sets forth general arguments suggesting that the registry itself is unconstitutional, but the United States Supreme Court and this court have rejected arguments that sex offender registries enact punishment,” Kallen later added.
The Virginia state code says it creates a registry of sex offenders to assist the efforts of law enforcement agencies and others to “protect their communities and families from repeat offenders and to protect children from becoming victims of criminal offenders by helping to prevent such individuals from being allowed to work directly with children.”
The panel on Thursday did not indicate how it would rule.
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