New York Court of Appeals upholds most serious sex offender registration despite defendant's acquittal on most serious charges
Over at Reason, Jacob Sullum has this effective new review of a notable example of "acquitted conduct" being used to justify a severe collateral consequence. The posting's full headline provides the basic story: "A Jury Rejected the Charges, but He Still Has to Register As a Sex Offender for Life: New York's highest court says accusations can be considered for registration purposes even when the defendant was acquitted." Here are some of the particulars:
Quinn Britton's 13-year-old niece, identified in court documents as A.B., accused him of raping her during a Thanksgiving Day visit to her grandmother's home in Brooklyn, where her uncle lived, when she was 11. Britton denied any inappropriate behavior, and his mother said A.B. had spent the whole evening watching TV in the living room with her.... The jurors struggled to make sense of these conflicting accounts. Since there was no physical evidence, the case came down to a question of whether to believe A.B. or Britton. During three days of deliberations, the jurors sent the judge three notes indicating that they were deadlocked. Each time he told them to keep deliberating.
Finally the jurors emerged with a verdict that seemed to split the difference between those inclined to believe Britton and those inclined to believe A.B. They found Britton guilty of second-degree sexual abuse, a misdemeanor, based on the allegation that he kissed A.B.'s breasts, but not guilty of three felonies: first-degree rape, based on the allegation of penetrative sex, and two counts of a first-degree sexual act, based on allegations that he performed oral sex on the girl and forced her to perform oral sex on him.
During a post-trial hearing, the judge nevertheless assumed that Britton had committed the felonies and therefore assigned him to risk level two under New York's Sex Offender Registration Act (SORA), which triggers lifetime registration. Had the judge considered just the crime of which Britton was convicted, he would have been assigned to risk level one, which requires registration for 10 years.
In a 6-to-1 ruling last week, the New York Court of Appeals upheld Britton's classification, noting that it was supposed to be based on "clear and convincing evidence," a less demanding standard than the proof beyond a reasonable doubt required for a criminal conviction. It is possible, in other words, for an alleged crime to figure in a defendant's risk level even when there is not enough evidence for a guilty verdict.
Writing in dissent, Judge Jenny Rivera charges her colleagues with improperly applying the "clear and convincing evidence" standard, which requires "a high degree of probability" that an allegation is true. A.B.'s testimony should not be treated as reliable under SORA, Rivera argues, because the jury did not find it credible.
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