No. 10

April 18, 2010

Georgia Cases and Comments

When is a Sex Offender not a Sex Offender?

Rainer v. State

Case No. S09A1900, March 15, 2009

This case presents an odd issue. If a person commits a non-sexual crime against a child, may that person be required to register as a sex offender? The dilemma results from a statute that defines "sexual offender" more broadly than ordinary English allows:

The term "sexual offender" is specifically defined in OCGA § 42-1-12 (a) (20) (A) as "any individual . . . [w]ho has been convicted of a criminal offense against a victim who is a minor or any dangerous sexual offense." (Emphasis supplied). Under the statute, one only needs to have committed a "criminal offense against a victim who is a minor" (as that phrase is defined under OCGA § 42-1-12 (a) (9) (B)) in order to meet the statutory definition of "sexual offender" for purposes of registration. There is no requirement that sexual activity be involved.

The defendant, who pled guilty to false imprisonment of a child, which involved no sexual misconduct, appealed the denial of his declaratory judgment action, seeking to hold the registration statute unconstitutional as applied. He failed to persuade the majority that the registration requirement was cruel and unusual punishment because it wasn't punishment. He had no fundamental right or other basis to avoid the overinclusive language.

 

Although I have little sympathy for the defendant in this case, things should still be described truthfully. I would have no problem if he were labeled a "threat to children." This is not a case of legislative deviousness, just sloppiness.