Georgia Supreme Court Blog

March 17, 2010

Court Majority: Sex Offender Registration Not Punishment, May be Applied to Non-Sexual Offense Against Minor

Filed under: Carol Hunstein, criminal law, Harold Melton, sex offenders — bce30064 @ 5:32 pm

In a 5-to-2 vote, the Supreme Court of Georgia has ruled against a man convicted of false imprisonment of a minor and upheld the state’s sex offender registration law as constitutional.

When Jake Rainer was 18, he and three others planned to rob a 17-year-old girl after arranging to meet her to buy some drugs. When she got into their car to complete the transaction, they drove away. They stopped twice, trying to steal her purse and push her out of the car. Eventually they succeeded. Witness identifications later led to the arrest of the four men.

In 2001, Rainer pleaded guilty in Fulton County to false imprisonment and robbery and was sentenced to 10 years, with five in prison and the rest on probation. After serving a year on probation, he learned for the first time he was required to register as a sex offender. See Rainer’s Online Sex Offender Profile. Rainer challenged the law’s application to his case because the crime he was convicted of did not involve any sexual activity. The State filed a motion to dismiss his constitutional challenge, and the trial court granted it, finding that the registration statute – Official Code of Georgia 42-1-12 – is constitutional. Rainer then appealed to the state Supreme Court, arguing that the requirement he register as a sex offender constitutes “cruel and unusual punishment” and violates his constitutional right to due process because it is overly inclusive.

But in today’s opinion, written by Justice Harold Melton (data), the majority states that Georgia’s sex offender registration requirements “are regulatory, and not punitive, in nature.”

“Specifically, because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is … sexual in nature before being required to register.” The law defines a sexual offender as anyone “[w]ho has been convicted of a criminal offense against a victim who is a minor or any dangerous sexual offense.”

“Under the statute, one only needs to have committed a … criminal offense against a victim who is a minor … in order to meet the statutory definition of … sexual offender for purposes of registration,” the majority states. The law is not overly inclusive, the majority finds. Rather, it “advances the State’s legitimate goal of informing the public for purposes of protecting children from those who would harm them.”

But in her dissent, Chief Justice Carol Hunstein (data) disagrees, finding the statute “unconstitutionally over-inclusive.”

“[T]he statutory scheme creating the sex offender registry seeks to protect children not from all harm, but from harm by those who have committed certain designated offenses,” the dissent says. “[A]lthough a sexual offense may occur during a kidnapping or a false imprisonment, such conduct would clearly be covered by other provisions of the statute. Rainer should not be characterized as a sex offender, she states in the dissent. “I am a parent. I am a grandparent. I care about the children of this state. But I am also obligated to care about the constitutional rights of all those affected by its laws.” Justice Robert Benham joins in the dissent.

Case Details:
Attorney for Appellant (Rainer): Ann Marie Fitz
Attorneys for Appellee (State): Thurbert Baker, Attorney General, Joseph Drolet, Sr., Asst. A.G., Paige Elizabeth Boorman, Asst. A.G.
Summary by Georgia Supreme Court Public Information Office

More Information:

  • Georgia Supreme Court Opinions Database: Rainer v. The State (S09A1900)
  • Georgia Criminal Law Information: From the Center for Legal Solutions

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  • December 17, 2009

    Court Upholds Sex Offender Registration Law: Dunn v. The State

    Filed under: criminal law, sex offenders — bce30064 @ 3:05 am


    The Georgia Supreme Court has rejected a man’s challenge of the sex offender registry law as unconstitutional.

    Derrick Todd Dunn (Source: GBI)



    In 1996, Derrick Todd Dunn was convicted of statutory rape. Under state law, convicted sex offenders must register with the local sheriff within 72 hours of changing their address. On Jan. 17, 2009, Dunn moved temporarily into the Calhoun Lodge, a motel in Gordon County, before moving on Jan. 23rd into a new permanent home. Three days later, he went to the Gordon County Sheriff’s Office to register his new address, and he was promptly arrested for failing to register the motel address, where he remained less than a week. The State subsequently filed a motion to revoke his probation and return him to prison. Dunn had also failed once before to obtain prior permission from his probation officer before moving.

    In response, Dunn’s lawyer filed a motion to strike down the registry law as unconstitutional “as applied to registered sex offenders living at a temporary address.” But the trial court rejected his constitutional attacks and revoked his probation. In his appeal, Dunn’s lawyer argued that the law violates Dunn’s due process rights because the requirements for notification of a change of address are vague.

    The Georgia Supreme Court, in an opinion written by Justice P. Harris Hines, disagreed with Dunn. The law specifically requires registration of any “change of residence address” and states that the information required includes “any current temporary residence.” “[U]nder common understanding of the term, ‘temporary residence’ is not unconstitutionally vague,” the opinion says. The Supreme Court has also rejected Dunn’s argument that the state law violates the right to equal protection by requiring a Georgia sex offender to register a change of address within 72 hours, while giving an offender from another state 14 days to register after moving here. “But his argument is based on a misreading of the statute,” the opinion says. The law defines a “nonresident sexual offender” as one who comes to Georgia for 14 days or longer, but such a person is also required to register within 72 hours of a change of address, the high court states in today’s opinion.

    In a concurrence, Chief Justice Carol Hunstein writes that she agrees that the statute is not unconstitutionally vague. “The facts in this case clearly established that Dunn, after departing his prior domicile, took up temporary residency in the motel but failed to register his address change with the Gordon County Sheriff’s Office within 72 hours,” the concurrence says. And under the law, that behavior is constitutionally prohibited.

    Attorney for Appellant (Dunn): Christopher Paul
    Attorneys for Appellee (State): Thomas Campbell, District Attorney, Sharon Fox, Asst. D.A
    Summary by Georgia Supreme Court Public Information Office

    Download Full Text of Court Opinion: Dunn v. The State (S09A1369)

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