How does Megan's Law affect decriminalized sex offenses?

One major area of debate over Megan’s Law is its retroactivity in many (all?) states–in other words, the terms of the law regarding sex-offender registration and notification apply to anyone convicted of a sex offense even before the law was passed in the mid-1990s.

What about people who committed acts that were illegal at one time (especially those classified as sodomy) but are no longer criminalized? Presumably they would be required to register, but is there any process by which they can de-classify themselves as a sex offender?

I did find some 1997 articles from the LA Times that mentioned the unintended consequences of Megan’s Law for men arrested and charged for consensual sodomy as far back as the 1940s. California did institute a process by which they could be deleted from the registry–have any other states done so?

(My question only applies to consensual sex that was once illegal, but that may lead to another problem–did prosecutions for sodomy in past decades routinely make distinctions between cases that involved consensual sex vs. those that involved force?)

In my state there’s an added complication that the legislature has refused to take the sodomy law off the books even though it’s now unenforceable after Lawrence. I actually have an acquaintance who is still having to register as the result of a consensual sodomy charge in another state dating back to the 60’s. We’ve been trying to convince him to make more of a stink about it and maybe even make a court challenge at the law, but in his current life situation having to register doesn’t really bother him and he’s more worried about drawing attention to himself. I’m not sure how common his situation is in my state, let alone the others.

Are retroactive laws even constitutional?

It’s not a retroactive law, though, it’s retroactive punishment. As in, “From this day forward, you will be required to register for crimes you have committed in the past…”

I don’t understand this part. The Supreme Court said that sodomy laws violated the 14th amendment which was passed in 1868. It’s not like the Court simply repealed the laws by judicial fiat. They were declared void on their face, so it doesn’t matter if they are still on the books.

So I would think that if your friend was convicted of sodomy in the 1960s, Lawrence held that law unconstitutional, so it was not in force since 1868. Therefore his alleged conviction was a violation of the constitution and void. Therefore he shouldn’t have to register as a sex offender.

Can a Con Law scholar explain to me why that is not the case?

I am not a lawyer, but the conviction was PRE Lawrence.

As an example say a person were convicted of such, as others were. After Lawrence was decided, ALL convictions that are net yet finally adjudicated, the decision is to be applied retoactively. Since the conviction was criminal in nature, the 4th AM is implicated, as the govt. can not continue to hold, or Seize that person without legal authority.

The Lawrence decision did not vacate any case, as in the OP’s friend, prior to the SC’s announcement of such, as here is Johnson.

Retroactive registry is NON punitive in nature, therefore does not violate the Ex Post Facto Clause.

Another legal example is what is known as “Sentence ehnancements”. 1st offense a misdemeanor, 2nd offense, higher, 3rd offense, higher.

Same crime, but the recidivism triggers the enhanced penalties.

There’s reaching and then there’s reaching. I don’t doubt that what you said is accurate, but I also wonder if it’s ever been really seriously challenged.

I did not have a case in my head when I typed the post, but have researched it before, so here is one.

Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. Pp. 4-18.

I see this is a zombie thread, but somehow I missed this earlier.

The situation with my friend is that he’s self-employed and owns his own house way the heck out of town, so being on the sex offender registry doesn’t really cause him any problems in his day-to-day life. But he lives in a very religious and ultra-conservative community, and his concern is that if he made some sort of stink, it would end up in the paper and he would be outed to everyone. I have no doubt that it would be trivially easy for him to get a court-order making the corrections department take him off the registry, and probably anyone else in his situation too. We’ve tried to get him to go to any one of the dozens of human rights groups who I’m sure would take his case pro bono, but he still doesn’t want to make waves. It’s frustrating for us, but it’s his life.

Like I said above, I don’t know how common this actually is. In our state, the consensual sodomy law was overturned by our state court in the 90’s even before Lawrence and had not really been used for quite some time earlier-- I’m pretty sure there’s no chance our friend would have been charged had he done his “sodomy” in his home state. So it could be that he’s the only one in the state in his predicament. Maybe even the country, for all we know.

But… If the law says those on the registry must not live or loiter in some locations - is that restriction not a punishment?

You know things have gone too far when people start making fun of how stupid something is; case in point, the movie Horriible Bosses making the sex offender registry look oppressive and stupid.

Consider two scenarios:

  1. In 2003, the legislature repeals the sodomy law.

In this situation, I understand why someone convicted of sodomy must continue to register as a sex offender. Even though the legislature changed policy, the person still committed a crime when it was a crime and is still guilty.

  1. In 2003, the Supreme Court states that it is a violation of the United States Constitution to prohibit sodomy.

By definition this MUST be retroactive and make the law void ab initio. They aren’t repealing the law; they are saying that it has no foundation in the constitution and hence it was NEVER legally in effect.

They specifically quote the 14th amendment as prohibiting such laws. By deduction, since 1868 (enactment of the 14th amendment), that law has been repugnant to the constitution. So anyone convicted of sodomy after 1868 could not have legally been convicted of anything. Only laws enacted pursuant to the constitution are valid.

Sidelight: I remember hearing about a man in Spain who had been convicted of sodomy in the Franco era and was, at least initially, unable to get a passport, owing to being a convicted criminal, in 2000 (after the law had long since been repealed, of course).

Lawbuff, since you are going back and bumping some old threads that relate to the law you might want to mention that in your post. While your information is good, it can be confusing to those who don’t notice.

Because a court decision is binding unless and until it is set aside, either by the court which originally made the order, or on appeal. Neither private parties nor the executive branch of government can just ignore a court order, even if they think there is good reason to believe it is not proper.

So the friend’s conviction is still valid unless and until he applies to a court of competent jurisdiction to have it set aside, on the grounds that the law was unconstitutional.

As well, there is the complication that in some cases, the courts follow the principle of “prospective over-ruling” - that is, the court may rule that a statute is over-ruled on a going forward basis, but does not apply to anyone whose case has been finally adjudicated and all appeal periods have lapsed. In that situation, if someone is no longer “in the court system”, they may not be able to avail themselves of the later decision.

Just for my understanding – its being unconstitutional does not render a conviction “improper”?

A subsequent court ruling on the constitutional issue, in different proceedings, possibly involving a different statute, may give good reason to doubt the propriety of an earlier court order. But until a court with jurisdiction over the matter hears an application, the earlier court order stands.

No. Unconstitutional procedures may render a prior conviction improper, but a unconstitutional law renders a prior conviction in proper only to the extent that a sentence is still in effect.

If GreasyJack’s friend was still on probation, his conviction would be vacated under the new intepretation… just not automatically.

Different rules might apply for a statute that was obviously already unconstitutional on its face at the time of passage or conviction, of course - say, a law passed today criminalizing abortion.

Interestingly, the courts of South Africa - which draw very heavily from Canadian constitutional jurisprudence - follow a principle of “objective constitutional invalidity” under which pre-existing law which was inconsistent with the Bill of Rights became automatically invalid when the Bill of Rights came into force (on 27 April 1994). Any acts performed under invalid laws after 27 April 1994 are also automatically invalid. So when the Constitutional Court struck down the sodomy laws (National Coalition v Minister of Justice [1998] ZACC 15) the order had to specifically limit the retrospectivity so that all post-94 convictions weren’t automatically overturned (as some of them were for male rape not consensual sex).

http://freestudents.blogspot.com/2009/09/there-is-fury-and-and-sadness-inside.htm