Testimony of Dave Freed Cumberland County District Attorney Communications Chair, Pennsylvania District Attorneys Association Before the House Judiciary Committee Informational Meeting on The Retroactivity of Pennsylvania’s Sex Offender Registration System

September 12, 2017

My name is Dave Freed, and I am the Cumberland County District Attorney and Communications Chair for the Pennsylvania District Attorneys Association. I am pleased to speak with you today about our sex offender registration statute, recent case law that struck certain parts of the statute, and the need for a statutory fix in order to ensure that we have a robust and constitutional sex offender registry in Pennsylvania.

During this meeting, you will likely hear phrases like: sex offender registry, Megan’s Law, the Adam Walsh Act, and SORNA (an acronym for the Sex Offender Registration and Notification Act, which is our present version of Megan’s Law). While these terms mean slightly different things legally, which I will explain later, they all generally refer to our sex offender registration system and process. The system and process include the following: 1) requirements that sex offenders register and verify their information such as their address and place of employment, 2) provisions that make it a crime to fail to comply with these obligations, 3) the process by which sexually violent predators are designated, and 4) the rules and guidance regarding what information is publicly accessible on our state’s sex offender registration website.

I could sit here for hours discussing Megan’s Law – its history, its purposes, its effects, and its case law. Megan’s Law is complicated and beset by many evolving legal determinations. I won’t do that, however. But to try to make this discussion as informative as possible without being overly academic, I do need to provide some detailed background.

Let me begin by first explaining why we are here today.

On July 19, 2017, the Pennsylvania Supreme Court in Commonwealth v. Muniz ruled that provisions of SORNA that applied retroactively were unconstitutional because they were punitive. As a result, such retroactive application violated the Ex Post Facto Clause of the federal Constitution. An ex post facto law, among other things, increases the penalties for a crime after it has been committed. Ex post facto laws are unconstitutional. My office litigated the Muniz case.
For this brief summary of Muniz to make sense, I need to provide you a brief summary of the history of Megan’s Law. But as I provide this background, please keep in mind my conclusion: unless there is a legislative change, there is a very real possibility that those who committed the crime for which they have had to register as sex offenders before December 20, 2012 (the effective date of SORNA) may not be able to be prosecuted for failing to meet their registration or verification obligations and may actually be removed from the Megan’s Law website.

In 1995, Pennsylvania enacted Megan’s Law to require the registration of sexual offenders and to provide for community notification about them. Many of you will recall the enactment of this law in 1995 followed the sexual assault and murder of Megan Kanka in Hamilton, New Jersey, by a repeat child rapist.

In 1999, our state Supreme Court ruled that the 1995 law was unconstitutional. It was unconstitutional because the law created a presumption that an offender who meets certain criteria was a sexually violent predator and thus was subject to enhanced penalties including a maximum of life imprisonment and a requirement of lifetime registration.

The following year, the Legislature enacted Megan’s Law II. Megan’s Law II removed the sexually violent predator presumption and instead placed the burden on the Commonwealth to prove by clear and convincing evidence that a sex offender was a sexually violent predator, which is defined as an individual suffering from a mental abnormality that makes it likely that the person will engage in predatory sexually violent offenses. Sexually violent predators were also no longer subject to automatic increased maximum terms of imprisonment under Megan’s Law II. The Pennsylvania Supreme Court did strike a provision providing for a mandatory criminal penalty of lifetime probation for failing to verify registration and an additional penalty of up to life imprisonment for failing to verify registration information.

In 2004, the General Assembly improved Megan’s Law dramatically by enacting Megan’s Law III. Most significant, the new law required that information about sex offenders and sexually violent predators be publicly accessible on a website. The Act also increased certain penalties for failing to register or verify and added new crimes to the list of crimes that triggered registration.

In 2006, the Legislature further improved the website by enacting new laws which required that the same categories of information about sexually violent predators placed on the website would also be required to be placed on the website about sexual offenders who were not deemed sexually violent offenders. Such information included street addresses and whether the victim was a minor. In 2006, legislation was also enacted that reduced the time period for an offender to first register and verify his or her information from 10 days to 48 hours.

In 2011, the Legislature closed two loopholes that permitted both out-of-state sex offenders who moved to Pennsylvania and transient sex offenders to avoid registration.

In 2011, the General Assembly also enacted legislation that implemented the federal Adam Walsh Child Protection and Safety Act. This law went into effect in December, 2012. It is sometimes referred to as the Adam Walsh Act or SORNA. SORNA is an acronym for the name of Title I of the federal Act: the Sex Offender Registration and Notification Act.

As required by federal law, SORNA increased the number of crimes which subjected an individual to registration requirements, increased the length of time many sex offenders had to register as sex offenders, increased the amount of information that had to be included in the registration information, and increased the amount of information on the public website. SORNA also required juveniles adjudicated delinquent for a limited number of sex crimes (rape, involuntary deviate sexual intercourse, and aggravated indecent assault) to register on a non-public registry. Our Supreme Court ultimately struck down those provisions relating to juveniles as unconstitutional.

Nearly 20 states are in compliance with SORNA. States that are not in substantial compliance with SORNA receive a 10 percent reduction in federal Justice Assistance Grants (JAG), which are typically used for public safety purposes.

Significantly, and also required by federal law, Pennsylvania’s SORNA statute was retroactive, meaning that anyone who, on the effective date of SORNA, was incarcerated, under county or state supervision, or on the registry, was subject to the new SORNA requirements. It is this provision that was the subject of Muniz.

In 2014, our Supreme Court in Commonwealth v. Neiman struck Megan’s Law III, the version of Megan’s Law enacted in 2004, because its enactment violated the single subject rule. Megan’s Law III (the 2004 version of Megan’s Law) had included provisions related to the jurisdiction of certain park police and provided for a two-year limit on asbestos actions.

As a result of the Neiman decision, the General Assembly enacted new legislation to ensure that sex offenders were not allowed to evade their registration requirements. Specifically, the new law included provisions preventing an individual who was designated as a sexually violent predator prior to the Adam Walsh legislation taking effect from challenging his or her status. This was necessary because the 2004 law made changes to the process by which an individual would be determined to be a sexually violent predator. The law also ensured that those convicted of luring a child into a motor vehicle and institutional sexual assault must continue to register. This was necessary because the 2004 version of Megan’s Law that was declared unconstitutional added these crimes to the list of crimes that triggered registration.

I also wanted to discuss briefly the process by which a sex offender is determined to be a sexually violent predator (SVP), a topic I alluded to earlier in my testimony. The process is well-summarized on the website of the Sexual Offenders Assessment Board (SOAB). An SVP is a convicted sex offender who has “a mental abnormality or personality disorder the makes the person likely to engage in predatory sexually violent offenses.” Every person convicted of a registration offense must be assessed by the SOAB to determine whether that individual is an SVP. Within 90 days of the date of conviction, the SOAB must submit a written assessment recommending whether or not the individual should be classified as an SVP, based on statutory criteria.

For a sex offender to be deemed an SVP, the Commonwealth must prove in court by clear and convincing evidence that this individual meets the statutory criteria. SVPs must register for life, verify their information quarterly and in-person, receive monthly sex offender counselling for life, and be the subject of active community notification.

Some have questioned whether sex offender registries work or otherwise represent good policy. I wanted to share some thoughts on this issue. The underpinning of sex offender registries is that sex offenders are dangerous; they often prey on our most vulnerable and commit crimes that can result in a lifetime of struggle and challenges for the victims and their families; sex offenders are high risk and they recidivate. There has been a significant amount of literature and studies attempting to measure risk posed by released sex offenders. And while there is some social science discussing how dangerous released sexual offenders are, there is no social science asserting that sexual offenders are not dangerous or do not recidivate. Nor is there any social science asserting that new sexual crimes by released sexual offenders are not of great concern.

One such study followed 9,691 male sex offenders released from prisons in 15 states in 1994 and found that nearly 4 out of every 10 returned to prison within 3 years.(1) Another study that spanned a twenty-five year period after release found that rapists and child molesters remained at risk to reoffend at least 15-20 years after discharge, and that the sexual recidivism arrest rate for rapists was 39% and the sexual recidivism arrest rate for child molesters was an even higher 52%.(2)

Equally significant is that any statistical attempts to measure the risk of new offenses greatly understate the true nature of the problem because the vast majority of sex crimes are never reported. Victims and parents of victims frequently do not report offenses because they fear further victimization by the offender, retribution by the offender’s friends and family, loss of privacy, risk of not being believed, embarrassment, trauma from the criminal justice system, and fear of poverty (where the victims are dependent on their assailant). Studies by the Bureau of Justice Statistics estimate that two out of three sexual assaults against individuals age 12 or older are not reported. Another study found that 84% of rape victims do not report the crime.(3) Data obtained by polygraph examinations of imprisoned sex offenders averaging fewer than two known victims found that such offenders had an actual average of 110 victims.(4) A similar study of sex offenders found they had been “committing sex crimes for an average of 16 years before being caught.”(5)

All of this means one thing: assessments of the threat posed by released sexual offenders are certain to underestimate the risk.

Do sex offender registries help to mitigate the unquestionable risk that released sexual offenders pose? My colleagues and I believe they do. To be sure, looking at sex offender registries can never be the exclusive way in which an individual tries to keep him or herself or his or her children safe from sexual predators. We have to remember that a child predator is more likely to be someone that a victim or his or her parents know; that we should be suspicious of adults who make special efforts to be alone with a child; that we need to listen to what our kids tell us; that women can be sexual abusers; that we should talk to our kids about specific suspicious situations to be cautious of, such as an adult asking a child for directions. If used as a tool, and not the exclusive tool, sex offender registries do provide important information for protecting both children and adults from sexual predators.

And now let me repeat what I said at the beginning of the hearing, which is the reason why were are here. On July 19, 2017, the Pennsylvania Supreme Court, in Commonwealth v. Muniz, ruled that provisions of SORNA that applied retroactively were unconstitutional because they constituted punishment. As a result, such retroactive application violated the Ex Post Facto Clause of the federal Constitution. Again, my office litigated this case.

With regard to the Muniz case, I disagree with the ruling. In my view, SORNA’s requirements are neither punitive nor onerous. While SORNA places significant burdens on those required to register, the scope of these requirements do not, in my view, rise to the level of punishment. It is for that reason that I have filed a petition for Writ of Certiorari with the United States Supreme Court.

In the meantime, the impact of the Muniz case is potentially significant. Those affected by the decision are those who committed their registration crimes before December 20, 2012. In other words, if a person committed a rape before December 20, 2012, he or she may not be required to register nor may he or she be prosecuted for failing to register. This is because SORNA, which was effective on that day, is no longer retroactive. Because it is not retroactive and because the prior version of Megan’s Law (Megan’s Law III) was replaced by SORNA, there may not be a sufficient statute in place to put any registration requirements on these sexual offenders. There could be 10,000 such individuals. If those individuals failed to register or verify their registry, we may not be able to prosecute them. And whether they would remain on the registry remains an open question. Already, counties are grappling with cases of sex offenders who have failed to verify their registration information but who, as a result of the Muniz case, may not have been required to register at all because SORNA does not actually apply to them.

The situation does not have to be completely dire. In my view, with regard to some of these cases where SORNA no longer applies, we can argue as a matter of law that prior (although less robust) versions of Megan’s Law would apply. We could argue, for instance, that the 2011 law that closed the out-of-state and transient offender loopholes in Megan’s Law effectively reenacted major parts of Megan’s Law III and thus, without SORNA, that is the version upon which we can rely. We could also argue that the 2000 version of Megan’s Law applies, since that version was eliminated by revisions that the Supreme Court found to be unconstitutional in the enactment (Megan’s Law III).

I am pleased to report that just last week the Pennsylvania Supreme Court stayed the Muniz decision pending my filing of a Writ of Certiorari petition with the United States Supreme Court.

While we cannot say with certainty what will happen, I can say that if the United States Supreme Court does not accept the Muniz case, then thousands of sex offenders may very well not face penalties for failing to register and thousands of sex offenders may be removed from the registry. The Muniz case has the potential to affect every single sex offender convicted before December 20, 2012. It will then be up to the Pennsylvania State Police to determine whether they should remain on the registry and to litigate any attempts to remove those sex offenders from the registry.

With all that said, there is room for a legislative fix. The PDAA has already been working with Committee staff, and we recommend reenacting a version of Megan’s Law that was in place before SORNA took effect in 2012. This version should apply to those offenders to whom SORNA applied retroactively, meaning that their registration crimes were committed before December 20, 2012. Under this proposal, some offenders would ultimately come off the registry. But the numbers would pale in comparison to the possible 10,000 who could ultimately be removed from the registry should no legislative action be taken.

Thank you for your attention this morning. Much of this testimony is dry and technical, but many of the legal issues surrounding Megan’s Law are technical in nature and rooted in rules of Constitutional law. The legal issues, because of their ultimate implication, are nonetheless critically important in our understanding of what we face as we consider crafting new legislation.

We look forward to continuing to work with all of you on this issue, and I would be happy to answer any of your questions.

  1. Langan, Patrick A, et al. “Recidivism of Sex Offenders Released from Prison in 1994.” Bureau of Justice Statistics, 2003.
  2. Prentky, R.A, et al. “Recidivism rates among child molesters and rapists: A methodological analysis.” Law of Human Behavior, vol. 21, no. 6, 1997, pp. 635-659.
  3. Kilpatrick, DG, et al. “Rape in America: a report to the nation.” Prepared by the National Victim Center & the Crime Victims Research and Treatment Center. 1992. http://www.evawintl.org/Library/DocumentLibraryHandler.ashx?id=538
  4. Ahlmeyer, S, et al. “The impact of polygraphy on admissions of victims and offenses in adult sexual offenders.” Sexual Abuse: A Journal of Research and Treatment, vol. 12, no. 2, 2000, pp. 123-138.
  5. Ahlmeyer, S, et al. “The impact of polygraphy on admissions of crossover offending behavior in adult sexual offenders.” Association for the Treatment of Sexual Abusers 18th Annual Research and Treatment Conference, 1999, Lake Buena Vista, FL. Presentation.