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ACSOL Conference Oct 1, 2022 

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Kat’s Blog: Where Does the Burden of Proof Lie?

Just by virtue of being on the registry comes the erroneous assumption that all registrants are a danger to the public. With some of what I’ll call, the lesser offenses, public urination, skinny dipping, sexting, etc. it doesn’t really seem that the state or federal courts “prove” that a registrant is a threat to the community. In the eyes of the law, a “sex offender is a sex offender” and the same registrant label is slapped on everyone for 10yrs. to life. 

Who bears the burden of proof that a registrant is or isn’t a danger to the public?

Alaska’s recent ruling that the state’s sex offense registry violates offender’s right to due process, has me thinking about that.

Basically the ruling found that the law requiring all offenders to register is unconstitutional, unless offenders are first given the opportunity to demonstrate that they aren’t a danger to the public.

How does a registrant ever successfully prove they are not a danger to the public?

 Like so many other states, Alaska’s Sex Offender Registration Act is a broad, one size fits all, everybody in the same boat kind of a law. Its continuity seems partly based on the issue of “public safety”, a scare tactic phrase that intentionally misleads the public into believing that ASORA somehow keeps them safe.  But safe from whom?

Not all registrants are not violent predators, many aren’t and never were a public safety risk, but the public doesn’t know that. Registerable offenses range from what some consider fairly benign to violent and heinous. There’s a lot of offenses in between. Granted, while some violent offenses may in fact necessitate a call for public awareness, many do not. The public has been led down the garden path, encouraged to believe that the registry will provide them some measure of protection and safety that they wouldn’t have without it.

But as long as we continue to have the registry, shouldn’t a registrant be given the opportunity to prove that they aren’t or never were a public threat and if so, when and how do they go about proving that?

Prison or jail time, years behind bars doesn’t seem to count much toward the “rehabilitation” that courts will want to see. No, courts will want more than that as “proof” you’ve been rehabilitated. There will be years on probation or parole, “sex offender treatment groups”, polygraphs, visual assessments, positive completion of individualized treatment plans, risk-assessments, etc.

Will any of this be enough to satisfy Alaska’s requirement for a “life reformed”, a possible way to finally be removed from the registry?   And, what kind of proof will courts require to determine a registrant’s future risk vs justification of need for continued registration?  Does proof of future risk even exist? 

 Alaska’s Supreme Court will allow the John Doe whose case upon which this most recent ruling was based, to file for an individualized risk-assessment hearing in Alaska Superior Court. Whether or not Mr. Doe will need to re-register as a “sex offender” will hinge not only on the assessment but on other appropriate evidence, testimony of character witnesses and proof that he is not a threat to society. The burden of proof that he is not a danger to the public will be solely Mr. Doe’s to bear and I imagine that the financial costs associated with proving he’s not a danger, will also be his.

The cost of being a registrant may seem endless, but at least some courts are beginning to listen.

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