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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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A couple of other things to point out:

1. For the Alaska Supreme Court to acknowledge that the registry is an unconstitutional due process violation and that the overwhelming majority of registrants pose no threat, yet still shift the burden of proof to the registrant to prove he is not dangerous is concerning. Their own logic (not to mention 200+ years of criminal jurisprudence) should have led to the conclusion that the state bears the responsibility of showing that the registrant poses a threat to the community other than the conviction for the crime that led to registration.

2. What standard of proof does the registrant have to meet? Slight? Preponderance of evidence? Clear and convincing? Beyond reasonable doubt? Where does the completion of sentence and being offense free for x number of years fall? Would the state have a lesser burden if it somehow shifts to them (as it should be in the first place) in the course of the proceeding?

3. Assuming the man “passed” all polygraphs, will the court/state then start to question their validity as they properly do in any other kind of case? As courts already essentially acknowledge polygraphy as mythology, why is it ordered and credited near-exclusively for registrants?

4. The fact is that no court will relieve this man from registry requirements, no matter what he says or shows. Because superior court judges are elected and accordingly politicians before arbitrators, they will rule according to the “once a sex offender, always a sex offender” line prevalent in society at the moment. Not to mention most judges wouldn’t grant such a petition simply to try to prevent a flood of similar petitions from every registrant in the state.

It seems that in the rehabilitation arena we are guilty until we prove ourselves innocent. No other crime has this, aside from a habitual criminal label, and these are only applied sometimes after many, many convictions. It is just the hysteria that surrounds the SO that perpetuates the lifetime punishment. All registrants are categorized in the same class as the kidnapper and killer, and no other crime does this, either. It appeared the tired registry would help this, and for a few it does, but then we see the CP offenses are to be placed on tier III which is just the hysteria and ignorance winning over. There is no evidence to support that decision. In summary a person should be assessed individually for their crime and their risk. If a person has led a relatively good life and has a single low level offense I think that is sufficient to warrant them getting off the registry after maybe ten years. Lifetime or even twenty years after incarceration is pretty darn excessive unless somebody has done something fairly atrocious.

Would love your thoughts, please comment.x