You may be saying “so what?”. Most people when they hear what I actually did are offended and angry my actions are considered a felony. After long an careful research there are many, many issues that need to be considered in evaluating the fairness and legality of what happened.
Issues Surrounding the “Crime”
Neither the Lieutenant at the Sheridan Police Department nor the prosecutor who over saw my case felt it should be prosecuted. However, County Attorney Matt Redle insisted on it. Redle and I worked together on criminal cases and had a poor working relationship.
A few years before, we had disagreed over the outcome of a felony DUI case. The defendant had never been on probation or received any substance abuse treatment. However, there was an unwritten rule between the judge and prosecutors that a felony DUI defendant would automatically receive a prison sentence.
When I offered a different sentencing recommendation, it angered Redle and the recommendation was chastised and essentially laughed at in court. Following the hearing I wrote a letter taking issue with his behavior in court and reminding him my job was not to put a rubber stamp on all of his sentencing recommendations. My job was to consider all of the facts and make the best possible sentencing recommendation to the judge. Afterwards, our relationship was never the same.
The two District Court judged in this jurisdiction had to recuse themselves from the case because the knew me. However, the County Attorney’s Office did not do this despite the fact we knew each other and worked together.
There is a precedent for this situation. A local police officer was being investigated for child abuse. Because of his working relationship, the case was handed to a prosecutor to a different county to determine whether or not charges would be filed.
Why did this not occur in my case?
Laws are passed by a legislature under the assumption they benefit and have the support of the citizens who voted them in office. However, the vast majority of people who learn about my story believe the law is inappropriate.
Should the government be concerned about a private relationship concerning two consenting adults?
The assumption by the government is that I was in a position of power and control and that I targeted someone who was weaker and took advantage of them. That is a lot of assumptions and the law does not require any proof that is actually what occurred.
Probation officers are the only group of individuals held to this standard in the State of Wyoming. There are any one of a number of individuals who could have power or maybe perceived power over this population, such as: judges, prosecutors, defense attorneys, law enforcement, counselors, sponsors, doctors, or employers. However, it is not illegal for any of them to engage in a consensual relationship with someone on probation.
In fact, there are no other laws on the books preventing any relationship between an individual and someone who may have authority over them. Yes, there may be consequences for a doctor sleeping with a patient, a cop sleeping with someone he met on a traffic stop or a counselor sleeping with a patient. They could lose their job or their license to practice. However, none of them will be faced with prison or becoming a felon or sex offender.
Anyone who forces another to submit to a sexual act through force, coercion, manipulation or threats should be accountable for their actions. They should be prosecuted to the fullest extent of the law. But that is not what happened in my instance. No where close to what occurred.
Constitutionality of the Criminal Law
In 2003, The U.S. Supreme Court ruled in Lawrence v. Texas that two consenting adults had the right to engage in intimate conduct “without intervention from the government.” Individual Federal courts have come to the same conclusion in similar opinions.
The government must have a compelling interest in preventing the probation population from having sex with those with perceived power and they must use the most minimally intrusive way to accomplish this.
The government fails this judicial test. They have no legislation protecting probationers from anyone but correctional employees. This could be accomplished as a workplace policy. Or it could be accomplished by only going after those who actually abuse their power. But instead, the government uses the most heavy handed approach. They go after you regardless of whether there was actually any misdeed.
It must be asked if the government has a general interest in prohibiting any relationship in which there may be a power differential. Again, there is no law in the State of Wyoming preventing these relationships from occurring in any number of fields where it could be applied. Imagine if the same standard were given to the medical community and the entire staff of a hospital were forbidden from engaging in consensual relationships with anyone who is a patient of that hospital.
The Doctrine of Absurdity, a legal test applies to this legislation. The legislation is so poorly written it can result is absurd results that surely the legislators never intended on supporting.
Under the law, you could be a private citizen who is contracted to clean a probation office at night. That person could date and be intimate with someone on probation with that office and be arrested for this crime. It doesn’t matter that the janitor has no power and it doesn’t matter that the relationship was consensual. Do not pass go and go directly to jail . THIS is the very definition of absurd.
The lack of mens rea in the criminal statute is a violation of Due Process. Mens rea is one of the foundations and bedrocks of the entire criminal justice system. It is Latin for “guilty mind.” It shows what a defendant was thinking or what their intent was when they committed a crime.
When you accuse someone of a serious felony, you have to show the Defendant was trying to cause damage or was trying to hurt someone. However, only makes assumptions. This is called a strict liability offense.
Traditionally, strict liability offenses are only used for minor crimes with very limited consequences. An example of this was a parking ticket. If your car was parked in the wrong spot, there is no reason to look at or debate your intent. The consequences is a small amount of money. You are not facing incarceration or the limiting of your rights.
The U.S. Supreme Court ruled in Staples v. United States that “harsh penalty and social stigma” resulting from the punishment of a crime with a lack of mens rea was a violation of the Due Process Clause of the 14th Amendment.
The Logic of Sex Offender Registration
The federal government mandates that each state’s sex offender registration laws meet a certain criteria, or the state risks losing some criminal justice funding.
Federal policy is based on several acts that have been passed over the years (Megan’s Law, Adam Walsh Child Protection and Safety Act, etc.). All of these laws address violent crimes against children.
The very intent of the these laws is to protect children. That is why they are written to keep sex offenders away from school, parks, daycare centers. The intent is to also give information to parents who can be on the lookout for individuals who may pose a threat to their children.
The only problem is that sex offender registration is extended to individuals in my instance who did harm children (or anyone else for that matter) and who are not predatory or dangerous.
True sex offenses are committed by individuals with mental health problems who are trying to gain sexual gratification by preying on others. The problem is, I’m not a “pervert.” I wasn’t seeking to prey, harm or take advantage of anyone. I am not dangerous. There is no need to protect anyone from me. Simply put, this is absolutely insane.
Constitutionality of the Sex Offender Registration & Notification Act
In August of 2017, U.S. District Court Judge Richard Matsch ruled the Colorado sex offender registration law was cruel and unusual, this violating the U.S. Constitution.
The State of Wyoming falls in this same federal judicial district and the judge’s ruling means that Wyoming’s law would be struck down to if challenged.
The decision was appealed by the State of Colorado and several states such as Wyoming are also challenging the ruling which is now pending in the 10th Judicial Circuit of Appeals.
It is likely this case will eventually go to the United States Supreme Court when it is all said and done. For a handful of years now, courts around the country have started to actually side with offenders in finding these registration laws have gone too far.
The last time the U.S. Supreme Court took up the issue was in 2003. In Smith v. Doe, the Alaska Sex Offender Registration Act was upheld by the high court.
At that time an offender might have to report in person to law enforcement authorities once a year. The offender’s information was published on the internet. If the offender had to report any changes, it could be done over the phone.
The Court made several questionable statements that there is no proof housing and employment opportunities are harmed. It also stated there is a high level of recidivism of sex offenders, thus requiring the laws.
Since 2003, however, everything has changed. Here in Wyoming all changes must be reported in person and a fee must be paid each time. There is no other government agency that requires citizens to pay fees to change or update their personal information. THAT is punishment.
It is now abundantly clear that housing and employment opportunities are severely limited to sex offenders. Sex offenders rightly or wrongly are ridiculed and made to become the lepers of society. The internet was not the same in 2003. Now there is an abundance of websites that take advantage of the access of the information and disseminate it to the public.
It has also been proven that the rate of sex offenders who commit another offense is actually remarkably low. It is a proven fact the majority of sex offenses are not committed by strangers but people who are friends or associates of the victim.
Sex offender registration laws make people feel good. They are an easy way of making legislators look like they accomplished something or are tough on crime. However, they are based on fear and no data or scientific research.
When you add all of this information together, there is only one logical conclusion to make. Yes, I messed up. I should have been fired from my job and I should never work as a probation officer again. However, the punishment is disproportionate to the behavior. The punishment actually prevents me from being a self-reliant and productive member of society.
Sex Offender Registry Research & Facts:
- Strangers commit only 7% of the sex offenses against children.
- 36% of sex offenders released from prison cannot find employment.
- Studies find that employment woes and residency restrictions actually INCREASE the risk of re-offending.
- Sex offender recidivism is actually quite low.
Major Court Cases of Interest:
- Smith v. Doe, 538 U.S. 84 (2003)
- Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003)
- Packingham v. North Carolina, 582 U.S. ___ (2017)
- U.S. Dist.Ct., Dist.of CO, Millard v. Rankin (2017)
- Comnwlth of PA v. Muniz (2017)