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Sex Offender Registration – Measuring Age Disparity

State v. Matthew C. Parmley, 2010 WI App 79; for Parmley: Christopher M. Eippert; BiC: Resp.; Reply

A sex offender may obtain an exception from the registration requirement 0f § 301.45(1m)2, if “the person had not attained the age of 19 years and was not more than 4 years older or not more than 4 years younger than the child.” At the time of his offense, Parmley was 18 and the victim 14: simple math says he comes within the exception, right? No such luck.

¶21      From these cases we conclude that to calculate the disparity of ages required in WIS. STAT. § 301.45(1m)(a)2., to determine if an actor is exempt from registering as a sex offender, the time between the birth dates of the two parties is to be determined.  Using this method we first consider Parmley’s birthday of January 18, 1986, and then the victim’s birthday of June 9, 1990. We conclude that there is a difference of four years, four months and twenty-three days.  Therefore, Parmley is more than four years older than the victim.

¶22      The legislative intent in carving out this narrow exception to the sex offender registration program supports this commonsense approach of calculating who is “not more than 4 years older” than the victim. “[T]he legislature’s purpose was to craft a narrow exception to mandatory registration for sex offenders in cases of factually consensual sexual contact between two minors who, but for the age of the younger child, would have broken no law.” Joseph E.G., 240 Wis. 2d 481, ¶11. If we were to adopt Parmley’s view, there could be almost a five-year gap between an actor and a victim.  Assuming an act of sexual intercourse happened on December 31, 1998, and the actor had a birthday of January 1, 1980, and the victim’s birthday was December 27, 1984, under Parmley’s method of calculation, the actor would have been eighteen years old and the victim fourteen years old and he would be exempt from sex offender registration because he is not more than four years older than the victim.  However, under the method of calculation we adopt in this opinion, Parmley would have to register as a sex offender because the actual difference between their ages is four years and 360 days—making Parmley almost one additional full year older physically, emotionally and sexually.

Well, that’s one way to imagine the problem. But toggle the birth dates so the age difference is 4 years 1 day, and suppose still further a precocious victim and a passive, immature defendant. Should a judge be trusted to exercise discretion in favor of the registration exemption in some such circumstance? No, says the court of appeals, because of the overarching legislative policy to ensnare “predators” in the registration requirement, ¶28. It simply doesn’t matter that any given individual is in fact not a predator; he or she is categorically deemed one without regard for the specific circumstances. Parmley also argues that the registration requirement is unconstitutionally vague as applied to him, because “being eighteen, he would not have considered himself more than four years older than the victim,” ¶25:

¶27      This same challenge was rejected by the Supreme Court of Connecticut in Jason B., and we cannot improve upon its reasoning:

The defendant’s contention that our vagueness analysis should focus on the warning provided to the average sixteen year old lacks merit. First, the scope of the statute is not confined to defendants of teenage years. Second, vagueness analysis ordinarily does not depend on the individual or categorical capabilities of the defendant. It focuses on the warning that is afforded by the language and its gloss to persons of ordinary intelligence. Although the knowledge possessed by a particular defendant may undermine a vagueness challenge … the converse is not true. Lack of knowledge, either by the individual defendant or a person in his particular age category, does not enhance a vagueness challenge.

Jason B., 729 A.2d at 770 (citations and emphasis omitted).

¶28      To enhance and promote the state’s policy of protecting our children from sexual predators, the application of the exemption from registration as a sex offender when the actor is “not more than 4 years older,” is determined by calculating the time between the birthday of the actor and the birthday of the victim. We reverse because it was error for the circuit court to only compare calendar year ages.[5]

A tangent: the sex offender registration requirement is considered a “collateral consequence” of a guilty plea because it doesn’t “constitute punishment,” State v. Bollig, 2000 WI 6, ¶27, 232 Wis. 2d 561, 605 N.W.2d 199. But for years the same was said of deportation, and we’ve recently learned that simply isn’t so. It may be that with the increasingly draconian requirements of sex offender registration and the court’s increasingly transparent rhetoric (“protecting our children from sexual predators”; no one doubts the worthiness of the goal, the issue is what consequences flow from the effort), the collateral-consequence principle merits reevaluation.

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