Nevada Supreme Court upholds classification and registration of juvenile sex offenders

7-26-2013 Nevada:

State v the Eighth Judicial District Court of the State of Nevada

The Nevada Supreme Court, in a split decision, has upheld the constitutionality of a law that requires certain juvenile sex offenders to register with law enforcement and for the registration information to be shared with community groups.

The majority 48-page opinion written by Justice Michael Douglas overturned the ruling of Clark County Juvenile District Judge William Voy, who said the 2007 law was invalid because it did not bear any relationship to public safety or rehabilitation of the juveniles.

Both the four justices in the majority and the three in the minority said Thursday the law probably is not effective in preventing crime and was passed only to get federal money.

Douglas wrote that he, like the juvenile judge, is concerned about the wisdom of the law but that the court is bound to follow it and that, in this case, it “easily passes rational basic review.”

The law defines a sex offender as one who, after July 2006, was judged a delinquent for sexual assault, battery with intent to commit sexual assault, lewdness with a child, or an attempt or conspiracy to commit any of these offenses as long as the offender was 14 years or older at the time of the act.

Prior to the passage of the law, juvenile judges had the authority to decide whether the delinquent should be required to register and if there should be limited community notification.

The majority rejected the argument that the law was punitive and said it was passed to protect the public. The justices denied the claims that children declared delinquent prior to the law could also be forced to register.

While declaring the law constitutional, Douglas wrote, “Of upmost concern, it does not appear from the legislative history that the Nevada Legislature ever considered the impact of the bill on juveniles.”

He said the motivation of the Legislature appeared to be loss of federal money.

The Clark County Public Defender’s Office and the ACLU — which backed the decision of the juvenile judge to invalidate the law — said juveniles are subject to registration for 25 years to life.

Douglas said Nevada has a long tradition of public protection and this law does not conflict with the juvenile justice system.

Justice Michael Cherry, who wrote the seven-page dissenting opinion, said this 2007 law was unconstitutional because it applied to juveniles declared sex offenders before the law was passed. He called the law “akin to the historical punishments of branding and shaming.”

Cherry objected to the wider disclosure of the information to community groups. He wrote that even juveniles who have successfully completed treatment and have been certified as low risks are subject to the registration and community notification.

Cherry, joined by Justices James Hardesty and Nancy Saitta in the dissent, said the Legislature should reconsider this law. Joining Douglas in the majority were Chief Justice Kristina Pickering and Justices Mark Gibbons and Ron Parraguirre. ..Source.. by Cy Ryan

Indiana v Tutterrow

5-23-2013 Indiana:

Indiana v Tutterrow

This cause is called for hearing on Def. Motion to Dismiss the pending information as to two (2) counts of Unlawful Employment near Children.

... ... ...

And the court having considered Def. Motion to tDismiss and the arguments of counsel finds that I.C. 35-42-4-10(c) is unconstitutional as applied to this Def as it violates the prohibition against ex post facto laws of the Indiana and United States Constitutions. The court further finds that I.C. 35-42-4-10 is void for vaugness as applied to the Def. in this cause. Accordingly, the court finds that this cause must be dismissed.

... ... ...

IT IS THERFORE ORDERED, ADJUDGED, AND DECREED that the pending information of two (2) counts of Unlawful Employment near Children, I.C. 35-42-4-10, felonies, be and hereby dismissed on the basis that the statute as applied to this Def. violates the prohibition against ex post facto laws of the Indiana and United States Constitutions and that it is Void for Vagueness.

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The state will not be able to refile any charges against Tutterrow in the case as a result of the dismissal. Since Tutterrow's appearance at Hagerstown Elementary, Nettle Creek Schools and Richmond Community Schools have adopted policies restricting access to school property by registered sex offenders except in specific instances.

Judge overturns 15-year extension of sex offender's registration time

UPDATE 1-23-2014: AG files appeal

7-15-2013 Kansas:

Doe -v- Kirk Thompson

Citing the U.S. Constitution forbidding more punishment for a crime already resolved, a Shawnee County District Court judge has ordered two law enforcement agencies to terminate a man's additional 15-year offender registration requirement.

In addition, District Judge Larry Hendricks ordered the Kansas Bureau of Investigation and the Johnson County Sheriff's Office to "immediately delete" all information required by the Kansas Offender Registration Act that is publicly displayed about the man.

"I'm pleased with the ruling," Chris Joseph, the offender’s attorney, said Tuesday. "I think it's dead-on right with the law. Registration is clearly punishment, clearly punitive. When you change the rules after the fact, it's an ex post facto violation."

The registered offender was identified in district court records only as "John Doe." Doe sued KBI director Kirk Thompson and Johnson County Sheriff Frank Denning.

As for Doe's reaction to the ruling, "he's very excited that he may be able to live a normal life in the near future," Joseph said.

Kirk T. Ridgway, an Overland Park attorney representing Denning, said Tuesday, "We're reviewing the opinion and have no comment at this time."

Assistant attorney general Christopher Grunewald, one of two attorneys representing Thompson, said he hadn't received the Doe ruling.

Joseph said he "has no doubt" the KBI and Johnson County Sheriff's Office will appeal Hendricks’ ruling. There are hundreds, perhaps thousands of offenders, who are affected by the increased registration statute, Joseph said.

The Hendricks ruling isn't binding on other district court judges faced by the same set of circumstances.

But if the ruling is appealed to the Kansas Supreme Court and if that court would uphold the ruling, the KBI would have to remove everyone from its offender registry who had completed their original 10-year registration, Joseph said.

The offender registration of Doe stems from his guilty plea on Feb. 19, 2003, to a charge of indecent liberties with a child (touching). He was ordered to register as a sex offender for 10 years until 2013.

But the Kansas Legislature amended the Kansas Offender Registration Act in 2011 to require offenders convicted of indecent liberties to register for 25 years, the Hendricks decision said.

Doe filed the lawsuit on Feb. 15, 2012, asking that Hendricks find Thompson and Denning couldn't enforce the 25-year registration period against Doe "because it violates the ex post facto clause of the United States Constitution."

Hendricks agreed.

Provisions of the offender registration statute "have become oppressive to the point of punishment," Hendricks said in his 29-page ruling. "Therefore, the KORA's retroactive application assigns a new punitive measure to a crime already consummated, in violation of the ex post facto clause."

According to the 2011 statute, Doe was required by the Kansas statute to:

■ Register for 25 years until 2028.

■ Report in person four times a year in each jurisdiction he would live in, work or attend school, a potential total of 12 times a year.

■ Pay a $20 reporting fee each time and have his photograph taken.

■ Register within three days of changing residence, job or school.

■ Provide his address, phone numbers, vehicle, boat and aircraft information, professional licenses, palm prints, email address, online identities, membership in online social networks, and travel and immigration documents.

■ Notify law enforcement officers of any plans for international travel.

■ Face a potential conviction of a person felony for each violation of the law.

In affidavits, Doe and his wife said negative impacts of the offender registration law included concern that people who see his registered offender number on his driver's license, then deny him services or discriminate against him, loss of a job, landlords wouldn't rent to him, suffer a "strong sense of shame" and hopelessness, vandalism to his home, shunning of the offender's family, and impact of the registration on their children.

In opposing the lawsuit, Thompson and Denning contended the Kansas statute blocked Doe from being granted a court order relieving him from registering. The defendants also cited a U.S. Supreme Court case which upheld provisions of a retroactive Alaska offender registration law.

Hendricks said the Kansas statute was "significantly different" from Alaska’s.

Hendricks concluded the Kansas Offender Registration Act "is effectively punitive" and "is excessive in relation to its alleged purpose of protecting public safety. These provisions have become oppressive to the point of punishment. Therefore, the KORA's retroactive application assigns a new punitive measure to a crime already consummated in violation of the ex post facto clause." ..Source.. by Steve Fry (See also HERE)

Starkey v Oklahoma DOC

This case can be presented in any court of any state as persuasive authority. Underlying facts would have to be spot on or similar enough to persuade a court to a favorable ruling.

6-25-2013 Oklahoma:

Starkey v Oklahoma DOC

¶ 1 This matter was assigned to this office on February 6, 2013. According to the Record, Plaintiff/Appellee James M. Starkey, Sr., (hereinafter, "Starkey") pled nolo contendere and received a deferred adjudication on October 12, 1998, to a charge of sexual assault upon a minor child in the District Court of Calhoun County, Texas. The act occurred on January 15, 1997, and the age of the victim(s) was 15 years old.1 Under Texas law the act amounted to a second degree felony.2

The Oklahoma Department of Corrections and Justin Jones as Director (hereinafter, "Department") point out in Defendants Oklahoma Department of Corrections And Justin Jones Combined Response To Plaintiff's Motion For Summary Judgment And Motion For Summary Judgment (hereinafter, "response and motion for summary judgment") the equivalent crime of sexual assault under Oklahoma law is found in § 1123 of Title 21 of the Oklahoma Statutes; Lewd or Indecent Proposals or Acts to child Under 16. The deferred adjudication provided as follows:

ADJUDICATION DEFERRED PLACED ON COMMUNITY SUPERVISION FOR TEN (10) YEARS, $4,000.00 FINE, COURT COSTS, 320 CSR HOURS, 60 DAYS IN THE CALHOUN CO JAIL, RESTITUTION, DEFENDANT WAIVES HIS RIGHT TO APPEAL, SEX OFFENDER RULES.

In paragraph (27) of the document entitled "Additional Conditions of Community Supervision" he was required to register under Article 6252-13c.1 of the Texas Sex Offender Registration Program.3

... ... ...

¶ 51 Some additional legal obligations are predicated on SORA registration. One in particular pertains to a sex offender's driver's license or identification card. A person registered under SORA must renew their driver's license or issued identification card every year as opposed to non-registrants who renew every four years.67 Therefore registrants are required to pay four times the amount of a non-registrant.

¶ 57 Currently, SORA provides dissemination of substantial personal information about a sex offender not otherwise readily available from a single governmental source. We do not make any determination of the constitutionality of any of the individual registration requirements but have reviewed the requirements in their totality to address the cumulative effect on the issue of the first Mendoza-Martinez factor and the punitive effect of the act in its totality. We find SORA's registration and notification provisions impose substantial disabilities on registrants. Therefore, we find the first Mendoza-Martinez factor clearly favors a punitive effect.

CONCLUSION

¶ 80 The trial court's Order found the provisions of SORA were not to be retroactively applied. The trial court held the Oklahoma Department of Corrections was to apply the version of SORA in existence at the time Starkey pled nolo contendere to the charge of sexual assault on October 12, 1998, in Texas. Under the trial court's Order, Starkey would only be required to register for the original ten-year period which he had already completed.

¶ 81 We agree with the result of the trial court's Order which found the level assignments were not to be retroactively applied and Starkey is only required to register for 10 years. We find the legislature necessarily implied the provisions of 57 O.S., § 583 as amended in 2004 were to be applied retroactively. Further, we find this retroactive extension of Starkey's registration period from 10 years to 10 years from the date of completion of the sentence violates the ex post facto clause of the Oklahoma Constitution.104 We also find the Department's retroactive application of the level assignment provisions of 57 O.S. Supp. 2007, §§ 582.1-582.5, as amended, violates the ex post facto clause. These level assignments are only to be applied prospectively. We need not address Starkey's due process violation claims because our holding that the level assignments do not apply retroactively is dispositive.

¶ 82 We disagree, however, with the trial court's finding that the date when Starkey pled nolo contendere in Calhoun County Texas, October 12, 1998, is the correct date to determine what Oklahoma law is applicable to him. The Order only indicates he has resided in Oklahoma since 1998. The correct date to apply is when Starkey became subject to SORA registration by entering and intending to be in Oklahoma after his conviction.105 Starkey voluntarily came to Oklahoma and therefore voluntarily subjected himself to SORA after his conviction. Following his conviction, the exact date he entered Oklahoma with the intent to "be in the state" for the requisite period is relevant in determining what version of SORA is applicable. The requirements of the registry to which he must comply would be established upon his entry and intent "to be in" Oklahoma. However in Starkey's case, the applicable provisions of both versions of 57 O.S., § 582 effective during 1998 were the same and the applicable provisions of 57 O.S. Supp. 1997, § 583 were not amended in 1998. Therefore, the exact date when Starkey entered Oklahoma in 1998 does not matter for our analysis. We find the trial court's order is affirmed as modified to apply the date of Starkey's entry with the intent to be in this State following his conviction rather than the actual date of conviction in Texas as the critical point to determine which provisions of SORA would apply to him.

¶ 83 We point out that this decision does not address the requirements of the federal Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. (SORNA).

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Oklahoma Supreme Court finds state's new sex offender registration requirements punitive and thus limited by ex post facto doctrine

6-28-2013 Oklahoma:

From Sentencing Law and Policy:

As reported in this local article, headlined "Attorney says up to 3,000 registered Oklahoma sex offenders could benefit from ruling," the top court in Oklahoma handed down a major ruling this week limiting the reach of the state's sex offender registration law. Here are the basics:

[T]he court ruling said Corrections Department officials have been violating the Oklahoma Constitution by retroactively applying state sex offender laws, thereby dramatically increasing the time many convicted sex offenders must remain listed on the registry.

Rejoicing in Tuesday's ruling was convicted sex offender Brad Crawford, 58, of Oklahoma City. “It means a lot to me. It gives me freedom. It takes a monkey off my back,” said Crawford, who was convicted in 1998 in Canadian County on a charge of lewd or indecent proposals/acts to a child. “I'm tired of dealing with them and their harassment.”

Crawford lamented that being listed on the registry limits offenders from living where they want and watching their grandkids' baseball games. Registered sex offenders are not allowed to live close to schools, playgrounds or licensed child care centers....

Crawford's crime was peeking over the top of a tanning booth. He said Crawford thought he was sneaking a peek at a woman, which might have brought misdemeanor peeping Tom charges. The “woman” turned out to be a 15-year-old girl who was a day shy of her 16th birthday, so Crawford was convicted of the more severe felony charge of lewd acts with a child....

Crawford originally received a five-year suspended sentence, except for 30 days in the Canadian County jail. He also was placed on the sex offender registry for 10 years....

However, before the 10 years was over, the Oklahoma Legislature passed new laws in 2007 that created a three-tiered risk level assessment system. The law required convicted sex offenders to be placed on the sex offender registry for 15 years, 25 years, or life, depending on their assessment levels....

Jerry Massie, spokesman for the Corrections Department, said department officials are discussing the Court's ruling and expect to post something on the agency's website within the next day or two, explaining how the department will comply with the decision. Preliminary discussions have centered on department officials reviewing the registry and removing the names of sex offenders who appear to qualify under the court's ruling.

Massie said no time frame has been established for such a review, but it “might take a month or so.” At the end of the process, sex offenders who believe they were wrongfully kept on the registry could ask to have their cases reviewed, he said.

The full Oklahoma Supreme Court ruling is available at this link, and here are a few paragraphs from its closing sections:

Here we are not balancing the rights of sex offenders against the rights of their victims. We are making a determination as to whether the means chosen to protect the public have exceeded the state's valid interest in public safety and infringed on the Oklahoma constitutional prohibition against ex post facto laws.

Out of the seven Mendoza-Martinez factors we have reviewed herein, five favor a punitive effect. It is not the number that is important but the weight of these factors that leads us to our conclusion. SORA's obligations have become increasingly broad and onerous. We find there is clear proof that the effect of the retroactive application of SORA's registration is punitive and outweighs its non-punitive purpose. The retroactive extension of SORA's registration is inconsistent with the ex post facto clause in the Oklahoma Constitution.

This is not to say that Oklahoma's Sex Offender Registration Act (SORA) is unconstitutional on its face. A sex offender registry is a valid tool for the state to use for public safety. The State may impose registration duties and may publish registration information as part of its punishment of this category of defendants. The Oklahoma Constitution prohibits the addition of sanctions imposed on those who were already convicted before the legislation increasing sanctions and requirements of registration were enacted.

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Doe v Harris

7-1-2013 California:

Doe v Harris
California Supreme court decision on "Certified Question from 9th Circuit".

Sometimes it is better to start at the end, accordingly here is the decision of the California Supreme court on certified question:

CONCLUSION

For the reasons we have explained, the general rule in California is that a plea agreement is "`deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .'" (Gipson, supra, 117 Cal.App.4th at p. 1070.)

It follows, also as a general rule, that requiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction.

To that extent, then, the terms of the plea agreement can be affected by changes in the law.

To see what transpired before this decision, see Doe v Harris 1-13-2013.

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Effectively, in California, plea bargains are only good if the state -through future enactment of laws- does not change the terms of earlier plea bargain. Isn't great, the state is always in control.

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Doe v Neer

6-25-2013 Missouri:

Doe v Neer

John Doe appeals the judgment entered after a bench trial in favor of Tom Neer, Sheriff of St. Charles County, Missouri, and Colonel Ronald Replogle, Superintendent of the Missouri State Highway Patrol ("Defendants"), on Doe's amended petition for declaratory and injunctive relief. Doe's amended petition alleged that Doe is not required to register as a sex offender in Missouri, sought removal of Doe's name from Missouri's sex offender registry, and requested an injunction prohibiting future prosecution for failure to register. We affirm.

... ... ...

3. Conclusion

Although we recognize that Doe's arguments are compelling, we are bound by the Missouri Supreme Court's decisions in Doe v. Keathley, 290 S.W.3d 719 and Doe v. Toelke, 389 S.W.3d 165, and our Court agrees with the reasoning and conclusions of the Western District in Doe v. Keathley, 344 S.W.3d 759 and the Eighth Circuit in U.S. v. Howell, 552 F.3d 709. Pursuant to those cases, Doe had an independent federal obligation to register as a sex offender pursuant to SORNA. Therefore, he is presently required to register as a sex offender pursuant to section 589.400.1(7) of SORA.6 Toelke, 389 S.W.3d at 167.

III. CONCLUSION

The trial court's judgment entered in favor of Defendants on Doe's amended petition for declaratory and injunctive relief is affirmed.

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There is a distinct possibility that Keathley has been incorrectly decided, see notes there.

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Ohio v Wood

6-28-2013 Ohio:

Ohio v Wood

This is an appeal by the State of Ohio from a trial court decision dismissing an indictment against a sex offender who was charged with failing to provide notice of change of address. The trial court found that the defendant had no duties under Ohio's current sex offender registration scheme, the Adam Walsh Act ("AWA"), because he had committed his crime prior to the effective date of the act.

It (trial court) also found that he had no duties under the prior version of the registration scheme, Megan's Law, because Megan's Law had been repealed by the time he was released from prison.

We conclude that the trial court was right about the AWA but wrong about the offender's duties under Megan's Law (prior version).

As a result, we reverse the judgment dismissing the indictment and remand this case for further proceedings.

NL v Indiana

7-1-2013 Indiana:

NL v Indiana

Sex-offender registration aims to protect innocent members of society from repeat sex offenses by formerly convicted sex offenders, while our juvenile system aims to rehabilitate juvenile offenders. To balance these competing goals in light of registration’s serious social consequences and far-reaching effects, trial courts may place a child on the sex offender registry only if they first find by clear and convincing evidence that the child is likely to repeat a sex offense. But our trial courts have struggled with how to apply that statutory requirement. Today, we clarify that a juvenile may only be ordered to register as a sex offender if, after an evidentiary hearing, the trial court expressly finds by clear and convincing evidence that the juvenile is likely to commit another sex offense. Because the trial court’s order here placing N.L. on the registry was neither issued in connection with an evidentiary hearing, nor accompanied by any findings, we reverse and remand.

... ... ...

Conclusion.

It is well within a trial court’s discretion to hold more than one hearing to determine whether a juvenile’s risk of reoffending warrants placing them on the sex offender registry. But when it does so, every hearing held for that purpose must be an “evidentiary hearing” as J.C.C. requires. That is, juveniles must have the opportunity to challenge the State’s evidence and present evidence of their own; and if an “evidentiary hearing” is continued, they must have continued representation by counsel at the subsequent hearings as well. Finally, the child may not be ordered to register unless the trial court expressly finds, by clear and convincing evidence, that the child is likely to commit another sex offense — based exclusively on evidence received at such a hearing. Here, the May hearing was not an “evidentiary hearing” as J.C.C. requires; N.L. did not have the benefit of counsel in May, even though he did for the February hearing; and the trial court made no findings about N.L.’s likelihood to reoffend.

We therefore reverse the order requiring N.L. to register as a sex offender, and remand to the trial court with instructions to conduct a new “evidentiary hearing” as J.C.C. requires to determine whether N.L. is likely to commit another sex offense, and thereafter to make an express finding of whether the State has made that showing by clear and convincing evidence.

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Indiana Supreme Court Sets Standards for Adding Minor to Sex Offender Registry

The Indiana Supreme Court clarifies the process juvenile court judges must follow before a child who commits a sex crime can be added to the state's registry.

In a 5-0 decision, the state's high court says before a minor can be added to the sex offender registry, judges must hold a formal hearing to determine how likely a child is to re-offend.

Today's ruling over-turns a decision in which a teenage boy from Bedford, Indiana was added to the registry after allegedly molesting a 9-year-old boy. ..Source..

Smith v Commonwealth

6-6-2013 Virginia:

Smith v Commonwealth

In this appeal, we consider whether the retroactive application of a 2008 amendment to Code § 9.1-902 resulted in contractual and constitutional violations by allegedly interfering with a 1999 plea agreement.

In February 1999, a grand jury in the City of Richmond indicted Jeremy Wade Smith for rape in violation of Code § 18.2-61. The indictment alleged that Smith, age twenty-two at the time, engaged in sexual activity with a fourteen-year-old girl, resulting in the birth of a child.

Smith entered into a plea agreement. He agreed to plead guilty to the reduced charge of carnal knowledge of a minor in violation of Code § 18.2-63, and the Commonwealth agreed to recommend a suspended sentence. The plea agreement contained an integration clause stating that it "contain[ed] the entire agreement between the parties, both oral and written." The agreement did not reference the registration requirements applicable to convicted sex offenders. The circuit court reluctantly accepted the plea agreement and sentenced Smith to ten years' incarceration with the entire term suspended. The Commonwealth reminded the court that Smith would be required to register with the Virginia Department of State Police ("State Police") as a sex offender. Smith's counsel indicated that he understood this requirement.

At the time of Smith's conviction, carnal knowledge of a minor was classified as a non-violent sex offense. Former Code § 19.2-298.1 (1995 & Supp. 1999). As a non-violent sex offender, Smith was required to register with the State Police annually for 10 years, after which he could petition for expungement.1 Former Code §§ 19.2-298.2, -298.3(A) (1995 & Supp. 1999).

In 2006, the federal government enacted the Adam Walsh Child Protection and Safety Act. See 42 U.S.C. § 16911 et seq. (2006). Title I of the Act, known as the Sex Offender Registration & Notification Act ("SORNA"), required Virginia to implement comprehensive sex offender registration standards.2 In 2008, the General Assembly amended Code § 9.1-902 (former Code § 19.2-298.1) to comply with SORNA. As a result, Smith's conviction for carnal knowledge of a minor was retroactively reclassified as a "sexually violent offense," and he became subject to more stringent registration requirements. 2008 Acts ch. 877. Particularly, Smith now must register every 90 days for the rest of his life, with no right to petition for expungement. Code §§ 9.1-903, -904.

In February 2010, Smith filed a complaint in the Circuit Court of the City of Richmond asserting that he should not be classified as a violent sex offender for purposes of the registration requirements. Smith argued that the reclassification of his offense violated his contractual and constitutional rights. He asserted that the reclassification (1) unilaterally altered the terms of his plea agreement, constituting a breach of contract; (2) deprived him of vested contractual rights without just compensation, constituting an unconstitutional taking; and (3) violated his procedural due process rights.

Smith and the Commonwealth filed cross-motions for summary judgment. Smith claimed that the sex offender registration requirements in effect when he entered the plea agreement were part of the agreement as if they had been explicitly incorporated therein. Thus, he contended that reclassifying his offense breached the plea agreement and deprived him of vested contractual rights without just compensation or due process of law. The Commonwealth responded that Smith had no contractual rights, vested or otherwise, regarding the sex offender registration requirements because the plea agreement contained an integration clause and did not reference the registration requirements.

The circuit court granted summary judgment in favor of the Commonwealth. It held that reclassifying Smith's conviction did not constitute a material breach of contract. In addition, it concluded that the registration requirements were not an integral part of Smith's inducement to enter into the plea agreement, which held no promise or vested right that the registration laws would not subsequently change. Because Smith had no vested contractual rights with respect to the registration requirements, the circuit court reasoned that there was no unconstitutional taking or procedural due process violation.3 Accordingly, the court dismissed Smith's claims with prejudice. This appeal followed.

... ... ...

For the same reason that the reclassification of Smith's conviction was not an unconstitutional taking, it also was not a violation of procedural due process. Due process analysis presupposes the existence of an enforceable right. We previously have held that convicted sex offenders have no liberty interest to be free from quarterly registration requirements. McCabe v. Commonwealth, 274 Va. 558, 565, 650 S.E.2d 508, 512 (2007). Likewise, they have no fundamental right to rely on the civil legislative scheme in existence at the time of pleading guilty. Id. at 565-66, 650 S.E.2d at 512-13. Because in this particular case Smith had no vested contractual rights with respect to the 1999 registration requirements, there was no procedural due process violation.6

CONCLUSION:

Since there were no contractual or constitutional violations resulting from the reclassification of Smith's conviction, the circuit court properly dismissed his petition for expungement and for a permanent injunction. Accordingly, we will affirm the judgment of the circuit court.

Sexsomnia voids criminal case

7-1-2013 Canada:

Man repeatedly raped wife during night; sleep disorder considered rare

A Winnipeg man has been found not criminally responsible for repeatedly raping his wife on the grounds he was suffering from a rare sleep disorder known as "sexsomnia."

The case, decided Friday in a city courtroom, is the first of its kind in local legal history and one of only a handful ever seen in Canada.

Queen's Bench Justice Chris Mainella said expert evidence submitted by both the Crown and defence lawyer Todd Bourcier, along with testimony from the victim, proves the 36-year-old accused had no control over his actions during dozens of attacks that occurred over a four-year span.

"She did not see the face of her husband. He had a cold, angry stare," Mainella said of the woman. "The actions of the accused were involuntary. He was robotic, emotionally vapid."

The NCR finding means the man avoids a criminal record or any punitive sanctions. His case will now be handled by the Review Board, which is expected to recommend continued medical treatment for the unique condition.

"Sexsomnia is a recognized disease of the mind," said Mainella. "The plea of mental disorder is supported here by independent psychiatric evidence from sleep-disorder experts."

The couple was married in 2000 and had two children in 2003 and 2006, court was told. Their relationship began experiencing turbulence shortly after their first child was born when stress started consuming their busy lives, which included long work hours for both.

They were living just outside the city and the man was commuting, typically away for up to 14 hours a day. His wife was struggling with her own start-up business. Sleep became a precious commodity, and the man said a good night would see him get about five hours of shut-eye.

Beginning in 2004, the man started waking up his wife in the middle of the night and forcing intercourse on her, usually about twice a month, court was told. She would often tell him "no" and "stop" but he continued.

The incidents were much different than their normal sexual activities, with the man in a zombie-like state, never uttering a word and usually having no memory of the incident the following morning, court was told.

"This is an unusual case, as it deals with the difficult question of impaired consciousness in the context of sexual relations between a husband and wife," Mainella said Friday. "Marriage is not, and I repeat not, an exemption from criminal responsibility for unwanted sexual activity with one's spouse."

These incidents continued until 2008, when the woman finally went to the police at the urging of a nurse she had spoken to who scoffed at the sexsomnia claim. The woman said she went along with what was happening in an attempt to save their marriage, which has since ended.

The couple had previously disclosed to a marriage counsellor what was happening and the man had also requested help through Health Links for his condition. He has since undergone extensive examination by a Toronto-based expert on sexsomnia who concluded this is legitimate.

In a 2007 study, researchers from the Minnesota Regional Sleep Disorders Center and Stanford University School of Medicine found "sexsomnia" was becoming an increasing problem, with 80 per cent of documented cases involving men.

The term first hit the Canadian radar in 2005, when a Toronto judge acquitted a 33-year-old man of sexual assault after ruling he was asleep at the time and unable to form the necessary intent. Unlike this case, there was no prior relationship between the couple. The accused met the victim at a house party, she fell asleep on his couch and awoke to him forcing intercourse with her. ..Source.. by Mike McIntyre