People v Temelkoski
A sex offender who no longer has a conviction on his record after successfully completing probation must still abide by registry requirements, a Michigan appeals court ruled.
Boban Temelkoski was 19 in 1994 when he was charged with second-degree criminal sexual conduct related to his kissing and groping of a 12-year-old girl.
Temelkoski pleaded guilty and served three years of probation under the Holmes Youthful Trainee Act (HYTA), at which point the case against him was dismissed.
Though Temelkoski does not have a conviction on his record, Michigan law still requires him to register as a sex offender for life under the Sex Offender Registration Act (SORA).
He sought removal from the sex-offender registry in 2012 based on the purported "cruel or unusual" nature of punishing him of something not memorialized by a conviction.
Since SORA now contains a "consent exception" for youthful offenders in a so-called "Romeo and Juliet relationship," Temelkoski also characterized the sexual encounter between him and the 12-year-old as consensual.
The Wayne Circuit Court found for Temelkoski, and ordered him removed from the registry, but a three-judge appellate panel reversed on Oct. 21.
"The SORA does not violate the Ex Post Facto Clause or amount to cruel or unusual punishment because it does not impose punishment," the unsigned decision states.
This is not the first time the Michigan court of appeals has rejected Eighth Amendment challenges to SORA.
"Unlike traditional forms of public shaming, such as branding and banishment, publicity and stigma are not integral parts of the SORA," the judges said.
Registration requires Temelkoski to place his name and address in a publicly searchable database, restricts where he may legally live, and makes it difficult for him to find employment or raise his children.
But as the court of appeals noted 15 years ago in In re Ayres: "While branding, shaming and banishment certainly impose punishment, providing public access to public information does not."
Michigan lawmakers intended the SORA as a civil remedy, not a punishment, because the law's primary concern is protecting the community by promoting awareness of sex offenders living within it, according to the ruling.
The panel also found that the consent exception does not apply in this case because the victim was under 13.
"Because the complainant was only 12 years old and defendant was 19, the Legislature could have reasonably concluded that the public should be protected and informed of individuals, including HYTA trainees, who commit sexual offenses against persons under age 13, irrespective of whether the complainant consented," the judges wrote. "Failure to extend the consent exception to include situations involving complainants under the age of 13 does not make the SORA punitive in nature."
The panel concluded: "The SORA has not been regarded in our history and traditions as punishment, the SORA does not impose affirmative disabilities or restraints, it does not promote the traditional aims of punishment, and the SORA has a 'rational connection to a nonpunitive purpose' and is not excessive with respect to this purpose." ..Source.. by LORRAINE BAILEY
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