11-7-2014 New York:by Lorca Morello, New York Law Journal
In Eugene Ionesco's absurdist play "The Bald Soprano" a character talks about a husband and wife named Bobby and Bobby Watson whom no one could tell apart because they had the same name. In People v. Gillotti, the Court of Appeals has applied similar logic to hold that "victim" under the Sex Offender Registration Act (SORA) is identical to "victim" in tort cases where persons depicted in child pornography can seek damages from mere viewers.1 Gillotti accordingly holds that anyone convicted of possessing multiple images of child pornography has multiple "victims" and therefore presents the same future risk to public safety as someone who has sexually assaulted multiple children.
The majority sees no absurdity in this. Rather, it asserts that any other result would violate the "plain language" of SORA. But plain language interpretation does not mean that just because two things have the same name they cannot be told apart.
Gillotti also conflates two meanings of the word "presumptive." In everyday speech, presumptive means less than definitive, as in "Dr. Livingston, I presume." As a legal term, a presumption allocates the burden of proof, as in "the presumption of innocence." In SORA hearings, the Board of Examiners of Sex Offenders (BESO) offers what its guidelines call a "presumptively correct" recommendation about the defendant's risk level. The guidelines use the word "presumptively" in the everyday sense of "not definitive."
Gillotti, however, interprets "presumptively correct" as a legal presumption that shifts the burden of proof to the defendant. This is inconsistent with the statute and the court's own precedents. Under SORA it is the state's burden to prove by clear and convincing evidence that the defendant deserves the deprivation of liberty interests entailed in being classified as a high or moderate risk.2 However strong the state's evidence, the burden of proof never shifts.
The effect of Gillotti will be to inflate the number of persons permanently stigmatized as dangerous "sex offenders" who probably present no more risk to public safety than any other ex-offender.
Possessing Child Pornography
Possessing child pornography is not identical to sexually assaulting children. SORA is a statutory scheme of imposing civil burdens on persons having a past conviction of any of a long list of offenses. These persons are labeled "sex offenders" and classified as minimum, moderate or maximum risk—levels one, two or three, respectively. A level two or three classification means registering with the police for life and having one's photograph, address and personal information unrestrictedly available to the public on an Internet sex offender website. SORA registrants also face ever-increasing legal restrictions barring them from housing, employment, public spaces and even from their own families. The rationale is that they are so likely to repeat their past offenses that they should never be allowed a normal civic life.
BESO created a risk assessment instrument (RAI) whereby the higher the point score, the greater the risk level. Points are imposed if the underlying offense involved more than one victim, or where the victim was a minor or a stranger. When SORA was enacted, possession of child pornography was not in the Penal Law. "Victim" meant the complainant in the underlying criminal case.
Gillotti involved a 19-year-old Air Force serviceman who downloaded child pornography when he was in high school. The court, after discoursing on the evils of child pornography, adopted a theory of victimization propounded by plaintiffs seeking damages from persons who viewed their images. It quotes a Supreme Court case where a woman who posed for pornography when she was 9 subsequently sought $3.4 million from a man who downloaded two pictures. The plaintiff argued that because the thought of someone looking at her pictures caused her even more distress than when she posed for them, she was the victim of any and all viewers.3
Gillotti reasoned from this that since every minor depicted in a pornographic image is a victim of the viewer, Neil Gillotti had as many victims as he had images. Therefore points should be imposed for having multiple victims. And since he did not know the minors depicted, points should be imposed for victimizing strangers. Imposing these points elevated his risk level from lowest to highest.
Thus, any SORA defendant whose underlying offense is possession of child pornography may be classified as equivalent to someone who sexually assaulted multiple stranger children. The decision repeats half a dozen times that any other reasoning would ignore the "plain language" of SORA and the guidelines.
Whatever the merits of the theory that anyone viewing a pornographic image victimizes the person portrayed, "plain language" does not justify using the word "victim" in this sense. "Plain language" is shorthand for words in a statute that "are free from ambiguity and express plainly, clearly and distinctly the legislative intent." McKinney's Statutes §76. It does not mean that the same word means the same thing in every context.
There was no indication of any legislative intent to expand the meaning of "victim" under SORA. As the court observed in an earlier decision, neither SORA nor the guidelines were written with possessory offenses in mind.4 The gravamen of those offenses was that the possessor was supporting an unlawful industry, not that he injured the minors by looking at their images. Otherwise, the possessory offense statutes would not have included an affirmative defense for librarians, movie theatre ushers, candy stand attendants and others who view the images but do not participate in the unlawful commerce.5 Interpreting "victim" in a way that the statute did not intend is an unwarranted expansion of its scope.
Not Interlocutory Judgment
The RAI score is not an interlocutory judgment. Because SORA requires the risk-level determination to be made by a court, it differs from statutes where the Legislature entrusts a determination to an agency which courts may not overrule unless it is arbitrary or unconstitutional. A SORA hearing is not a review of a presumptively correct agency decision, but a purely judicial determination where the state, represented by the local District Attorney's Office, has the burden of proof.
The court has previously recognized that BESO's risk-level recommendations based on the RAI score are no more binding on the court than sentencing recommendations by a probation department.6 The guidelines themselves state that the RAI risk level is "presumptive" because it is not definitive.7 If BESO purported to create a legal presumption, this would exceed its statutory mandate to make a "recommendation."8
Gillotti, however, has transformed this recommendation into a presumption that the People have met their burden of proof, thereby shifting the burden to the defendant to prove an "affirmative defense."
According to Gillotti, if a SORA defendant argues that the RAI score overstates his future risk to public safety, he "essentially occupies the same position as a defendant raising an affirmative defense or attempting to rebut a presumption in any other civil proceeding; each type of defendant basically concedes that the plaintiff has met its burden of proof with respect to the essential elements of the cause of action, but each nonetheless seeks to prevent the plaintiff from obtaining an entirely favorable judgment by providing an additional circumstance that weighs against the granting of such relief."
Thus, the RAI score becomes, in effect, an interlocutory judgment against the defendant.
Nothing in the statute or guidelines supports this conclusion. A SORA hearing is not like "any other civil proceeding," nor are the People a plaintiff seeking "relief." They are representatives of the state who must present clear and convincing evidence to justify the extent of the deprivation of an individual's constitutionally protected liberty interests. BESO's recommendation may be strong evidence in support of their case, but that is entirely different from saying that it establishes as a matter of law that the state "has met its burden of proof with respect to the essential elements of the cause of action." A mere recommendation is not a judgment.
Gillotti throws a sop to defendants by holding that they need only prove their affirmative defense by a preponderance of the evidence. But even if a defendant can figure out what constitutes an affirmative defense, the court is not obliged to consider it. Once the burden is shifted, it hardly matters what the standard is. Courts will overwhelmingly find that defendants cannot meet it.9
Legal Fiction
It is impossible to rationally construe an irrational statute. Judge Robert Smith, joined by Chief Judge Jonathan Lippman, dissented that classifying possessors of child pornography as level two or three "is more likely to produce emotional satisfaction than to protect any children." The same could be said of the statute itself.
SORA is based on the long-discredited assumption that there exists a species called "sex offenders" who compulsively commit sexual assaults and are therefore permanently dangerous. The statute applies a legal fiction that it is purely regulatory and non-punitive. The court has repeatedly recited without analysis that SORA is not punishment because its purpose is to protect public safety—overlooking that the way SORA implements that purpose is indistinguishable from parole or post-release supervision. As Justice John Paul Stevens observed of a similar sex offender registration statute, its stated purpose of protecting the public from recidivist offenders is quintessentially penal.10 SORA has no regulatory purpose independent of the traditionally punitive purpose of deterrence.
SORA also serves the uniquely punitive purpose of expressing community outrage. As Gillotti approvingly stated, the purpose of broadcasting that an individual is a "sex offender" is to warn the public that he is likely to commit a sex offense and should be avoided and viewed with suspicion. Labeling a human being as dangerous is not a regulatory measure like labeling a pack of cigarettes. It is an expression of moral condemnation, which is "the essence of punishment."11 The court, by not looking behind the statute's regulatory label, continues to ensure that SORA defendants suffer additional punishment for past offenses while being denied the constitutional protections accorded to criminal defendants.
Moreover, considering that risk-level classification entails a lifetime deprivation of basic civil liberties, courts have shown little concern about the reliability of the process. The RAI, which Gillotti has now enshrined as a burden-shifting presumption, has long been shown to be neither scientifically valid nor reliable as a risk predictor.12
Nor have courts held the People to their burden of proving risk level by clear and convincing evidence. Gillotti stated that this high standard is not required by due process, but is merely statutory. On the contrary, clear and convincing evidence is the constitutionally required standard when the state proposes to deprive an individual of important liberty interests.13 In practice, however, uncorroborated, non-cross-examined accusations are equated with proof, dismissed charges with convictions and moralizing about sexual misconduct with risk prediction. The People freely proffer grand jury testimony for its truth despite the court's established holdings that it is inherently unreliable and presumptively inadmissible in civil proceedings.14 In sum, SORA has undermined basic principles of fairness.
After Gillotti, more and more people will be classified as high-risk "sex offenders" based on less and less evidence. The resulting restrictions and stigma inflict needless misery on ex-offenders and their families, while the empirical data shows that these measures do nothing to promote public safety. One can only hope that someday a more enlightened view will prevail.
Endnotes:
1. People v. Gillotti, 23 NY3d 841 (2014) (citing Paroline v. U.S., 134 SCt 1710, 1717 (2014)).
2. People v. David W., 95 NY2d 130, 140 (2000).
3. Paroline, supra at 1717.
4. People v. Johnson, 11 NY3d 416, 420 (2008).
5. PL §263.20.
6. Johnson, supra at 421.
7. The guidelines state: "The risk level calculated from aggregating the risk factors and from applying the overrides is 'presumptive' because the Board or court may depart from it if special circumstances warrant. The ability to depart is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case." Guidelines at 4.
8. Corr. L. §168-l (6) ("Applying these guidelines, the board shall…make a recommendation").
9. See People v. Wyatt, 89 AD3d 112 (2d Dept. 2011) and numerous subsequent decisions finding that SORA defendant failed to prove by preponderance of the evidence that lower risk level than recommended by RAI score is appropriate.
10. Smith v. Doe, 538 US 84, 114-115 (2003) (Stevens, J., dissenting from majority's finding Alaska's version of SORA to be non-punitive).
11. Henry M. Hart, "The Aims of the Criminal Law" 23 L. & Contemporary Problems" 401, 404-405 (1958).
12. See People v. McFarland, 29 Misc.3d 1206(A) (Sup.Ct. N.Y. Co. 2010) (RAI is unscientific and arbitrary).
13. Santosky v. Kramer, 455 U.S. 745 (1982); see also Addington v. Texas, 441 U.S. 418, 425 (1979) ("In cases involving individual rights, whether criminal or civil, the standard of proof [by clear and convincing evidence] at a minimum reflects the value society places on individual liberty").
14. See People v. Geraci, 85 N.Y.2d 359, 367-368 (1995) (grand jury testimony inherently unreliable); Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 444 (1983) (People may not use grand jury testimony in civil case without court order based on showing of compelling and particularized need). ..Source.. by Lorca Morello a attorney practicing in New York City.
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