Criminal Law

"Sex Offenders" but No Sex Crime?
What SORA and VOYRA Could Mean for Your Clients

By Marion Buckley and J. Michael True*

Under the original Sex Offender Registration Act, some people who have not committed a sex crime must register as "sex offenders." The legislature addressed the issue last year with a law that creates its own problems. Here's a look at the statutory scheme and what it could mean for your clients.

Most people assume that only pedophiles are included in the Sex Offender Registry in Illinois.1 They would be surprised to learn that the Sex Offender Registration Act for 10 years defined "sex offender" as one who committed kidnapping or unlawful restraint, even where the crime involved no sexual conduct, motivation, or intent.2

Consider the following scenario: In the midst of a bitter custody battle, your client abducted a child he believed was his own. However, tests proved he was not the father, and your client was convicted of aggravated kidnapping - aggravated because the child was under age 13.3 To make matters worse, because he was convicted prior to June 27, 2006, but after January 1, 1996, he is considered a sex offender and therefore subject to the Sex Offender Registration Act (SORA)4 and its ancillary provisions.5 Under the SORA, he must register as a sex offender for 10 years following release from custody or following conviction if no confinement was ordered,6 and he will be subjected for the rest of his life to two related statutes that limit his 1) access to school zones, public parks, and buildings, 2) contact and communications with children, and 3) choice of places to live and work.7

Recognizing that classifying such individuals as sex offenders was unfairly stigmatizing as well as contrary to the intent of the SORA, the legislature enacted, and the governor signed into law, the Child Murderer and Violent Offender Against Youth Registration Act (VOYRA), effective June 27, 2006.8 The VOYRA changes the registration requirements so that your client would not be required to register as a sex offender if he committed the offense of aggravated kidnapping today. The law does not, however, automatically remove from the SORA those who committed such an offense prior to June 27, 2006,9 and it does not remove the lifelong restrictions of the ancillary provisions - no matter when the crime occurred.10

This article looks at the relationship between the VOYRA and SORA, describes the reporting and other requirements of each, reviews the cases interpreting the SORA, and offers some pointers for representing clients under current law.

Brief overview of VOYRA and SORA

The most obvious problem with the original SORA is that people who have not committed a sex crime are labeled sex offenders by virtue of so-called "triggering offenses" which often have no sexual motive or intent.11 In Illinois, the triggering offenses are kidnapping, aggravated kidnapping, unlawful restraint, aggravated unlawful restraint, and attempts, where the victim is under 18 and the offender is not a parent.12 Reported cases in which an offender has been required to register as a sex offender despite there being no sexual conduct, intent, or motivation, have included a juvenile who carjacked another, older juvenile;13 a man who kidnapped a grandmother and infant for ransom;14 an offender who stole a van not realizing a child was inside;15 and a man who was convicted of murder when his accomplice killed a 17-year-old in a botched robbery attempt.16

In other states, similar laws have been found unconstitutional because the courts have deemed them not rationally related to the legislative goal of protecting children from pedophiles.17 In New York, two courts found the law unconstitutional, but a third disagreed.18

In Illinois, one panel of the first district appellate court invalidated the SORA as applied to these offenders, only to be overturned on appeal to the Illinois Supreme Court,19while others have upheld the law, finding a rational relationship because kidnapping, according to those courts, is often a precursor to sexual assault of a child.20 The latter conclusion derives from People v Fuller, in which the first district appellate court noted in dicta - and without citation to its source - that "kidnapping or unlawful restraint of a minor is often a precursor offense to juvenile pimping or exploitation of a child."21

In an attempt to curtail the too-broad reach of the SORA, the Illinois Legislature adopted the Child Murderer and Violent Offender Against Youth Registration Act.22 When the new act was under discussion in the House of Representatives, Representative Fritchey explained that it was designed to "clean up, 10 years too late, the sex offender registry to make sure that only those individuals that've committed sex offenses remain on that registry (the SORA)."23

Fritchey remarked that the new act shifts offenders who have not committed a sex crime over to the new registry, allowing for continued monitoring of those individuals but avoiding the stigmatizing label of "sex offender."24 However, the new Act as written does not allow for automatic transfer from the SORA to the VOYRA and does nothing to alleviate the restrictions of the ancillary SORA provisions upon those who have committed no sex crime.25

As a result, offenders convicted of triggering offenses prior to June 27, 2006, remain subject to the SORA unless and until the State's Attorney chooses to initiate proceedings to remove those persons from the SORA and transfer them to the VOYRA - a highly unlikely occur-rence, as noted by the majority of the Illinois Supreme Court in People v Johnson.26

Noting that the Act is not self-executing, fails to provide a means by which a defendant may petition to be removed from the SORA, and leaves the decision "solely to the discretion of the State's Attorney," the Johnson majority recognized that "[t]he mechanics of this provision are, at best, ill-defined."27 How-ever, the court declined to find the statute unconstitutional as applied to Johnson, thus essentially leaving Johnson and similarly situated offenders in legal purgatory, with no means by which to escape.

Requirements and restrictions of the SORA and ancillary provisions

The SORA requires a convicted sex offender to register his current address with the police.28 The Act requires registration of all sex offenders - any person convicted of committing one of the qualifying offenses listed, regardless of whether the offense was sex-related.29 The Act further requires that the offender register with local authorities and pay a registration fee, of $20 initially and $10 annually, for a period of at least ten years following release from prison.30

Prior to June 27, 2006, the Act did not require any sort of finding that the offense involved sexual conduct, intent, or motivation; amendments to the SORA now require a determination at sentencing that the offense was "sexually motivated" when the conviction is for a triggering offense.31

Failure to comply with the Act is a Class 4 felony (Class 3 where one willfully or knowingly provides false information) and subjects the offender to a mandatory minimum fine of $500 and a mandatory minimum jail term of seven days.32 A subsequent violation is a Class 2 felony.33 Where the conviction occurred prior to June 27, 2006, but after January 1, 1996, these provisions apply in the absence of any independent determination as to whether the offender has ever committed any sex crime.34

With limited exceptions, the ancillary provisions restrict sex offenders' presence in or near any school building or property,35 or public park or building,36 and prohibit sex offenders from living within 500 feet of schools, public parks or related buildings.37 Sex offenders may not live within 500 feet of a playground or similar facility38 and may not operate, manage, be employed by, volunteer at, be associated with or be present at any facility providing services to children.39 Violations of these provisions constitute a Class 4 felony.40

Requirements and restrictions of the VOYRA

Most of the VOYRA registration requirements and restrictions are similar to the SORA's. The duty to register is triggered by notification by the state police or local authorities, so long as the offender is notified within the 10-year period following release from custody and has not tried to avoid notification.41

The offender must pay an initial registration fee of $20, and an annual registration fee of $10 thereafter.42 He must annually update his information and provide a new photograph.43 Some local law enforcement agencies may require fingerprints.44

Failure to register, or any other violation of the Act, will result in revocation of parole, mandatory supervised release, or conditional release.45 Failure to comply with the registration requirements, including providing false information, can result in a Class 3 felony, with any subsequent violation a Class 2 felony.46

Additionally, the VOYRA borrows from the SORA in requiring that reconfinement due to a parole violation "or other circumstances that relates to the original conviction or adjudication shall extend the period of registration to 10 years after final parole, discharge or release."47 Similarly, the registration period shall be extended 10 years for any violent offender who fails to comply with any provision of the Act. The extended period begins with the first date of registration after the violation.48

Child murderers who are at least 17 years old at the time of the commission of the offense, and whose victims are under 18 years of age, are subject to harsher registration requirements, including the duty to register for life.49 Originally, juveniles who committed violent offenses against other youth would be subjected to the registration requirements upon attaining age 17 and would be considered as having committed the offense on or after the offender's 17th birthday,50 with the registration duration not extending beyond ten years from the date of conviction.51

This measure has been addressed in SB 121, passed by the legislature and sent to the governor in June 2007, giving trial courts discretion regarding sex offender registration for juvenile offenders.

In addition to the registration requirements, violent offenders, like sex offenders under the SORA, will be subjected to various community notification provisions, including "special alerts" enacted under the VOYRA, under which local law enforcement may warn parents "to be aware that violent offenders against youth may attempt to contact children during holidays involving children, such as Halloween, Christmas, and Easter and informing parents that information containing the names and addresses of registered violent offenders against youth are accessible on the Internet...."52

Illinois cases interpreting the SORA

Offenders who have committed no sex crime but are required to register as sex offenders have attacked registration acts as violations of procedural due process, substantive due process, and equal protection. While courts in other states have struck similar statutes,53 Illinois courts do not appear to be inclined to follow suit.

In Fuller, the first district addressed a substantive due process challenge to the SORA and found the Act constitutional.54 The SORA applied to Fuller because he was convicted of aggravated kidnapping of two children, ages 6 and 15. Fuller drove the children around, stopping twice to view Christmas lights, but at no point touched the children; the children escaped when the van stopped at a light.55

Fuller argued that the definition of a sex offender as including aggravated kidnapping of someone under the age of 18 was overly broad, and that there was no rational relationship between the offense and the legislative intent in enacting the SORA.56 The court employed rational basis review and found the SORA reasonably related to the public interest of assisting law enforcement in the protection of children from sexual assault and sexual abuse.57

In language that was to become the linchpin of decisions upholding the SORA, the court commented that it was "particularly disingenuous" for Fuller to argue that there was no rational relationship between kidnapping and the purpose of the SORA, since "[t]he most obvious connection" between the triggering offenses and the purpose of the Act is that "kidnapping or unlawful restraint of a minor is often a precursor offense to juvenile pimping or exploitation of a child, which are, indisputably, within the purview of the Registration Act's purpose."58 The court noted that Fuller's statement to police that "he was going to find a hotel room and ask the girl if she had any friends," combined with Fuller's failure to immediately release the children, supported a logical nexus between aggravated kidnapping and the possibility of subsequent sexual conduct.59

In the wake of Fuller, Illinois Appellate Courts split on the issue, but in Johnson the Illinois Supreme Court declined to find the law unconstitutional, even though there was no evidence of a sexual motivation or intent. In Johnson, two of three justices in the first district found the SORA unconstitutional as applied, finding a violation of John-son's substantive due process rights and no rational basis for requiring Johnson to register as a sex offender when he had no history of committing sex crimes and his offense of aggravated kidnapping was determined not to be sexually motivated.60

Distinguishing Fuller, the court noted Fuller's statement about looking for a motel and asking the girls if they had any friends evidenced a sexual motivation or intent, whereas there was no such evidence in Johnson's case.61 The dissenting justice in Johnson,62 the Illinois Supreme Court,63 and two other divisions of the first district appellate court reached the opposite conclusion.

In People v Beard and in In re Phillip C., the first district applied rational basis scrutiny and rejected the defendants' as-applied constitutional challenges under substantive due process, procedural due process, equal protection, and privacy.64 The courts found that the legislature had a rational basis for applying the SORA to kidnappers of children based on the legislators' apparent view that those offenders could commit sexual crimes against children.65

Whether the defendants had a sexual motivation or purpose in committing the offense seemed to be of no importance to these courts. In fact, the appellate court in Phillip C. specifically noted that although "there was no evidence that defendant sexually assaulted [the victim] or that his motivation in kidnapping [the victim] was sexual in nature, we find that the legislature could rationally conclude that kidnapers of children pose such a threat to sexually assault those children as to warrant their inclusion in the sex offender registry."66 The court cited as supporting authority Fuller, Wisconsin v Brown,67 and Justice Wolfson's dissent in the appellate court's Johnson decision.68

Practice tips: representing the SORA/VOYRA client

Assume you represent the divorce client who abducted a child that, as it turned out, was not his own, as described in the opening scenario. What SORA/VOYRA issues do you face and how should you address them?

The procedures to be implemented under the VOYRA are, at best, unclear. As noted above, SORA registrants who have not committed a sex crime will be transferred off the SORA only if the state's attorney in the county of conviction chooses to verify, "on a form prescribed by the Illinois State Police, that the person's crime that required or requires registration was not sexually motived as defined in Section 10 of the Sex Offender Management Board Act [SOMBA]."69

Additionally, the completed form must have been received by the registering law enforcement agency and the Illinois State Police's Sex Offender Registration Unit.70 Thus, the local state's attorney would seem to have nearly unfettered discretion regarding when and for whom it takes action. Although the Illinois Supreme Court specifically recognized that the "statute leaves that decision solely to the discretion of the State's Attorney," the court did nothing to ameliorate the problem, leaving any resolution up to the legislature.71

When an offender is convicted of one of the triggering offenses under the VOYRA, registration is triggered by verification at the trial court level, at the time of sentencing, that the offense was not sexually motivated, as defined by SOMBA.72 The VOYRA requires SORA registration if the offense was "sexually motivated."73

Advice to your client obviously will vary with each case. Unfortunately, no matter your client's procedural posture, the new VOYRA places him or her in an impossible situation, since the legislature failed to revise the definition of "sex offender" in the ancillary provisions to the SORA.74 As a result, if convicted of a triggering offense - the commission of or attempted commission of kidnapping, aggravated kidnapping, unlawful restraint and aggravated unlawful restraint75 - your client will still be considered a sex offender under sections 9.376 and 9.4,77 and will be for life unless the legislature acts.

The client who has been convicted of a triggering offense and is currently incarcerated will necessarily have different concerns than the client who has only just been charged, and that client will have different needs and concerns than the client who is currently on parole following conviction of a triggering offense. Similarly, advice will vary depending upon the time of conviction, and whether the conviction and sentencing occurred before or after June 27, 2006, the effective date of the VOYRA.

Representing a defendant charged, not convicted. The client who is currently facing charges that include one of the triggering offenses must be told that conviction of the offense not only will subject him to the 10-year registration requirements and restrictions imposed by the VOYRA, but, unless and until the legislature takes corrective measures, also will subject him to the lifelong restrictions of Sections 9-3 and 9-4. Where plea negotiations are an issue, this information will be crucial to your client's decision. Indeed, one of the reasons the so-called triggering offenses were added to the SORA was that offenders charged with sex crimes were pleading down to other offenses that did not require registration.78

This information also will be important at sentencing, should your client be convicted of a triggering offense. Here again, the legislature has placed defendants in the most untenable of positions, because the VOYRA does not even apply unless the trial court verifies, at sentencing, that there was no sexual motivation in the case.79 Moreover, the VOYRA registration requirements apply only if local law enforcement notifies the offender of his duty to register (but note that the VOYRA specifically states that the offender may not attempt to avoid registration).80

Representing an offender convicted of a triggering offense. Those convicted of a triggering offense will fall into two groups - before and after June 27, 2006, the date the VOYRA became effective. For those whose convictions occurred prior to that date, discussions will involve whether or not the offender is already listed on the state police web site as a "sex offender" as well as whether a direct appeal is pending or has been concluded, and whether or not a post-conviction or other collateral attack has been made.

Where your client is already listed as a sex offender, the efficacy of a constitutional attack on the SORA registration requirements and ancillary restrictions remains questionable at best, in light of Johnson.81 However, at least two United States Supreme Court justices suggest the matter may be appropriate for equal protection challenges.82

Conclusion

Clearly not just pedophiles are included in the sex offender registry, and not all offenders who commit a triggering offense will be subjected to the VOYRA. However, any offender who commits a triggering offense needs to be advised of the life-long restrictions imposed by the ancillary provisions of the SORA.

Because the life-long restrictions are so pervasive and a violation of them is a serious offense, defendants will be less inclined to plead guilty to any of the triggering offenses. Unless and until the legislature addresses these continuing problems under the SORA and VOYRA, many defendants will continue to be labeled sex offenders despite never having committed a sex crime.

Marion Buckley is an assistant appellate defender in the Chicago office of the State Appellate Defender. J. Michael True is an associate with the Chicago law firm of Messer & Stilp, Ltd. He previously was an assistant defender in the First District Office of the State Appellate Defender. The views expressed in this article are solely the authors'.

* The authors gratefully acknowledge the encouragement and valuable suggestions of Josette Skelnik, Office of the State Appellate Defender, in the preparation of this article.

1. 730 ILCS 150/1 et seq.
2. 730 ILCS 150/2(B)(1.5)(West 2000).
3. 720 ILCS 5/10-2(a)(2).
4. 730 ILCS 150/1 et seq.
5. 720 ILCS 5/11-9.3 and 5/11-9.4.
6. 730 ILCS 150/7.
7. 720 ILCS 5/11-9.3; 720 ILCS 5/11-9.4. See, for example, People v Leroy, 357 Ill App 3d 530, 545, 828 NE2d 769, 785 (5th D 2005), J. Kuehn, dissenting (majority upheld constitutionality of residency restrictions where defendant had lived in the residence for most of his 36 years, but where the home was owned by his mother).
8. 730 ILCS 154/1 et seq, Charles Sheehan, Sex-offender list altered, Chicago Tribune, Metro section, page 1 (July 3, 2006).
9. 730 ILCS 154/11(a).
10. 720 ILCS 5/11-9.3 and 5/11-9.4.
11. See, People v Johnson, 363 Ill App 3d 356, 843 NE2d 434 (1st D 2006), rev'd on appeal at 225 Ill 2d 573, 2007 WL 1519896 (2007); People v Beard, 366 Ill App 3d 197, 851 NE2d 141 (1st D 2006); In re Phillip
C., 364 Ill App 3d 822, 847 NE2d 801 (1st D 2006); People v Hall, 217 Ill 2d 324, 841 NE2d 913 (2005).
12. 730 ILCS 150/2 (B) (1.5).
13. In re Phillip C. (cited in note 11).
14. Johnson (cited in note 11).
15. Hall (cited in note 11).
16. Stephen Young and Bryan Brickner, This Man Is Not a Sexual Predator, Chicago Reader, Section One, page 1 (October 21, 2005). See also People v Woodard, 367 Ill App 3d 304, 854 NE2d 674 (1st D 2006) (upholding registration requirement in murder case even though offense was not sexually motivated).
17. See, for example, Florida v Robinson, 873 So2d 1205 (Fla 2004); Raines v Florida, 805 So2d 999 (Fla 4th DCA 2001); Ohio v Washington, 2001 Ohio App LEXIS 4980 (2001); Ohio v Reine, 2003 Ohio App LEXIS 52, at *14 (2d App D 2003).
18. Compare New York v Bell, 3 Misc 3d 773 (Sup Ct, Bronx Co 2003), and New York v Moi, 8 Misc 3d 1012(A) (Westchester Co Ct 2005), with People v Cintron, 13 Misc 3d 833, 847-848 (Sup Ct, Bronx Co 2006).
19. Johnson (cited in note 11).
20. Beard (cited in note 11), In re Phillip C. (cited in note 11); People v Doll, 371 Ill App 3d 1131, 864 NE2d 916 (2d D 2007).
21. 324 Ill App 3d 728, 734, 756 NE2d 255, 260 (1st D 2001). As revealed in Cintron, Fuller is now relied on by an increasing number of jurisdictions to uphold laws similar to the Illinois statute. Cintron, 13 Misc 3d at 847.
22. 730 ILCS 154/1 et seq.
23. House of Rep, Trans Debate, 94th Gen Assem, Feb 22, 2006, at 13.
24. Id.
25. See 730 ILCS 154/11(a); Johnson, 2007 WL 1519896 at *3.
26. Id at *4; 730 ILCS 154/11(a).
27. Johnson at *4, *3; 730 ILCS 154/11(a).
28. 730 ILCS 150/3; People v Malchow, 193 Ill 2d 413, 739 NE2d 433 (2000).
29. 730 ILCS 150/2.
30. 730 ILCS 150/7; 730 ILCS 150/3(c)(6).
31. 730 ILCS 154/86. However, the new provision does not explain how that determination is to be made. "'Sexually motivated' means one or more of the facts of the underlying offense indicates conduct that is of a sexual nature or that shows an intent to engage in behavior of a sexual nature." 20 ILCS 4026/10(e).
32. 730 ILCS 150/10.
33. Id.
34. 730 ILCS 150/2(B)(1.5).
35. 720 ILCS 5/11-9.3.
36. 720 ILCS 5/11-9.4.
37. Id; See, for example, Leroy (cited in note 7) (Kuehn dissenting) where majority upheld constitutionality of residency restrictions for defendant convicted of sex crime that occurred 18 years prior to time that defendant was banished from his home of 36 years).
38. 720 ILCS 5/11-9.4 (b-5).
39. 720 ILCS 5/11-9.4(c).
40. 720 ILCS 5/11-9.3(a), 720 ILCS 5/11-9.4(e).
41. 730 ILCS 154/10(c).
42. 730 ILCS 154/10(c)(5).
43. 730 ILCS 154/30 and 154/45.
44. 730 ILCS 154/45.
45. 730 ILCS 154/50.
46. 730 ILCS 154/60.
47. 730 ILCS 154/40; 730 ILCS 150/7. See, for example, People v Molnar, 222 Ill 2d 495, 857 NE2d 209 (2006) (upholding extension provision against void-for-vagueness challenge by offender who was convicted of sex crime).
48. 730 ILCS 154/40; 730 ILCS 150/7.
49. 730 ILCS 154/5(c-5).
50. 730 ILCS 154/5(a).
51. Id.
52. 730 ILCS 154/105; 730 ILCS 152/121 (2005). The "special alert" provision appears to have been dropped from the revised SORA. See 730 ILCS 152/121 (2007).
53. See Robinson (cited in note 17); Bell (cited in note
18); Reine (cited in note 17) (substantive due process); and Raines (cited in note 17) (equal protection); but see Cintron (cited in note 18).
54. Fuller at 734, 756 NE2d at 260.
55. Id at 730, 756 NE2d at 257.
56. Id at 731, 756 NE2d at 258.
57. Id at 731-32, 756 NE2d at 258.
58. Id at 733, 756 NE2d at 260.
59. Id at 733-34, 756 NE2d at 260.
60. Johnson at 362-63, 843 NE2d at 440.
61. Id at 363, 843 NE2d at 440. Although in Johnson, the adult victim was forced to disrobe, the motive was deemed to be control rather than sexually related.
62. Id at 364, 843 NE2d at 441 (Wolfson dissenting in part).
63. Johnson (cited in note 11).
64. Beard at 198, 851 NE2d at 144; Phillip C. at 830, 847 NE2d at 808.
65. Beard at 203, 851 NE2d at 147; Phillip C. at 831, 847 NE2d at 808.
66. Id (emphasis supplied).
67. 273 Wis 2d 785, 680 NW2d 833 (Unpublished), 2004 WL 830668 (Wis App 2004).
68. Phillip C. at 831, 847 NE2d at 808.
69. 730 ILCS 154/11(a)(2); 20 ILCS 4026/10(e).
70. 730 ILCS 154/11(a)(3).
71. Johnson, 2007 WL 1519896 at *4.
72. 730 ILCS 154/86.
73. Id.
74. 720 ILCS 5/11-9.3, 9.4.
75. 720 ILCS 5/11-9.3(2)(iii), 9.4(2)(iii).
76. 720 ILCS 5/11-9.3.
77. 720 ILCS 5/11-9.4.
78. Young and Brickner, This Man is Not a Sexual Predator at 26 (cited in note 16).
79. 730 ILCS 154/86.
80. 730 ILCS 154/10(c).
81. In the wake of Johnson, and considering prior challenges under void-for-vagueness and other grounds, precisely what avenues remain open is unclear. See, for example, Molnar (cited in note 47); People v Diestelhorst, 344 Ill App 3d 1172, 801 NE2d 1146 (5th D 2004); People v Stork, 305 Ill App 3d 714, 713 NE2d 187 (2d D 1999) (upholding void-for-vagueness challenges by offenders who had been convicted of sex crimes); Woodard at 322-323, 854 NE2d at 692-93 (upholding registration requirement in murder case even though offense was not sexually motivated).
82. Connecticut Dept of Public Safety v Doe, 538 US 1, 9-10 (2003), Souter and Ginsberg concurring and suggesting that the matter may be appropriate for an equal protection challenge. Given the disparate treatment afforded to offenders convicted after June 27, 2007, who are subjected to the VOYRA, and those convicted between January 1, 1996, and June 27, 2006, who remain subjected to the SORA, such a challenge may well be an advisable course of action.