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Non-Convicted Michigan Sex Offenders Required to Register

The Sixth Circuit Court of Appeals has held that Michigan's Sex Offender Registration law, which requires persons charged with but not convicted of sex crimes to register as sex offenders, is constitutional. The Court's ruling affirms an order granting summary judgment to the State of Michigan in a class action lawsuit challenging the law.

The suit included two classes of people assigned to "youthful trainee status" for sex offenses under Michigan's Holmes Youthful Trainee Act (HYTA), who were then required to register as sex offenders. Both classes were comprised of people who had been charged with sex offenses prior to October 1, 2004. One class was for people who were fully discharged from trainee status, while the other was for those still pending disposition.

That distinction originates from the nature of HYTA. Under that law, persons who plead guilty for crimes committed after their seventeenth birthday but before their twenty-first birthday may be designated as a youthful trainee. Such a designation provides for a sentence of up to three years custodial supervision, up to one year in the county jail, or up to three years probation. The HYTA designation holds the plea in abeyance. Once the trainee successfully completes the sentence, the court "shall discharge the individual and dismiss the proceedings." Once released, the law states the discharged person "shall not suffer a civil disability or loss of right or privilege."

Only defendants charged with so-called Romeo-and-Juliet offenses, defined as consensual sexual activity of a youth between the ages of 14 to 21 with another youth between ages 13 and 16, are eligible for the HYTA designation. Despite the wording of the statute, Michigan law requires such youths to register as sex offenders if charged prior to October 1, 2004. After that date the law was amended to not require registration.

The class action suit brought a substantive due process claim. The substantive component of the Due Process Clause protects fundamental rights that are so "implicit in the concept of ordered liberty" that "neither liberty or justice would exist if they were sacrificed." Such rights include "the rights to marry, to have children, to direct education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion."

The Sixth Circuit found the sex offender registration requirement troubling because the class members had "not been convicted by a jury nor has a judge accepted their guilty pleas." The appellate court, however, found that Michigan has an "interest in knowing the whereabouts of sex offenders" that "outweighs any privacy interest that plaintiffs have in their criminal records, home addresses, and other public registration information."

As for the suit's asserted Equal Protection claim, the Court found that the Michigan Legislature could permissibly draw a line that distinguished between persons charged before October 1, 2004 and those charged on or after that date. In effect, this constituted a gradual approach to elimination of the registration requirement; it would allow the Legislature to monitor the situation to ensure that low recidivism rates affirm their premise that Romeo-and-Juliet type offenders do not pose a threat to public safety before expanding the exemption to pre-October 1, 2004 offenders.

In addition, the HYTA designees can request to be removed from the sex offender registry ten years following their discharge from youthful trainee status. Thus, a rational basis existed between the disparity in requiring registration based on the date that charges were filed. The district court's order was affirmed. See: Doe v. Michigan Department of State Police, 490 F.3d 491 (6th Cir. 2007).

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Related legal case

Doe v. Michigan Department of State Police