SEX OFFENDER REGISTRATION

You asked if the law can be changed to remove the requirement for “statutory rape” offenders who are under age 18 to register as sex offenders. You also asked if sex offenders are required to register or remain registered, as the case may be, if the crime they were convicted of is no longer a crime. You were particularly interested in “statutory rape” offenders.

The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered as one.

“Statutory rape” crimes are generally sexual assault crimes that exclude force as an element and instead make it illegal for anyone to engage in sexual intercourse with someone below a certain age, other than his or her spouse. The premise for these crimes is that until a person reaches a certain age, he or she is legally incapable of consenting to sexual intercourse. In Connecticut, second-degree sexual assault against a child under age sixteen by a perpetrator at least three years older is commonly referred to as “statutory rape.” Statutory rapists, like other offenders of criminal offenses against victims who are minors, must register as sex offenders under Connecticut's sex offender registry laws.

The General Assembly enacted the law requiring statutory rapists to register; thus, the General Assembly can eliminate it. In fact, the law currently gives courts the authority to exempt statutory rapists from registration if they were under age 19 at the time of the offense and registration is not required for public safety. It is unlikely that eliminating the registration requirement will jeopardize federal funding.

Last year the General Assembly passed PA 07-143, which decriminalized consensual sexual activity between teenagers between two and three years apart in age, effective October 1, 2007. Prior to the passage of 07-143, teenagers who engaged in this activity and were two or more years apart in age were guilty of statutory rape. PA 07-143 is prospective in application and thus does not effect teens convicted of statutory rape prior to October 1, 2007. However, a law on erasure of criminal records appears to effectively eliminate the registration requirement for this population if the statutory rape conviction (or acquittal by reason of insanity) is the sole basis for registration. Neither the decriminalization nor erasure law specifically addresses sex offender registration.

Connecticut's sex offender registry law requires the Department of Public Safety (DPS) to maintain a registry of sex offenders and to provide the general public and other law enforcement agencies with information about people required to register. Offenders are required to register if they are convicted, or acquitted by reason of insanity, of four categories of offenses: (1) criminal offenses against a victim who is a minor, (2) nonviolent sexual offenses, (3) violent sexual offenses, and (4) felonies committed for sexual purposes. The requirement covers attempts, conspiracies, and criminal solicitations to commit offenses in the categories listed above (CGS §§ 54-251, -252 and -254).

Among other acts, criminal offenses against a victim who is a minor include sexual assaults involving sexual intercourse with:

1. someone age 13 to 15 if the offender is at least three years older;

2. someone under age 18 if the offender is the person's guardian;

3. a student under age 18 if the offender is a school employee;

4. someone under age 18 if the offender is a coach or instructor; and

5. someone under age 18 if the offender is age 20 or older and stands in a position of power, authority, or supervision over the person by virtue of the actor's professional, legal, occupational, or volunteer status (CGS § 53a-71(a) (1), (4), (8), (10), and (9)(b), as amended by PA 07-143).

The crime customarily referred to as “statutory rape” in Connecticut involves someone having sexual intercourse with a teen aged 13 to 15 when the offender is at least three years older (i.e., a violation of CGS § 53a-71 (a) (1)). Thus, statutory rape offenders must register as violators of a criminal offense against a victim who is a minor. These offenders register for 10 years for a first offense and for life for subsequent offenses (CGS § 54-251).

Statutory rapists' duty to register was statutorily established by the General Assembly; thus, the General Assembly can eliminate it. In fact, the law currently gives courts the authority to exempt statutory rapists from registration if they were under age 19 at the time of the offense and registration is not required for public safety (CGS § 54-251 (b)).

Although the federal Adam Walsh Child Protection and Safety Act of 2006 (hereafter referred to as the “Adam Walsh Act”) (P. L. 109-248) imposes a 10% reduction in Byrne grant funding on states that do not meet the act's minimum sexual offender registration and notification standards by July 27, 2009, it appears that the state could eliminate registration requirements for those convicted of statutory rape without triggering a grant reduction. A provision in the Walsh Act states that offenses involving consensual sexual conduct are not sex offenses within the meaning of the registration law if the victim was at least age 13 and the offender was not more than four years older (42 USC § 16911 (5) (c)). Thus under the federal act, offenders of Connecticut's statutory rape law do not have to be included in the state's registry in order for the state to receive federal funding.

Even if the legislature does not repeal the registration requirement for statutory rape offenders, it appears that the operation of the state's erasure statute may end registration requirements for certain statutory rapists.

In 2007, the General Assembly passed PA 07-143, An Act Concerning Jessica's Law and Consensual Sexual Activity Between Adolescents Close in Age to Each Other. Beginning October 1, 2007, the act decriminalizes consensual sexual activity between teenagers close in age by increasing, from two to three years, the age difference between the two before the older teen is guilty of second-degree sexual assault (i.e., statutory rape). The act applies when the younger teen is at least age 13 but under age 16.

As stated earlier, statutory rapists are required to register as sex offenders. The decriminalization statute is prospective in application and thus, on its own, has no effect on past convictions. However, an erasure statute appears to eliminate the registration requirement for sex offenders required to register based solely on a statutory rape conviction, although it does not specifically address registration.

Under the erasure law, offenders convicted of acts that are no longer criminal in this state may to have their records erased. They must file the petition with the court that convicted them, the court with custody of the records of the conviction, or the Judicial Department's Records Center when the conviction occurred in the Court of Common Pleas, Circuit, Municipal Court, or by trial justice. The court must order the physical destruction of all police, court, and prosecution records related to the conviction (CGS § 54-142d). Since the State Police (1) is the repository of records that must be filed by sex offenders, including criminal history records and (2) maintains the sex offender registry, it appears that the State Police would be required to physically destroy registration records related to the statutory rape conviction. Thus, it appears that sex offenders required to register based solely on a statutory rape conviction would no longer have to do so.

According to Judicial Department liaison Deborah Fuller, the department has not received any petitions for erasure based on decriminalization. Fuller stated it is unclear what a petition would need to include for erasure. Lieutenant Sam Izzarelli, commanding officer of DPS' Sex Offender Registry Unit, stated that his unit would comply with any order regarding erasure.


June 27, 2008		2008-R-0373
SEX OFFENDER REGISTRATION

By: Sandra Norman-Eady, Chief Attorney