Sexual Registration is a Bad Idea - Sometimes (9/10/99)
A few years back, a child named Ashley Estelle of Plano was abducted from a park near Plano and murdered. The defendant who committed the act had been hanging around parks in the city and driving a vehicle whose trunk contained a variety of stuffed animal toys. As horrifying as that event was, the legislature opened up both barrels on that breed of defendant and mandated that all sexual offenders, whether on parole or on probation, register with a local law enforcement agency. Those registration lists are now readily available on the Internet. As of September 1, 1999, a picture of the defendant will be posted as well.

A good idea in principle. A bad idea in practice.

Take for example the offense of Indecency with A Child. Sounds horrific and I'm sure you envision some young child abducted off the street who is then subjected to indecent acts against her will at some remote location. But that is not necessarily so.

Indecency with a child, in part, is the touching of the breast of a person younger than seventeen years of age with the intent or desire to arouse or gratify the sexual desire of any person. Nothing more. Nothing less.

With that definition in mind, consider this scenario. An eighteen year old high school senior is dating a fifteen year year old high school sophomore. One weekend night the older boy touches the breast of his girlfriend. She being young, immature, and in love, allows him to do so. Ladies and gentleman, that high school senior has just committed the second degree felony of indecency with a child.

And he has no legally recognized defense.

There is no legal exception of "unless they are boyfriend and girlfriend, think they are in love, and are pretty good kids". No. The conduct of the young man meets the legal requirements of the statute, and (since everyone is screaming about the "rule of law" in wake of the Clinton scandal) the law says a felony offense has been committed.

Now if the girl's father catches them in the act, calls the police, and the boy confesses to his overzealous hormone driven action, what would you have the legal system do with him? More specifically, what do you want me to do?

I suspect that most of you don't want the boy to go to jail. Even probation sounds a little harsh, but you might go for that. Well, do you want him to have a felony conviction? I suspect you will say no. Ok, fine, there is a special probation that would allow him to keep the conviction off of his record called deferred adjudication. Ok, you say, now we're getting somewhere.

Finally, do you want the boy to be required to register as a sex offender at the Wise County Sheriff's Office and have his picture plastered on the Internet with the caption of "Indecency With A Child" under his name? I feel confident in saying that everyone in the county (with the exception of the fifteen year old girl's father) would say "absolutely not". Unfortunately, we don't have a choice.

Every defendant who is placed on probation, even if it is deferred adjudication, for the offense of Indecency With a Child is required to register as a sex offender. Once again, there is no exception.

In the end, if I offer a plea agreement of two years deferred adjudication that the boy accepts, he will be required to register. Quite frankly, I'm not going to do that to him. I am not going allow that young man's life to be ruined because of poor judgment on a Saturday night. Instead, I'll have to be creative to find some offense to charge him with (if any at all) which is more appropriate than Indecency with a Child. (And then, of course, be accused during breakfast at Matties of making back room deals with pedophiles).

The laws about sexual registration should be a wake up call in several areas. First, a mandatory punishment is never a good idea. (I suspect many people advocated, until they considered all the factual scenarios, a mandatory life sentence without parole for those who commit the offense of Indecency With a Child). Secondly, before you run a registered sex offender out of town, you might want to make an effort to determine exactly what he did. Thirdly, be careful of any politician / lawmaker that ignores the collateral implications of laws that she supports but is willing to reference that very same law in her resume for the sake of self promotion.

Barry Green is the District Attorney for the 271st Judicial District.

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