Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant was convicted of “computer-aided solicitation of a minor” under a Louisiana statute and was required to register as a sex offender, the conviction is best understood as a “sexually violent offense” for purposes of his Virginia conviction of being a violent sexual offender who entered school property.
Appellant’s argument
“Watson-Buisson argues that his classification as a sexually violent offender violates the Equal Protection Clause by creating more onerous registration requirements for out-of-state offenders than for Virginia offenders.
“Requiring out-of-state offenders to register as a ‘sexually violent offender’ in Virginia for any offense requiring registration, even if the offense was not ‘sexually violent’ in Virginia, he argues, infringes his constitutionally protected right to travel and burdens out-of-state offenders.”
No facial challenge
“[W]e first conclude that Watson-Buisson cannot raise a facial challenge to the statute. ‘A facial challenge … is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.’ …
“The Supreme Court has explained why abstract facial challenges are disfavored: ‘Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.”
“‘Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “anticipate a question of constitutional law in advance of the necessity of deciding it” nor ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’
“‘Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.”’ …
“Watson-Buisson does not meet the criteria to mount a facial challenge to the statute.”
No ‘as-applied’ challenge
“We … turn to whether he can prevail in an ‘as-applied’ challenge. We conclude that Watson-Buisson’s as-applied challenge fails at the threshold.
“Although it may not have been originally persuaded, the trial court rejected Watson-Buisson’s motion to vacate his conviction, concluding that the Louisiana crime of computer-aided solicitation of a minor was ‘comparable’ to the Virginia crime of taking indecent liberties with a child. We agree.
“Consequently, Watson-Buisson cannot show an equal protection violation. Although both statutes contain multiple subparts, the mental state and actions required for conviction under both statutes are highly similar.
“To be sure, there are some differences between the two. Many of the differences are minor. The Louisiana statute allows conviction when an adult targets a minor to engage in either sexual conduct or ‘a crime of violence.’ La. Stat. Ann. § 14:81.3(A)(1). The indecent liberties statute, Code § 18.2-370, does not reference a ‘crime of violence.’ For purpose of equal protection review, however, ‘similarly situated does not mean identical.’ …
“Our comparison of the Louisiana statute under which Watson-Buisson was convicted and Code § 18.2-370 leads us to conclude that the statutes are indeed similar. Therefore, Watson-Buisson was not treated differently than a Virginia defendant who is convicted of a similar crime in Virginia.
“Consequently, he suffered no ‘as-applied’ equal protection violation. His Louisiana conviction of ‘computer-aided solicitation of a minor’ in violation of La. Stat. Ann. § 14:81.3 constituted a proper predicate ‘sexually violent offense’ for conviction.”
Affirmed.
Watson-Buisson v. Commonwealth, Record No. 200955 (Unpublished Order) Oct. 7, 2021. Upon an appeal from a judgment rendered by the Court of Appeals of Virginia. VLW 021-6-066, 5 pp.
