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Sex-offender treatment variations are constitutional

Virginia Lawyers Weekly//February 8, 2022

Sex-offender treatment variations are constitutional

Virginia Lawyers Weekly//February 8, 2022

Where Virginia’s sex-offender registry law allows an offender who is charged with “carnal knowledge of a child” to be removed from the registry in time if he is less than five years older than his victim, but not if he is charged with “taking indecent liberties with children,” the differing treatment doesn’t violate the Equal Protection clause. The government has a legitimate interest in not imposing its harshest collateral consequences on children.


Two months after he turned 18, John Doe was caught having sex with his 14-year- old girlfriend. Doe could have been charged with “carnal knowledge of a child,” a Class 4 felony that prohibits sex with 13- and 14-year-old children. But instead he was charged with and pleaded to a lower-class felony, “taking indecent liberties with children,” which only prohibits behavior like propositioning a child for sex.

Under Virginia’s sex-offender registry law, when an offender is less than five years older than his victim, he may be removed from the registry in time. But that mitigating exception only applies to carnal knowledge, and not to indecent liberties. Because of that oddity, Doe will spend the rest of his life on Virginia’s sex-offender registry with no hope for relief.

Doe—now in his 30s—sued, hoping to persuade a court to remove him from that registry and its burdens. The district court dismissed Doe’s federal claims for failure to state a claim and declined to exercise supplemental jurisdiction over the state claims.

Equal protection

Doe’s equal protection claim focuses on the differential treatment created by the beneficial application of the Romeo-and-Juliet provision to offenders convicted of carnal knowledge while no Romeo-and-Juliet provision applies for those convicted of indecent liberties. So to make out an equal protection claim, Doe—having been convicted of indecent liberties—must prove that he is similarly situated to someone convicted of carnal knowledge. Then he must show that the distinction in the sex-offender registry between that crime and indecent liberties fails rational-basis review. Assuming, without deciding, that Doe may be similarly situated to offenders convicted of carnal knowledge, he fails to make the exceptional showing required to defeat a state law under rational-basis review.

Carnal knowledge can involve 15-, 16- and 17-year-old offenders while indecent liberties only ever involves offenders over 18. The court does not doubt that the government has a legitimate interest in not imposing its harshest collateral consequences on children, even children who commit serious felonies. And this five-year-gap provision is at least rationally related to that purpose. It ensures that, even though children can be charged and convicted of carnal knowledge, they will not become Tier III offenders on the sex-offender registry. That is enough to uphold this distinction.

Eighth Amendment

Doe also claims that his placement on the Virginia sex-offender registry violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Because the clause only regulates “punishments,” the court must begin its analysis by determining whether Virginia’s sex-offender registry is “punishment” before moving on to consider whether it is cruel and unusual.

The Supreme Court has created a two-part test for determining whether a statute imposes punishment. First, the court must ask if the legislature intended to inflict punishment, which is a question of statutory interpretation. If the intent was punitive, that is end of the inquiry. If not, the court then must look to the effects of the law. If the effects are punitive, they may override the legislature’s intent, but the court must give deference to the legislature on this point, and will require “the clearest proof” to overturn those intentions. Here, the Virginia sex-offender registry is not a punishment at either step. Therefore, the Eighth Amendment claim was properly dismissed.

Remaining claims

Doe also brings claims under a federal substantive due process theory and under the Virginia Constitution. A substantive due process challenge is considered under rational-basis review unless some fundamental right is implicated. The court holds that Virginia’s sex-offender registry is rationally related to the legitimate public interest in public safety because it “alert[s] the public to the risk of sex offenders in their communit[y].” Finally, because the court agrees with the district court’s dismissal of Doe’s federal claims, it also agrees with the district court’s dismissal of his state claims.


Doe v. Settle, Case No. 20-1951, Jan. 28, 2022. 4th Cir. (Richardson), from EDVA at Norfolk (Jackson). Kenton Craig Welkener Jr. for Appellant. Michelle Shane Kallen for Appellee. VLW 022-2-026. 38 pp.

VLW 022-2-026

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