Talking Points on Megan's Law Bill 11/28/99
PDF version of the above document 01/05/99
GLAA, Allies Push Essential Amendments to Megan's Law BillNovember 28, 1999
[Note: On December 7th, the DC Council will consider a new Megan's Law, the Sexual Offender Registration Act of 1999 (Bill 13-350). The original Sex Offender Registration Act (SORA) provided for an administrative agency to assess the risk that the offender would commit new sexual crimes and the appropriate level of community notification. The agency was never funded, and never performed any risk assessment. The new bill would establish an offense-based sex offender registry, with no risk assessment, and would establish offense-based levels of community notification.
The following is a summary of amendments sought by GLAA, ACLU of the National Capital Area, and the Public Defender Service (PDS), in cooperation with Councilmembers Jim Graham and Jack Evans. The purpose of the amendments is to ensure that the registry is restricted to those who were convicted of violent sex offenses and offenses against minors (as the federal law intended), as well as to ensure due process and to place custody of the registry under a District agency rather than a federal one. These talking points were drafted by Steve Block of ACLU/NCA after extensive discussions with GLAA, Councilmember Graham, and PDS. Thanks to Steve, Jeff Berman of PDS, Councilmembers Graham and Evans, and the Gertrude Stein Democratic Club for their help. It should be noted that the ACLU opposes Megan's Laws as violative of the U.S. Constitution's proscription of double jeopardy and ex post facto legislation; ACLU/NCA has nonetheless helped draft these amendments in an effort to minimize the bill's potential harm.]
1. Dispute Resolution Procedures in the Superior Court. Megan's laws have been upheld as regulatory schemes to provide community notification of the presence of persons likely to commit serious sexual offenses. Courts have ruled that a person must be permitted to demonstrate that he or she does not present a continuing danger to society. Statutes that did not provide persons an opportunity to challenge the requirement to register or the level of public notification have been struck down as violative of the constitutional requirement for due process.
The bill must therefore afford persons the opportunity to petition the Superior Court to rule that, because they are not continuing dangers to society, (1) they are not required to register under the act or (2) the Metropolitan Police Department's determination as to the level of community notification is not appropriate.
2. Misdemeanor Sexual Offenses. Megan's laws are intended to protect society from persons likely to commit serious sexual crimes, i.e., crimes of sexual violence and sexual crimes against children. Except where misdemeanor sexual offenses are committed against children, misdemeanors have no place in this bill. Misdemeanor offenses have been used to charge gay men entrapped in undercover sting operations. Gays should not be doubly punished by being subjected to registration on the basis of a resulting misdemeanor conviction.
Specifically, Misdemeanor Sexual Abuse, D.C. Code § 22-4106, should be deleted as a registration offense except when committed against a minor. In addition, the misdemeanor of simple assault should be deleted, except when committed against a minor.
3. MPD as the Legal Custodian of the Registry. Our commitment to home rule principles for the District of Columbia mandates that MPD rather than a federal agency, CSOSA, should have the legal responsibility for the registry. This is not simply a matter of form, as MPD is subject to the orders of the Superior Court whereas CSOSA is not. The CSOSA should perform the ministerial duties in support of MPD (collect and update the registration information, etc.), but the legal responsibility for the process must be vested in MPD.
4. Classification Scheme for Community Notification: The rules concerning the level of community notification are critical to the purposes of the statute and should be enacted as part of the bill in the normal legislative process. Any changes to the rules must be subject to the same process.
5. Immunity and Right to a Cause of Action: The bill provides for good faith immunity, recognizing that there is a private right of action for intentional violations of the act. But the next paragraph states that no private right of action is created, thus effectively establishing absolute immunity. The bill must recognize a limited right of action.
[Note on Judiciary Committee markup of 11/15/99: The meeting was opened by Judiciary Committee Chairman Harold Brazil with committee members Jack Evans, Kevin Chavous, and Sharon Ambrose present. Committee member Vincent Orange was absent. Councilmember Jim Graham, while not a committee member, attended the meeting and was permitted to speak after Brazil initially said that only committee members could speak. Prior to the meeting, Chavous had separately told Graham, Evans, and GLAA Public Safety Chair Rick Rosendall that he would support the amendments, which were all opposed as hostile amendments by Brazil. However, when Evans introduced the amendment on dispute resolution, Chavous expressed opposition to it, then left the meeting and did not return until the meeting was over. Ambrose also opposed the amendment. Lacking sufficient votes, Evans withdrew it. He then introduced the amendment on misdemeanors, which Ambrose also opposed. Evans then caucused with Graham and the groups supporting the amendments and decided that, lacking sufficient votes in committee, he would withdraw the pending amendment and would not offer any of the other amendments at the markup. The bill was then formally reported out of committee.
Throughout the November 15 markup, our efforts were repeatedly mischaracterized and distorted by Judiciary Chair Harold Brazil, who seeks to impose on the District the views of the U.S. Attorney's Office, which go well beyond the mandate by the U.S. Congress. Our plan now is to push for these amendments at the first reading of the bill during the Council's December 7 legislative session. Briefings and lobbying efforts with councilmembers will be conducted the week of November 29. For more information or to help in this effort, please call GLAA at 202-667-5139.]