Case No. 10-54321
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE,
Petitioner,
v.
UNITED STATES of America,
Respondent.
On Appeal from the United States District Court for the Central District of California
BRIEF FOR PETITIONER
ATTORNEYS FOR PETITIONER
Team 102
QUESTIONS PRESENTED
I.
Is the evidence presented sufficient to support a conviction of John Doe for any crime
involving child pornography under 18 U.S.C. 2252A when the alleged victim
consented to having her nude picture taken in a joint attempt to mimic a classic
painting, John Doe did not give any direction regarding positioning, and the focal
point of the picture was not the pubic area?
II.
Should teenagers engaging in consensual sexting be exempted from registration
requirements under the Sex Offender Registration and Notification Act when the Act
does not address sexting and both the legislative history and policy arguments suggest
that Congress did not intend for them to register?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED……………………………………………………………………..i
TABLE OF CONTENTS………………………………………………………………………..ii
TABLE OF AUTHORITIES…………………………………………………………………...iv
OPINIONS BELOW…………………………………………………………………………...vii
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED…………………..vii
STATEMENT OF JURISDICTION………………………………………………………….vii
STATEMENT OF THE CASE………………………………………………………………….1
A. Statement of Facts………………………………………………………………………..1
B. Procedural History……………………………………………………………………….2
SUMMARY OF THE ARGUMENT...........................................................................................3
ARGUMENT…………………………………………………………………………………….5
I.
The Evidence Was Insufficient To Support A Conviction Of John Doe For Any
Crime Involving Child Pornography Under 18 U.S.C. § 2252A Because The
Photos Were Not Child Pornography And The Statute Was Not Intended To
Address The Alleged Harm…………………………………………………….........5
A. The Pictures In Controversy Are Not Of Sexually Explicit Conduct And
Therefore Are Not Child Pornography…………………………………………5
B. John Doe Cannot Be Convicted Under 18 U.S.C. § 2252A(a)(3)(B) Because
He Did Not Advertise Or Promote The Transferred Material As Child
Pornography…………………………………………………………………….11
C. The Pictures Are Not Child Pornography Because Consensual Sexting Does
Not Involve Any Of The Harms Child Pornography Statutes Seek To
Prevent…………………………………………………………………………..12
II.
John Doe Should Not Be Required To Register As a Sex Offender Under The
Sex Offender Registration And Notification Act Because Congress Did Not
Intend For The Requirement To Extend To The Conduct At Issue and The
Requirement Is Excessive Punishment For This Type Of Innocent Behavior….14
ii
A. While SORNA Invokes Broad Language, Congress Intended For The Statute
To Apply Only To Adult Predators, And Not The Type of Behavior Between
Minors At Issue In This Case…………………………………………………..16
i. SORNA’s Failure to Address Teenagers Engaging in Sexting Renders
The Statute Ambiguous On This Matter………………………………..17
ii. The Legislative History Indicates That SORNA Should Apply Only To
Adult Predators………………………………………………………….19
B. Requiring John To Register As a Sex Offender Is An Overly Harsh
Punishment With Severe Consequences In Light Of The Consensual Actions
That Occurred…………………………………………………………………..20
i. Our Society Identifies Moral Blameworthiness As An Important
Element In The Determination Of Punishment For Crimes – An
Element Lacking In This Case………………………………………….22
ii. Registering As a Sex Offender Poses Harsh Consequences That Will
Unfairly Affect John’s Life……………………………………………...23
CONCLUSION…………………………………………………………………………………25
APPENDIX………………………………………………………………………………………..I
iii
TABLE OF AUTHORITIES
United States Supreme Court Cases:
Miller v. California, 413 U.S. 15 (1973)………………………………………………………...12
New York v. Ferber, 458 U.S. 747 (1982)……………………………………………………..7,12
Osborne v. Ohio, 495 U.S. 103 (1990)6,………………………………………………………7,11
U.S. v. Williams, 553 U.S. 285 (2008)………………………………………………………..11,12
Federal Circuit Court Cases:
U.S. v. Brown, 579 F.3d 672 (6th Cir. 2009)……………………………………………………...9
U.S. v. Guzman, 591 F.3d 83 (2d Cir. 2010)………………………………………….............19,24
U.S. v. Helton, 302 Fed. Appx. 842 (10th Cir. 2008)……………………………………………..9
U.S. v. Rivera, 546 F.3d 245 (2d Cir. 2008)…………………………………………………...8,10
U.S. v. Villard, 885 F.2d 117 (3d Cir. 1989)…………………………………………………6,7,11
U.S. v. Wiegand, 812 F.2d 1239 (9th Cir. 1987)………………………………………………...5,6
U.S. v. Wolf, 890 F.2d 241 (10th Cir. 1989)………………………………………………………7
Federal District Court Cases:
A.H. v. State, 949 So. 2d 234 (Fla. Dist. Ct. App. 2007)………………………………………...13
Doe v. Chamberlain, 139 F. Supp. 2d 637 (M.D. Pa. 2001)……………………………………7,8
Faloona v. Hustler Magazine, Inc., 607 F. Supp. 1341 (N.D.Tex. 1985)……………………….11
U.S. v. Campbell, 2010 U.S. Dist. LEXIS 88562 (D. Neb. 2010)……………………………13,14
U.S. v. Cunningham, 680 F. Supp. 2d 844 (N.D. Ohio 2010)…………………………………...14
U.S. v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986)……………………………………………...3,5,6
U.S. v. Grant, 434 F. Supp. 2d 735 (D. Neb. 2006)……………………………………………...14
iv
U.S. v. Hall, 35 F. Supp. 2d 1193 (E.D. Cal. 1998)………………………………………….......10
U.S. v. Smith, 481 F. Supp. 2d. 846 (E.D. Mich. 2007)………………………………………….17
U.S. v. Villard, 700 F. Supp. 803 (D.N.J. 1988)…………………………………………………..6
Statutes:
18 U.S.C. § 2252A…………………………………………………………………………..passim
18 U.S.C. § 2252A(a)(3)(B)………………………………………………………………..3,11,12
18 U.S.C. § 2256(2)(B)(iii)…………………………………………………………………….6,11
18 U.S.C. § 2256(8)(b)……………………………………………………………………………6
42 U.S.C. § 16901 et seq. (2010)……………………………………………………………passim
Other Authorities
152 Cong. Rec. S6729, S6729-30 (2006)…………………………………………..……..14,15,18
152 Cong. Rec. S8012-02, S8021 (2006)………………………………………………………..18
153 Cong. Rec. H 135915 (2008)…………………………………………………………………5
Bryn Ostrager, SMS. OMG! LOL! TTYL: Translating the Law to Accommodate Today’s
Teens and the Evolution from Texting to Sexting, 48 Fam. Ct. Rev. 712 (Oct. 2010)…………...13
Donna St. George, 6,473 Texts a Month. But at What Cost? Constant Cellphone
Messaging Keeps Kids Connected, Parents Concerned, Wash. Post,
Feb. 22, 2009, at A1………………………………………………………………………...…....20
Effective Child Pornography Prosecution Act, Pub. L. No. 110-358, § 102(3), 122 Stat.
4001 (Oct. 8, 2008)………………………………………………………………………………13
Elizabeth C. Eraker, Stemming Sexting: Sensible Legal Approaches to Teenagers’
Exchange of Self-Produced Pornography, 25 Berkeley Tech. L.J. 555 (2010)…………………21
Herbert L. Packer, The Limits of the Criminal Sanction 66 (Stanford Univ.
Press 1968)……………………………………………………………………………….............22
Hunter, J.A., Understanding juvenile sex offenders: research findings & guidelines
for effective management & treatment, Juvenile Justice Fact Sheet, Charlottesville, VA:
Institute of Law, Psychiatry, & Public Policy, UVA (2000)…………………………………….24
v
Jacqueline Canlas-LaFlam, Has Georgia Gone Too Far- Or Will Sex Offenders Have
To? 35 Hastings Const. L.Q. 309 (2008)……………………………………………………..23,24
Jennifer Ann Drobac, Sex and the Workplace: “Consenting” Adolescents and a Conflict
of Laws, 79 Wash. L. Rev. 471 (May 2004)………………………………………………………5
John Shepard Wiley, Jr., Not Guilty by Reason of Blamelessness: Culpability in
Federal Criminal Interpretation, 85 Va. L. Rev. 1021 (1999)…………………………………..22
Matthew Keys, Sexting Shatters Lives, Turns Children Into Sex Offenders, KFOR-TV
(2009), http://www.kfor.com/lifestyle/parenting/ktxl-news-sexting0814,0,2588437.story….20,21
Michael Moore, Placing Blame: A General Theory of the Criminal Law 91 (Oxford
Univ. Press 1997)………………………………………………………………………………..22
Prosecutorial Remedies and Other Tools to End the Exploitation of Children
Today Act (“PROTECT Act”), Pub.L. 108-21, 117 Stat. 650 (2003)…………………………….6
Sarah Westler, The Harm in Sexting? Analyzing the Constitutionality of Child
Pornography Statutes that Prohibit the Voluntary Production, Posession, and
Dissemination of Sexually Explicit Images by Teenagers, 33 Harv. J.L. & Gender
687 (2010)………………………………………………………………………………………..13
Sex and Tech: Results from a Survey of Teens and Young Adults, The National
Campaign to Prevent Teen and Unplanned Pregnancy, (2008), available at
http:// www.thenationalcampaign.org/sextech/PDF/SexTech_Summary.pdf………………..21,23
Stephen F. Smith, Proportionality and Federalization, 91 Va. L. Rev. 879 (2005)…………15,20
The National Guidelines for Sex Offender Registration and Notification, 73 Fed, Reg.
38,030, (July 2, 2008)………………………………………………………………………...16,19
vi
OPINIONS BELOW
The opinion of the United States District Court for the Central District of California is
unreported. Its judgment and opinion are provided in the Record. (R. at 1-7.)1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The statutory provisions involved in this litigation include 18 U.S.C. § 2252A and 42
U.S.C. §§ 16901 et seq., the Sex Offender Registration and Notification Act (“SORNA”).
STATEMENT OF JURISDICTION
Petitioner, John Doe, appeals the decision of the United States District Court for the
Central District of California. The district court had jurisdiction pursuant to 18 U.S.C. § 3231.
Petitioner’s application was timely filed and was granted pursuant to 18 U.S.C. § 1291.
1
“R” refers to the Record on Appeal.
vii
STATEMENT OF THE CASE
A. Statement of Facts
John Doe, a 17-year-old high school senior, came across two paintings on the Internet:
the Clothed Maja and the Nude Maja. (R. at 2.) The paintings are two of Francisco Goya’s most
famous works and are on display at the Prado Museum in Madrid. (R. at 2.) While both
paintings portray a young woman in a reclining pose, the subject in the Nude Maja is entirely
unclothed and in a position exhibiting full frontal nudity, including the pubic area. (R. at 3.)
John found the paintings particularly striking because his girlfriend, 15-year-old Jane
Coe, resembled the woman captured in the works.
(R. at 3.)
Jane also recognized the
resemblance she bore to the painting, both in face and figure. (R. at 3.) As such, John asked
Jane to pose for pictures like the woman in the paintings. (R. at 3.)
Both John and Jane had heard that some of their classmates at their Orange County,
California high school had sent sexually explicit pictures of themselves to each other. (R. at 2.)
Jane initially refused to pose nude; thus, the first set of pictures taken by John capture Jane
wearing clothes similar to those in the painting of the Clothed Maja. (R. at 3.) Jane posed for
the photos in her own bedroom while John took the pictures on his cellular telephone camera.
(R. at 3.) No one else was in the house when the photos were taken. (R. at 3.)
John and Jane were pleased with the pictures. (R. at 3.) Subsequently, John tried to
persuade Jane to pose nude like the Nude Maja. (R. at 3.) Jane hesitated, but John promised that
the pictures would be kept between them. (R. at 3.) Eventually, Jane agreed to pose nude and
John took three pictures replicating the Nude Maja. (R. at 3.) After the photos were taken, John
e-mailed them to Jane. (R. at 3.)
1
A few days after the photos were taken, John received a text message from Fred, a
classmate and friend, containing pictures of a nude woman he had found on the Internet. (R. at
3.) John responded, “hey i’ve [sic] got something even hotter take a look at these,” and attached
the three nude pictures of Jane. (R. at 3.) When Fred saw Jane at school the next day, he
remarked that she looked “really hot” in the photos and that he understood why she was John’s
girlfriend. (R. at 3.) Embarrassed, Jane contacted John after school about sending the pictures to
Fred. (R. at 3.) Jane’s mother overheard the conversation and contacted Jane’s father at his
office about the photos. (R. at 3.) The next day, Jane’s parents informed the Attorney General’s
office, who subsequently charged John with reproducing, transporting, and distributing child
pornography in violation of 18 U.S.C. § 2252A. (R. at 3.)
B. Procedural History
John Doe was convicted in the District Court for the Central District of California for
violation of 18 U.S.C. § 2252A with regard to child pornography. (R. at 1-7.) The district court
found that although the photos were not obscene, they were depictions of an actual minor
engaging in sexually explicit conduct. (R. at 5.) After examining John Doe’s actions and
comparing them to those of other sex offenders convicted of other sex crimes, the district court
exercised judicial discretion and sentenced John Doe to five years of probation. (R. at 5.) As a
result of John Doe’s conviction under 18 U.S.C. § 2252A, the district court required John to
register as a Tier II sex offender. (R. at 6.) To qualify as a Tier II sex offender, a person must
have committed an offense punishable by imprisonment for more than one year and comparable
to, or more severe than, an enumerated offense, such as sex trafficking or solicitation of a minor.
42 U.S.C. § 16911(3). John Doe appeals the district court’s decision.
2
SUMMARY OF THE ARGUMENT
John Doe’s decision to engage in consensual sexting with his girlfriend does not
implicate 18 U.S.C. § 2252A such that John can be found guilty of any crime involving child
pornography that requires him to register as a sex offender under 42 U.S.C. §§ 16901 et. seq., the
Sex Offender Registration and Notification Act (“SORNA”). Accordingly, this Court should
reverse the decision of the District Court for the Central District of California.
In order for the image in controversy to constitute child pornography under 18 U.S.C. §
2252A, there must be a lascivious exhibition of the genitals. Pursuant to the analysis prescribed
in U.S. v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), the image of Jane Coe was not lascivious
because it did not focus on the genitals and it was not intended to elicit a sexual response in the
viewer. Additionally, the setting is not sexually suggestive because it is unknown, and the pose
was not unnatural or sexually suggestive. Moreover, John Doe cannot be convicted under 18
U.S.C. § 2252A(a)(3)(B) for advertising or promoting child pornography because that was not
the harm alleged.
Furthermore, the harms associated with child pornography and the reasons for its
prohibition are not present in cases involving consensual sexting among teenagers. Unlike
typical child pornography cases, there was no sexual abuse in the production of the photos of
Jane Coe so that she is not revictimized with each viewing. Child pornography laws are not
meant to protect harms associated with the lawful exercise of free speech. There are, therefore,
no countervailing policy reasons for finding that the photos of Jane Coe constitute child
pornography.
Regardless of the finding under 18 U.S.C. § 2252A, teenagers engaging in consensual
sexting should not be required to register as sex offenders under SORNA.
3
SORNA’s
comprehensive registration requirement for convicted sex offenders serves to protect children
from violent adult predators. While SORNA employs broad language, it does not address
consensual sexting among teenagers. Both SORNA’s legislative history and the guidelines
issued by the Attorney General support the argument that consensual teen sexting is outside the
scope of SORNA. Congress intended SORNA to apply to adult predators engaging in serious
and violent crimes against children. John Doe was a minor when he took photographs of his
girlfriend. He did not engage in any sort of violent crime. If John and his girlfriend were adults
or if they had engaged in sexual conduct, their behavior would have been legal under SORNA.
Congress intended to address violent, abusive crimes toward children under SORNA – not the
consensual conduct John and Jane engaged in.
Requiring teens to register as sex offenders is an overly harsh punishment. American
jurisprudence places great importance on moral blameworthiness as a prerequisite to punishment.
This requirement cannot be met in the instant case because sexting is a widespread phenomenon
among teenagers. The instant case epitomizes this trend as John Doe took photographs of his
girlfriend and then sent them via cellphone and e-mail. Additionally, requiring John to register
as a sex offender for this widespread behavior is overly harsh when the consequences of
registration are examined. SORNA is geared towards adults, and therefore the consequences
affect teenagers more severely because of their age and social dynamics.
This Court should, therefore, reverse the decision of the district court and hold that there
is insufficient evidence to convict John of any crime involving child pornography and that John
should not be required to register as a sex offender.
4
ARGUMENT
I. The Evidence Was Insufficient To Support A Conviction Of John Doe For Any
Crime Involving Child Pornography Under 18 U.S.C. § 2252A Because The Photos
Were Not Child Pornography And The Statute Was Not Intended To Address The
Alleged Harm.
The evidence presented was insufficient to support a conviction under 18 U.S.C. §
2252A, and, therefore, the conviction should be overturned because the lower court’s findings
were clearly erroneous. U.S. v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987). Although Jane is
a minor, and although the photographs transmitted over the Internet affected interstate
commerce, 153 Cong. Rec. H 13591 (2008) ([t]he transmission of child pornography using the
Internet constitutes transportation in interstate commerce.), John Doe's conviction for
transporting, distributing, reproducing, or promoting child pornography should be reversed
because the photographs themselves were not child pornography. Additionally, the statute’s
purpose is to protect children from sexual abuse, not to prevent consensual sexual relations
among minors, which in many states is legal. Jennifer Ann Drobac, Sex and the Workplace:
“Consenting” Adolescents and a Conflict of Laws, 79 Wash. L. Rev. 471, app. A (May 2004)
(43 states have age of consent laws that allow some minors to have sex in at least some
circumstances).
A. The Pictures In Controversy Are Not Of Sexually Explicit Conduct And
Therefore Are Not Child Pornography.
The district court’s conviction of John Doe for distribution and transportation of child
pornography should be reversed because the photos are not visual depictions of Jane Coe
engaging in sexually explicit conduct. Moreover, because under the Dost factors there is not a
5
visual lascivious exhibition of the pubic area, the photos are not child pornography. Dost, 636 F.
Supp. at 832.
The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today
Act (“PROTECT Act”), Pub.L. 108-21, 117 Stat. 650 (2003), was enacted to prevent the sexual
exploitation of children. The PROTECT Act includes in its definition of child pornography any
visual depiction produced using an actual minor engaged in “sexually explicit conduct,” which in
turn is defined to include the “graphic or simulated lascivious exhibition of the genitals or pubic
area of any person.” 18 U.S.C. § 2256(8)(b); 18 U.S.C. § 2256(2)(B)(iii). The issue, then,
becomes distinguishing between “the innocent family photo . . . of a nude child and the
victimization of that child in the creation of child pornography.” U.S. v. Villard, 700 F. Supp.
803, 812 (D.N.J. 1988), aff’d 885 F.2d 117 (3d Cir. 1989); see Osborne v. Ohio, 495 U.S. 103,
112, n.11 (1990) (“[A] family friend’s possession of an innocuous picture of an unclothed infant.
. . . would not involve a ‘lewd exhibition or graphic focus on the genitals’ of the child.”).
The Ninth Circuit has adopted several factors to be examined in determining whether an
image depicts lascivious exhibition of the genitals or pubic area. U.S. v. Dost, 636 F. Supp. 828,
832 (S.D. Cal. 1986), aff’d sub nom. U.S. v. Wiegand, 812 F.2d 1239, 1243 (9th Cir. 1987). The
Dost factors are:
(1) whether the focal point of the visual depiction is on the child's genitalia or
pubic area; (2) whether the setting of the visual depiction is sexually suggestive,
i.e., in a place or pose generally associated with sexual activity; (3) whether the
child is depicted in an unnatural pose, or in inappropriate attire, considering the
age of the child; (4) whether the child is fully or partially clothed, or nude; (5)
whether the visual depiction suggests sexual coyness or a willingness to engage in
sexual activity; (6) whether the visual depiction is intended or designed to elicit a
sexual response in the viewer.
Id. The visual depiction of a minor must objectively constitute a lascivious exhibition, and the
determination will “have to be made based on the overall content of the visual depiction, taking
6
into account the age of the minor.” Id.; U.S. v. Villard, 885 F.2d 117, 125 (3d Cir. 1989) (citing
Villard, 700 F.Supp. at 812) (“When a picture does not constitute child pornography even though
it portrays nudity, it does not become child pornography because it is placed in the hands of a
pedophile”). Nudity alone is insufficient; the nudity must be a lascivious exhibition of the
genitals or pubic area to constitute child pornography. Osborne v. Ohio, 495 U.S. at 112 (citing
New York v. Ferber, 458 U.S. 747, 765, n.18 (1982)) (“We have stated that depictions of nudity,
without more, constitute protected expression.”).
Furthermore, more than one Dost factor must be present in order to establish a lascivious
exhibition. Villard, 885 F.2d at 122. In Villard, the court affirmed the conviction of the
defendant after finding all six factors indicated that the visual depiction was a lascivious genital
exhibition of a minor. Id. at 128. The court stated that more than one Dost factor, but less than
all six, is necessary to establish lasciviousness. Id. at 122. But see U.S. v. Wolf, 890 F.2d 241,
245, n.6 (10th Cir. 1989) (finding five Dost factors present and stating in a footnote in dicta, “We
do not hold that more than one Dost factor must be present,” which only means that the court did
not, and need not, decide at that time how many Dost factors would be necessary to find a
lascivious exhibition).
Additionally, courts will consider the sexuality and naturalness of the subject’s pose and
any attempted artistic creativity when determining the lasciviousness of a minor’s nude
exhibition. For example, in Doe v. Chamberlain, the court considered whether photographs of
underage girls at the beach and at a studio constituted child pornography. 139 F. Supp. 2d 637,
640 (M.D. Pa. 2001). The court applied the Dost factors and found that the photographs were
not child pornography. Id. at 642-45. The pubic areas of the minors were not the focal point of
any of the photographs, as there were no close ups or anything that would tend to draw the eye to
7
the pubic area of any of the minors. Id. at 642-43, 645 (“[T]he photographer did not move the
minors’ legs apart to emphasize or expose their pubic areas, nor did she use lighting, props or
other devices to draw the viewer’s attention to the pubic area of either subject.”). The court
stated that the second factor was not met because neither outdoor shower facilities nor the white
backdrop at the studio were generally associated with sexual activity. Id. at 643. The remainder
of the Dost factors were not met, except for the fourth factor inquiring into the nudity of the
minors, which was insufficient by itself. Id. at 643-44 (finding the third Dost factor was not met
as the minors were not posing in a coy or sexually suggestive manner because “the minors are
standing very naturally with their bodies and legs straight and with their feet close together.
Three of the four girls are standing in the position most people would adopt while showering.”).
The court also made note of the character and feel of the studio photos and noted that the photos
appear to have attempted to create images with artistic value. Id. at 646.
Unnatural or sexually suggestive poses are more likely lascivious if at the direction of the
creator or producer of the work. In U.S. v. Rivera, the defendant met a minor at a hotel room,
where he took photographs of the minor and subsequently engaged in sexual activity. 546 F.3d
245, 247 (2d Cir. 2008).
The defendant was charged and convicted with possession and
production of child pornography.
Id. at 248.
On appeal, the court found that all of the
photographs were lascivious under the Dost factors and affirmed the conviction. Id. at 250. The
court stated that the minor was nude and that his legs were spread with his genitals “prominent at
or about the center of the frame.” Id. The court also noted that the minor was on a bed, which is
typically associated with sexual activity. Id. The court further noted that the minor was in
unnatural poses, suggesting a sexual encounter, and that those poses were at the direction of the
defendant to elicit a sexual response in himself. Id. The court made an explicit point of
8
criticizing the fifth Dost factor and then refining it to state that a lascivious exhibition was one
set up by the photographer to suit his peculiar lust. Id. at 250. The court also discussed the sixth
Dost factor and suggested making a distinction in possessing potential child pornography, which
would be limited to the four corners of the image, and producing an image which would include
any sexual exploitation in its creation. Id. at 252.
In analyzing the sixth Dost factor, which examines whether the visual depiction is
intended to elicit a sexual response in the viewer, only contextual evidence directly related to the
circumstances in which the images were taken is relevant to evaluating subjective intent. U.S. v.
Brown, 579 F.3d 672, 683 (6th Cir. 2009). In U.S. v. Brown, the court noted that in determining
whether there was a lascivious exhibition of the genitals, the salient factors were the first and
sixth Dost factors. Id. at 681; see U.S. v. Helton, 302 Fed. Appx. 842, 844-45, 848 (10th Cir.
2008) (finding lasciviousness for clandestinely videotaping underage girls while they were in the
bathroom when the first, second, and sixth factors were present, but not the third, fourth, or fifth
factors and noting that lasciviousness is a characteristic of the producer or creator of the
exhibition, not of the child). The court found that one of the pictures was lascivious because it
depicted “one of the toddlers lying nude on a bed touching her genitals with her legs spread,” and
with the genitals as the focal point of the picture. Id. The court noted the difficulty in evaluating
the sixth Dost factor, highlighting the need to strike the proper balance in considering both
context and subjective intent evidence in determining intent of the photographer. Id. Too much
contextual evidence may unduly prejudice the defendant, while too little contextual evidence
may fail to consider evidence that may exculpate the accused, such as evidence that the images
are art. Id. If a court places too much emphasis on subjective intent of the photographer, a
seemingly innocuous photograph “might be considered lascivious based solely upon the
9
subjective reaction of the person viewing it.” Id. The court then decided that the proper balance
was to only consider factors that directly relate to the production of an image. Id.
While the intent of the creator is a factor, it is not a deciding one because the picture must
still elicit a sexual response or arouse sexual cravings of the pedophile viewer. U.S. v. Hall, 35
F. Supp. 2d 1193, *16-17 (E.D. Cal. 1998). In U.S. v. Hall, the defendant videotaped his
neighbors’ two boys. Id. at *9-10. In one segment, the boys were filmed changing with their
buttocks and genitalia visible for several seconds. Id. at 9. In the rest of the videotape they were
clothed, but with frequent close-up shots using the zoom lens of the boys clothed genitalia and
buttocks. Id. The court found that there was insufficient evidence that the defendant had
succeeded in producing a lascivious exhibition because the government had not proved by a
preponderance of the evidence that the overall content of the visual depiction “arouses the sexual
cravings of a pedophilic voyeur,” regardless of the defendant’s intent. Id. at 17.
Here, applying the Dost factors, the photographs taken by John Doe are not child
pornography because they are not lascivious exhibitions of a minor’s pubic area. The pubic area
is not the focal point of the picture and the photos do not draw the eye to the pubic area, nor does
the piece of art they were attempting to mimic, as compared to Rivera where the genitals were
close up and center framed. 546 F.3d at 250.
Furthermore, the location of the nude pictures is unknown. (R. at 3). Even if the nude
pictures were taken in the bedroom, it was not the product of trying to fulfill some peculiar lust;
it was a limitation of the artwork they were attempting to mimic. (R. at 3.) The pose of the
model in the Nude Maja is the posture many people have when lounging on a couch or bed, and
is not sexually suggestive or unnatural. (R. at 3.) Also, the pose was not at John’s direction; it
was a mirror of the pose of the woman in the Nude Maja. (R. at 3.) While the minor in the
10
photo was nude, this is in and of itself insufficient. Osborne v. Ohio, 495 U.S. at 112. There is
nothing other than the model’s nudity that suggests a sexual coyness or a willingness to engage
in a sexual activity.
Lastly, there is no evidence that the visual depiction was intended, designed or crafted to
elicit a sexual response in John Doe, especially when the purpose and goal was to mimic a
classic artistic masterpiece, a purpose from which he never deviated. (R. at 3.) John Doe took
three nearly identical pictures, all attempting to mimic the artistic masterpiece the Nude Maja.
(R. at 3.) This does not rise to the level described as lascivious under the Dost factors.
While, in retrospect, Jane may have been mortified and furious, this is not a relevant
inquiry for this Court, as the statute in question was not meant to protect children from making
mistakes, but to protect them from abuse. See 18 U.S.C. § 2256(2)(B)(iii). Likewise, John’s
friend Fred’s reaction is equally irrelevant, because otherwise innocent photos do not become
child pornography simply by virtue of the one in possession of the photos. Villard, 885 F.2d at
125 (citing Faloona v. Hustler Magazine, Inc., 607 F. Supp. 1341 (N.D.Tex. 1985)). Photos are
not innocent one day and child pornography the next.
Based upon the foregoing, therefore, John Doe cannot be convicted for transporting,
distributing, or reproducing under 18 U.S.C. § 2252A(1), (2), or (3).
B. John Doe Cannot Be Convicted Under 18 U.S.C. § 2252A(a)(3)(B) Because
He Did Not Advertise Or Promote The Transferred Material As Child
Pornography.
The district court also erroneously convicted John Doe under 18 U.S.C. § 2252A(a)(3)(B)
because he neither advertised nor requested child pornography as required under that provision.
In order to secure a conviction under 18 U.S.C. § 2252A(a)(3)(B), the government must prove
that the defendant offered or requested child pornography. U.S. v. Williams, 553 U.S. 285, 287,
11
293 (2008) (stating that § 2252A(a)(3)(B) prohibits the advertising of and request for child
pornography). In Williams, the Court described how one could violate this provision of the
statute even though no child pornography was actually transmitted, and that the statute bans the
collateral speech that introduces child pornography into distribution. Id. at 293.
Here, there is no evidence John Doe advertised the material to his friend as child
pornography, nor is there any evidence of him requesting child pornography. Therefore, 18
U.S.C. § 2252A(a)(3)(B) is inapplicable and John Doe cannot therefore be convicted.
C. The Pictures Are Not Child Pornography Because Consensual Sexual Texts
Do Not Involve Any Of The Harms Child Pornography Statutes Seek To
Prevent.
Although Jane Coe may have suffered embarrassment and regret for agreeing to pose for
the pictures taken by John Doe, the reasons for categorically prohibiting child pornography, and
the harms associated with child pornography, are not present in cases of consensual sexting
among teenagers.
Although the United States Supreme Court has delineated specific reasons for allowing
states to regulate child pornography, including pornography that is not obscene, this rationale is
inapplicable to consensual sexting. In New York v. Ferber, the Court held that the government
may ban material showing children engaged in sexual conduct even if the material is not
obscene, despite the fact that other types of speech must be obscene to fall outside First
Amendment protection. Ferber, 458 U.S.; Miller v. California, 413 U.S. 15, 23 (1973) (obscene
material is not protected by the First Amendment). Among the reasons the Court stated for the
exclusion were that child pornography serves as a permanent reminder of the sexual abuse of the
child, and advertising and promotiing it provides an economic incentive to continue its
production. Ferber, 458 U.S. at 759-63.
12
Consensual sexting does not make a record of an underlying crime as typical child
pornography does.
Effective Child Pornography Prosecution Act, Pub. L. No. 110-358, §
102(3), 122 Stat. 4001 (Oct. 8, 2008) ("Child pornography is a permanent record of a
child's abuse and the distribution of child pornography images revictimizes the child each time
the image is viewed." (emphasis added)). In A.H. v. State, the court affirmed the conviction of a
teenager who consensually exchanged sexually explicit photos with her boyfriend despite her
alleged victim being older than her. 949 So. 2d 234, 235 (Fla. Dist. Ct. App. 2007). The dissent
noted that sex among minors was not illegal, and that the ridiculous result was that
photographing a legal act was a crime. Id. at 239. Punishing the creator of a visual record of a
legal act runs contrary to the prevention of sexual abuse of children. The laws were not meant to
protect teenagers with bad foresight.
Although consensual sexting may cause future emotional and psychological harm, it does
not remind the minor of any sexual abuse. Sarah Westler, The Harm in Sexting? Analyzing the
Constitutionality of Child Pornography Statutes that Prohibit the Voluntary Production,
Posession, and Dissemination of Sexually Explicit Images by Teenagers, 33 Harv. J.L. & Gender
687, 698 (2010). The purpose of child pornography laws is not to prevent or penalize teenagers
from making regrettable decisions. Additionally, sexting, as in the present case, is done as a
means of expression, not profit. Id. at 701.
Furthermore, the types of harms the statute is meant to prevent and the images the statute
is meant to prohibit are drastically different than anything associated with consensual sexting.
Bryn Ostrager, SMS. OMG! LOL! TTYL: Translating the Law to Accommodate Today’s Teens
and the Evolution from Texting to Sexting, 48 Fam. Ct. Rev. 712, 714 (Oct. 2010). In U.S. v.
Campbell, the court compared the material the defendant possessed with the depravity and
13
horrors of the images in the typical child pornography case. 2010 U.S. Dist. LEXIS 88562, *2-3
(D. Neb. 2010) (citing U.S. v. Grant, 434 F. Supp. 2d 735, 744 (D. Neb. 2006)) (“The video
shows an adult male having sexual intercourse with a very young girl, perhaps six years of age.
Replete with a close up, it shows the adult male’s penis in the child’s vagina.”). The court cited
to Cunningham, which discussed the difficulty, but necessity, for courts to review the material
constituting the offense of a child pornography case, rather than relying on a written description,
in order to fully appreciate the depravity of the offense when determining an appropriate
sentence for the convicted defendant. Id. at *1-2 (citing U.S. v. Cunningham, 680 F. Supp. 2d
844, 854-55 (N.D. Ohio 2010)) (“There are some images that are haunting, and they cannot be
unseen. . . . [O]ne has to see the dull, often vacant expressions of the victims to get an ounce of
the proper emotions expressed in those images.").
There are no countervailing interests or concerns that support the district court’s finding
that the photographs are child pornography, and with insufficient evidence to sustain a violation
under 18 U.S.C. § 2252A(a)(1), (2), or (3), John Doe’s conviction must be reversed.
II. John Doe Should Not Be Required To Register As A Sex Offender Under The Sex
Offender Registration And Notification Act Because Congress Did Not Intend For
The Requirement To Extend To The Conduct At Issue And The Requirement Is
Excessive Punishment For This Type Of Innocent Behavior.
Congress enacted SORNA to “protect children from sexual exploitation and violent
crime, to prevent child abuse and child pornography” and “to promote Internet safety.” See
generally “Adam Walsh Child Protection and Safety Act of 2006” § 101; 42 U.S.C. § 16901
(2010); (R. at 6.) The Act is meant to reach varying degrees of offenses against children, and
requires convicted sex offenders to register according to one of three tiers. 42 US.C. § 16915.
As discussed in detail in Section I, supra, there is insufficient evidence to sustain a conviction
under 18 U.S.C. § 2252A with regard to child pornography. Even were this conviction to stand,
14
both the Congressional intent and the text of SORNA reveal that the registration requirement
should not apply to teenage sexting. As noted by the lower court, the statements of purpose
imply that SORNA is primarily intended to apply to serious and violent crimes against children.
(R. at 6.) Teenage sexting does not fit into the traditional adult-child relationship that spurred the
enactment of SORNA. Moreover, in a society that places emphasis on moral blameworthiness
and finding a punishment that “fits” the crime, the listing of teenagers on the sex offender
database is extremely disproportionate to the crime of sexting.
Stephen F. Smith,
Proportionality and Federalization, 91 Va. L. Rev. 879, 882-83 (2005).
In this case, the District Court for the Central District of California incorrectly required
John to register as a sex offender under SORNA. (R. at 6.) The district court noted that while it
appears as though SORNA was meant to apply only to serious and violent crimes against
children, the tiers of registration suggest that SORNA should apply to all sex offenders. (R. at
6.) The district court recognized objections to the registration of teenagers engaged in sexting,
but noted that it was not its function to question the appropriateness of the law when it has been
outpaced by technology. (R. at 6.)
This very logic underscores the main reason John should not be required to register as a
sex offender: Congress enacted SORNA without discussing sexting or expressly including it
within its scope. An analysis of the legislative history supports the argument that teenage sexting
is outside the scope of SORNA and was not even contemplated during its drafting and passage.
Statements made in the Congressional Record and the Federal Guidelines suggest that the Act
was intended to apply to the traditionally forbidden adult-child relationships. See, e.g. 152 Cong.
Rec. S6729, S6729-30 (2006); The National Guidelines for Sex Offender Registration and
Notification, 73 Fed, Reg. 38,030, 38,040 (July 2, 2008).
15
There are also significant public policy rationales behind not requiring teenagers
convicted of crimes for engaging in sexting to register as sex offenders. If SORNA is meant to
apply to teenage sexting, John will have to register alongside violent adult predators, provide
personal information to the general public, and face the social stigma that attaches to the sex
offender label. The Congressional intent and statutory language of SORNA, coupled with the
ample policy arguments against registration, require a reversal of the district court’s decision to
register John as a sex offender.
A. While SORNA Invokes Broad Language, Congress Intended For The Statute
To Apply Only To Adult Predators, And Not The Type of Behavior Between
Minors At Issue In This Case.
John Doe is not a sex offender within the contemplated scope of SORNA, and therefore,
should not be required to register as a sex offender on a public database pursuant to 42 U.S.C. §§
16901 et seq. Individuals convicted of sex offenses must register as a sex offender on a public
database. 41 U.S.C. § 16911. The sex offender must fit within one of the three tiers enumerated
in the Act. Id. The court below found that John Doe must register because he is a convicted sex
offender pursuant to 18 U.S.C. § 2252A(a)(1), (2), and (3), and thus, he fits within Tier II of the
database. Even if sufficient evidence were found, the statute does not require John to register
because he is not the type of individual either Congress or the Attorney General envisioned in the
database.
See 152 Cong. Rec. S6729, S6729-30 (2006); The National Guidelines for Sex
Offender Registration and Notification, 73 Fed, Reg, 38,030, 38,040 (July 2, 2008). Congress
never debated sexting or intended for SORNA to reach this type of consensual behavior.
SORNA, according to a variety of sources, was initiated to protect the public from sex offenders
engaged in traditionally prohibited adult-child sex abuse.
Id.
John and Jane engaged in
consensual activity as minors. Consequently, Respondent cannot establish that John is a predator
16
as identified under SORNA. Accordingly, the Court should reverse the decision of the district
court and hold that John is not required to register as a sex offender.
i. SORNA’s Failure to Address Teenagers Engaging in Sexting Renders
The Statute Ambiguous On This Matter.
SORNA establishes a comprehensive national system for the registration of sex
offenders. 42 U.S.C. § 16901. In addition to a national registry available on the Internet, each
jurisdiction must maintain a registry conforming to the requirements of the Act. 42 U.S.C. §§
16916, 16912. SORNA explicitly requires that each offender keep their registration current in
the jurisdiction(s) where the offender resides, is an employee, and is a student. 42 U.S.C. §
16913(a). The offender must provide a variety of information that will be incorporated in the
registry: their name (or alias); Social Security number; address of each residence where the
offender resides; the name and address of the offender’s place of employment; the license plate
number and a description of any vehicle owned by the offender; and any other information
required by the Attorney General. 42 U.S.C. § 16914(a). Registrations must be kept current; if
they are not, the offender faces a criminal penalty that includes imprisonment. 42 U.S.C. §
16913(c), (e).
The duration of the registration depends upon the tier classification of the offender.
SORNA has three tiers of offenders. 42 U.S.C. § 16911. Tier III offenders are those offenders
whose offenses are punishable by imprisonment for more than one year and are comparable to or
more severe than a number of offenses including aggravated sexual abuse, abusive sexual
contact, or kidnapping of a minor. 42 U.S.C. § 16911(4). Tier II offenders are those whose
offense are punishable by imprisonment for more than one year and are comparable to or more
severe than a number of enumerated offenses, including sex trafficking, solicitation of a minor,
and production or distribution of child pornography. 42 U.S.C. § 16911(3). Tier I is a catchall
17
for those offenders who do not fall within the scope of the other two tiers. 42 U.S.C. § 16911(2).
Tier I offenders must register for 15 years, tier II offenders for 25 years, and tier III offenders
must register for life. 42 U.S.C. § 16915(a). The number of times an offender must appear for a
photograph and verify the information in each registry is also dependent upon their tier
classification. 42 U.S.C. § 16916.
SORNA explicitly calls for the registration of all sex offenders who fit within the
confines of its tiers. 42 U.S.C. § 16901. While the Act mentions offenders engaging in child
pornography, it is unclear, based upon the text of the statute, whether this group of individuals is
limited to adults only or to minors and adults. This lack of clarity is apparent when scenarios
such as that found in the instant case arise. Congress did not provide for minors convicted of sex
crimes within the text of the statute, except where it addressed consensual sexual conduct
between teenagers. SORNA. 42 U.S.C. § 16911(5)(C). According to SORNA, if there is
consensual sexual conduct between teenagers and the victim was at least 13 years old and the
offender was not more than 4 years older than the victim, then the offense is not a sex offense for
purposes of the Act. Id. The text of the Act does not expressly approach teenage sexting; the
text itself does not indicate whether Congress intended to include or exclude teenage sexting as
an offense fitting within SORNA’s boundaries. An analysis of SORNA’s legislative history is
therefore necessary to resolve this underlying ambiguity.
18
ii. The Legislative History Indicates That SORNA Should Apply Only To
Adult Predators.
While the sex offender registry uses broad language to reach a variety of offenses, the
Act does not explicitly address situations like teenage sexting, as found in this case. Courts have
long noted that questions of statutory construction begin with a plain reading of the statute, but
when the words are unclear, the legislative history and policy considerations become relevant to
the interpretation. U.S. v. Smith, 481 F. Supp. 2d. 846, 850 (E.D. Mich. 2007).
The goal of SORNA was to establish a national system of registration of sex offenders
because Congress wanted to make sure that sex offenders could not avoid registration
requirements by relocating to another jurisdiction. U.S. v. Guzman, 591 F.3d 83, 91 (2d Cir.
2010). Statements found in the Congressional Record and Federal Guidelines suggest that
SORNA’s registration requirements should apply only to adult predators that participate in child
abuse. Senator Frist described SORNA as an imperative step to “protect children from sexual
predators.” 152 Cong. Rec. S6729, S6729-30 (2006). At another juncture, Senator Grassley
stated that “[w]e have an obligation as adults to protect our youth,” and “[w]e have an obligation
as parents to protect our children.” 152 Cong. Rec. S8012-02, S8021 (2006). As the district
court noted, statements such as these “imply that SORNA is primarily intended to be applied to
serious and especially violent crimes against children.” (R. at 6.) The Federal Guidelines issued
by the Attorney General also suggest that SORNA was meant to address only the traditional
adult-child relationships. The Guidelines note that SORNA “does not generally require that
juveniles be treated the same as adults.” The National Guidelines for Sex Offender Registration
and Notification, 73 Fed, Reg. 38,030, 38,040 (July 2, 2008). As a whole, the legislative history
suggests that situations such as the one found in the instant case were not anticipated during the
19
drafting of SORNA. Sexting was not mentioned during the course of the debates and there has
been no guidance issued by the Attorney General on the subject matter.
In the instant case, Jane consented to having John take a series of pictures of her
resembling the woman in the Clothed Maja and the Nude Maja. R. at 3. John was subsequently
convicted of possessing and distributing child pornography. R. at 5. As John was a minor at the
time of the incident and Jane was only two years younger than him, the two do not fit the
traditional adult-child relationship that SORNA’s text seeks to deter. John was a minor at the
time, and the pictures were not taken in a violent manner. The conduct was also consensual and
thus not the typical abuse Congress sought to deter. If John and Jane were both adults, this
behavior would be legal. Even if John and Jane had engaged in consensual sexual conduct,
instead of taking photographs, John could not be required to register as a sex offender under
SORNA. 42 U.S.C. § 16911(5)(C). The fact that Congress explicitly exempted sexual conduct
between minors implies that they had no intention of including an activity analogous to
sexting—a substantially less intimate pursuit—within the scope of SORNA.
B. Requiring John To Register As A Sex Offender Is An Overly Harsh
Punishment With Severe Consequences In Light Of The Consensual Actions
That Occurred.
Teenage sexting is a recent phenomenon. The average child sends 2,272 text messages
per month. Donna St. George, 6,473 Texts a Month. But at What Cost? Constant Cellphone
Messaging Keeps Kids Connected, Parents Concerned, Wash. Post, Feb. 22, 2009, at A1.
Teenagers between the ages of 13 and 17 are the most avid texters, and not surprisingly, one in
five have engaged in sexting. Id. at 10; Matthew Keys, Sexting Shatters Lives, Turns Children
Into Sex Offenders, KFOR-TV (2009), http://www.kfor.com/lifestyle/parenting/ktxl-newssexting0814,0,2588437.story. This finding was corroborated in a study commissioned by the
20
National Campaign to Prevent Teen and Unplanned Pregnancy. According to the study, 20% of
teens polled reported that they have sent nude or seminude pictures of themselves to others. Sex
and Tech: Results from a Survey of Teens and Young Adults, The National Campaign to Prevent
Teen
and
Unplanned
Pregnancy,
(2008),
available
www.thenationalcampaign.org/sextech/PDF/SexTech_Summary.pdf
at
[hereinafter
http://
National
Campaign]. This evidence highlights the fact that most teens view sexting as a technological
approach to flirting. This reveals that sexting is a widespread behavior found among teens and
not a criminal action warranting registration as a sex offender.
The frequency of sexting among teens suggests that the behavior does not violate the
community standard of morality. Scholars have long agreed that moral blameworthiness plays a
part in criminal law. Stephen F. Smith, Proportionality and Federalization, 91 Va. L. Rev. 879,
887 (2005). While there are two schools of thought on the purposes of criminal punishment—
retributivism and utilitarianism—both agree that moral blameworthiness plays some role in who
should and should not be punished and the extent of the punishment. Id. The sex offender
registration requirement poses severe consequences for teenagers.
Teens will be lumped
together with adult predators and be left to face the restrictions and social stigma that
accompanies registration as a “sex offender.” This is a particularly harsh punishment, as it is
generally understood that teenage brains are not sufficiently matured to enable reliable decisionmaking. Elizabeth C. Eraker, Stemming Sexting: Sensible Legal Approaches to Teenagers’
Exchange of Self-Produced Pornography, 25 Berkeley Tech. L.J. 555, 561 (2010). Unlike
adults, children cannot consistently appreciate the consequences of their actions. Registration
should not be permitted to put teenagers on equal footing with adult predators when conventional
wisdom and modern science indicates unequivocally that they are not.
21
The ramifications of registration are excessive in cases such as the instant case,
particularly as John and Jane consensually took part in behavior that is widespread and accepted
among their peers. The severe punishment of registration as a sex offender does not fit the
behavior. Accordingly, the Court should reverse the decision of the district court.
i. Our Society Identifies Moral Blameworthiness As An Important
Element In The Determination Of Punishment For Crimes – An
Element Lacking In This Case.
An act is morally blameworthy if it is the kind of act that citizens would expect to be
illegal. John Shepard Wiley, Jr., Not Guilty by Reason of Blamelessness: Culpability in Federal
Criminal Interpretation, 85 Va. L. Rev. 1021, 1026-1029 (1999). Moral blameworthiness plays
a part in determining the recipient of punishment and the extent to which that individual should
be punished. Id. Retributivists believe that people who commit morally blameworthy acts
deserve punishment. Michael Moore, Placing Blame: A General Theory of the Criminal Law 91
(Oxford Univ. Press 1997). Utilitarians view moral blameworthiness as a limiting concept in the
determination of who should or should not be punished. Herbert L. Packer, The Limits of the
Criminal Sanction 66-67 (Stanford Univ. Press 1968). While moral blameworthiness plays a
slightly different role in the two theories, the differences are negligible, as it is always required
when determining punishment.
Moral blameworthiness is, therefore, a prerequisite to
punishment in the American criminal justice system.
Sexting does not violate the community standard of morality among teenagers. A recent
study shows that 20% of teens, ages 13-19, have electronically sent, or posted online, nude or
semi-nude pictures of themselves. National Campaign at 1. This percentage increases when
these individuals reach young adulthood to 33%. Id. Of the sexually suggestive messages and
images sent, 71% of teen girls and 6% of teen boys send them to boyfriends or girlfriends. Id. at
22
2. Many teen girls and teen boys send sexually charged content to someone they want to date.
Id. Within this group, 66% of teen girls and 60% of teen boys cite their desire to appear “fun or
flirtatious” as the reason for sending these messages. Id. at 4. While sexting is something that
developed with technology, it is a widespread activity among teenagers today.
John and Jane, like many other individuals their age, engaged in sexting. National
Campaign at 1; R. at 3. The element of moral blameworthiness, a prerequisite for criminal
punishment, is absent in this case because John’s actions are no different from the other 20% of
teenagers that engage in sexting. Jane agreed to pose for the photos taken – and they were taken
for her boyfriend. R. at 3. In this respect, Jane is analogous to the 71% of teen girls that send
sexually suggestive messages or images to their boyfriends. National Campaign at 2. The lack
of moral blameworthiness in the instant case dictates that John simply should not have to
register.
ii. Registering As a Sex Offender Poses Harsh Consequences That Will
Unfairly Affect John’s Life.
Minors face severe hardship when trying to readjust to normal life after registering as sex
offenders. SORNA publishes the names of offenders, their current pictures, and the offenses. 42
U.S.C. § 16913(a). The national registry is an easily navigable database that can be accessed
over the Internet. 42 U.S.C. § 16912. Jurisdictions also impose additional requirements for sex
offenders. Many jurisdictions have residency restrictions that bar offenders from being within
some specified distance of places where children might congregate. See generally Jacqueline
Canlas-LaFlam, Has Georgia Gone Too Far- Or Will Sex Offenders Have To? 35 Hastings
Const. L.Q. 309 (2008).
neighborhoods.
Id.
Those places include parks, schools, churches, and residential
In essence, teenagers will not be allowed to gather with their peers.
Considering only 4-8% of all juveniles arrested for sex crimes become repeat offenders, the
23
stigma that attaches to the sex offender label is extremely hard on the large percentage of
teenagers who innocently end up on the national registry. Hunter, J.A., Understanding juvenile
sex offenders: research findings & guidelines for effective management & treatment, Juvenile
Justice Fact Sheet, Charlottesville, VA: Institute of Law, Psychiatry, & Public Policy, UVA
(2000).
The consequences of registration disproportionately affect teenagers. All offenders must
supply the same amount of personal information to the registry for the public to access. John’s
peers, however, will immediately be aware of his registration because he will likely be unable to
attend his school or mingle with his peers. John will not be able to participate in activities that
many other people his age engage in if residency restrictions are in place.
See generally
Jacqueline Canlas-LaFlam, Has Georgia Gone Too Far- Or Will Sex Offenders Have To? 35
Hastings Const. L.Q. 309 (2008). This is a particularly troubling outcome as the photographs
were taken with Jane’s consent, and there is no evidence that John is prone to this type of
behavior or will partake in it in the future.
SORNA’s registration scheme was established to prevent adult predators from moving to
other jurisdictions to avoid detection. U.S. v. Guzman, 591 F.3d 83, 91 (2d Cir. 2010). Its
consequences are tailored for this specific group of people – not teenagers who do not
understand the ramifications of their conduct. The punishment meant for adults should not be
applied to children. John should not have to face severe restrictions on his living and socializing
habits during his formative years. Accordingly, John should not be included in the sex offender
registry with the adult predators. The decision of the district court, therefore, must be reversed.
24
CONCLUSION
For the foregoing reasons, this Court should reverse the decision of the district court.
January 7, 2011
Respectfully Submitted,
Counsel for Petitioner
John Doe
25
APPENDIX
18 U.S.C. § 2252A
(a) Any person who-(1) knowingly mails, or transports or ships using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce by any means, including by
computer, any child pornography;
(2) knowingly receives or distributes-(A) any child pornography that has been mailed, or using any means or facility of interstate or
foreign commerce shipped or transported in or affecting interstate or foreign commerce by any
means, including by computer; or
(B) any material that contains child pornography that has been mailed, or using any means or
facility of interstate or foreign commerce shipped or transported in or affecting interstate or
foreign commerce by any means, including by computer;
(3) knowingly-(A) reproduces any child pornography for distribution through the mails, or using any means or
facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any
means, including by computer; or
(B) . . . distributes, . . . using any means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce by any means, including by computer, any material or
purported material in a manner that reflects the belief, or that is intended to cause another to
believe, that the material or purported material is, or contains-(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;
....
shall be punished as provided in subsection (b).
(b)(1) Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of
subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more
than 20 years . . . .
Sex Offender Registration and Notification Act
42 USC § 16901. Declaration of purpose
In order to protect the public from sex offenders and offenders against children, and in response
to the vicious attacks by violent predators against the victims listed below, Congress in this Act
establishes a comprehensive national system for the registration of those offenders:
(1) Jacob Wetterling, who was 11 years old, was abducted in 1989 in Minnesota, and remains
missing.
(2) Megan Nicole Kanka, who was 7 years old, was abducted, sexually assaulted, and murdered
in 1994, in New Jersey.
(3) Pam Lychner, who was 31 years old, was attacked by a career offender in Houston, Texas.
(4) Jetseta Gage, who was 10 years old, was kidnapped, sexually assaulted, and murdered in
2005, in Cedar Rapids, Iowa.
(5) Dru Sjodin, who was 22 years old, was sexually assaulted and murdered in 2003, in North
I
Dakota.
(6) Jessica Lunsford, who was 9 years old, was abducted, sexually assaulted, buried alive, and
murdered in 2005, in Homosassa, Florida.
(7) Sarah Lunde, who was 13 years old, was strangled and murdered in 2005, in Ruskin, Florida.
(8) Amie Zyla, who was 8 years old, was sexually assaulted in 1996 by a juvenile offender in
Waukesha, Wisconsin, and has become an advocate for child victims and protection of children
from juvenile sex offenders.
(9) Christy Ann Fornoff, who was 13 years old, was abducted, sexually assaulted, and murdered
in 1984, in Tempe, Arizona.
(10) Alexandra Nicole Zapp, who was 30 years old, was brutally attacked and murdered in a
public restroom by a repeat sex offender in 2002, in Bridgewater, Massachusetts.
(11) Polly Klaas, who was 12 years old, was abducted, sexually assaulted, and murdered in 1993
by a career offender in California.
(12) Jimmy Ryce, who was 9 years old, was kidnapped and murdered in Florida on September
11, 1995.
(13) Carlie Brucia, who was 11 years old, was abducted and murdered in Florida in February,
2004.
(14) Amanda Brown, who was 7 years old, was abducted and murdered in Florida in 1998.
(15) Elizabeth Smart, who was 14 years old, was abducted in Salt Lake City, Utah in June 2002.
(16) Molly Bish, who was 16 years old, was abducted in 2000 while working as a lifeguard in
Warren, Massachusetts, where her remains were found 3 years later.
(17) Samantha Runnion, who was 5 years old, was abducted, sexually assaulted, and murdered in
California on July 15, 2002.
42 USC § 16902. Establishment of program
This Act establishes the Jacob Wetterling, Megan Nicole Kanka, and Pam Lychner Sex Offender
Registration and Notification Program.
42 USC § 16911. Relevant definitions, including Amie Zyla expansion of sex offender
definition and expanded inclusion of child predators
In this title the following definitions apply:
(1) Sex offender. The term "sex offender" means an individual who was convicted of a sex
offense.
(2) Tier I sex offender. The term "tier I sex offender" means a sex offender other than a tier II or
tier III sex offender.
(3) Tier II sex offender. The term "tier II sex offender" means a sex offender other than a tier III
sex offender whose offense is punishable by imprisonment for more than 1 year and-(A) is comparable to or more severe than the following offenses, when committed against a
minor, or an attempt or conspiracy to commit such an offense against a minor:
(i) sex trafficking (as described in section 1591 of title 18, United States Code);
(ii) coercion and enticement (as described in section 2422(b) of title 18, United States Code);
(iii) transportation with intent to engage in criminal sexual activity (as described in section
2423(a)) of title 18, United States Code;
(iv) abusive sexual contact (as described in section 2244 of title 18, United States Code);
(B) involves-(i) use of a minor in a sexual performance;
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(ii) solicitation of a minor to practice prostitution; or
(iii) production or distribution of child pornography; or
(C) occurs after the offender becomes a tier I sex offender.
(4) Tier III sex offender. The term "tier III sex offender" means a sex offender whose offense is
punishable by imprisonment for more than 1 year and-(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to
commit such an offense:
(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18,
United States Code); or
(ii) abusive sexual contact (as described in section 2244 of title 18, United States Code) against
a minor who has not attained the age of 13 years;
(B) involves kidnapping of a minor (unless committed by a parent or guardian); or
(C) occurs after the offender becomes a tier II sex offender.
(5) Amie Zyla expansion of sex offense definition.
(A) Generally. Except as limited by subparagraph (B) or (C), the term "sex offense" means-(i) a criminal offense that has an element involving a sexual act or sexual contact with another;
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of title 18,
United States Code) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A,
or 2258), or 117, of title 18, United States Code;
(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of
Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).
(B) Foreign convictions. A foreign conviction is not a sex offense for the purposes of this title if
it was not obtained with sufficient safeguards for fundamental fairness and due process for the
accused under guidelines or regulations established under section 112.
(C) Offenses involving consensual sexual conduct. An offense involving consensual sexual
conduct is not a sex offense for the purposes of this title if the victim was an adult, unless the
adult was under the custodial authority of the offender at the time of the offense, or if the victim
was at least 13 years old and the offender was not more than 4 years older than the victim.
(6) Criminal offense. The term "criminal offense" means a State, local, tribal, foreign, or
military offense (to the extent specified by the Secretary of Defense under section
115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense.
(7) Expansion of definition of "specified offense against a minor" to include all offenses by
child predators. The term "specified offense against a minor" means an offense against a minor
that involves any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of title 18, United States Code.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt
such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.
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(8) Convicted as including certain juvenile adjudications. The term "convicted" or a variant
thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that
offense, but only if the offender is 14 years of age or older at the time of the offense and the
offense adjudicated was comparable to or more severe than aggravated sexual abuse (as
described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to
commit such an offense.
(9) Sex offender registry. The term "sex offender registry" means a registry of sex offenders,
and a notification program, maintained by a jurisdiction.
(10) Jurisdiction. The term "jurisdiction" means any of the following:
(A) A State.
(B) The District of Columbia.
(C) The Commonwealth of Puerto Rico.
(D) Guam.
(E) American Samoa.
(F) The Northern Mariana Islands.
(G) The United States Virgin Islands.
(H) To the extent provided and subject to the requirements of section 127, a federally
recognized Indian tribe.
(11) Student. The term "student" means an individual who enrolls in or attends an educational
institution, including (whether public or private) a secondary school, trade or professional
school, and institution of higher education.
(12) Employee. The term "employee" includes an individual who is self-employed or works for
any other entity, whether compensated or not.
(13) Resides. The term "resides" means, with respect to an individual, the location of the
individual's home or other place where the individual habitually lives.
(14) Minor. The term "minor" means an individual who has not attained the age of 18 years.
42 USC § 16912. Registry requirements for jurisdictions
(a) Jurisdiction to maintain a registry. Each jurisdiction shall maintain a jurisdiction-wide sex
offender registry conforming to the requirements of this title.
(b) Guidelines and regulations. The Attorney General shall issue guidelines and regulations to
interpret and implement this title.
42 USC § 16913. Registry requirements for sex offenders
(a) In general. A sex offender shall register, and keep the registration current, in each jurisdiction
where the offender resides, where the offender is an employee, and where the offender is a
student. For initial registration purposes only, a sex offender shall also register in the jurisdiction
in which convicted if such jurisdiction is different from the jurisdiction of residence.
(b) Initial registration. The sex offender shall initially register-(1) before completing a sentence of imprisonment with respect to the offense giving rise to the
registration requirement; or
(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not
sentenced to a term of imprisonment.
(c) Keeping the registration current. A sex offender shall, not later than 3 business days after
each change of name, residence, employment, or student status, appear in person in at least 1
jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the
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information required for that offender in the sex offender registry. That jurisdiction shall
immediately provide that information to all other jurisdictions in which the offender is required
to register.
(d) Initial registration of sex offenders unable to comply with subsection (b). The Attorney
General shall have the authority to specify the applicability of the requirements of this title to sex
offenders convicted before the enactment of this Act [enacted July 27, 2006] or its
implementation in a particular jurisdiction, and to prescribe rules for the registration of any such
sex offenders and for other categories of sex offenders who are unable to comply with subsection
(b).
(e) State penalty for failure to comply. Each jurisdiction, other than a Federally recognized
Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that
is greater than 1 year for the failure of a sex offender to comply with the requirements of this
title.
42 USC § 16914. Information required in registration
(a) Provided by the offender. The sex offender shall provide the following information to the
appropriate official for inclusion in the sex offender registry:
(1) The name of the sex offender (including any alias used by the individual).
(2) The Social Security number of the sex offender.
(3) The address of each residence at which the sex offender resides or will reside.
(4) The name and address of any place where the sex offender is an employee or will be an
employee.
(5) The name and address of any place where the sex offender is a student or will be a student.
(6) The license plate number and a description of any vehicle owned or operated by the sex
offender.
(7) Any other information required by the Attorney General.
(b) Provided by the jurisdiction. The jurisdiction in which the sex offender registers shall ensure
that the following information is included in the registry for that sex offender:
(1) A physical description of the sex offender.
(2) The text of the provision of law defining the criminal offense for which the sex offender is
registered.
(3) The criminal history of the sex offender, including the date of all arrests and convictions; the
status of parole, probation, or supervised release; registration status; and the existence of any
outstanding arrest warrants for the sex offender.
(4) A current photograph of the sex offender.
(5) A set of fingerprints and palm prints of the sex offender.
(6) A DNA sample of the sex offender.
(7) A photocopy of a valid driver's license or identification card issued to the sex offender by a
jurisdiction.
(8) Any other information required by the Attorney General.
42 USC § 16915. Duration of registration requirement
(a) Full registration period. A sex offender shall keep the registration current for the full
registration period (excluding any time the sex offender is in custody or civilly committed)
unless the offender is allowed a reduction under subsection (b). The full registration period is-(1) 15 years, if the offender is a tier I sex offender;
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(2) 25 years, if the offender is a tier II sex offender; and
(3) the life of the offender, if the offender is a tier III sex offender.
(b) Reduced period for clean record.
(1) Clean record. The full registration period shall be reduced as described in paragraph (3) for a
sex offender who maintains a clean record for the period described in paragraph (2) by-(A) not being convicted of any offense for which imprisonment for more than 1 year may be
imposed;
(B) not being convicted of any sex offense;
(C) successfully completing any periods of supervised release, probation, and parole; and
(D) successfully completing of an appropriate sex offender treatment program certified by a
jurisdiction or by the Attorney General.
(2) Period. In the case of-(A) a tier I sex offender, the period during which the clean record shall be maintained is 10
years; and
(B) a tier III sex offender adjudicated delinquent for the offense which required registration in a
sex registry under this title, the period during which the clean record shall be maintained is 25
years.
(3) Reduction. In the case of-(A) a tier I sex offender, the reduction is 5 years;
(B) a tier III sex offender adjudicated delinquent, the reduction is from life to that period for
which the clean record under paragraph (2) is maintained.
42 USC § 16916. Periodic in person verification
A sex offender shall appear in person, allow the jurisdiction to take a current photograph, and
verify the information in each registry in which that offender is required to be registered not less
frequently than-(1) each year, if the offender is a tier I sex offender;
(2) every 6 months, if the offender is a tier II sex offender; and
(3) every 3 months, if the offender is a tier III sex offender.
42 USC § 16917. Duty to notify sex offenders of registration requirements and to register
(a) In general. An appropriate official shall, shortly before release of the sex offender from
custody, or, if the sex offender is not in custody, immediately after the sentencing of the sex
offender, for the offense giving rise to the duty to register-(1) inform the sex offender of the duties of a sex offender under this title and explain those
duties;
(2) require the sex offender to read and sign a form stating that the duty to register has been
explained and that the sex offender understands the registration requirement; and
(3) ensure that the sex offender is registered.
(b) Notification of sex offenders who cannot comply with subsection (a). The Attorney General
shall prescribe rules for the notification of sex offenders who cannot be registered in accordance
with subsection (a).
42 USC § 16918. Public access to sex offender information through the Internet
(a) In general. Except as provided in this section, each jurisdiction shall make available on the
Internet, in a manner that is readily accessible to all jurisdictions and to the public, all
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information about each sex offender in the registry. The jurisdiction shall maintain the Internet
site in a manner that will permit the public to obtain relevant information for each sex offender
by a single query for any given zip code or geographic radius set by the user. The jurisdiction
shall also include in the design of its Internet site all field search capabilities needed for full
participation in the Dru Sjodin National Sex Offender Public Website and shall participate in that
website as provided by the Attorney General.
(b) Mandatory exemptions. A jurisdiction shall exempt from disclosure-(1) the identity of any victim of a sex offense;
(2) the Social Security number of the sex offender;
(3) any reference to arrests of the sex offender that did not result in conviction; and
(4) any other information exempted from disclosure by the Attorney General.
(c) Optional exemptions. A jurisdiction may exempt from disclosure-(1) any information about a tier I sex offender convicted of an offense other than a specified
offense against a minor;
(2) the name of an employer of the sex offender;
(3) the name of an educational institution where the sex offender is a student; and
(4) any other information exempted from disclosure by the Attorney General.
(d) Links. The site shall include, to the extent practicable, links to sex offender safety and
education resources.
(e) Correction of errors. The site shall include instructions on how to seek correction of
information that an individual contends is erroneous.
(f) Warning. The site shall include a warning that information on the site should not be used to
unlawfully injure, harass, or commit a crime against any individual named in the registry or
residing or working at any reported address. The warning shall note that any such action could
result in civil or criminal penalties.
42 USC § 16919. National Sex Offender Registry
(a) Internet. The Attorney General shall maintain a national database at the Federal Bureau of
Investigation for each sex offender and any other person required to register in a jurisdiction's
sex offender registry. The database shall be known as the National Sex Offender Registry.
(b) Electronic forwarding. The Attorney General shall ensure (through the National Sex Offender
Registry or otherwise) that updated information about a sex offender is immediately transmitted
by electronic forwarding to all relevant jurisdictions.
42 USC § 16920. Dru Sjodin National Sex Offender Public Website
(a) Establishment. There is established the Dru Sjodin National Sex Offender Public Website
(hereinafter in this section referred to as the "Website"), which the Attorney General shall
maintain.
(b) Information to be provided. The Website shall include relevant information for each sex
offender and other person listed on a jurisdiction's Internet site. The Website shall allow the
public to obtain relevant information for each sex offender by a single query for any given zip
code or geographical radius set by the user in a form and with such limitations as may be
established by the Attorney General and shall have such other field search capabilities as the
Attorney General may provide.
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42 USC § 16921. Megan Nicole Kanka and Alexandra Nicole Zapp Community Notification
Program
(a) Establishment of Program. There is established the Megan Nicole Kanka and Alexandra
Nicole Zapp Community Notification Program (hereinafter in this section referred to as the
"Program").
(b) Program notification. Except as provided in subsection (c), immediately after a sex offender
registers or updates a registration, an appropriate official in the jurisdiction shall provide the
information in the registry (other than information exempted from disclosure by the Attorney
General) about that offender to the following:
(1) The Attorney General, who shall include that information in the National Sex Offender
Registry or other appropriate databases.
(2) Appropriate law enforcement agencies (including probation agencies, if appropriate), and
each school and public housing agency, in each area in which the individual resides, is an
employee or is a student.
(3) Each jurisdiction where the sex offender resides, is an employee, or is a student, and each
jurisdiction from or to which a change of residence, employment, or student status occurs.
(4) Any agency responsible for conducting employment-related background checks under
section 3 of the National Child Protection Act of 1993 (42 U.S.C. 5119a).
(5) Social service entities responsible for protecting minors in the child welfare system.
(6) Volunteer organizations in which contact with minors or other vulnerable individuals might
occur.
(7) Any organization, company, or individual who requests such notification pursuant to
procedures established by the jurisdiction.
(c) Frequency. Notwithstanding subsection (b), an organization or individual described in
subsection (b)(6) or (b)(7) may opt to receive the notification described in that subsection no less
frequently than once every five business days.
42 USC § 16922. Actions to be taken when sex offender fails to comply
An appropriate official shall notify the Attorney General and appropriate law enforcement
agencies of any failure by a sex offender to comply with the requirements of a registry and revise
the jurisdiction's registry to reflect the nature of that failure. The appropriate official, the
Attorney General, and each such law enforcement agency shall take any appropriate action to
ensure compliance.
42 USC § 16923. Development and availability of registry management and website software
(a) Duty to develop and support. The Attorney General shall, in consultation with the
jurisdictions, develop and support software to enable jurisdictions to establish and operate
uniform sex offender registries and Internet sites.
(b) Criteria. The software should facilitate-(1) immediate exchange of information among jurisdictions;
(2) public access over the Internet to appropriate information, including the number of registered
sex offenders in each jurisdiction on a current basis;
(3) full compliance with the requirements of this title; and
(4) communication of information to community notification program participants as required
under section 121.
(c) Deadline. The Attorney General shall make the first complete edition of this software
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available to jurisdictions within 2 years of the date of the enactment of this Act [enacted July 27,
2006].
42 USC § 16924. Period for implementation by jurisdictions
(a) Deadline. Each jurisdiction shall implement this title before the later of-(1) 3 years after the date of the enactment of this Act [enacted July 27, 2006]; and
(2) 1 year after the date on which the software described in section 123 is available.
(b) Extensions. The Attorney General may authorize up to two 1-year extensions of the deadline.
42 USC § 16925. Failure of jurisdiction to comply
(a) In general. For any fiscal year after the end of the period for implementation, a jurisdiction
that fails, as determined by the Attorney General, to substantially implement this title shall not
receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the
jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets
Act of 1968 (42 U.S.C. 3750 et seq.).
(b) State constitutionality.
(1) In general. When evaluating whether a jurisdiction has substantially implemented this title,
the Attorney General shall consider whether the jurisdiction is unable to substantially implement
this title because of a demonstrated inability to implement certain provisions that would place the
jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction's highest
court.
(2) Efforts. If the circumstances arise under paragraph (1), then the Attorney General and the
jurisdiction shall make good faith efforts to accomplish substantial implementation of this title
and to reconcile any conflicts between this title and the jurisdiction's constitution. In considering
whether compliance with the requirements of this title would likely violate the jurisdiction's
constitution or an interpretation thereof by the jurisdiction's highest court, the Attorney General
shall consult with the chief executive and chief legal officer of the jurisdiction concerning the
jurisdiction's interpretation of the jurisdiction's constitution and rulings thereon by the
jurisdiction's highest court.
(3) Alternative procedures. If the jurisdiction is unable to substantially implement this title
because of a limitation imposed by the jurisdiction's constitution, the Attorney General may
determine that the jurisdiction is in compliance with this Act if the jurisdiction has made, or is in
the process of implementing reasonable alternative procedures or accommodations, which are
consistent with the purposes of this Act.
(4) Funding reduction. If a jurisdiction does not comply with paragraph (3), then the jurisdiction
shall be subject to a funding reduction as specified in subsection (a).
(c) Reallocation. Amounts not allocated under a program referred to in this section to a
jurisdiction for failure to substantially implement this title shall be reallocated under that
program to jurisdictions that have not failed to substantially implement this title or may be
reallocated to a jurisdiction from which they were withheld to be used solely for the purpose of
implementing this title.
(d) Rule of construction. The provisions of this title that are cast as directions to jurisdictions or
their officials constitute, in relation to States, only conditions required to avoid the reduction of
Federal funding under this section.
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42 USC § 16926. Sex Offender Management Assistance (SOMA) program
(a) In general. The Attorney General shall establish and implement a Sex Offender Management
Assistance program (in this title referred to as the "SOMA program"), under which the Attorney
General may award a grant to a jurisdiction to offset the costs of implementing this title.
(b) Application. The chief executive of a jurisdiction desiring a grant under this section shall, on
an annual basis, submit to the Attorney General an application in such form and containing such
information as the Attorney General may require.
(c) Bonus payments for prompt compliance. A jurisdiction that, as determined by the Attorney
General, has substantially implemented this title not later than 2 years after the date of the
enactment of this Act [enacted July 27, 2006] is eligible for a bonus payment. The Attorney
General may make such a payment under the SOMA program for the first fiscal year beginning
after that determination. The amount of the payment shall be-(1) 10 percent of the total received by the jurisdiction under the SOMA program for the
preceding fiscal year, if that implementation is not later than 1 year after the date of enactment of
this Act [enacted July 27, 2006]; and
(2) 5 percent of such total, if not later than 2 years after that date.
(d) Authorization of appropriations. In addition to any amounts otherwise authorized to be
appropriated, there are authorized to be appropriated such sums as may be necessary to the
Attorney General, to be available only for the SOMA program, for fiscal years 2007 through
2009.
42 USC § 16927. Election by Indian tribes
(a) Election.
(1) In general. A federally recognized Indian tribe may, by resolution or other enactment of the
tribal council or comparable governmental body-(A) elect to carry out this subtitle as a jurisdiction subject to its provisions; or
(B) elect to delegate its functions under this subtitle to another jurisdiction or jurisdictions
within which the territory of the tribe is located and to provide access to its territory and such
other cooperation and assistance as may be needed to enable such other jurisdiction or
jurisdictions to carry out and enforce the requirements of this subtitle.
(2) Imputed election in certain cases. A tribe shall be treated as if it had made the election
described in paragraph (1)(B) if-(A) it is a tribe subject to the law enforcement jurisdiction of a State under section 1162 of title
18, United States Code;
(B) the tribe does not make an election under paragraph (1) within 1 year of the enactment of
this Act [enacted July 27, 2006] or rescinds an election under paragraph (1)(A); or
(C) the Attorney General determines that the tribe has not substantially implemented the
requirements of this subtitle and is not likely to become capable of doing so within a reasonable
amount of time.
(b) Cooperation between tribal authorities and other jurisdictions.
(1) Nonduplication. A tribe subject to this subtitle is not required to duplicate functions under
this subtitle which are fully carried out by another jurisdiction or jurisdictions within which the
territory of the tribe is located.
(2) Cooperative agreements. A tribe may, through cooperative agreements with such a
jurisdiction or jurisdictions-(A) arrange for the tribe to carry out any function of such a jurisdiction under this subtitle with
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respect to sex offenders subject to the tribe's jurisdiction; and
(B) arrange for such a jurisdiction to carry out any function of the tribe under this subtitle with
respect to sex offenders subject to the tribe's jurisdiction.
42 USC § 16928. Registration of sex offenders entering the United States
The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland
Security, shall establish and maintain a system for informing the relevant jurisdictions about
persons entering the United States who are required to register under this title. The Secretary of
State and the Secretary of Homeland Security shall provide such information and carry out such
functions as the Attorney General may direct in the operation of the system.
42 USC § 16929. Immunity for good faith conduct
The Federal Government, jurisdictions, political subdivisions of jurisdictions, and their agencies,
officers, employees, and agents shall be immune from liability for good faith conduct under this
title.
42 USC § 16941. Federal assistance with respect to violations of registration requirements
(a) In general. The Attorney General shall use the resources of Federal law enforcement,
including the United States Marshals Service, to assist jurisdictions in locating and apprehending
sex offenders who violate sex offender registration requirements. For the purposes of section
566(e)(1)(B) of title 28, United States Code, a sex offender who violates a sex offender
registration requirement shall be deemed a fugitive.
(b) Authorization of appropriations. There are authorized to be appropriated such sums as may
be necessary for fiscal years 2007 through 2009 to implement this section.
42 USC § 16943. Federal assistance in identification and location of sex offenders relocated as a
result of a major disaster
The Attorney General shall provide assistance to jurisdictions in the identification and location
of a sex offender relocated as a result of a major disaster.
42 USC § 16945. Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering,
and Tracking
(a) Establishment. There is established within the Department of Justice, under the general
authority of the Attorney General, an Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (hereinafter in this section referred to as the "SMART
Office").
(b) Director. The SMART Office shall be headed by a Director who shall be appointed by the
President. The Director shall report to the Attorney General through the Assistant Attorney
General for the Office of Justice Programs and shall have final authority for all grants,
cooperative agreements, and contracts awarded by the SMART Office. The Director shall not
engage in any employment other than that of serving as the Director, nor shall the Director hold
any office in, or act in any capacity for, any organization, agency, or institution with which the
Office makes any contract or other arrangement.
(c) Duties and functions. The SMART Office is authorized to-(1) administer the standards for the sex offender registration and notification program set forth
in this Act;
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(2) administer grant programs relating to sex offender registration and notification authorized by
this Act and other grant programs authorized by this Act as directed by the Attorney General;
(3) cooperate with and provide technical assistance to States, units of local government, tribal
governments, and other public and private entities involved in activities related to sex offender
registration or notification or to other measures for the protection of children or other members
of the public from sexual abuse or exploitation; and
(4) perform such other functions as the Attorney General may delegate.
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