PA court rules some aspects of sex offender registry constitute punishment

By Sandy . . . The case is T.S. v. Pennsylvania State Police; the decision can be viewed here.

A legal representative with PARSOL — Pennsylvania Assoc. for Rational Sexual Offense Laws — stated, “[The decision] is GOOD. It will be most helpful with our push to reform how the SVP label is applied just arbitrarily . . . ”

Janice Bellucci, an attorney, in writing about the decision, said, “The Commonwealth Court of Pennsylvania issued an important decision on May 11, 2020, in which it determined that annual registration as well as publication of a registrant’s personal information on the internet constitutes punishment.  The petitioner in this case committed a sex offense prior to the effective date of these requirements.

“According to the Court, annual in-person registration ‘imposes affirmative restraints and probation-like conditions.’  The Court determined that the annual registration requirement was excessive.  The Court also ruled that the state law requiring the posting [of] a registrant’s personal information on a public lawsuit was punitive because  ‘. . . the Internet dissemination provision resembles history shaming punishments.’ ”

We expect more thorough analysis about this important case to be forthcoming in the days and weeks ahead.

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Sandy Rozek

Sandy is communications director for NARSOL, editor-in-chief of the Digest, and a writer for the Digest and the NARSOL website. Additionally, she participates in updating and managing the website and assisting with a variety of organizational tasks.

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    • #72480 Reply
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      Leland Joseph

      Can someone explain what this has to do with SVP tag amd punitive mandatory couciling ? I don’t see the connection

    • #72487 Reply
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      Jerry

      Sure, Leland!

      This case is the first appellate court case to cite Butler II in its decision. T.S. v. PSP ties in all recent PA appellate court cases involving registration. We are currently awaiting results from the PA. Supreme Court regarding all non-SVPs being removed from a public registry. But like the PA Supreme Court said in Butler II, the PA Commonwealth Court here in T.S. v. PSP not only cites the history of registration in Pa, which is based on the PA Legislature’s finding (which is wrong and based on misinformation) that sex offenders reoffend more disproportionately than others convicted of a crime, the decision in T.S. also wrongfully cites how the label of SVP is applied in PA. This decision and the PA Supreme Court’s decision in Butler II ASSUME that there is criteria based on sound psychological and psychiatric practices that person’s labelled as SVPs are receiving the label after a process approved by mental health and criminologist experts in the field. The SVP designation is not being applied based on this. It is being applied based on highly subjective opinions and questionable counseling credentials of counselors sitting on the Sexual Offenders Assessment Board (SOAB), AND in spite of what the PA Supreme Court said in Butler II and the Commonwealth Court in T.S. v. PSP, persons past crimes ARE HIGHLY influential to being arbitrarily labeled an SVP in PA. This is a major problem. The statute is clear that one can be labeled an SVP based on a prior act. Both of these appellate courts are ASSUMING that all persons labeled as an SVP have “a mental abnormality or a mental disorder” and “it is not connected to any offense.” However, Title 42, Ch. 97, Subchapter H § 9799.24.(b)(2)(i) and (d.1)(1)(5)(6) of the PA Crimes Code clearly states the designation CAN be based on past offenses.

      Thus, this case helps because it solidifies what PA appellate courts are saying about SVPs and provides lawyers a way to show it is not how the SVP label is applied in PA. It is arbitrary, not based on any objective standards, and is determined by a member of the SOAB? What are such qualifications to be on the SOAB? What instrument was used to find an objective rationale for applying the label of SVP? Was it the subjective opinion of one person? What are his or her credentials? A Ph. D. in Clinical Psychology? An M.D. in Psychiatry? How about a Ph.D. in Criminology?

      The problem with all state legislatures regarding criminal statutes is that they don’t consult with graduate-level experts in the area of criminal behavior before making or amending criminal statutes. Instead, they let polluters write environmental laws, M.B.A.s write banking laws, yet just apply knee-jerk reactionary criminal laws that they hope will just get them reelected or elected to a higher office because they show how tough they are on crime when the media over-hypes a crime issue that really doesn’t exist, which stirs unwarranted safety issues regarding their latest boogey man.

    • #72493 Reply
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      Penny

      I believe that when this legislation is published in PA then it should be included in all fifty states of America. Lets make these new laws standard in all fifty states and unify the country.

    • #72497 Reply
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      Perry

      As I currently live in PA Myself, I think there’s going to be more to this in the coming months than what we’ve seen so far. I’m most interested in how the final outcome will be, as I tend to believe Pennsylvania will NOT give up that easily. Historically, The State Legislature loves to ‘Do What They Want To Do Regardless’. I hope they get checked all the same.
      Done.

    • #72517 Reply
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      TS Rohnevarg

      We are a federal republic, not an empire. Unless the Supreme Court of the United States rules on a matter, the States have individual power to legislate. That is what a free society involves. We guard that today in the assurance we may appeal to it tomorrow.

    • #72524 Reply
      Charlie
      Charlie
      Moderator

      Hi Jerry, imho you are spot on with your analysis of absence of experts when “diagnosis” of SVP labels are applied. perhaps even more disturbing is when so-called credentialed individuals actually do present their diagnosis as if they are are conclusively finding a mental disorder that demonstrates sexual violence.
      as many may already be aware, there is no such mental health diagnosis in the DSM 4 sexual violent predator or sexual violence in general. the predominant diagnosis that are used to label someone an SVP seemed to be a combination of paraphilias, and antisocial personality disorder. These two DSM identified labels have specific criteria which can inform a diagnostician of the potential appropriate diagnosis for the individual. However they are not conclusive.
      Paraphilias for example are not necessarily static. Meaning, that some paraphilias extinguish overtime and preferences change. More importantly, a paraphilia does not necessarily mean that someone is not able to control themselves. A paraphilia then is not an evidence of behavior, but more of a motivation in thought. Absent thought police I don’t think a paraphilia would rise to the level of proof propensity towards sexual violence.
      Antisocial personality disorder (ASPD) is a different situation altogether. This specific diagnosis is in the category of a personality disorder. Personality disorders are a constellation of features which taken all together indicate a propensity to behave in a certain way I’m at Jen Lee as a reaction to stimuli. In my experiences with ASPD, there is generally an identifiable progression from childhood of behaviors which indicate the child’s unwillingness or inability to accept rules and external control. Again, the assumption that someone who struggles with ASPD would rise to the level of establishing sexual violence is torturing the definition to fit a desired outcome.
      The dirty secret that most people do not understand in the public arena is that SVP is a legislative and or legal term, but is not a mental health or diagnostic term. In the political world of sex offender management, there is a concerted effort to connect the legal assumptions with mental health disorders in order to assure so-called management of individuals. Using assessments for actuarial scores such as the static-99 are an attempt to link the political legal world to the mental health world. But this link is illegitimate. Criminal history does not necessarily define nor is assigned to the current existence of a mental condition, as a predictive combination. The art of mental health diagnosis is rather subjective and open to the interpretations, biases, and often desired diagnostic goals of the evaluator.
      It is an abuse of the concept of mental health and the diagnostic manual to force a conclusion of mental disorder in order to support a political assumption of sexual violence. We don’t do this with other violent crimes, but make a special exception for sexually based crimes. This is a social construct not a mental health one. The DSM is a highly politicized negotiation between different power factions in the world of mental Health. The editors themselves tell us that a diagnosis of an identifiable paraphilia only describes what is arguably an unusual or atypical sexual arousal trigger, not necessarily an impairment of judgment or ability to contain or manage oneself.
      The bottom line is even when graduate-level individuals who are credentialed sufficiently to make a diagnosis are involved, search diagnosis is suspicious when the DSM criteria is tortured to conform to a political or legal construct. In my opinion as a PhD level mental health professional, it is a presumptuous misuse of mental health diagnostic criteria purchased by politicians and law enforcement individuals as a means to an end; to somehow conflate historical behaviors, sociological assumptions and norms, and political experience to pathologize an individual into a designation that allows society to put them away for life, or keep them under close scrutiny.

    • #72536 Reply
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      Joe

      So what does this mean? How is this effecting people convicted before December 2012?

    • #72532 Reply
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      Tim in WI

      Sandy,
      I can appreciate the use of the word ASPECT of registration. The punitive aspect was always present, yet identifying it in the initial complaint that resulted in the Doe03 was truly feeble. It’s is hard for me to believe the real issue in question was put to paper despite the legal talent involved. The new reality of the internet as we know it today was unimaginable to most. So maybe that helps explain the error….forgive ..for they know not…Hey we know there is no getting it back, liberty lost is irrevocable. All DNA exoneration beneficiaries will testify to that. Even with courts ruling expressions of constitutional incongruity are still not discussing registration as slavery to property maintenance. It is a use of a machine that counts, and the relative disposition therein the relationship between man and machine.

      Let us not import human projections of morality into a machine not construct capable. Artificial intelligence tries but nay..merely mimics by model. Asimov made the point eloquently. Covid models were man made too and used without a known valid baseline controls aspect and used in a mass way upon the people. Those were embedded in human fault intact. Therefore all for not and conclusions as efficacy Going forward basically useless.

      Sorry folks the database machine can not predict human future no more than predict usefully every virus behavior. Best leave room to God or Chance.

    • #72562 Reply
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      Tim in WI

      @Charlie the moderator,
      Right on target! Much of psychological ” science” has been conscripted for uses other than human benefit. Too often science follows the dollars and some believe that proves psychology merely a study of self Interest. But how to convince the sexual aggressor it is not in their own best interest to be act aggressive? A basic understanding of long versus short run mindframe. This conversation conveniently interacts well with traditional models of economic theory. Thus, human consensus ( law) can be bought with the use of the most basic human behavior motivation – emotional appeal- but often contrary to the long term impact on outcome.

      Clearly that is the case with the sex offender and associated infrastructure electronic. Scapegoats for surveillance saints.

      Exploitation of children comes in many forms. Sexual abuse is but one evil, and more often then not, a one on one interpersonal interaction between individuals. An attack on individual sovereignty. Mass exploitation however is the far more egregious of human act(s), and hence a far greater threat to the body of liberty whole. That is the reasoned threat intrinsic AND inherent (erred by faulty human program- Asimov) to the database driven infrastructure itself. Sex offender data has economic value, they want mine for free! In fact, they think I should pay a sum of $100.00 for the collective convenience, and without valid reason. Last time I checked free men are paid to maintain machines in a republic.

      Ultimately the question is not: IF the database can be used to impose affirmative disability ( diminished anti-social liberty) rather the real question is: IF it’s (anti-liberty use) evisceration of individual sovereignty can be checked at all.

      Resistance is futile – you must comply.

    • #72596 Reply
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      Brian

      This is a great decision in Pa and I am looking forward to others coming in. I moved back to Pa from Michigan 3 years ago and no hearing I feel they restarted my time. No Due Process.
      These rulings coming are great but the problem really is we need a SCOTUS who will get a spine and uohold Constitutiinal Law and disallow this in all 50 States. Seems a ruling is going to have to be done soon bc ot is so confusing if you want to travel to see grandkids or anyone. You just pray you do it right. Too vague.

    • #72610 Reply
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      Jerry

      I’m right with ya, Charlie! That’s why I feel it should be a “blind” board decision regarding classifying one with a “mental or personality defect” that he/she is a danger to society and is thus an SVP.

      What I am saying below is that a person MUST have committed an actual sexual offense (not looking at and or downloading something on the computer –I reject the idea that any legislature or court can declare looking at child pornography to be crime because the “looking at” doesn’t apply to law enforcement under the flawed theory that the ends justify the means, which is contrary to American law that makes the police, DA, and a judge above the law. If that child or those children are victimized by looking at the picture by those other than law enforcement or judiciary officials, then please tell me how if law enforcement or a judge looks at the picture it isn’t abuse too without the ends justifying the means, because that is un-American! Go after the maker and internet provider). Nor should there be a sexual offense because one party was 20 and the other sex partner 16 –a Romeo case and NOT a violation of any REASONABLE law until the 1980s false claims of a high number of sexual offenses enabled legislatures and courts to say 18-16 is okay, but the person who is 20 and the other 16 is a pervert and a deviant–which is also absurd.

      I figure with the educational, research, and years’ experience of a person working in the mental health field (and in criminology) coupled with a Ph.D. in that field (and an M.D. psychiatrist) could be nominated by their peers to sit on the SOAB in PA. There could be three or five persons who meet with the offender and apply an objective instrument (survey, questioning, etc.) more than for just one 1-hour meeting–say 2 to 3 hours with the sex offender. The interviewee’s scores on tests, answers to questions, and a full report (with no note comparing or discussion with other Board members) by each of the three or five Board members goes directly to the judge, and if two of three or all three, or three, four, or all five (if a five-member board) concludes the person has “a mental or personality defect” that makes him/her highly likely to be a real sexually violent predator, then the judge applies the label. The names of the majority can be redacted but the reports be available for defense counsel and of public record to ensure everything was above board.

      The above way is by no means fool proof or perfect; however, it is a much better alternative than what we have now. I’ve talked to persons who have been classified as SVPs in PA. The majority have been arbitrarily labeled as such by SOAB counselors who are also “sex offender” counselors who make money off of the life-time counseling scheme. Talk about a conflict of interest!

      If the general public could get true information from reliable sources (the media only cares about how much it can charge for a 15, 30, or 60 second ad from our lifetime elected officials during the next campaign, they don’t care about the truth), and could see how much money in tax dollars are wasted on a registry that has done nothing in 24-26 years to reduce sex offenses, they would work with all of us to push the reform this current criminal justice system is in direr need of.

      Thank God for NARSOL and all state affiliates and other criminal justice reform groups who understand that our criminal justice system is terribly flawed; especially the crimes that have arbitrarily been labeled sex crimes and have done millions of dollars in damages to the person and his or her family because of a public registry, which is nothing more than a shaming list.

    • #72657 Reply
      Charlie
      Charlie
      Moderator

      In their collective rush to label people with harsh judgments they miss some of the primary sociological concepts that apply too many of the folks that have a touchless crime. what area specialty I work in is helping men break porn addiction for good. It is very difficult process. But we’ve become very successful at it. My years of research has helped me establish a methodology for this specific modern day plague. If you would ask a hundred counselors what their take was on pornography addiction half of them would probably say there’s no such thing and the other half of them would say that attics just like alcoholics will be spending the rest of their life and recovery.
      what they don’t know is pornography addiction has nothing to do with sex. At least not the way we think of sex. They are not sex addicts. Why is that important? Because sex addicts will have sex. They will find a way. They will find a victim if they have no one willing. They will violate other people’s boundaries in order to have sex. That is a sex addict. A porn addict is not addicted to the sex. He is addicted to the process, in the same way that a gambling addict is addicted to the anticipation of a big payoff if he just waits long enough. The wait time with anticipation provides a steady drip of dopamine in the brain. almost all of the men that I have been counseling with describe the process that they go through and similar fashion. Most of them find a time and their day when make it have sufficient alone time to spend combing through the unlimited pages a free pornography. As their pouring over these images they are opening new tabs and keeping some reserve while closing others. They are collecting these tabs with likely candidates for the final project. In the process taking their getting excited as they begin to compare and contrast the different pictures and what they might represent. it is in this process which we call the hunt that the dopamine is being released in the addiction is being fed once they run out of time get too tired or for whatever reason have to finish up there time of using they settle on a single picture or video and they use that to seal the deal. only then do they actually physically enter into the sexual fantasy as if they were involved. Usually that part is short in the orgasm is good but it’s not as rewarding as the hunt. The part to bring shame on these men is knowing that they’ve lost control and so they load themselves down with shame. Shame is a form of self-abuse you attack your own character your own self-worth when people shame you from the outside when they are shaming with the quality of who you are. That is so different from guilt. guilt is where you or someone else identifies the wrongness of the behavior doing and points it out. Unlike shame guilt is focused on the behavior that was antisocial or unhealthy. Shame reinforces negative self worth and opens the holes in the soul wider causing the user to need more medication and one medication in order to feel okay. And this amplifies the use of porn.
      except for the fact that some of the pictures that end up on the internet are illegal, and some people specifically seek those out, the crime is being committed is a person crime against individuals self-esteem. They are causing themselves a lot of pain. But there is no crime it describes being harsh on yourself. The secondary or collateral damage from pornography abuse is on the relationships that the user has, having a tendency to drift away from those in favor of their self indulgence. As a whole there is very little connection between poor news and acting out with real people. That is not to say that it never happens but poor news is not a gateway to violence. If someone is violent they have different character traits that are driving them. but our legal system assumes that if there sex involved and if it’s not sanctioned sex it must be a criminal act. So we’re limping everybody into one bucket and that is fundamentally unfair. I know in my state if somebody is caught with a underage photo it depicts sexual axe is considered a sexually violent crying. Even though there is no violence being done by that person. There are grand assumptions being made as to who’s being victimized and why. and in many cases the victim cannot be cross-examined because nobody knows who these people are. So nobody can really prove that they were being victimized. And I’m not advocating for child pronography even for violent imagery or abusive imagery. It ruins relationships and that was my concern and why I got into this line of work. But it does prove that the idea of sexual violent predators being no contact criminals makes no sense. If you’re violent you’ll commit violence if you’re a sex addict you will have sex if your appoint attic you will look at porn there’s these are three very separate levels and only two of those three rise to criminal behavior in most cases.

    • #72693 Reply
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      Jerry

      Thanks, Charlie! Well said! It has been the 24/7 media that had nothing else better to report back when they first came on cable television in the late 1980s that fanned the flames of a boogey man who was looking at pornography then hiding in the bushes just waiting to attack a child. People who have studied sex crimes know that less than 5% of sex crimes are committed by strangers to the victim. For years, Puritans have tried to find a way to connect looking at pornography to being the cause of sex offenses and abuse, which has never been empirically proven because of what you pointed out in your last email. The general public does not understand this because the media and politicians, who gain by the public’s ignorance about who commits hands-on sex offenses, quash anyone who wants to address a legislature regarding empirical facts instead of folklore. It is easier to just pass knee jerk laws and waste court budgets instead of investing in research on how to best protect the public and really protect society from persons who really do pose a threat because it will contradict irrational fears and educate the public who will then see beyond the hype of “tough on crime” laws and DA’s and demand that they do what is right for the public instead of what is right to further their political endgame.

    • #72851 Reply
      Avatar
      The King of Facebook

      How can it be, that those who are dedicated to the healing of trauma, can participate in psychological torture? The American Psychiatric Association and the American Medical Association have declared that participation in interrogations violates basic international human rights and the ethical imperative to do no harm. The American Anthropological Association condemns the use of anthropological knowledge as an element of physical or psychological torture.
      Using lie detectors to accuse people of repeatedly lying and subjecting them to unspoken alternative treatment and additional punitive fees to undergo this dark ages type of Inquisition is horrific and frightening if allowed to continue.
      The by laws in some state are diametrically opposed to the goals of any therapist or counselor.
      Compelling a patient to undergo a polygraph in order to continue therapy and avoid further punishment is a tortuous, barbaric practice and nonconducive to to any healthy treatment plan.p

    • #72847 Reply
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      Not a SO

      Ha!!! Here it is again. “In Person Reporting”.To a police agency. I have been screaming out this issue for three (3) years and finally, finally, a court has addressed this issue. Specifically, I have been try trying to point out for the last three (3) years what SCOTUS said in “Smith v. Doe, 538 US 84 (2003) pages 101-102”. There, the Court said: “…On its face, the AK sex offender statute does note require ‘IN PERSON REPORTING’ and registrants are free to live and work where they wish and travel without restrictions…” Now, if that ain’t saying that IF the AK statute DID require in person reporting the statute WOULD be infirm/unconstitutional, then I must be mentally retarded because that’s what it is saying to me!!! And with this ruling, it’s got to saying the same thing to the justices on this court and if so then multiple states are in violation because multiple states have not only in person reporting but also residency and travel restrictions; therefore, this issue should again, be taken before SCOTUS for another review.

    • #73035 Reply
      Avatar
      Tim in WI

      @Not a SO,

      Alaska’s congress decided not to in person reporting component because of the geography, To require in person reporting would have imposed a huge burden of travel on many in remote areas. In some scenarios a costly plane ride would have been necessary for the compelled registrant.

      This exposes a truth about “law.” A law that works well in the context of NYC will not work in Alaska’s bush country. The Federalist always demands ALL 50 comply with the same words of law. Academic types refers to it as “being homogenous”
      The problem is, in an individual liberty based society, homogeneity is always the first concept to be resented, neglected and rejected by the people.

      COVID 19
      Everyone has to wear a facemask in public—–Immediately resented and rejected by many.

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