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Rhode Island Supreme Court Takes on ‘Thorny Issues’ Presented by Sex Offender Registry Laws

by Christopher Zoukis

State legislatures across the nation seem unable to stop themselves from tinkering with and upgrading their sex offender registry laws. The Rhode Island Legislature is no exception, and continual changes forced the state’s Supreme Court to wade into the treacherous waters on April 23, 2018.

In November 1994, Frederick Gibson was convicted of second-degree child molestation sexual assault. He received a sentence of 15 years, with four and a half years to serve and the balance suspended. Gibson was required to register as a sex offender under the 1992 version of Rhode Island’s registry law, G.L. § 11-37-16.

Between 2007 and July 2012, Gibson was charged with failing to register four times. He pleaded no contest the first three times but moved to dismiss the fourth. His motion to dismiss was denied by the trial court, and Gibson appealed to the Rhode Island Supreme Court. At this point, Gibson also had filed a motion for post-conviction relief as to the first three convictions. The Court consolidated these cases and heard argument.

Gibson’s arguments were two-fold. First, he said changes in the Rhode Island registry laws limited the duration of his duty to register to 10 years. Second, he argued that his first three failure-to-register convictions violated the ex post facto clauses of the United States and Rhode Island Constitutions.

The Court first addressed the “nettlesome” question of which of several statutes controlled the duration of Gibson’s duty to register. The statute in place at the time of his conviction, § 11-37-16 didn’t say, and had been repealed and replaced. The replacement, § 11-37.1.4(a), initially required registration for “ten (10) years subsequent to the date of conviction,” but had, of course, been amended, twice. The first amendment changed the duration to “ten (10) years subsequent to the date of release from confinement or placement on parole, supervised release or probation.” The second amendment set the duration at “ten (10) years from the expiration of sentence for the offense.”

The confusion led the trial court to conclude that Gibson was required to register for life, because § 11-37-16, which was in place when he was convicted, didn’t say one way or the other. The trial court relied on United States v. Stevens, 598 F. Supp. 2d 133 (D. Me. 2009), a non-binding federal interpretation of state law, in making this determination. Stevens said the lack of a durational requirement equated to lifetime.

The Rhode Island Supreme Court did not agree with this analysis. First, the Court said Gibson was subject to the requirements of § 11-37.1.4(a), which repealed and replaced § 11-37-16. Second, the Court said the duration was 10 years because that is what § 11-37.1.4(a) unambiguously said. Third, the 10 years ran from “the expiration of the sentence for the offense,” which in Gibson’s case, covered everything between 2007 and 2012, when he failed to register.

Fortunately for Gibson, the Court agreed with him that he did not have to register for life. Unfortunately for Gibson, the Court determined that he was required to register each of the four times that he didn’t.

The Court also denied Gibson’s post-conviction relief argument that the various iterations of the registry statutes violated the ex post facto clause. The Court’s analysis matched that found in almost every other ex post facto clause challenge to registry laws nationwide. The Court said registration laws are “civil, nonpunitive regulatory” measures which “[do] not implicate the ex post facto clause’s prohibition on retroactive penal legislation.”

Despite this finding, the Court fired a shot across the legislature’s bow. In the final pages of the opinion, the Court noted the New Hampshire Supreme Court’s recent holding that its state’s sex offender registry was “so punitive in its effects on an offender that it negated the civil, nonpunitive purpose of the legislation.” Doe v. State, 111 A.3d 1077 (N.H. 2015).

“[A]lthough Gibson’s constitutional right against the passage of ex post facto laws has not been violated by the amendments that have been enacted to date, this does not foreclose the possibility that there is some threshold that the General Assembly could someday cross that might lead to a different conclusion,” cautioned the Court.

Accordingly, the Court reversed the magistrate’s ruling that Gibson has a lifetime duty to register as a sex offender, and the Court affirmed the judgment denying relief on his application for post-conviction relief. See: State v. Gibson, 2018 R.I. LEXIS 98 (2018). 

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