I was working on some issues today regarding a juvenile matter and a question came up about the Sex Offender Registry Act. I think the question about the sex registry had something to do with The Who playing in Florida, but I digress. Back to juveniles, I think that everyone knows that a juvenile will have to register as a sex offender if convicted of certain crimes. Our legislature has told us that there is no difference between adult sex offenders and sex offenders who are children. They have also told us that it doesn’t matter if the offense occurred in another state. That appears to be simple. If you are a registered sex offender in one state and move to another state, you must register there.
But what if you are not a sex offender in the state that convicted you? Should you still have to register in your new state? That answer was yes according to the S.C. Department of Juvenile Justice in a case called In the Matter of Shaquille O’Neal B., decided earlier this year. The Shaq appealed and he won.
The juvenile was convicted in North Carolina for Indecent Liberties Between Children. He was placed on probation and the probation was transferred to South Carolina. The S.C. Department of Juvenile Justice notified the juvenile that he had to register as a sex offender. He filed a motion in family court to have his name removed from the registry. The family court denied his motion.
On appeal, the state argued that the family court did not have subject matter jurisdiction to consider the juvenile’s request to have his name removed from the Sex Offender Registry and that he should have filed a declaratory judgment in the court of common pleas to challenge the requirement.
That is the procedure for adults. Remember, this is a juvenile case.
The South Carolina Supreme Court (SCSCt) rejected the states argument. The South Carolina Family Courts have jurisdiction of juveniles. That jurisdiction continues until the juvenile has completed his probation or becomes an adult, whichever comes later. This juvenile was still on probation when he filed his motion with the family court, therefore the family court had jurisdiction to hear the matter.
Regarding the merits of the motion, the SCSCt looked at the South Carolina Sex Offender Registry Act.
In general, persons of any age who are convicted or adjudicated delinquent in South Carolina of an offense enumerated in the Act or who are convicted or adjudicated delinquent for a similar offense in a comparable court in the United States are required to register.
Clearly the Act applies to juveniles. The question is whether the offense is similar. The SCSCt went on to compare the elements of the crime the juvenile was “adjudicated delinquent” of in N.C. to the elements of a “similar” crime in S.C., Lewd Act on a Minor under the age of Sixteen.
The N.C. offense can only be committed between minors. It is a misdemeanor and is punishable by a sentence of up to 45 days incarceration. Furthermore, it does not require the defendant to register as a sex offender. The S.C. offense, on the other hand, is one that can be committed by an adult. The defendant must register as a sex offender. The crime is a felony and it carries a sentence of up to 15 years in prison.
The S. C. Supreme Court, in a 3-2 opinion, agreed with the juvenile that the two offenses are not substantially similar. Therefore, the juvenile did not have to register and his motion to have his name taken off the registry should have been granted.
The dissent would keep the juvenile registered as a sex offender under the following rationale: If the juvenile committed the act in South Carolina, as opposed to North Carolina, he could have been charged with lewd act with a minor and therefore, he would have to register.
I don’t follow the dissent’s logic. In this case, the juvenile could’ve been charged with something different in N.C., but he wasn’t. The state where the offending conduct took place didn’t see the need to strap the label of sex offender to this juvenile. For that reason alone, I don’t think S.C. should.
