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Nov
9

ROMEO & JULIET FOREVER – STIGMA FOR LIFE

Miami attorney Antonio Jimenez, listed by the Florida Bar as a member of the “Young Lawyers Division,” is poised to make law of great public importance in the Third District Court of Appeals that will affect a long line of high-school “Romeos” and other youthful offenders who engaged in consensual sexual acts with their “Juliet” younger victims.  Most often, criminal charges are preferred by parents.  The question posed by the appeal taken by the state attempts to limit the age eligibility criteria of the Florida statute known as “the Romeo & Juliet Law.”  The legal issue is of such great public importance that it could easily reach the Florida Supreme Court once so certified by the Third District Court of Appeals.  The circuit courts requires proper guidance in applying the statute.  However, at present, there are less than half-a-dozen published opinions interpreting the statute.

The Florida legislature passed Fla. Stat. §943.04354 (“the Romeo & Juliet Law”) in 2007 shortly after the “Adam Walsh Act,” 42 U.S.C. § 16901 et seq., took effect in 2006.  A complete review of the legislative history shows a clear intent by the State of Florida to comply with the federal statutory scheme.  See Summary Report by Senator Argenziano, Senate Judiciary Committee and Criminal Justice Committee (CS/CS/SB 1604 changed Florida’s laws regarding the registration of sexual offenders to comply with the Adam Walsh Act); see also Miller v. State, 17 So.3d 778, 781 (Fla. 5th DCA 2009) (“There can be no doubt that the Legislature intended Florida’s sexual offender registry to conform to the Adam Walsh Act so that Florida will continue receiving federal funding for crime prevention that is tied to compliance with the Act.”); accord Staff Analysis of Florida Senate Committee on Judiciary at 8 (noting that “purpose” of promulgating §943.04354 was an attempt to “address concerns about the registration of some youthful sexual offenders (sometimes described as the “Romeo and Juliet” group), while complying with registration requirements of the Adam Walsh Act.”).

Distilling legislative intent from the statutory scheme taken as a whole and from the purpose for which the Florida Legislature created Fla. Stat. §943.04354 (the “Romeo and Juliet Law”), it is readily apparent that the statute coveys a broad resolute intent to remove the lifelong stigma of sex offender registration in cases where a youthful offender engaged in consensual sexual conduct with a victim.  ”Congress made clear [through 42 U.S.C. §16911(5)(C)] that it provided an exception for consensual conduct to eliminate the harsh consequence of lifetime inclusion on the sex-offender registries for young people who engage in consensual sexual conduct – so-called ‘Romeo and Juliet’ offenders.” Miller, 17 So.3d at 781; id. at n.6 (“…the Adam Walsh Act provides that offenses involving consensual sexual contact are not sex offenses for purposes of the federal act given certain provisions and the age of the offender and the victim. Therefore, insofar as not conflicting with the Adam Walsh Act, the court hearing the motion would be required to determine that the violation involved consensual sexual conduct.”) (quoting Staff Analysis of Florida Senate Committee on Judiciary at 9).

Nothing in the language of the federal statute suggests anything other than a purposeful intent to remove public disclosure of information that federal jurists have recently described as “severely damaging” to [youthful offenders]’ “economic, social, psychological, and physical well-being[.]” United States v. Juvenile Male, 590 F.3d 924, 933 (9th Cir. 2010) (registration provision “imposes a disability that is neither ‘minor’ nor ‘indirect,’ but rather severely damaging to former juvenile offenders’ economic, social, psychological, and physical well-being” and finding the degree of damage former youthful offenders could suffer in their adult lives most compelling in the analysis of the statutory requirement). Concerns with lifelong stigmatization, and its concomitant severe damages, generated the conscientious promulgation of Fla. Stat. §943.04354.

The plain language of §943.04354 states that a defendant is eligible for removal of the registration requirement as long as the defendant is not more than four years older than the victim who was 14 years of age or older but not more than 17 years of age at the time the person committed the sexual violation which must have been consensual in nature. The Third District Court of Appeals in State v. Marcel will soon interpret the scope of the Romeo & Juliet Law for the first time in a case of great public importance because the circuit courts currently lack proper guidance as to how to apply the age criteria set forth in the statute.

Because the purpose of enacting §943.04354 was to achieve conformity with its federal counterpart, federal precedent provides the best available guidance on interpreting the scope of the Florida statute. See United States v. Abregana, 574 F.Supp.2d 1123, 1144, n.8 (D. Hawaii 2008) (“Congress carved out a specific exception where it intended there to be one. The Sex Offender and Registration Notification Act [“the Adam Walsh Act”] provisions, for instance, account for consensual sexual activity between minors and between a minor and a non-minor by excluding ‘consensual sexual conduct’ from the definition of sex offense ‘if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.’”) (quoting 42 U.S.C. §16911(5)(C)) (brackets added).  The broadest possible reading of the statutory language will serve the clear purpose of the legislation – removing youthful offenders who engaged in consensual acts with their victims from the sex offender registry. Record of arrest and conviction will still remain part of the public record in cases where removal from the registry is ordered.

To the extent that the State has attempted to inject ambiguity into the “Romeo & Juliet Law,” the rule of lenity which is codified at Fla. Stat. §775.021(1) requires the result most favorable to the accused. See State v. Huggins, 802 So.2d 276, 277 (Fla. 2001) (“A penal statute is ambiguous if reasonable people can offer different, but reasonable, interpretations.”); see also United States v. Inclema, 363 F.3d 1177, 1182 (11th Cir. 2004) (“[W]hen there are two rational readings of a criminal statute, one harsher than the other, the rule of lenity dictates that we choose the harsher one only when Congress has spoken in language that is clear and definite.”). The lenity principle “requires criminal statutes, including penal statutes, to be strictly construed in the accused’s favor.” McGhee v. State, 847 So.2d 498, 503 (Fla. 4th DCA 2003) (citing Perkins v. State, 576 So.2d 1310, 1314 (Fla. 1991) and State v. Byars, 823 So.2d 740, 742 (Fla. 2002)).

Where the stakes are so high – lifelong stigmatization – the Third District will hopefully render a decision that shows solicitude to the social importance of removing youthful offenders who engaged in consensual sexual acts from the sex offender registry. No youthful offender who engaged in consensual sexual acts should be labeled a sex offender for life provided the offender was not more than four years older than the victim who must be at least 14 years old but not more than 17 years old.

Registration and notification is “stigma for life.”  It is public punishment and ostracism for life.  Revisiting the application of the ex post facto clause may be warranted in those cases where the registration requirement has been retroactively applied to even adult convictions entered prior to the enactment of the registration and notification requirement.

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9 Comments to “ROMEO & JULIET FOREVER – STIGMA FOR LIFE”

  1. hr says:

    (registration provision “imposes a disability that is neither ‘minor’ nor ‘indirect,’ but rather severely damaging to former juvenile offenders’ economic, social, psychological, and physical well-being” and finding the degree of damage former youthful offenders could suffer in their adult lives most compelling in the analysis of the statutory requirement). Concerns with lifelong stigmatization, and its concomitant severe damages, generated the conscientious promulgation of Fla. Stat. §943.04354.
    Based on that statement couldn’t one easily make the leap that is also severely damaging to an severely damaging to an adult offenders’ economic, social, psychological, and physical well-being” also.
    With that postulate in place why isn’t the law an expost facto violation of the U.S. and florida constitutions. Anyone with an offense prior to the enactment of the registry should be removed. (see doe vs state of alaska, not the federal case but the subsequent state of alaska case)
    easily read about at http://www.dps.state.ak.us/Sorweb/sorweb.aspx see july 25, 2008

  2. admin says:

    Unfortunately, I believe the Florida cases that have addressed the ex post facto argument have rejected the argument that the constitutional provision can be extended to registration. Feel free to schedule a phone consultation with Ronald Manto if you are interested in pursuing relief by arguing that ex post facto prohibition must be applied given that the registration requirement amounts to punishment. The recent decision in the federal case seems to support application of ex post facto prohibition.

  3. admin says:

    HR: Thanks for your comments. I have updated and edited the blog on stigma for life and the Romeo & Juliet Law to discuss the application of the ex post facto prohibition.

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