Suit challenges state's sex offender registry

~ Missouri Supreme Court to consider argument that registration act is over-inclusive.

KANSAS CITY, Mo. -- Some call it the scarlet letter of the modern day: registered sex offender.

More than 11,000 men and women in Missouri carry the label above their names, addresses and photographs on a publicly accessible Web site.

But do they all deserve to be there?

It is a question the Missouri Supreme Court will consider Tuesday when Kansas City attorney Arthur Benson II argues the constitutionality of Missouri's 11-year-old Sex Offender Registration Act (SORA), a law he maintains has been applied "broadly, deeply and harshly." Violent rapists and repeat child molesters convicted after July 1, 1979, are required to register for the rest of their lives. But so is one of Benson's clients identified in court documents as Jane Doe 1.

Now a mother of five in her 30s, she was 20 when she had consensual sex with a 15-year-old boy she thought was 18. She pleaded guilty in 1992 but received a suspended imposition of sentence and thus has no criminal conviction. Another client, John Doe 1, made the list for improperly touching his 15-year-old girlfriend when he was 17.

Then there is John Doe 7 .

The 46-year-old resident of eastern Jackson County made the list for child abuse, one of several non-sexual offenses that require the same lifetime registration.

He was accused of bruising his son by spanking with a belt. The allegation was raised two years later during a divorce dispute, and he pleaded guilty on the advice of his lawyer with the promise of probation, a suspended sentence and no criminal history. It was before Missouri passed SORA, and it could very well have altered his decision to plea.

"I had no way of knowing," Doe said in a recent interview.

His inclusion on the list has caused a precipitous drop in his contracting business and he has been "run out" of several churches, he said.

"It's a big mess," Doe said.

But despite the problems he has encountered, Doe thinks SORA is a good law.

"People have a right to know about these persistent offenders," he said.

Proponents of offender registration laws say it is the right of the public to know about potential dangers in their community that outweighs the inconvenience imposed on the registrants.

Even Benson, while challenging Missouri's current law on behalf of 11 John and Jane Does, agrees that there is a place for such a law.

But he argues that the law must differentiate between persons like Doe 7 and "heinous serial child molesters."

"SORA is completely constitutional with respect to such criminals," Benson wrote in court filings.

As it is written, Benson says the law today is "over-inclusive." All those on it are lumped into one category with no effort to differentiate between those who might be dangerous and those who are not. It also does not allow a person the opportunity to show that they are not a risk to re-offend.

To make the law constitutional, the state must show a "rational basis" for who it includes on the list, he contends.

"Instead of attempting to find a rational basis with which to draw the line, Missouri has swept hundreds, if not thousands, of citizens into SORA's net, citizens for whom there is no rational basis for their inclusion," Benson wrote.

He maintains that Missouri ought to be able to adopt a constitutional registration law like other states that surround it.

In Kansas, for instance, many first-time offenders are only required to register for 10 years. Kansas also differentiates between classes of sex offenders and those on the list for non-sex offenses.

And the Kansas law also only applies to those who committed their crimes after the law took effect on April 14, 1994. Missouri's law also was enacted in 1994 but includes those convicted after July 1, 1979.

There are now 3,550 offenders in the Kansas online registry.

Benson's appeal to the Supreme Court is from a ruling by Jackson County Circuit Judge Jon Gray, who found that SORA is a "reasonable measure tailored to further legitimate state interests."

"SORA is intended to protect the public from sex offenders and establishes an administrative rather than a punitive protection in furtherance of its legislative intent," Gray ruled.

Attorneys for the state and county officials, who will oppose Benson at the Tuesday argument, maintain that is an important way for society to protect itself without imposing an undue burden on those required to register.

In court filings, they note studies that show sex offenders and child molesters are more likely to commit additional offenses than members of the general public, and that no test exists that can guarantee that an offender will not re-offend.

Information required for SORA does not violate rights to privacy because it is already publicly available. It does not interfere with a registrant's right to live or travel where they choose.

"SORA registration provides a valuable tool to law enforcement officials to assist them in investigating crimes," they wrote in court documents.

There are a wide range of possible outcomes to the case. The court could completely reject Benson's argument or it could limit aspects of the current law such as no longer applying it retroactively to persons with suspended sentences. The court could also rule part of the law unconstitutional but stay that order to give lawmakers time to make fixes.