ACLU lawsuit challenges man's sex registry listing
By LOUIS PORTER VERMONT PRESS BUREAU | November 03,2009
MONTPELIER — A man convicted of attempted sexual assault who was apparently improperly included in the state's public sex offender registry has sued the state to have his name removed.
The man, identified only as John Doe in court records, was charged in 1999 with attempted kidnapping and attempted sexual assault. He was convicted by plea agreement only of attempted sexual assault, but this year the state included him on the public sex offender registry, recently expanded by legislators.
However, the law did not include "attempted crimes" such as the one the unidentified man was convicted of among the offenses that warranted inclusion in the public registry, according to his suit and the American Civil Liberties Union of Vermont, which has taken on his case.
"The Department of Public Safety doesn't make the law. The Department of Public Safety has to follow the law made by the Legislature. There is absolutely nothing in the current law that is justification for putting our client or others in a similar situation on the registry. It is very clear they should not be on it," said Allen Gilbert, head of the civil liberties organization. "Vermonters have a right to be treated fairly by their government. They should not have to get a lawyer and file suit before the government does the right thing."
Thomas Tremblay, commissioner of public safety, said he believes lawmakers meant to include attempted crimes like the one in this case. But the language of the law does not make that clear, so his department has – for now – removed the man's name and that of three others in a similar situation from the public registry, Tremblay said.
"There is a potential argument to be made that (those convicted of) attempts should not be on the registry," Tremblay said. "For the time being we have removed him from the registry."
Those offenders will remain on the law enforcement registry that is not public but is used to monitor sex offenders who have served their sentences and are in the community.
But Tremblay said the Douglas administration will ask lawmakers to consider changing the law.
"We will be looking for the Legislature to clear up the language concern. It is my understanding that is something that will be dealt with first thing when they return in January," he said. "It has been my view and the view of the governor that we want to provide families with as much information as they can. Our goal has been to include as many sex offenders as possible on the registry."
The case is not the first issue to arise with the state's newly expanded registry laws. Through an apparent oversight, offenders who have been convicted in other states were not required to register in Vermont, a provision that is likely to be added, Tremblay said.
The situation with attempted sex crimes involves a somewhat different issue.
While lawmakers meant to include those convicted out of state, but omitted them through a drafting error, there was no specific and definitive discussion about whether attempted sex crimes should be dealt with in the same way, said Rep. William Lippert, D-Hinesburg, the chairman of the House Judiciary Committee.
For now, the law does not provide for those like John Doe to be included, Lippert added.
"I don't think it was a correct reading of the law at this point in time," he said of the public safety department's interpretation.
But lawmakers next session will "very likely" consider whether those convicted of attempts at sex crimes should be included in the registry, Lippert said.
"Some convictions for attempt are very serious," Lippert said. But such crimes do have a lower standard required than the sex crimes that now make an offender eligible for inclusion on the public registry.
Public safety must be protected, but it should also be remembered that offenders are put on the public registry for crimes they have already been convicted and punished for, Lippert added.
"We are reaching back in time with these convictions," he said.
Gilbert said that the ACLU's client wrote a series of letters trying to get his name off the registry when he realized the law did not require his inclusion, but got little response from the department before filling his lawsuit.
Gilbert said it's appropriate that the petitioner in the case not be named.
"He wants to be unnamed for the same reason the registry is unfair," Gilbert said. "The notoriety attached to having your name and crime literally available to anybody in the world doesn't serve justice and rehabilitation."
It is also important for the goals of the case to grant that anonymity, according to the legal fillings by Doe and the ACLU.
"Were Doe forced to divulge his identity in order to gain the respondent's compliance with state law that exempts Doe from public naming on the public registry, the respondent would be free to continue ignoring its governing statutes, knowing that Doe and most other affected individuals would rather keep quiet than risk the increased opprobrium that litigation under their real names will bring to both them and their family members," according to the request for anonymity in the court documents.