VA Courts Won’t Help

Changing the Law is the only way to fix this problem

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There was effort to get relief from such an unjust conviction with a petition to the courts. The case was taken to court and lost. Then it was appealed to the 4th District Court of Appeals.  The court admitted that there is a “quirk in Virginia law,” however that court said that this is a legislative matter because “the judiciary is not meant to revise laws because they are clumsy, unwise, or –even in some cosmic sense--unfair.” There was even an attempt to bring the case to the US Supreme Court, but they declined to review it.

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John Doe v Colonel Gary Settle, No. 20-1951

https://www.govinfo.gov/app/details/USCOURTS-ca4-20-01951/context

“If an 18-year-old man in Virginia has “consensual” sex with his 14-year-old girlfriend, and the next day, sends her a text message asking her to do it again, he will have committed two crimes.  But under the letter of the law in Virginia, only one of those crimes will place him on the worst tier of sex offenders on the registry with the rapists and the murderers: the text message.  That may not make much sense.

 

But our Constitution “presumes that even improvident decisions will eventually be rectified by the democratic process.”  See Cleburne, 473 U.S. at 440.  The judiciary is not meant to revise laws because they are clumsy, unwise, or—even in some cosmic sense—unfair.

 

In cases like this, courts are asked to make judgments about what is inside and what is outside the precise lines drawn by the Constitution.  And whatever else they may be, Virginia’s sex-offender registry and its narrow Romeo-and-Juliet provision are constitutional.  Accordingly, the district court’s judgment is AFFIRMED. "             Page 38

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January 28, 2022

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:20-cv-00190-RAJ-LRL. [1001100335] [20-1951]

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When adopting the Romeo & Juliet protections, the VA General Assembly overlooked the fact that a teenager convicted for the same offense – consensual, non-violent sex with a 14-year-old – could have very different consequences, based on whether the teenager is convicted of carnal knowledge or indecent liberties.  “Carnal knowledge of a child between thirteen and fifteen” is a Class 4 felony under VA Code § 18.2-63 with a minimum sentence of 2 years. “Taking indecent liberties with children” is a lesser Class 5 felony under Va. Code § 18.2-370(A) with a minimum sentence of only 1 year.

But these two crimes are treated differently by the sex offender registry.  Indecent liberties is an out-and-out Tier III offense. Carnal knowledge is Tier III but only “where the perpetrator is more than five years older than the victim.” § 9.1-902.  Otherwise, it is Tier I.  This so-called Romeo-and-Juliet provision is meant to “ameliorate the sex offender registry requirement for teenagers convicted of consensual sex crimes.” See Virginia Crime Commission, ‘Romeo and Juliet’ Laws (2007).

 

So, most adults who are convicted of either crime end up on Tier III, but for some young-adult offenders, the 5-year-gap provision makes a difference. Carnal-knowledge offenders who are less than 5 years older than their victims—which will include some 18- and 19-year-olds—are Tier I and can petition to be removed from the registry after 15 years.  But indecent-liberties offenders will always be Tier III, even 18- and 19-year-olds within the 5-year Romeo-and-Juliet window, and they can never petition to be removed from the list.

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Consider whether a lifelong registration requirement is an appropriate sanction for a single non-violent ‘crime’ committed by a high-school student.