October 16, 2009
STATE OF NEW JERSEY IN THE INTEREST OF C.D.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FJ-19-38-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 23, 2009
Before Judges Stern and Sabatino.
C.D. pled guilty to third degree endangering (involving touching with his penis the vagina of a five year old sister), and fourth degree lewdness (for doing so in front of his two year old sister). Other charges were dismissed.
C.D. was under fourteen when the offenses were committed.*fn1 In entering the plea, C.D. acknowledged that he would be subject to registration under Megan's Law, N.J.S.A. 2C:7-1 to -19. However, the plea agreement permitted C.D. to argue against the application of Megan's Law.
At the dispositional hearing, C.D. presented Dr. Dean DeCrisce, a child and forensic psychiatrist, who testified that "[i]ncest offenders have the lowest level of reoffense rate and risk compared" to other types of sex offenders. Dr. DeCrisce testified about "the impact that Megan's Law could potentially have on [C.D.]," who had been in sex offender treatment as a result of prior acts. According to Dr. DeCrisce:
My understanding of the purpose of Megan's Law, and I say what my understanding is because that's how I couch how I feel it will affect him, is that the purpose of Megan's Law is to basically notify the community so that they can take proper measures to protect themselves in the face of substantial risk from a sex offender in their community.
And so my understanding is it's to protect people from the risk that can be provided an offender. And I don't feel that [C.D.] represents that type of risk towards the community or that type of -- the application of that law, if you will, as appropriate to his type of offenses or to his specific case. I feel that it could be potentially very harmful to him for a number of reasons.
Q: In what way?
A: One is that -- I mean certainly the Court is quite aware there's quite a bit of stigma associated with sex offending. There is attitudes in the community of what that means that are usually not correct, and that it's likely that he would be pigeon-holed with -- or labeled with that type of stigma, which would carry regardless of where the family moved, what school he went to, if he was tiered, and he very well may be tiered as a tier two because of the age of the younger sibling, that that could require schools to be notified, which is where -- he's not a 40 year old man and schools are being notified, he's a kid in those schools that would be notified. So that means the school officials would know, summer camps would know, people around him would know.
I understand that there is a reasonable attempt to try to keep that private, but there is the realistic view of what could be done with that, and that in his formative years I believe that would significantly impact on his ability to make interpersonal relationships with his peers, which I already stated was, I believe, one of the problems that he has, and his ability to in his later adolescents, to apply for a job, to go on appropriate healthy dating situations, to apply for college, that this would interfere with all these things and really label him with the sex offender label, and where he could be, as I stated, rejected by his peers, teachers and maybe family members. So that's one risk.
One is that it reinforces the identification as a sex offender. I'm not sure that that's the best -- that that's what should be what is reinforced in a child, as opposed to an adult offender and may -- I believe that he has a tendency towards depression and I diagnosed him with a possible dysthemic disorder. And I believe that these things would likely push him into depression. I have understood that he has had passive thoughts of wishing he was dead. He has had thoughts of those.
That means, in my belief, he has some proclivity to potential suicidality in the future. And I believe that those types of thoughts come out when people are pushed up against the wall, so to speak.
So that maybe it could potentially predispose him to some depressive and suicidal episodes in the future by really labeling him that way and having his peers reject him. I believe that certainly would interfere with his development of normal sexuality and dating if the community knew. And that's certainly something I would hope would happen for him in the future, that he would be able to develop in that healthy way.
I also believe that it would affect the family as a whole of course, if their community was to know. I believe that these are community-minded, law-abiding educated members of their church, who probably highly value their value in the community. And if they were seen as kind of harboring a sex offender in some type of soiled way that other kids, even though they're siblings, if they had friends, that they would not be allowed to come over because in some way they could be harmed or they wouldn't want to have anything to do with the [D] Family, I think that that's not only damaging to the family, to the victims, it's also damaging to [C.D.], also, because then he would be expected to be carrying the burden for this rejection from everyone. And I'm not sure that that's entirely appropriate for his offending behavior.
And then finally, I think there's always a risk of vigilantism. And I noted in my report that on the web site there's a big disclaimer there that basically says we are not advocating vigilantism, do not do that, leave the law up to the law, so to speak. So it means that even the New Jersey creators of Megan's Law understood that people could misinterpret this and take vigilantism into their hands.
Q: And it's your opinion with respect to these -- do you believe that that's within all medical probability that that's likely to occur?
A: Everything that I'm saying here I'm saying with a reasonable degree of medical certainty. I believe it I with a reasonable degree of medical certainty that it's reasonable to assume or not -- I should not use that term. It is reasonable to conclude that he will have worsening of depressive symptoms, that he will have a worsening of his ability to make social -- appropriate social interactions, that he will likely have some hopelessness and interference with his very possible, very highly probable likelihood that he will go on to college and be a productive member of society.
Despite the testimony, Judge James A. Farber concluded that "Megan's Law is something that I don't feel, based on the facts of this particular case with [C.D.] and the statute as interpreted by our Supreme Court, that I have any wiggle room" and that C.D. must "register and comply with Megan's Law."
On this appeal, C.D. argues:
NEW JERSEY'S MEGAN'S LAW SYSTEM IS UNCONSTITUTIONAL AS APPLIED TO JUVENILES BECAUSE IT VIOLATES THE [SUBSTANTIVE] CLAUSE OF THE FEDERAL CONSTITUTION BY IMPOSING ON JUVENILES WIDE SCALE, STATE IMPOSED STIGMATIZATIONS.
THE CONSTITUTION OF NEW JERSEY AND THE UNITED STATES [ARE] VIOLATED BECAUSE C.D. IS ENTITLED TO A JURY TRIAL ON ANY ISSUE THAT, IF FOUND GUILTY OF, WOULD SUBJECT HIM TO THE APPLICATION OF MEGAN'S LAW.
THE COURT SHOULD FURTHER HARMONIZE MEGAN'S LAW WITH THE JUVENILE SYSTEM BY EXEMPTING UNDER 14 YEAR OLDS FROM REGISTERING.
We agree with Judge Farber that this case, even with the endeavor to make an "as applied" argument, is controlled by In re Registrant J.G., 169 N.J. 304, 336-40 (2001). See also Doe v Poritz, 142 N.J. 1, 74 (1995); R. 2:11-3(e)(2).*fn2
Registration and community notification can be terminated when a juvenile offender turns age eighteen if the juvenile offender under fourteen, at the time of offense, is not likely to pose a threat. J.G., supra, 169 N.J. at 336-37. J.G. rejected on attack by a juvenile on Megan's Law based on various constitutional grounds, and expressly rejected the need for a jury trial as to tier classification, or otherwise. Id. at 338- 39. In arguing before the Family Part that there should be no required registration of juvenile offenders under age fourteen until a J.G. hearing as to the need for registration at age eighteen is conducted, C.D. recognized he had to convince the Supreme Court to revise J.G. His emergent applications for a stay of registration pending appeal was denied by us and a Justice of the Supreme Court. The Justice's order was "without prejudice to movant submitting an application for relief in the appropriate forum following the outcome of the risk assessment hearings." In that connection, we add that Judge Farber noted that the tier classification had not been decided at the time he denied the stay application which he stated could be revisited depending on the classification. At the time the briefs on this appeal were filed, there had been "no official notice of his tier presented to C.D. or his parents." Hence, to this point there is no risk of an internet posting which cannot be retroactively undone if C.D.'s case would otherwise be subject to posting before he might be successful at a J.G. hearing. See N.J.S.A. 2C:7-2b, 7-8c, 7-13d.