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February 1, 2022

Fourth Circuit panel upholds a "quirk" in Virginia’s sex-offender registry against various constitutional challenges

Though Justice Scalia passed away nearly six years ago, I still recall him preaching the simple (and perhaps controversial) idea that the Constitution does not always invalidate stupid laws. (Here is an account of a speech he gave 20 years ago at Princeton university where he said "the Constitution sometimes requires upholding a law that does not make sense.") The late Justice came to mind today when I saw the recent Fourth Circuit ruling in Doe v. Settle, No. 20-1951 (4th Cir. Jan 28, 2022) (available here). Here is how the lengthy unanimous panel opinion in Doe starts and concludes:

Two months after he turned 18, John Doe was caught having sex with his 14-yearold girlfriend.  Given the facts of his arrest, Doe may well have been charged with “carnal knowledge of a child,” a Class 4 felony that prohibits sex with 13- and 14-year-old children.  But instead he was charged with and pleaded to a lower-class felony, “taking indecent liberties with children,” which only prohibits behavior like propositioning a child for sex.  Doe’s plea may have gotten him a shorter prison sentence, but due to a quirk in Virginia law, it also led to worse treatment by Virginia’s sex-offender registry.  Both crimes generally put an offender on the highest tier of the registry for life, but there is a narrow exception to that rule.  When an offender is less than 5 years older than his victim, he may be removed from the registry in time.  But that mitigating exception only applies to carnal knowledge, the crime with the higher sentencing range, and not to indecent liberties.  So while Doe may have felt lucky to only be charged with indecent liberties, given the potential for a lower prison sentence, that plea ended up condemning him to worse treatment on the registry.  Because of that oddity, Doe will spend the rest of his life on Virginia’s sex-offender registry with no hope for relief.

Doe — now in his 30s — sued Colonel Gary T. Settle, Superintendent of the Virginia Department of State Police, hoping to persuade a court to remove him from that registry and its burdens.  Doe argues that the registry and the 5-year-gap provision violate multiple constitutional principles.  In his Fourteenth Amendment equal protection claim, Doe asks us to consider why an offender convicted of having sex with a child, as Doe might have been, should be treated better than an offender convicted only of propositioning a child for sex, Doe’s actual charge.  In his Eighth Amendment claim, Doe asks us whether a lifelong registration requirement is an appropriate sanction for a single nonviolent crime committed by a high-school student.

Both appeals present significant issues of fairness, but at bottom, they ask us to question the wisdom of the Virginia legislature and its sex-offender registry.  That is not our place.  When the Constitution is invoked, our place is to determine whether state laws comply with the specific dictates of that document.  And Virginia’s sex-offender registry complies with the Eighth and Fourteenth Amendments.  So we affirm the district court’s dismissal.....

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.

February 1, 2022 at 04:18 PM | Permalink


Being a judge sometimes requires you to swallow a pill you want to gag on, and this is such a case. The state law makes little sense, but making little sense is not a violation of the Constitution. Since legislatures have the sole authority to write statutes and courts have no writ to amend them, the decision here was correct.

The writing judge, incidentally, is Julius Richardson, for many years an AUSA in South Carolina and the prosecutor who, may God be praised, got the death penalty for Dylann Roof. Perhaps Judge Richardson should say he "identifies" as a black woman and make President Biden's list for SCOTUS.

Posted by: Bill Otis | Feb 1, 2022 5:05:05 PM

If the state law makes little sense, then perhaps the disparate treatment isn't a rational means of achieving a valid government interest.

Posted by: Bob Jenkins | Feb 3, 2022 2:27:35 PM

"And whatever else they may be, Virginia’s sex-offender registry and its narrow Romeo-and-Juliet provision are constitutional."

Actually the only reason the Court believes this to be constitutional is due to the faulty 2003 Alaska ruling there the Supreme Court used faulty data and superstition to pretend that sex registries do not violate ex-post facto because they do not constitute "punishment," but only instead "safety."

The Court should reverse itself (almost 20 years later) using valid information, but will it? Until then atrocities like in this case will continue to destroy America.

Posted by: restless94110 | Feb 4, 2022 7:52:55 PM

Not only do such atrocious rulings have an overall destructive effect upon our society, they specifically wreck havoc upon actual human beings (as well as their families), and often for the remainder of the life of the wrongdoer with NO opportunity for redemption. The shame is truly on the other side - jurists, prosecutors, opportunistic politicians, media, law enforcement, and all those 'good citizens' intent on the impostition of needlessly unending retribution. It is way past time for a change.

Posted by: SG | Feb 4, 2022 10:41:08 PM

Its not simply being placed on the registry that is a problem for these individuals, its the publics refusal to view anyone included on the list as anything other than someone worthy of continuing punishment and banishment. Communities band together to destroy these individuals businesses, personal relationships, and ultimately leave them homeless and hopeless. Forever. In many case cases even the family members(especially their children) are harassed and lose their jobs. In one circumstance and entire family was burned alive in their homes. It is an absolute injustice to these people and has to end. An express preemptive clause setting out the limits of the Acts reach will make the states uniform in applicability and ease the publics hysteria over the monster next door.

Posted by: John Doe | Jan 16, 2024 11:53:01 AM

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