Judges reverse sex offender's exemption. Those found guilty must stay on registry even if judgment is withheld.
November 2, 2000
People found guilty of crimes requiring registration as a sex offender
must stay on the registry at least 10 years, even if a withheld judgment
ultimately leads to the charge being dismissed, the Idaho Court of
Judge Karen Lansing wrote for the three-judge appellate panel, in a
unanimous opinion issued Wednesday, that "a dismissal of a criminal
charge after judgment has been withheld is an exercise of leniency by
the court, notwithstanding the defendant's actual guilt of the charged
The ruling reversed now-retired 4th District Judge Robert Newhouse's
order exempting James Douglas Perkins from the sex offender
reporting requirement and removing his record from the registry.
Perkins was 19 in 1992 when he was charged with the statutory rape
of a 13-year-old girl. After pleading guilty he received a withheld
judgment and was placed on probation for five years. But prosecutors
moved to have the charge against him dismissed in 1994 when Perkins
agreed to enlist in the Army.
After returning from an overseas assignment in 1998, Perkins'
commanding officer informed him he would be discharged from the
Army if he was required to register as a sex offender. Perkins asked
Newhouse for an order exempting him from the reporting requirement
and expunging his record from the sex offender registry.
The judge agreed, but the state argued on appeal that Newhouse
lacked the authority for such an order since the law required Perkins to
keep reporting for at least 10 years from the date he was placed on
The Court of Appeals agreed, citing the definition of "conviction" used
in the 1993 Sex Offender Registration Act.
"When the Registration Act was enacted, the Legislature can be
presumed to have known that the charge against a defendant could be
dismissed ... after a period of withheld judgment if the defendant
successfully completed probation," Lansing wrote.
"Yet, the Legislature created no exemption in the Registration Act for
those who obtained such a dismissal. To the contrary, the Legislature
expressly defined 'conviction' for purposes of the Registration Act to
include anyone who has been adjudicated guilty of an enumerated sex
offense 'notwithstanding the form of the judgment or withheld
In specially concurring with that conclusion, Judge Alan Schwartzman
added that Perkins' guilty plea was never set aside but only technically
dismissed on the condition that he complete an Army tour of duty and
comply with other terms.
"A true expungement would leave no plea of guilty or finding of guilt
upon which the Sexual Offender Registration Act could hang its
jurisdictional hat," Schwartzman wrote. "Such is not the case here!"
Still, the executive director of the American Civil Liberties Union of
Idaho said such laws too often unfairly punish reformed offenders.
"It reflects the whole problem of society not looking at the individual
circumstances of cases but enforcing an arbitrary rule that hurts
individuals more than helps them," Jack Van Valkenburgh said. "I
certainly blame the Legislature for passing a bad law that is overbroad.
It's too easy for politicians with a broad brush to condemn an entire
population to a lasting stigma when some of those people could pull
their lives together."
Source: The Idaho Statesman. By Mark Warbis, The Associated Press.