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New York Sex Offender Registration and Child Pornography

Studies show that first-time child pornography offenders are among the least likely convicts to recidivate. Nonetheless, since 2008, New York courts presume that child porn offenders present at least a moderate risk of re-offense for purposes of sex offender registration. This presumption comes from the dubious, overly literal proposition that the children victimized in images of child pornography are victimized by each and every individual who possesses or distributes the image. As a result, the Court of Appeals has directed courts to score points on the SORA risk assessment instrument based on the number of children in the images, the ages of the children in the images and — strangest of all — the relationship between the children and the offender.  So child pornography offenders, paradoxically, who are strangers to the victims are scored at higher risk than those who know their victims. This effort to apply principles created to assess the risk of hands-on child abusers to mere possessors of child pornography, the Court acknowledged, leads to anomalous results.

The Board of Examiners of Sex Offenders, which is the body that wrote the Guidelines and, one would think, knows what they mean better than anyone else, offered some oblique rationality on this issue via a “Position Statement” published in 2012. The Position Statement did not come out and say the Johnson court got it wrong and points should not be scored in these categories, but that implication was clear. In addition, the Board clearly has a policy, when it is called on to make assessments (i.e. in cases involving individuals from out of state, with federal convictions, or seeking to modify their level), not to score for number of victims and relationship with the victim except in extraordinary cases. The Position Statement lays out factors that might lead to scoring in those categories, but only rarely applies them.

At the same time, though, the judiciary is divided about the Position Statement. Some judges have interpreted it to mean that Johnson should no longer be applied; others have all but ignored it. In the latest volley, the Second Department — which oversees cases in Brooklyn and Westchester — held that the Position Statement “does not depart from the holding in People v. Johnson that offenders convicted of possession of child pornography are properly scored under risk factors” for number of victims and stranger-relationship with the victim. That seems to stretch the language and sentiment behind the Position Statement to its breaking point. This issue affects many cases and we hope it will make its way to the Court of Appeals soon.

If you are facing sex offender registration in New York in connection with a child pornography case, we urge you to contact our office for an analysis of your particular circumstances and how the confusing quilt of sex offender registration laws may apply to it.

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