If a Tennessee juvenile commits a violent sex offense before turning 14 but is adjudicated after, do they go on the sex offender registry, and is that constitutional?

Subject

Opinion No. 14-15, Juveniles on Sex Offender Registry, February 3, 2014

Plain-English summary

Rep. Tony Shipley asked two questions: (1) when a juvenile commits a violent sex offense before turning 14 but is adjudicated delinquent after turning 14, is the juvenile on the sex offender registry; and (2) is including violent juvenile sex offenders on the registry constitutional. The AG said yes to both.

Statutory question. In 2011, the General Assembly added "violent juvenile sexual offenders" to the registry (2011 Tenn. Pub. Acts, ch. 483, § 9). Tenn. Code Ann. § 40-39-202(27)(A) defines the term as "a person fourteen (14) years of age or more but less than eighteen (18) years of age who has been adjudicated delinquent in this state for any act that constitutes a violent juvenile sexual offense." § 40-39-202(27)(B) adds that "[a]t the time of adjudication of a qualifying offense, such offender shall become a violent sexual offender." § 40-39-202(28) lists the qualifying offenses: aggravated rape, rape, rape of a child (where the victim is at least four years younger than the offender), aggravated rape of a child, and attempt at those offenses (committed on or after July 1, 2011).

The trigger is the adjudication, not the underlying act. The AG read the plain text: a juvenile adjudicated delinquent after age 14 for a qualifying offense (even if the offense itself occurred before age 14) is subject to the registry. Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009), supports a non-restrictive reading of the plain statutory language.

Constitutional analysis. The AG ran through four challenges:

1. Eighth Amendment / cruel and unusual punishment. Ward v. State, 315 S.W.3d 461, 469 (Tenn. 2010), held Tennessee's registry is not punitive; it is remedial and regulatory. The Sixth Circuit reached the same conclusion in Cutshall v. Sundquist, 193 F.3d 466, 477 (6th Cir. 1999), rejecting an Eighth Amendment challenge to an earlier version. Because the registry is not punishment, it cannot be cruel and unusual punishment. The AG flagged Ohio's contrary result in In re C.P., 967 N.E.2d 729 (Ohio 2012), where Ohio's juvenile registry provisions were held punitive, but distinguished that result based on the additional restrictions imposed in Ohio.

2. Equal Protection / Fourteenth Amendment and Tenn. Const. art. I, § 8, art. XI, § 8. Convicted sex offenders are not a suspect class (Cutshall). So registry requirements get rational-basis review. Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997). The State has a legitimate interest in public safety; juvenile sex offenders are not categorically different from adult offenders for registry purposes. In the matter of M.A.H., 20 S.W.3d 860, 866 (Tex. Ct. App. 2000), rejected a similar Texas equal-protection challenge.

3. Substantive Due Process. Statutes that do not implicate a fundamental right pass substantive due process if they bear a reasonable relation to a legitimate purpose. Riggs, 941 S.W.2d at 51. The registry is not punitive, so no liberty interest is at stake. Tennessee does not recognize a constitutional right to nondisclosure of personal information; confidentiality is statutory. Doe v. Sundquist, 2 S.W.3d 919, 926 (Tenn. 1999). The legislature has actually preserved confidentiality of juvenile court proceedings for most juvenile sex offenders by limiting disclosure to law enforcement, with an exception for repeat offenders (§ 40-39-206(e)). The registry serves the express purpose of protecting Tennessee citizens (§ 40-39-201(b)(1)), and In re Ronnie A., 585 S.E.2d 311 (S.C. 2003), upheld a parallel South Carolina juvenile registry on this exact basis.

4. Procedural Due Process. Juveniles get full procedural protection in delinquency proceedings: right to due process, right to counsel, right to present evidence and cross-examine, right against self-incrimination, and proof beyond a reasonable doubt (§§ 37-1-126, -127, -129; State v. Rodgers, 235 S.W.3d 92, 95 (Tenn. 2007)). Once the adjudication is complete, registration follows automatically. Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 7 (2003), held that adult sex offenders aren't entitled to a separate hearing on registry status after conviction; the same reasoning applies to juvenile adjudications.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Registry purpose, § 40-39-201(b)(1). Tracking and monitoring sexual offenders, violent sexual offenders, and offenders against children to protect Tennessee citizens.

The 2011 amendment. 2011 Tenn. Pub. Acts, ch. 483, § 9 added violent juvenile sexual offenders.

§ 40-39-202(27)(A). Defines "violent juvenile sexual offender": person 14-17 years old "adjudicated delinquent in this state for any act that constitutes a violent juvenile sexual offense."

§ 40-39-202(27)(B). "At the time of adjudication of a qualifying offense, such offender shall become a violent sexual offender."

§ 40-39-202(28). Qualifying offenses: aggravated rape (§ 39-13-502); rape (§ 39-13-503); rape of a child (§ 39-13-522, victim ≥4 years younger); aggravated rape of a child (§ 39-13-531); attempt (§ 39-12-101) at any of those, for acts on or after July 1, 2011.

The Ward framework. Ward v. State, 315 S.W.3d 461, 469 (Tenn. 2010): Tennessee's registry is "remedial and regulatory in nature," not punitive. Registration has no effect on range of punishment. The legislature made the regulatory purpose clear. The Court left open the possibility that future restrictions could push the registry into punitive territory, but the existing scheme was not.

Cutshall v. Sundquist. 193 F.3d 466 (6th Cir. 1999). Rejected Eighth Amendment, equal protection, and due process challenges to a prior version of Tennessee's registry.

Equal protection framework. Statutes that do not interfere with fundamental rights and do not classify by suspect or quasi-suspect class get rational basis review. State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994).

Procedural protections in juvenile delinquency. §§ 37-1-126, -127, -129 grant due process, counsel, evidence rights, self-incrimination protection, and the beyond-a-reasonable-doubt standard. State v. Rodgers, 235 S.W.3d 92, 95 (Tenn. 2007).

Juvenile record confidentiality. § 40-39-206(e) limits disclosure of juvenile registry information to law enforcement except for repeat offenders.

Common questions

Why does the offense date not matter?

Because the statute keys eligibility to the adjudication of delinquency. The legislature could have chosen to look at the date of the act, but it picked the adjudication date. The plain text controls.

Doesn't the registry punish the juvenile?

Under Ward, no. Registration imposes monitoring obligations but is not punishment in the constitutional sense. That said, the Ward court was careful to say further restrictions could change the analysis.

What if the juvenile completes treatment and is no longer a risk?

The opinion doesn't address removal or relief from registration. Tennessee has provisions for some forms of relief, but the eligibility and process vary; consult current statutes.

Is this different from Ohio's juvenile registry?

Ohio's In re C.P. found Ohio's juvenile registry punitive because of the specific restrictions imposed. The AG distinguished Tennessee's regime as less punitive in its existing form. The line is fact-and-statute-specific.

Is information about a juvenile registrant publicly searchable?

§ 40-39-206(e) limits public disclosure of juvenile registry information for most juveniles to law enforcement, with an exception for repeat offenders. Adult registrants' information is more broadly public.

Could a juvenile facing adjudication argue the registry violates the Tennessee right to privacy?

Davis v. Davis, 842 S.W.2d 588, 599-600 (Tenn. 1992), recognized a right to personal autonomy but not a constitutional right to nondisclosure of personal information. Doe v. Sundquist, 2 S.W.3d 919, 926 (Tenn. 1999), made confidentiality a statutory matter. So a privacy-based attack on the registry would face significant hurdles in Tennessee law.

Citations

Constitutional: U.S. Const. amend. VIII, XIV; Tenn. Const. art. I, §§ 8, 16; art. XI, § 8. Statutory: Tenn. Code Ann. §§ 37-1-126, -127, -129; § 39-12-101; § 39-13-502, -503, -522, -531; § 40-39-201 et seq.; § 40-39-201(b)(1); § 40-39-202(27), (27)(A), (27)(B), (28); § 40-39-206(e); 2011 Tenn. Pub. Acts, ch. 483, § 9. Cases: Carter v. Bell, 279 S.W.3d 560 (Tenn. 2009); Chapman v. Davita, Inc., 380 S.W.3d 710 (Tenn. 2012); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010); Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997); Ward v. State, 315 S.W.3d 461 (Tenn. 2010); Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999); In re C.P., 967 N.E.2d 729 (Ohio 2012); Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920); State v. Tester, 879 S.W.2d 823 (Tenn. 1994); In the matter of M.A.H., 20 S.W.3d 860 (Tex. Ct. App. 2000); Doe v. Michigan Dept. of State Police, 490 F.3d 491 (6th Cir. 2007); Palko v. Connecticut, 302 U.S. 319 (1937); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999); In re Ronnie A., 585 S.E.2d 311 (S.C. 2003); J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981); State v. Rodgers, 235 S.W.3d 92 (Tenn. 2007); Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-015.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL

February 3, 2014

Opinion No. 14-15

Juveniles on Sex Offender Registry

QUESTIONS

1. Would a juvenile who committed a violent juvenile sexual offense before age fourteen but was not adjudicated delinquent on that offense until after his fourteenth birthday be subject to the sexual offense registry requirements under Tenn. Code Ann. § 40-39-202(27) and (28)?

2. Does the inclusion of violent juvenile sexual offenders on the registry withstand constitutional scrutiny?

OPINIONS

1. Yes.

2. Yes.

ANALYSIS

1. Recognizing that repeat sexual offenders, violent sexual offenders, and sexual offenders who prey on children present an extreme threat to Tennessee's citizens, the General Assembly created a sexual offense registry to facilitate better tracking and monitoring of specified sexual offenders. Tenn. Code Ann. § 40-39-201(b)(1). In 2011, it added violent juvenile sexual offenders to the class of offenders subject to these tracking and monitoring requirements. 2011 Tenn. Pub. Acts, ch. 483, § 9. Tenn. Code Ann. § 40-39-202 now provides, in relevant part, as follows:

(27)(A) "Violent juvenile sexual offender" means a person fourteen (14) years of age or more but less than eighteen (18) years of age who has been adjudicated delinquent in this state for any act that constitutes a violent juvenile sexual offense as defined in this section;

(B) At the time of adjudication of a qualifying offense, such offender shall become a violent sexual offender and this part governing violent sexual offenders shall be applicable to such violent juvenile sexual offender, unless otherwise set out in this part;

(28) "Violent juvenile sexual offense" means an adjudication of delinquency, for any act committed on or after July 1, 2011, that, if committed by an adult, constitutes the criminal offense of:

(A) Aggravated rape, under § 39-13-502;
(B) Rape, under § 39-13-503;
(C) Rape of a child, under § 39-13-522, provided the victim is at least four (4) years younger than the offender;
(D) Aggravated rape of a child, under § 39-13-531; or
(E) Criminal attempt, under § 39-12-101, to commit any of the offense enumerated in this subdivision (28);

Tenn. Code Ann. § 40-39-202(27), (28).

Determining whether a particular juvenile, in this instance, one committing a qualifying act before age fourteen but adjudicated delinquent after turning fourteen, is bound by registry requirements is a matter of statutory construction. The paramount rule of statutory construction "is to ascertain and give effect to legislative intent without broadening the statute beyond its intended scope." Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009). Legislative intent is to be discerned from the precise wording of the statute, giving those words their natural and ordinary meaning within the context of the legislation as a whole and not utilizing any forced construction that would extend the statute's meaning. Chapman v. Davita, Inc., 380 S.W.3d 710, 714 (Tenn. 2012); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010).

By definition, a "violent juvenile sexual offender" is a person "fourteen (14) years of age or more but less than eighteen (18) years of age who has been adjudicated delinquent" for any act constituting a violent sexual offense. Tenn. Code Ann. § 40-39-202(27)(A). Such offender "shall become" a violent sexual offender "[a]t the time of adjudication of a qualifying offense." Id. § 40-39-202(27)(B). A plain reading of the statute indicates that classification of a juvenile offender as a "violent sexual offender" is triggered by the adjudication of delinquency for a qualifying offense rather than by commission of the act constituting such offense. Thus, a child adjudicated delinquent after the child's fourteenth birthday for a violent sexual offense committed when the child was less than fourteen years of age would be subject to the reporting and registry requirements of Tenn. Code. Ann. §§ 40-39-201 et seq.

2. Legislative acts in Tennessee are presumed to be constitutional. Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997). Reviewing courts in evaluating statutes must indulge every presumption and resolve every doubt in favor of constitutionality. Id. Subjecting violent juvenile sex offenders to statutory registration and monitoring provisions will likely withstand constitutional challenge.

Both the federal and state constitutions proscribe cruel and unusual punishments. U.S. Const. amend. VIII; Tenn. Const. art. I, § 16. The Tennessee Supreme Court, however, has concluded that the reporting and tracking requirements of Tennessee's registration act are not punitive in nature. Ward v. State, 315 S.W.3d 461, 469 (Tenn. 2010). Registry requirements have no effect on an offender's range of punishment and do not inflict additional punishment. Id. at 470. Instead, the General Assembly has made it clear that the registry is remedial and regulatory in nature. Id. at 469. While Ward preceded the extension of registry requirements to violent juvenile sexual offenders, its reasoning applies equally to the class of juvenile offenders who become subject to registry requirements upon being adjudicated delinquent for specified violent sexual offenses. Just as with adult offenders, the registry requirements add no additional punishment. Since the registry is not a punishment provision, its requirements cannot be held to constitute cruel and unusual punishment. See Cutshall v. Sundquist, 193 F.3d 466, 477 (6th Cir. 1999). The Tennessee Supreme Court in Ward did not foreclose the possibility that imposition of further restrictions on sex offender registrants could render the effect of the act punitive. Ward, 315 S.W.3d at 472-73. See, e.g., In re C.P., 967 N.E.2d 729, 732 (Ohio 2012). But unless Tennessee's registry requirements reach that point, any Eighth Amendment challenge would likely fail.

The Fourteenth Amendment to the United States Constitution and both art. I, § 8 and art. XI, § 8 of the Tennessee Constitution provide for equal protection under the law. Equal protection constitutional provisions guarantee that all persons similarly circumstanced shall be treated alike. Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 153 (Tenn. 1993) (quoting F.S. Royster Guano Company v. Virginia, 253 U.S. 412, 415 (1920)). Only legislation that interferes with a fundamental right or operates to the peculiar disadvantage of a suspect class or quasi-suspect class requires strict or enhanced scrutiny. State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994).

Convicted sex offenders do not constitute a suspect class. Cutshall, 193 F.3d at 482. Thus, statutory registration requirements are scrutinized under the rational basis test, meaning that, so long as the statute bears a reasonable relation to a proper purpose and is neither arbitrary nor discriminatory, it should be upheld. Riggs, 941 S.W.2d at 51. In Cutshall, the Sixth Circuit addressed a challenge to the constitutionality of Tennessee's 1994 Sex Offender Registration and Monitoring Act. The court concluded that the State had established legitimate concerns about law enforcement and public safety with respect to sex offenses. Id. at 482-83. Accordingly, it was not irrational to apply these registration and notification requirements to the class of sex offenders identified in the statute. Id. These same concerns apply to the class of juvenile offenders who commit specified violent sexual offenses and justify imposing registration and monitoring requirement upon this group of juvenile offenders. The Texas Court of Appeals rejected a similar challenge to its statutory provision that required specified juvenile offenders to abide by the sex offender registry requirements. In the matter of M.A.H., 20 S.W.3d 860, 866 (Tex. Ct. App. 2000).

The substantive component of the Due Process Clause protects fundamental rights that are "so 'implicit in the concept of ordered liberty' that 'neither liberty nor justice would exist if they were sacrificed.'" Doe v. Michigan Dept. of State Police, 490 F.3d 491, 499 (6th Cir. 2007) (quoting Palko v. Conn, 302 U.S. 319, 325 (1937)). Unless a statute implicates a fundamental right, it will comport with substantive due process under both the federal and state constitutions if it bears a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory. Riggs, 941 S.W.2d at 51.

Tennessee's sex offender registry requirements are not punitive in nature, so the statute does not implicate an offender's liberty interest. See Ward, 315 S.W.3d at 469. Nor do juvenile registration requirements implicate any right to privacy in the confidentiality of juvenile court records. In Davis v. Davis, 842 S.W.2d 588, 599-600 (Tenn. 1992), the Tennessee Supreme Court recognized an individual right to privacy guaranteed under the liberty clauses of the Tennessee Declaration of Rights, namely, the right to personal autonomy or the "right to be left alone." However, the court has specifically rejected suggestions of the existence of a constitutional privacy right to the non-disclosure of personal information. Rather, the confidentiality of records is a statutory matter left to the legislature. Doe v. Sundquist, 2 S.W.3d 919, 926 (Tenn. 1999). Furthermore, the General Assembly specifically limited the disclosure of information concerning juvenile court proceedings by designating such information about juvenile sex offenders as confidential to all but law enforcement personnel, except for repeat juvenile sex offenders. Tenn. Code Ann. § 40-39-206(e).

Because the juvenile registry provisions implicate no fundamental rights, the statute will withstand judicial scrutiny if it bears a reasonable relation to a proper purpose under the rational basis test. Here, the statute itself includes its purpose, that is, to protect Tennessee citizens from repeat sexual offenders, violent sexual offenders, and offenders who prey upon children, all of whom present an extreme threat to public safety. Tenn. Code Ann. § 40-39-201(b)(1). By providing specific information on these offenders to the law enforcement community, the registry directly addresses the public safety need to have enhanced awareness of the presence of these offenders in the community. The South Carolina Supreme Court rejected a substantive due process challenge to its parallel juvenile sex offender registry statute, finding that the registration of offenders, including juveniles, who have proved themselves capable of certain sex offenses, is rationally related to the legitimate objective of protecting the public from sex offenders. In re Ronnie A., 585 S.E.2d 311, 312 (S.C. 2003). See also J.P. v. DeSanti, 653 F.2d 1080, 1089-90 (6th Cir. 1981). There appears no reason for the Tennessee courts to reach a different result.

Nor does this statute run afoul of procedural due process. As explained in the answer to question 1, juvenile offenders become subject to the registry requirements automatically upon the adjudication of delinquency for qualifying offenses without the need for additional fact finding. By statute, a juvenile charged by petition with the commission of a delinquent act is afforded both constitutional and statutory rights and procedures during delinquency proceedings. State v. Rodgers, 235 S.W.3d 92, 95 (Tenn. 2007). These rights include the right to due process, the right to counsel at delinquency proceedings, the right to introduce evidence and to cross-examine adverse witnesses, the right against self-incrimination, and the right to proof of the commission of the act charged beyond a reasonable doubt. Id.; Tenn. Code Ann. §§ 37-1-126, -127, -129. Accordingly, the juvenile offender's rights to procedural due process are fully protected during the delinquency proceedings themselves. Cf. Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 7 (2003) (holding that an adult sex offender was not entitled to an additional hearing regarding registry status since status was automatic upon conviction and the criminal conviction process afforded procedural safeguards).

ROBERT E. COOPER, JR.
Attorney General and Reporter

JENNIFER L. SMITH
Deputy Attorney General

AMY L. TARKINGTON
Deputy Attorney General

Requested by:

The Honorable Tony Shipley
State Representative
114 War Memorial Building
Nashville, Tennessee 37243-0122