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Criminal Nuggets

Apr 11, 2018

Episode 475 (Duration 26:13) Here are 4 cases on the Illinois Sex Offender Registration Act (SORA) You should know something about. 

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In This Episode...

We discuss the following cases:

In re T.J.D.

In re T.J.D., 2017 IL App (5th) 170133 (November)

Petitioner has to prove he poses “no risk” to reoffend even though evaluators never go beyond a “low risk” assessment.

Juvenile Sex Probation

The court entered an adjudication and disposition order on April 14, 2011, which required respondent to register as a juvenile sex offender under the Act. 730 ILCS 150/3-5.

Respondent was also placed on probation for five years and home electronic monitoring for 12 months. Respondent registered as a juvenile sex offender. Respondent was discharged from probation and subsequently filed filed a petition to terminate his sexual offender registration pursuant to section 3-5(d) of the Act. 730 ILCS 150/3-5(d).

Minor May Terminate Registration

Under this section of the Act, a court may terminate the registration of an adjudicated juvenile delinquent if he or she shows, by a preponderance of the evidence, that he or she “poses no risk to the community.” 730 ILCS 150/3-5(d).

In support of respondent’s contention that he posed no risk to the community, respondent asserted that he had completed a current risk assessment, which

  • recommends he be removed from registration
  • he successfully completed individual sex offender treatment
  • his sexual offender history and recommendations from counselors indicate he is a low risk and
  • requires no supervision or restrictions
  • he has resided and attended school in the community without any incidents; and
  • the continued requirement of registration presents an undue burden.

Sex Offender Registration Act Section 3-5(d)

The relevant section of SORA provides:

“(d) The court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e). ***

(e) To determine whether a registrant poses a risk to the community as required by subsection (d), the court shall consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act [(225 ILCS 109/1 et seq. (West 2014))]; 
(2) the sex offender history of the adjudicated juvenile delinquent; 
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation; 
(4) the age of the adjudicated juvenile delinquent at the time of the offense; 
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history; 
(6) victim impact statements; and 
(7) any other factors deemed relevant by the court.

(f) At the hearing set forth in subsections (c) and (d), a registrant shall be represented by counsel and may present a risk assessment conducted by an evaluator who is licensed under the Sex Offender Evaluation and Treatment Provider Act.”

730 ILCS 150/3-5(d), (e), (f) (West 2014).

Psychosexual Risk Assessment & Evaluation

Attached to respondent’s petition was a psychosexual risk assessment and evaluation prepared by Linda Stover, a licensed sex offender evaluator.

Based on her review of records, clinical interviews, written assessments, and stable and acute risk factors, Stover concluded that respondent should be considered a low risk to the community.

Stover opined that respondent had demonstrated he can live an offense-free life and should be given the opportunity to continue his life without having to register as a sex offender. Stover further stated that respondent had completed everything the court asked of him, he assumes full responsibility for his actions, and he “is very remorseful for all of it.” Stover strongly recommended that respondent be removed from the registration law.

The State’s Evaluator

The State’s own evaluator stated that respondent had participated in both residential and outpatient sex offense specific treatment and that he successfully completed the treatment with highly positive reports from his treatment providers. The evaluator opined that respondent had demonstrated a number of strengths in dynamic risk areas and had shown patterns of behavior associated with decreased risk for sexual offense recidivism. She found the risk of respondent’s recidivism to be very low.

Regarding registry removal requirements in Illinois, Adkerson opined:

“Illinois requires a finding that the individual pose no risk to the community to be appropriate for registry removal, which presumably would be a risk level equivalent to community members at large. A finding of no risk is not possible, as some risk for sexual offense exists even among the general population for whom no prior sexual offenses have been identified.”

In sum, the evaluator recommended that respondent be released from his sex offender registry requirements because there “is every reason to believe” respondent would not reoffend, and because remaining on the sex offender registry creates risk of destabilization in housing and employment which in turn undermines best functioning.

The Trial Judge

The court called the factual basis underlying the adjudication both “disturbing and disgusting” and observed that both of respondent’s victims were between two and four years old at the time the offenses were committed.

The court found the evidence clearly demonstrated respondent gained the trust of the victims and the victims’ parents, and after doing so, respondent repeatedly molested the children over a period of months until he “grew bored.” The court noted that respondent chose the minor victim, one of the victims, because “he could get away with it and she would be easy.”

The court further concluded that respondent’s testimony lacked credibility.

The court found there were inconsistencies regarding respondent’s testimony, which were not explained to the court’s satisfaction, and observed respondent’s manner and tone to be “well-rehearsed” and “less than forthright.

In its conclusion, the court stated, in relevant part:

“[T]he Court finds [respondent] has failed to prove by a preponderance of the evidence that he poses ‘no risk’ to the community. Both experts found him to be low risk. The Court is unwilling to give that statutory direction a lesser meaning. The Legislature chose to make the standard ‘no risk.’ Low risk is not the same as no risk. The Court finds by a preponderance of the evidence that [respondent] is a low risk to the community; however, that does not meet the standard set out in 730 ILCS 150 3/5. Based on the evidence presented, the Court cannot find the burden to prove he is no risk to the community has been met.”


Turning to the merits, respondent argues the “no risk” requirement under section 3-5(d) of the Act—which, if proven by a preponderance of the evidence, permits a court to terminate an individual’s sexual offender registration—creates an impossible burden to obtain and renders this statutory provision meaningless.

Respondent requests that this court reverse and remand this cause with directions regarding the reasonableness of “no risk” under section 3-5(d).


In support of his argument, respondent asserts that experts in the field of sex offender treatment will never make a formal finding lower than “low risk.

Respondent contends it is irrational that a court must make a finding of “no risk” in order to terminate sexual offender registration, but must consider a risk assessment performed by a licensed evaluator pursuant to section 3-5(e) of the Act which will not label a petition lower than “low risk.” Respondent further argues the legislative history indicates the court was intended to have discretion in determining whether to grant a petition to terminate sexual offender registration, and the plain language of the statute has stripped the court of that discretion.

After careful consideration, we do not find the statutory language at issue to be ambiguous. Section 3-5(d) clearly requires the court to make a finding, by a preponderance of the evidence, that the applicant poses “no risk” to the community. 730 ILCS 150/3-5(d). Here, we find nothing which suggests “no risk” within the meaning of section 3-5(d) is ambiguous or absurd.

Further, contrary to respondent’s assertion, we do not find this provision creates an impossible burden for respondent to obtain. To obtain relief, the legislature adopted a preponderance of the evidence as the burden of proof. Our supreme court has defined a preponderance of the evidence as that evidence which renders a fact more likely than not. After careful consideration, we find this burden is not unreasonable or impossible to satisfy. If the statute employed an “impossible burden” as respondent suggests, it would be a much heavier burden of proof such as beyond a reasonable doubt or clear and convincing evidence.

By adopting a preponderance of the evidence as the burden of proof, the legislature afforded petitioners the opportunity to prove they pose “no risk” to the community.


In this case, the court, after considering the factors outlined in section 3-5(e) of the Act (which included the evaluations concluding respondent was a low risk to the community), simply determined respondent failed to meet that burden. It is clear that the burden of proof adopted by the legislature is not unreasonable or unattainable.

In sum, we do not find that the “no risk” requirement under section 3-5(d) creates an impossible burden. Although we agree the statute creates a very high burden on respondent, a showing of “no risk,” while under limited circumstances, is not unreasonable or impossible to obtain. It was possible for respondent to prove he posed no risk to the community by a preponderance of the evidence.

We further note that the offenses committed by respondent are a far cry from the “less serious sex offenses” section 3-5 is intended to protect. For these reasons, we reject respondent’s argument.

In light of the foregoing, we cannot say that the trial court’s decision denying respondent’s petition was against the manifest weight of the evidence. As a reviewing court, we will not reverse a trial court’s decision simply because we might have reached a different conclusion based on conflicting evidence. Here, although we may have weighed the evidence differently, we cannot say the court’s judgment was unreasonable, arbitrary, or not based on the evidence.

Legislative Act Required

Accordingly, we reject respondent’s argument. In sum, we conclude that section 3-5(d) of the Act clearly requires an individual to prove he poses “no risk” to the community by a preponderance of the evidence in order to permit a court to terminate his or her sexual offender registration. This is not an impossible burden to obtain. However, considering that medical experts refuse to label an offender as “no risk” (the lowest recognized category by the treatment providers in this case was “low risk” or “lowest possible risk”), we encourage the legislature to reconsider that standard. We further conclude that the court’s decision denying respondent’s petition was not against the manifest weight of the evidence. For these reasons, we affirm the order of the circuit court of Williamson County, denying respondent’s petition to terminate his sexual offender registration.

In re B.C.

In re B.C., 2018 IL App (3d) 170025 (February)

The law does allow a petitioner to establish that it is “more probable than not” that he poses no risk to the community not withstanding an evaluation that says he poses a “low risk to the community.”


The minor was 14 years old when he put his penis in the mouth and anus of two 8 year old boys. He was charged in juvenile court under aggravated criminal sexual abuse and was adjudicated.

Registration Required

He had a 10 year registration requirement and it later turned into a 20 year period.

Original Evaluation

The doctor who evaluated B.C. In her report, said B.C. appeared to be making positive strides in therapy, and he had improved his social skills. She noted that assessing B.C.’s risk of reoffense was “not an easy task” because recidivism rates for adolescent sex offenders were low compared to adult sex offenders and a 100% accurate empirical risk assessment did not exist.

Nevertheless, the doctor cited the following factors that may reduce B.C.’s likelihood of reoffense:

(1) B.C. had no history of juvenile delinquency before the adjudicated offense
(2) since B.C.’s adjudication, he has not had any new involvement with the justice system
(3) B.C. consistently engaged in and demonstrated progress in treatment
(4) B.C. admitted that he committed the offenses
(5) B.C.’s level of denial had decreased
(6) B.C.’s exposure to sexually explicit material had decreased
(7) B.C. did not have a history of being victimized
(8) B.C. did not have a deviant sexual arousal pattern
(9) B.C.’s family was willing to engage in treatment
(10) B.C. was involved in a functional family system
(11) B.C. did not have a history of academic or behavioral problems
(12) B.C. had increased his involvement with peers his age and decreased his involvement with younger peers
(13) B.C. had increased parental and adult supervision
(14) B.C.’s empathy for the victims had increased but was still incomplete
(15) B.C. did not have a history of drug or alcohol use
(16) B.C.’s social skills were increasing and 
(17) B.C. was not suffering from a significant emotional or psychological problem.

The doctor also cited four factors that may increase B.C.’s likelihood of reoffense:

(1) B.C. and his parents continued to display cognitive distortions related to the offense
(2) B.C. and his family did not have sufficient knowledge of the environmental, interpersonal, and family factors that may have contributed to the abuse 
(3) B.C. and his family have yet to develop an appropriate level of victim empathy and 
(4) B.C. and his family failed to completely understand the exploitative nature of the offenses.

Finishes Probation

Five years he was discharged from probation.

…11 Years Later

11 years after that he petitioned for termination of his sex offender registration requirement. 730 ILCS 150/3-5(c).

The petition alleged that

(1) B.C. became statutorily eligible to petition for termination on September 1, 2005
(2) B.C. had successfully completed a sex offender treatment program, and 
(3) according to a different licensed professional evaluator, B.C. was a “low risk to re-offend,” had a plan for accountability, and was aware of his triggers.

What He Was Up To…

At the hearing on the petition, B.C. testified that he committed the charged offenses when he was 14 years old.

Since his convictions, B.C. had graduated from high school and attended 1½ years of community college. After high school, B.C. worked full time at several Taco Bell locations. B.C. had also worked as a manager at a Buffalo Wild Wings restaurant and was then the general manager of the Taco Bell he worked at.

He had no new arrests, no violations of probation and had met all his registration requirements.

Victim Impact Statement

The State called, the mother of the minor victim, to read a victim impact statement.

In her statement, she detailed continuing anxiety and emotional distress felt by the victim caused by B.C.’s actions. The mother acknowledged that people can change, but advocated that B.C. remain on the sex offender registry for as long as possible because of the harm B.C. had caused.

Counseling After Probation & 

Further after his probation ended he sought additional counseling to get a handle on his issues and to ensure he didn’t re offend.

He successfully completed a sex offender treatment program after his probation had ended and had a low risk to reoffend. The evaluator explained that the sex offender treatment program consisted of three phases:

(1) offender check-ins and learning accountability for the deviant behavior
(2) accountability, understanding the cognitive errors that led to the offender’s poor choices, and developing empathy and understanding the impact of the offender’s actions on the victim and society; and 
(3) managing and understanding the offender’s triggers and high risk areas.

These three phases included 18 assignments and took four years to complete.

At the end of the program, the evaluators determined whether the offender had changed his erroneous thinking or had merely moved through the steps.

The New Evaluation

The evaluator explained the biggest factor in preparing the assessment was determining whether B.C. understood his actions were wrong and how to prevent the behavior in the future. She said the following factors reflected favorably on B.C.’s risk assessment:

(1) B.C. had voluntarily undertaken the sex offender treatment program
(2) B.C. had a history of continuous employment
(3) B.C. had a positive family support network and 
(4) B.C.’s family understood the program was not about “curing” B.C., but educating and training B.C. to understand the thinking errors that led to the offenses.

Munson ultimately determined that B.C. had a “low risk to re-offend.”

You Only Get A “Low Risk”

The evaluator said that neither she nor any of the other evaluator had ever issued a “no risk to offend” opinion. The only options were “low risk, medium risk, or high risk.”

On cross-examination, she explained that the sex offender treatment program teaches offenders “to accept that there is always a possibility of re-offense. That’s a part of why we build and instill in them an understanding of what their triggers are and ways of making sure that they don’t get themselves in situations. Many of our assignments are based on looking at their cycle of behavior and then planning for exits of how to get out of that cycle. So it’s a part of our successful treatment that they understand you cannot ever say, ‘I will never re-offend.’ You have to understand that the possibility is there, but the risk factor determines how probable that is.”

The evaluator was not saying that B.C. had “no risk” to reoffend because she did not “know how the standard can have it as zero risk since that goes against all of the sex-offender-based training that [she has] had; but [she thought] it was written by lawyers, not practitioners.”

On redirect examination, she said that, based on her experience, B.C. had the “lowest risk possible.” B.C. also had fully accepted responsibility for his offenses, understood his triggers, and did not have a strong attraction to children. She reiterated “[t]here is no cure. There is only education.”

Trial Judge Denies The Motion

The trial judge denied the motion saying:

“But that’s not what the statute says, and I cannot rewrite the statute. The statute says ‘no risk.’ I don’t get to make those judgment calls. That is not my place as a trial judge. My place is to follow the statute. The word is ‘no risk.’ And, therefore, the petition—despite all of the compelling evidence with regards to the minimal nature of the risk, the statute has to be followed. And, therefore, I have to deny the petition.”


B.C. argues the court improperly interpreted section 3-5 of the Sex Offender Registration Act (Act) (730 ILCS 150/3-5 (West 2016)) and ceded responsibility for making a judgment to persons other than the court.

Specifically, B.C. contends that the trial court effectively shifted the judicial decision-making authority to the evaluator, who found that B.C. posed a “low risk” instead of the statutorily required “no risk.” Additionally, B.C. submits that the court’s interpretation nullifies section 3-5 because, according to the evaluator, all assessments will result in, at best, a “low risk” determination. B.C.’s argument is derived from the trial court’s interpretation of subsection 3-5(d) of the Act.

The Statute

This subsection provides that once a juvenile sex offender files a subsection 3-5(c) petition,

“[t]he court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e).”

730 ILCS 150/3-5(d).

The language of subsection 3-5(d), stating that the court must find the registrant poses “no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e),” is clear and unambiguous. T.J.D., 2017 IL App (5th) 170133, ¶ 23.

When deciding whether B.C. satisfied his burden of proof, the court was required to consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act; 
(2) the sex offender history of the adjudicated juvenile delinquent; 
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation; 
(4) the age of the adjudicated juvenile delinquent at the time of the offense; 
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history; 
(6) victim impact statements; and
(7) any other factors deemed relevant by the court.

730 ILCS 150/3-5(e) (West 2016). 

High Standard

The legal “no risk” standard of subsection 3-5(d) is necessarily high because this onerous burden strikes a balance between the intent of the Act to protect the public (see People v. Bonner, 356 Ill. App. 3d 386, 388-89 (2005) (Act is intended to protect the public rather than punish sex offenders)) and the statutory ability afforded only to juvenile offenders to terminate registration (see Rufus T., 409 Ill. App. 3d at 975 (section 3-5 of the Act is “intended to protect the rights of juvenile delinquents, who have a greater likelihood of rehabilitation, by allowing them the opportunity to petition the court to remove them from the sex offender registry”)).

It must be recognized that the legislature tempered the high standard of “no risk” by incorporating a preponderance of the evidence burden of proof upon the petitioner. 730 ILCS 150/3-5(d) (West 2016). This statutory burden does not require proof beyond a reasonable doubt and can be satisfied with sufficient evidence to show that a fact is “more likely than not.” T.J.D., 2017 IL App (5th) 170133, ¶ 26.


We agree that if the burden of proof was beyond a reasonable doubt, the burden, combined with the “no risk” standard would effectively nullify section 3-5, as it is nearly impossible for a sex offender to show no risk of reoffending. Therefore, the adoption of the preponderance of the evidence burden of proof permitted B.C. to show that he posed “no risk to the community” even though evidence of some of the factors did not weigh in his favor.

The preponderance of the evidence burden of proof requires only that B.C. show that it is “more likely than not” (T.J.D., 2017 IL App (5th) 170133, ¶ 26) that he “poses no risk to the community” (730 ILCS 150/3-5(d) (West 2016)).

This standard is less exacting than the criminal beyond a reasonable doubt standard as it does not require B.C. to prove his case beyond all doubt, but that it is “more probable than not” that he poses no risk to the community. The evaluator's testimony establishes that “low risk” is the label applied to the most successfully rehabilitated sex offender. Her explanation appears to make a “no risk” assessment, as required by subsection 3-5(d), an unattainable goal.

We note that the legal standard of “no risk,” when measured by a preponderance of the evidence, may be satisfied in spite of a “low risk” assessment by a nonjudicial professional evaluating defendant in a clinical, rather than legal, context.

Grant The Petition

Here, expert testimony indicated that B.C. earned the highest rating a clinician could provide. Thus, based on the unique facts of this case, we conclude that B.C.’s “low risk” assessment weighs in favor of granting the petition. The only factor that went against granting the petition was the severity of the offense. And the victim impact panel went against him but it’s value was undermined.

The history of his evaluations was this:

In July 2000, the first evaluation stated B.C. had a low to moderate risk to commit future sex offenses. Relevant to B.C.’s mental and social history, the moderate risk factors cited included B.C.’s failure to understand the exploitive nature of the offenses and B.C.’s negative self-esteem.

The later report, about a year and a half later, indicated B.C. had worked to remedy at least some of these issues as he had consistently engaged in and progressed in treatment, admitted that he committed the offenses, decreased his level of denial, and expressed some empathy for the victims.

The expert testimony at the hearing on B.C.’s petition to terminate registration established that B.C. had resolved these issues after he completed the sex offender treatment program. In particular, the evaluator noted that B.C. had accepted responsibility for the offenses and understood his triggers.


Based on her evaluation of B.C., the evaluator opined B.C. had the lowest risk possible. Viewed together, this evidence showed that B.C. made substantial progress in correcting the mental issues that existed at the time of the offense. Further, B.C.’s testimony of his employment history, academic history, and current career established a positive educational and social history following the offenses.

Therefore, this factor weighs in favor of granting the petition. From our review of the record, the risk assessment, evidence of rehabilitation, age at the time of the offense, and B.C.’s mental, physical, emotional, and social history factors each weigh firmly in favor of granting the petition.

The evidence supporting the denial of the petition is limited to B.C.’s sex offender history, which consists only of two, albeit very serious, offenses and the victim impact statement. Therefore, we conclude B.C. met the burden of showing, by a preponderance of the evidence, that he poses “no risk” to the community. 730 ILCS 150/3-5(d), (e)(3) (West 2016).

We conclude that the court’s denial of B.C.’s petition to terminate registration was contrary to the manifest weight of the evidence.  The judgment of the circuit court of Kankakee County is reversed and remanded with directions for the court to grant B.C.’s petition to terminate sex offender registration.

Reversed and remanded with directions.

People v. Tetter

People v. Tetter, 2018 IL App (3d) 150243 (January)

SORA declared unconstiututional as applied to this defendant.


Defendant, age 21 at the time, began a relationship with a minor who represented herself to be 18.

A jury found that defendant continued this relationship after learning she was 16 and convicted him of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)).


Defendant also raises, for the first time on appeal, a constitutional challenge claiming the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2012)), Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2012)), residence and presence restrictions within 500 feet of school zones or 100 feet of school bus stops (720 ILCS 5/11-9.3 (West 2012)), residence and presence restrictions within 500 feet of a public park (720 ILCS 5/11-9.4-1 (West 2012)), mandatory annual driver’s license renewal (730 ILCS 5/5-5-3(o) (West 2012)), and prohibiting defendant from petitioning to change his name (735 ILCS 5/21­ 101 (West 2012)) impose disproportionate punishment as applied to him.

We refer to these statutes collectively as “sex offender statutes” herein.

SORA And It’s Progeny

Our legislature subsequently passed numerous amendments imposing additional requirements and restrictions upon sex offenders.

Most importantly, it imposed specific restrictions on where sex offenders may be present or live. See 720 ILCS 5/11-9.3, 11-9.4-1 (West 2012). Sex offenders cannot have jobs where they work, at any time for any reason, within 500 feet of a school or public park or within 100 feet of a school bus stop. SORA also effectively bars offenders from working any job requiring extensive travel; sex offenders must notify, in person, both Illinois law enforcement and the destination’s law enforcement when they are away from home for three or more days. 730 ILCS 150/3(a) (West 2012).

The amendments since People v. Malchow, 193 Ill. 2d 413, 424 (2000) “directly restrict where [a sex offender] can live, work, and even move about his community.” People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 51.

Thus, we are faced with very different and more restrictive statutes than those addressed in Malchow or Smith, 538 U.S. at 98 (Alaska SORA constitutional).

After Probation

After completing sex offender probation, offenders are subject to the sex offender statutes for either 10 years or life—defendant’s conviction subjects him to lifetime registration. Under the sex offender statutes, off-parole sex offenders must register with the DOC, inform the DOC of certain life events (such as buying or using a new car, growing a beard, moving, or taking a vacation), consent to having Internet usage monitored, and most importantly, not live or be present near school zones, school bus stops, or public parks.

Parole Conditions

Because of the restrictions on movement the sex offender statutes are now akin to probation or supervised release. Probation and other forms of supervised release are considered punishment. Sex offenders, like defendant, are subject to dozens of additional parole conditions. See 730 ILCS 5/3-3-7(a)(7.5)-(7.13), (b)(7.5)-(7.6), (b-1) (West 2014). These conditions include sex offender treatment, not living in the same residential unit (including apartments or condominiums) with other known sex offenders, wearing an electronic monitoring device, not communicating with or contacting people on the Internet whom the offender believes to be under 18, consenting to searches of all devices with Internet access, not possessing prescription medications for erectile dysfunction, not “scrubbing” or erasing data on any computer device, residing only at an approved location, obtaining approval prior to accepting employment or pursuing education, not being employed or participating in any volunteer activity involving contact with children, refraining from entering designated geographic areas without approval, neither possessing nor having access to pornography or sexually stimulating material, not patronizing any adult entertainment establishment or telephone hotline, not residing near or being present in places where minors may congregate without advance approval, taking an annual polygraph exam, maintaining a travel log, and other restrictions.

After Parole

Off-parole sex offenders are more restricted in many ways than non-sex-offender parolees. While non-sex-offender parolees are monitored and prohibited from committing crimes, off-parole sex offenders may not reside or be present near places where the legislature has deemed them more likely to recidivate. Sex offender statutes restrict where defendant may live, work, or be present, in addition to the numerous obstacles imposed by the registration requirements. These requirements and restrictions, collectively, constitute an affirmative disability and restraint—defendant is restricted in most aspects of his daily life. Specifically, “safe zones” surrounding schools, school bus stops, and public parks, significantly restrict defendant’s lawful movement within the community. These zones restrict where he may live, drive, work, visit, or attend any social function for life. Although not to the same degree as prison, the sex offender statutes’ restrictions affirmatively disable and restrain offenders such as defendant. Therefore, this factor suggests that the sex offender statutes constitute punishment.

Punishment v. Civil Sanctions

However, since the legislature enacted sex offender statutes that restrict a convicted sex offender’s presence, residence, and liberty to move about society, the court has not addressed whether the sex offender statutes’ punitive effects negate the legislature’s intent to deem the laws civil.

For the reasons stated below, we find that they do. Our sex offender statutes satisfy the traditional definition of punishment.

What Is Punishment?

Citing published legal philosophy, the Snyder court defined “punishment” as involving pain or unpleasant consequences following from an offense against the law, applying to the offender, being intentionally administered by people other than the offender, and being imposed and administered by an authority constituted by a legal system against which the offense was committed.

Our sex offender statutes, like parole or MSR, satisfy this definition.


We find that this factor also suggests that the sex offender statutes constitute punishment.

The trial court referred defendant to a licensed clinical psychologist for his evaluation. Defendant scored in the zero percentile on the child molestation, drug abuse, and alcoholism scales. In other words, a clinical psychologist chosen by the court, not defendant, concluded that he poses no greater risk than any other person to commit child sex crimes or those involving drug or alcohol abuse.

Nonetheless, the sex offender statutes require defendant to register for life and not set foot near school zones or public parks where children frequently congregate. Defendant is simply not the person at whom the sex offender statutes’ purposes are aimed. Its statutes are not tailored to regulate only dangerous offenders, those likely to recidivate, or those with little or no potential for rehabilitation; therefore, offenders like defendant must endure the statutes’ restrictions without society reaping any benefit.

These statutes go well beyond the dissemination of accurate, already-public information. We agree with the trial court’s assessment of defendant’s sentence:

“I can only say his life will never be the same. He will go through life now as a predator. He will be labeled a predator in every way. He—it will be very difficult to get a job. He’ll not be able to have a cell phone, use those apps that he uses or be on the Internet. He won’t be able to live where he wants to live. He won’t be able to associate with who he wants to be [sic]. His life will—will never be the same and—and in effect that is great punishment.”

If the sex offender statutes’ application were not irrevocable, our analysis might be different.

Disproportionate Sentence

We now address whether defendant’s punishment is unconstitutionally disproportionate to his crime.

Article I, section 11 of the Illinois Constitution provides,

“[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11.

“A proportionality challenge contends that the penalty in question was not determined according to the seriousness of the offense ***.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). Our proportionate penalties clause coincides with the eighth amendment. The eighth amendment allows defendants to challenge sentences as disproportionate “given all the circumstances in a particular case.” Graham, 560 U.S. at 59.

In doing so, courts must be mindful that the eighth amendment contains a narrow proportionality principle, that does not require strict proportionality between crime and sentence but rather forbids only extreme sentences that are grossly disproportionate to the crime.


We find that the sex offender statutes constitute punishment as contemplated by the eighth amendment and the Illinois Constitution’s disproportionate penalties clause. Given defendant’s background and his virtually zero risk to recidivate, we hold that his lifetime subjection to the sex offender statutes is grossly disproportionate to his crime. As applied to him, lifetime subjection to the sex offender statutes’ registration requirements and restrictions violates the Illinois Constitution’s proportional penalties clause and the United States Constitution’s eighth amendment. For the foregoing reasons, we affirm defendant’s conviction, jail sentence, and probation term. We vacate defendant’s subjection to the sex offender statutes’ registration requirements and restrictions.

People v. Zetterlund

People v. Zetterlund, 2018 IL App (3d) 150435 (March).

Another defendant says SORA is unconstitutional; he loses.


Defendant was present at a party with the victim and several other individuals. During the course of the night, the victim became severely intoxicated and lost consciousness. While the victim was unconscious, defendant removed the victim’s clothing and performed vaginal intercourse on the victim.

Defendant’s friend, was present and recorded the assault on his phone.


The court sentenced defendant to six years’ imprisonment and an indeterminate term of three years to life of mandatory supervised release (MSR). Because of defendant’s conviction, he is subject to the restrictions and obligations set forth in the SORA statutory scheme for the remainder of his life.


Defendant challenges the constitutionality of the SORA statutory scheme, which he is now subject to because of his present conviction. Defendant makes two arguments to support his contention:

(1) the SORA statutory scheme violates the due process clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2) and
(2) the SORA statutory scheme violates the proportionate penalties guarantees of the United States and Illinois Constitutions (U.S. Const., amend. VIII; Ill. Const. 1970, art. I, § 11).

Case Law Says Constitutional

Before analyzing each constitutional argument, we note that our supreme court has upheld prior versions of the SORA statutory scheme against similar constitutional challenges. See People v. Cornelius, 213 Ill. 2d 178 (2004); People v. Malchow, 193 Ill. 2d 413 (2000).

Nevertheless, defendant contends that the SORA statutory scheme is different than the prior versions determined to be constitutional because recent additions have made the SORA statutory scheme so onerous that it no longer satisfies constitutional protections.


Upon review, we find the SORA statutory scheme satisfies substantive and procedural due process requirements. Therefore, we hold the SORA statutory scheme does not violate defendant’s due process rights under the United States and Illinois Constitutions.

See also In re A.C., 2016 IL App (1st) 153047, ¶¶ 35-79, and People v. Pollard, 2016 IL App (5th) 130514, ¶ 23, the court found that the current version of the SORA statutory scheme did not violate an individual’s due process rights (substantive or procedural).

We agree with the conclusions reached in A.C. and Pollard and adopt their reasoning. In defendant’s brief, he does not specifically state which basis he is relying upon in support of his argument. Consequently, we find defendant has forfeited any argument that the SORA statutory scheme is facially unconstitutional. Despite this, we consider the substance of defendant’s argument to be an as-applied challenge. We find the record is simply insufficient to determine whether imposing lifetime registration requirements is grossly disproportionate to defendant’s crime.

People v. Rodriguez

People v. Rodriguez, 2018 IL App (1st) 151938 (February)

Unfit defendant says SORA is unconstitutional as applied to him.


Defendant was found not not guilty of aggravated criminal sexual assault on the basis of unfitness. He is nonetheless required to register under SORA.

Must Still Register

We held that pursuant to People v. Cardona, 2013 IL 114076, ¶ 25, “an individual found not not guilty of a sex offense, even on the basis of being found unfit, falls within the purview of SORA” and is required to register.


Defendant now appeals arguing that the SORA statutory scheme is unconstitutional both on its face and as applied to him, an unfit defendant allegedly incapable of understanding the registration requirements. Defendant still claims he does not understand his requirements under SORA.

The sole issue on appeal is the constitutionality of subjecting unfit defendants found not not guilty of sexual assault to SORA’s “statutory scheme,” which, according to Rodriguez, encompasses the duty to register (730 ILCS 150/3), the penalty for noncompliance with the registration requirements and the failure to register (id. §§ 7, 10), the limitations on a sex offender’s residence and presence in certain locations (720 ILCS 5/11-9.3, 11-9.4-1), the requirement that a sex offender must renew his driver’s license yearly (730 ILCS 5/5­), and the prohibition on name changes for sex offenders (735 ILCS 5/21-101).


We must first determine whether the SORA statutory scheme constitutes “punishment” at all. Our supreme court has answered that question in the negative on several occasions, most recently in 2013. Cardona, 2013 IL 114076, ¶ 24; see also People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 203 (2009); People v. Malchow, 193 Ill. 2d 413, 424 (2000).

Rodriguez acknowledges these holdings, but maintains that they are outdated, as the registration requirements and limitations imposed on sex offenders have become more onerous since these cases were decided. Specifically, today’s SORA

(1) increases the number of agencies with which a sex offender must register to include not only police departments in the county where the offender resides, but also in the county where he works or attends school (730 ILCS 150/3(a), (d))
(2) increases the amount of information a sex offender must provide when registering to include a photograph, telephone number, place of employment, employer’s telephone number, school attended, information about his qualifying offense, information about identifying marks on his body, license plate numbers for vehicles registered in his name, and all e-mail addresses, Internet identities, and Internet sites he maintains (id. § 3(a));
(3) provides less time to report changes in this information (from 10 days to 3 days) (compare id. § 3(b), with 730 ILCS 150/3(b));
(4) increases how often a sex offender must register and how often he must report in person (730 ILCS 150/6);
(5) increases the initial and annual registration fees (id. § 3(c)(6));
(6) imposes harsher penalties for noncompliance with registration requirements (id. § 10); and
(7) imposes greater restrictions on where a sex offender can live or be present (720 ILCS 5/11-9.3, 11-9.4-1).

What Is Punishment?

Even when the legislature intends to enact a civil regulatory scheme, the law may nevertheless constitute punishment if “the clearest proof” shows that it is punitive in purpose or effect.

When determining whether an ostensibly civil statute has a punitive effect, Illinois courts have applied the seven factor test first set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), which considers whether

(1) the sanction involves an affirmative disability or restraint,
(2) the sanction has historically been regarded as punishment,
(3) the sanction is applicable only upon a finding of scienter,
(4) operation of the sanction promotes retribution and deterrence,
(5) the behavior to which the sanction applies is already a crime,
(6) an alternative purpose to which the sanction may rationally be connected is assignable to it, and
(7) the sanction appears excessive in relation to the alternative purpose assigned.

See Malchow, 193 Ill. 2d at 421. We previously applied the Mendoza-Martinez factors to the 2013 SORA in Fredericks, 2014 IL App (1st) 122122, ¶ 58, and A.C., 2016 IL App (1st) 153047, ¶¶ 77-78, and determined that the changes to SORA since Malchow did not render the Act punitive.

We reach the same conclusion today.


We conclude that while the SORA statutory scheme has become more onerous since 1998, it remains nonpunitive in effect under Mendoza-Martinez.

Here, despite being in certain ways under- or overinclusive, the SORA statutory scheme is rationally related to protecting the public from sex offenders, which is a legitimate state interest. Thus, although the scheme may be imperfect, it is rationally related to the legitimate state interest of protecting the public from sex offenders and not unconstitutional on its face.

Rodriguez’s argument that the statutory scheme is unconstitutional as applied to him fares no better.

But He Aint Right...

Rodriguez maintains that his “cognitive and physical defects” “make reoffending next to impossible” and also make him unable to comprehend and comply with the SORA statutory scheme. But Rodriguez suffered from the same cognitive defects at the time he was charged with the offense that led to this proceeding; he has not alleged any new defects that would prevent him from committing a similar offense in the future.

And we rejected Rodriguez’s contention that he was incapable of understanding or complying with the registration requirements in our earlier decision. He had some level of cognitive functioning when he committed the crime. The evidence also reveals that Rodriguez had worked in a shop where his responsibilities included sweeping, putting on gloves, and gathering scrap metal and brake lining and putting them in a truck.

Rodriguez was also responsible for his own personal hygiene, had the ability to clean, do laundry, pay bills, and received a high school degree from a school that specializes in teaching individuals with cognitive deficits. Rodriguez was capable of complying with the registration requirements, and we decline to find otherwise today.

For these reasons, we affirm the constitutionality of the SORA statutory scheme both on its face and as applied to Rodriguez.

See Also