IN RE DOE (" SD")

• Citation: 855 A.2d 1100
• Decision Date: 29 July 2004
• Docket Number: No. 01-SP-894.,01-SP-894.
• Parties: Stanley DOE ("S.D."), Appellant.
• Court: D.C. Court of Appeals

855 A.2d 1100

Stanley DOE ("S.D."), Appellant.

No. 01-SP-894.

District of Columbia Court of Appeals.

Argued November 7, 2002.

Decided July 29, 2004.

Andrea Roth, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the briefs, for appellants.

Barbara J. Valliere, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, at the time the brief was filed, and John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the briefs, for appellee.

Before WAGNER, Chief Judge, and TERRY and GLICKMAN, Associate Judges.

GLICKMAN, Associate Judge:

Appellant "Stanley Doe" (a pseudonym employed in the trial court proceedings), whom we shall refer to as "S.D." though his actual initials are different, entered a guilty plea in federal court to one count of Interstate Travel with Intent to Engage in Sexual Acts with a Minor, a violation of 18 U.S.C. § 2423(b). After S.D. served time in prison and was placed on supervised release, he moved to the District of Columbia. The Court Services and Offender Supervision Agency ("CSOSA") notified S.D. that he had to register as a sex offender under the District of Columbia's Sex Offender Registration Act of 1999 ("SORA"), D.C.Code § 22-4001, et seq. (2001).¹ Alleging that his federal crime was not a "registration offense" under SORA, S.D. sought judicial review of CSOSA's determination in Superior Court. See D.C.Code § 22-4004(a)(1)(A)(iv). CSOSA argued that S.D. was obliged to register because his federal offense involved conduct that was "substantially similar" to at least two registration offenses under District of Columbia law, namely, attempted enticement of a child in violation of D.C.Code §§ 22-3010, —3018 (2001), and lewd, indecent or obscene acts with a child in violation of D.C.Code § 22-1312(b) (2001). The Superior Court agreed with CSOSA and certified S.D. as a Class B sex offender subject to SORA's ten-year registration requirement. S.D. appealed that ruling to this Court. We now affirm it.

I.

S.D. stipulated to the facts underlying his federal offense when he tendered his guilty plea. In brief, on October 30, 1998, S.D. (who was approximately forty years old) traveled from Kansas to Virginia for the purpose of engaging in sexual acts with minors he had solicited in Internet chat rooms and by e-mail. After he arrived in Virginia, S.D. met first with "Jane Doe," a seventeen-year-old girl. With knowledge that Jane Doe was under eighteen years of age, S.D. drove her to a residence in Alexandria and had sexual intercourse with her there. The following morning, S.D. went to a shopping mall in Pentagon City for a rendezvous with "Ashley5665," whom he believed to be a fourteen-year-old girl. Upon his arrival at the mall, S.D. was arrested. In reality, Ashley5665 had been the screen name used by a United States Customs Service Special Agent posing as a fourteen-year-old girl in an FBI undercover sting operation.²

S.D. pleaded guilty in the United States District Court for the Eastern District of Virginia to a single count of having violated 18 U.S.C. § 2423(b) by traveling in interstate commerce for the purpose of engaging in a sexual act with a person under eighteen years of age. S.D. specifically acknowledged in his stipulation that he engaged in the above-described conduct "knowingly, intentionally and unlawfully and not as a result of mistake, inadvertence or other innocent reason." The court sentenced S.D. to fifteen months in prison followed by two years of supervised release.

II.

The sole question that S.D. asks us to answer in this appeal is whether his federal offense is one that requires registration under SORA. This is a question of statutory interpretation, and hence our review is de novo. See, e.g., Harris v. District of Columbia Office of Worker's Compensation (DOES), 660 A.2d 404, 407 (D.C. 1995)

. SORA was adopted to protect the public, and especially minors, from the threat of recidivism posed by sex offenders who have been released into the community. See W.M., 851 A.2d at 441-42. As SORA is a remedial regulatory enactment and not a penal law, see id., at 443-46, it "should be liberally construed for the benefit of the class it is intended to protect." Maldonado v. Maldonado, 631 A.2d 40, 42 (D.C.1993). Additionally, while "the judiciary is the final authority on issues of statutory construction," Harris, 660 A.2d at 407 (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), to the extent that the meaning of SORA's terms is unclear, "the court will accord considerable weight to [the] construction by the agency responsible for administering the statute." Id. The agency responsible for administering SORA's registration and classification requirements is CSOSA. See D.C.Code §§ 22-4002, -4007. Where language in SORA is ambiguous, therefore, CSOSA's interpretation is entitled to deference so long as it is reasonable in light of the statute's language, its legislative history, and judicial precedent. See Wash. Metro. Transit Auth. v. District of Columbia Dep't of Employment Servs., 825 A.2d 292, 294 (D.C.2003); cf. W.M., at 454-55 (declining to defer to CSOSA's non-adjudicative factual determinations).

"SORA imposes registration requirements on sex offenders based on the nature of the offenses they committed rather than on an individualized assessment of their risk of recidivism." W.M., at 436. To that end, SORA contains provisions defining the terms "lifetime registration offense" and "registration offense." See D.C.Code § 22-4001(6) & (8). The most serious sex offenses, typically those involving either violence or the abuse of children under twelve years of age, are included in the former category; persons who have "committed" those offenses have a duty to register as sex offenders for life. Offenders who have "committed" other registration offenses³ must register for ten years or until the end of any period of probation, parole, supervised or conditional release, or convalescent leave, whichever is later. D.C.Code § 22-4002(a). SORA defines the phrase "committed a registration offense" narrowly to mean that the person was convicted of such an offense or was found not guilty of it by reason of insanity, or else was determined in a special judicial proceeding to be a sexual psychopath. D.C.Code § 22-4001(3)(A).

The issue before us is whether S.D. committed a ten-year registration offense; it is not contended that he committed a lifetime registration offense. In D.C.Code § 22-4001(8), SORA specifically lists many D.C.Code sex offenses as registration offenses, including all sex offenses involving minors (unless they are listed in § 22-4001(6) as lifetime registration offenses). In subparagraph (G) of § 22-4001(8), SORA further provides that an offense under the law of another jurisdiction, including federal law, is a registration offense in the District of Columbia if the offense "involved conduct that would constitute" a D.C.Code registration offense or "substantially similar" conduct. D.C.Code § 22-4001(8)(G).⁴ (A nearly identical provision for lifetime registration offenses appears in subparagraph (E) of § 22-4001(6).) Although the quoted terminology is not statutorily defined, it is clear that CSOSA properly may (and often must) look beyond the face of the judgment of conviction in another jurisdiction to the underlying offense conduct to determine whether the requirements of subparagraph (G) are met. See also D.C.Code 22-4004(a)(1)(A)(iv) (explicitly recognizing that the registration determination may be based on "a finding or findings which are not apparent from the disposition" in the foreign jurisdiction).

The legislative history of SORA is informative as to the scope of the term "substantially similar." The report submitted to the Council by its Committee on the Judiciary, which is authoritative, see W.M., at 441, explains that subparagraph (G) is designed to overcome difficulties caused by "[t]he variations among different jurisdictions in the terminology and categorizations used in defining sex offenses."⁵ To that end, subparagraph (G) eschews "element-by-element comparisons" between offenses in D.C. and similar offenses elsewhere in favor of requiring persons in the District of Columbia to register so long as "they have been convicted under the laws of other jurisdictions of crimes involving sexual assault or crimes involving sexual abuse or sexual exploitation of children, or of inchoate offenses that aimed at such conduct." Judiciary Committee Report at 21 (emphasis added).⁶ Thus the Council did not intend the term "substantially similar" to be construed narrowly or restrictively. Rather, the Council contemplated that the term would be given a broad construction to effectuate the goals of the legislation.

Turning now to S.D.'s federal offense, CSOSA and the Superior Court determined that the offense involved conduct that was "substantially similar" to the conduct described by at least two D.C.Code offenses that require registration: attempted enticement of a child in violation of D.C.Code §§ 22-3010 and 22-3018, and lewd, indecent or obscene acts with a child in violation of D.C.Code § 22-1312(b). We consider it necessary to examine only the comparison with the first of those two offenses. The offense of "enticing a child" is committed when a person, "being at least 4 years older than a child, takes that child to any place, or entices, allures, or persuades a child to go to any place for the purpose of committing" an act of sexual abuse (including sexual intercourse). D.C.Code § 22-3010. For purposes of this offense, a "child" is defined to be "a person who has not yet attained the age of 16 years." D.C.Code § 22-3001(3) (2001). An attempt to commit enticement of a child is an offense under D.C.Code § 22-3018.

S.D. committed his federal offense by traveling...