State v. C. G. (In re Interest of C. G.)

• Citation: 403 Wis.2d 229,976 N.W.2d 318,2022 WI 60
• Decision Date: 07 July 2022
• Docket Number: 2018AP2205-CR
• Parties: In the INTEREST OF C. G., a person under the age of 18: State of Wisconsin, Petitioner-Respondent, v. C. G., Respondent-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

403 Wis.2d 229

976 N.W.2d 318

2022 WI 60

In the INTEREST OF C. G., a person under the age of 18:State of Wisconsin, Petitioner-Respondent,

v.C. G., Respondent-Appellant-Petitioner.

No. 2018AP2205-CR

Supreme Court of Wisconsin.

Oral Argument: February 17, 2022

Opinion Filed: July 7, 2022

For the respondent-appellant-petitioner, there were briefs filed by Cary E. Bloodworth, assistant state public defender. There was an oral argument by Cary E. Bloodworth.

For the respondent-appellant-petitioner, there was a brief filed by Scott E. Rosenow, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Abigail Potts, assistant attorney general.

An amicus curiae brief was filed by Abigail L. Churchill, Hayley I. Archer, and Trans Law Help Wisconsin, Madison and Hawks Quindel, S.C., Madison, for Trans Law Help Wisconsin and Hawks Quindel, S.C.

An amicus curiae brief was filed by Matthew S. Pinix, Marsha L. Levick, and Pinix Law, LLC, Milwaukee, and Juvenile Law Center, Philadelphia, for Juvenile Law Center, national Center for Lesbian Rights, Lambda Legal Defense and Education Fund, and Eric S. Janus.

An amicus curiae brief was filed by Matthew E. Kelley John A. Knight, Laurence J. Dupuis, and Ballard Spahr LLP, Washington, D.C., American Civil Liberties Union of Wisconsin Foundation, Inc., Milwaukee, and American Civil Liberties Union Foundation LGBT & HIV Project, Chicago, for the American Civil Liberties Union Foundation and American Civil Liberties Union of Wisconsin Foundation.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court with respect to all parts except ¶¶6 and 36–46, in which ZIEGLER, C.J., ROGGENSACK, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶6 and 36–46, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET and KAROFSKY, JJ., joined.

REBECCA GRASSL BRADLEY, J.

¶1 When Ella was 15 years old, she and another teenager, Mandy, sexually assaulted their supposed friend, 14-year-old Alan.¹ The circuit court adjudicated Ella delinquent.² Ella moved to stay juvenile sex offender registration, arguing she and her offense satisfied the four criteria in Wis. Stat. § 301.45(1m)(a)1m. (2017–18). The court denied her motion, finding the offense was "clearly a forceful act"; therefore, it concluded Ella's offense could not satisfy one of the criteria. As a result, the law required Ella to register as a sex offender. Less than a year later, Ella filed a postdispositional motion to stay registration. She seeks review of a court of appeals decision³ affirming the circuit court's denial of this motion.

¶2 Ella's legal arguments are grounded in her gender identity. She entered the juvenile justice system as a male. Sometime thereafter, Ella realized she was a transgender girl, i.e., a biological male who self-identifies as a girl. Ella has a traditionally masculine legal name she believes is incompatible with her gender identity. Ella complains she is bound to "out herself" as a male anytime she is required to produce her legal name.⁴ If Ella were not a sex offender, she could petition the circuit court for a legal name change under Wis. Stat. § 786.36 (2019–20);⁵ however, another statute, Wis. Stat. § 301.47(2)(a), prohibits her from filing such a petition because she is a sex offender, although the State argues it does not prohibit her from using an alias provided she notifies the Department of Corrections (DOC) of her intent to do so in advance.

¶3 Ella raises two legal issues for our consideration. She argues requiring her to register as a sex offender: (1) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to her; and (2) violates her right to free speech under the First Amendment to the United States Constitution. Both arguments rest on Ella's inability to change her legal name to conform to her gender identity.

¶4 We reject both arguments. Consistent with well-established precedent, we hold Ella's placement on the sex offender registry is not a "punishment" under the Eighth Amendment. Even if it were, sex offender registration is neither cruel nor unusual. We further hold Ella's right to free speech does not encompass the power to compel the State to facilitate a change of her legal name. We therefore affirm the decision of the court of appeals.

I. BACKGROUND

A. An Overview of Ella, the Perpetrator

¶5 Ella, who is now 22, questioned her gender identity throughout her adolescence. After the State filed a delinquency petition against Ella, she began to express "thoughts of transitioning." By the time the court held a hearing on Ella's first motion to stay sex offender registration, she had started transitioning. At this point, she thought of herself as a transgender girl and began self-identifying and attempting to present her appearance in a manner consistent with her newfound self-awareness.⁶ The circuit court found she is now fairly open about her status as a member of the "LGBTQ"⁷ community.

¶6 Because Ella entered the juvenile justice system as a male, many relevant records—including records prepared at the direction of Ella's appellate counsel—refer to her using male pronouns.⁸ When quoting those records, we use those pronouns. Elsewhere in our opinion, however, we use female pronouns out of respect for Ella's individual dignity. All parties and amici curiae used her preferred pronouns in their briefing, and the court of appeals used them in its published opinion.⁹

¶7 Ella's size is critical to understanding the forceful nature of the sexual assault. The circuit court found Ella was "pretty massive." Although we do not have anything in the record giving Ella's exact dimensions at the time of the sexual assault, a youth justice case worker testified at a hearing a little over a year later that Ella was 6-foot-5-inches tall and weighed 345 pounds, taking this information from a face sheet prepared by the DOC. A report submitted by Ella's appellate counsel said she was 6-foot-4-inches tall and weighed 300 pounds.

B. An Overview of Alan, the Victim

¶8 In contrast to Ella, Alan is a heterosexual male. He had minimal prior sexual knowledge before Ella sexually assaulted him. He did not know what the word "ejaculated" meant when a law enforcement officer questioned him about the assault. The officer had to rephrase his question, asking "if anything came out of [Alan's] penis" as a result of Ella's contact with it.

¶9 Alan was diagnosed with autism

between one-and-a-half and two years of age. When he was four months old, a medical condition necessitated the surgical removal of the lens of his left eye, leaving him blind in that eye. For nearly all of Alan's life, he has needed physical and speech therapy. His mother testified at the dispositional hearing Alan was 5-foot-10-inches tall and weighed 110 pounds. Based on this testimony, the circuit court inferred Alan was "pretty frail[.]"

¶10 Alan's mother further testified his autism

significantly affects his learning and social abilities. Specifically, his mother testified he has done poorly in school, has had an Individualized Education Program, and has needed special classes. At the time of the assault, Alan was a ninth-grader but his mother explained he worked at a sixth-grade level and was "nowhere near where he should be with the rest of his peers."

¶11 Alan's mother also explained he has never had much of a "social life[.]" According to her, people often become annoyed by Alan because he does not understand social cues, such as when to stop a conversation. As a result, he has "had a hard time making friends." Part of the tragedy of this case is that Alan's first "supposed friends," or more accurately, "the first group of people" with whom he socialized, unsupervised by adults, took advantage of him. She explained the assault has had a profound impact on his life, causing Alan grave embarrassment.

C. The Sexual Assault

¶12 Alan appears to have met Ella through Mandy, a female classmate. All three juveniles were in the ninth grade at the time of the sexual assault; however, Ella was fifteen and Alan was fourteen. According to the officer's narrative attached to the delinquency petition, in early 2016, Mandy's sister picked up Mandy, Ella, and Alan and drove them to Mandy's parents’ house. The four of them went into Mandy's bedroom where they talked and texted. Eventually, Mandy's sister left to go to work. Whether Mandy's parents were home is unclear, but the petition suggests Alan believed they were.

¶13 As night time approached, Ella began sending sexually-explicit Facebook messages to Alan. She first asked Alan "if he had ever received ‘head’ before." Ella then sent at least two messages about giving Alan "head." Alan repeatedly told Ella he did not want her to give him "head." Alan showed the messages to Mandy. In response, Mandy told Alan he should let Ella "do it because it feels great." Alan told her he "did not want to get ‘head’ from a guy."

¶14 Despite Alan's explicit rebukes, Ella "pushed" him onto the bed. Ella sat on his legs while Mandy restrained his arms. Ella then pulled his pants and underwear down. Alan tried yelling for help, hoping Mandy's parents were home and would hear his cries; however, Mandy placed one of her hands over Alan's mouth. Ella then put her mouth around Alan's penis. Ella's appellate counsel characterizes the assault as "brief[ ] ... oral contact with a male friend's penis against his wishes," but this assault was a heinous act that forever changed Alan's life.

¶15 Afterward, Ella and Mandy told Alan not to tell anyone what they had done to him. Alan did not say anything because he was embarrassed. Ella, apparently, was not: she told at least two classmates. She also taunted Alan via Facebook Messenger:

Ella: Remember that time I gave you head

Alan: It was fucking

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