Attorney General: Commissioners Lee and Armstrong, Department of Public Safety, Department of Correction, 1998-017 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

September 28 1998

Dr. Henry C. Lee, Commissioner
Department of Public Safety
1111 Country Club Road
Middletown, CT. 06457

Commissioner John J. Armstrong
Department of Correction
24 Wolcott Hill Road
Wethersfield, CT. 06109

Dear Commissioners Lee and Armstrong:

You have requested a formal opinion by this office regarding issues presented in Public Act 98-111, Connecticut's most recent "Megan's Law." Public Act 98-111, which becomes effective October 1, 1998, establishes a sexual offender registration system for Connecticut that significantly expands the circumstances under which a convicted sexual offender is required to register with and provide current information to the Department of Public Safety and Connecticut State Police. Failure to register as required is a Class D felony under the act. Persons found not guilty by reason of mental disease or defect of the same offenses are likewise subject to the registration requirements. Public Act 98-111 also requires the Department of Public Safety to establish and maintain a registry of sexual offenders not later than January 1, 1999. The act provides that the registry maintained by the Department is a public record accessible to the public through the Internet and at all local police departments and each state police troop.

Public Act 98-111 creates categories of offenses which give rise to the requirement that a convicted sexual offender register with the Department of Public Safety. Sections 2 and 1(2) of Public Act 98-111 designate certain Connecticut statutory offenses as "criminal offense[s] against a victim who is a minor." Persons convicted or found not guilty by reason of mental disease or defect of a criminal offense against a minor who are released into the community on or after October 1, 1998, are subject to a ten year registration requirement. Persons convicted of attempt or conspiracy to commit an offense designated as a criminal offense against a victim who is a minor are subject to the same registration requirement.

Sections 3 and 1(10) designate certain Connecticut statutory offenses as "sexually violent offense[s]." Persons convicted or found not guilty by reason of mental disease or defect of such an offense who are or have been released into the community on or after October 1, 1988, are subject to a minimum ten year registration requirement and can only be released from the registration requirement by permission of the sentencing court. Again, persons convicted or found not guilty by reason of mental disease or defect by a Connecticut court are subject to the same registration requirement.

In addition to the crimes included in Sections 2 and 3, Section 5 of the act authorizes a court to find that an offender committed a felony "for sexual purposes". Upon such a finding, the offender is required to register with the Department of Public Safety upon release into the community and to maintain such registration for ten years. The act also requires all offenders to notify the Department of Public Safety of address changes and to register in any other state in which an offender relocates if such a state has a registration system.

The following is a response to questions you have raised regarding the act and its implementation by your respective agencies.

QUESTION:

Out-of-State Offenders.

The language of the Act does not set forth any process by which the State is to determine if someone moving into Connecticut has been convicted out of state of an offense having substantially the same elements of the crimes covered by the act. Do you have any recommendations as to what process should be utilized?

RESPONSE:

Section 4 of the act requires that persons convicted or found not guilty by reason of mental disease or defect in any other jurisdiction of a crime having the same essential elements as any of the crimes described as criminal offenses against a victim who is a minor or sexually violent crimes shall register in Connecticut within ten days of establishing residence therein. This provision is similar, but not identical, to language contained in Conn. Gen. Stat.  54-102r(c), as amended by Public Act 97-183, which likewise required sexual offenders residing in Connecticut who were convicted of crimes substantially the same as those identified in Section 54-102r, to comply with Connecticut's registration requirements. Section 3(b) of Public Act 98-111 requires any person who has been subject to the registration requirements contained in  54-102r, as amended by Public Act 97-183, to register under and comply with the provisions of the new act within 3 working days of the effective date of the act.

You have asked for advice regarding the process by which it will be determined that an offense for which a person has been convicted in a court other than a Connecticut court has substanially the same elements as an offense enumerated in Public Act 98-111. Courts have considered the similarity of offenses on a case by case basis, using legal analysis in an examination of the two statutes. See, e.g., State v. Ledbetter, 240 Conn. 317 (1997) (Considering similarity of offenses under Connecticut's Persistent Offender statute); State v. Stuart, 94 WL 174473 (Conn. Superior Court, Judicial District of New London, May 2, 1994) (Considering the similarity between Maine Statutes Sec. 1312-B and Conn. Gen. Stat.  14-227a.) The Attorney General recommends a case by case analysis in this instance as well. When information becomes available that a person has established residence in this State with an out-of-state conviction that may bring the person within the ambit of Public Act 98-111, the Office of the Chief State's Attorney and the Office of the Attorney General should be requested to assist you in making a determination as to whether an out-of-state conviction is sufficiently similar so as to require registration.

QUESTION:

Individuals Registered Under Public Act 97-183.

Public Act 98-111 requires individuals registered under Public Act 97-183 to be reregistered pursuant to Public Act 98-111. In determining the appropriate registration retention period, do we calculate the ten year cycle commencing from the date that the individual is registered under Public Act 98-111 or the date that the individual was initially registered under Public Act 97-183?

RESPONSE:

Section 3(b) of Public Act 98-111 provides:

Any person who has been subject to the registration requirements of section 54-102r of the general statutes, revised to January 1, 1997, as amended by  1 of P.A. 97-183, shall, not later than 3 working days after the effective date of this act, register under this section and thereafter comply with the provisions of this act.

Accordingly, persons who have previously registered under previous versions of Megan's Law are now required to register under Section 3 of Public Act 98-111. Section 6 of the Act provides:

A person required to register under section 3 of this act shall maintain his registration for not less than ten years from the date of his release into the community, after which he may apply to the court in which he was convicted or found not guilty by reason of mental disease or defect for release from the obligation to register.

You have inquired as to whether the ten year period of registration should be computed from the date that the person was registered under Public Act 98-111 or Public 97-183. The legislature, however, has specifically stated that the date of release into the community should be used regardless of the date of registration and regardless of which statute initially required the registration of the individual. The "primary rule of statutory construction is that if the language of the statute is clear, it is assumed that the words themselves express the intent of the legislature." Houston v. Warden, 169 Conn. 247, 251 (1975) (internal quotation marks omitted). The words of a statute are to be given their "commonly approved meaning, unless a contrary intent is clearly expressed." Holmquist v. Manson, 168 Conn. 389, 393 (1975). Moreover, a "statute is to be read as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation." Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 18 (1988) (internal citations omitted).

Because Section 6 indicates that the registration requirement is triggered by "the date of [the registrant's] release into the community", it is advised that the date upon which a person is released into the community should be utilized in computing the registration period of persons required to register under Section 3 of the act.1

QUESTION:

DNA. Section 1(3) of the act contains a provision defining the term "identifying factors". Within this definition, the act states "The commissioner shall also require a sample of the registrant's blood taken for DNA (deoxyribonucleic acid) analysis, unless such sample has been taken in accordance with section 54-102g of the general statutes". Conn. Gen. Stat.  54-102g, as amended by Section 10 of Public Act 98-111, does not include all of the individuals subject to the registration requirements of Public Act 98-111. In addition, because October 1, 1994 is a specific trigger date in 54-102g; certain individuals who are now subject to registration under Public Act 98-111, are still not covered in that statute. The result is that 54-102g is not consistent with the registration scheme. Also, individuals who were subject to registration under Public Act 97-183 because they were convicted of a violation of Conn. Gen. Stat.  53a-21(2) or who were found not guilty by reason of mental disease or defect pursuant to Conn. Gen. Stat.  53a-13 of any violation in 54-102g prior to October 1, 1994 are not covered by 54-102g, although they are subject to registration under Public Act 98-111. Further, Conn. Gen. Stat.  54-102g through 54-102l set forth the authority and process for withdrawal of blood for DNA analysis, conducting the DNA analysis, inclusion of such analyses within the data bank, and expungement of records, etc. The language of Public Act 98-111 does not provide for any such procedures. We therefore respectfully request your advice on the following:

1) Do we have the authority to receive, analyze and include in our DNA Database DNA samples received from individuals who are required to be registered as sex offenders under Public Act 98-111 but who are not covered by 54-102g. If so, should such samples be processed and managed in the same manner as those received pursuant to 54-102g? If not, what responsibilities do we have pursuant to Public Act 98-111 with respect to the mandate for DNA samples?

RESPONSE:

The Department of Public Safety not only has the authority, but the obligation, to receive, analyze and include in its DNA Database blood samples received from all persons who are registrants pursuant to Public Act 98-111. These samples should be processed and managed in the same manner as those received pursuant to Section 10 of Public Act 98-111, which section repeals and replaces the former Section 54-102g.

In construing a statute, the Connecticut Supreme Court has recently stated that the "fundamental objective" is:

[T]o ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.

Jupiter Realty Co. v. Board of Tax Review, 242 Conn. 363, 368 (1997). When interpreting two or more parts of a statute, or a new statute in conjunction with previously enacted statutes, "the legislature is always presumed to have created a harmonious and consistent body of law. . . . Indeed, this tenet of statutory construction requiring us to read statutes together is particularly applicable when the statutes relate to the same subject matter." Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 347 (1996). Public Act 98-111 does provide in Sections 2, 3, and 5 that the Department of Public Safety shall register persons convicted of or found not guilty by reason of mental disease or defect of a significantly longer list of offenses than the list included in Section 10 of Public Act 98-111. Section 10, which includes the same language as the now repealed and replaced Section 54-102g, explicitly requires the Department of Correction to take a sample of blood for DNA analysis from persons convicted of only six specified offenses, and, as amended by Public Act 98-111, to require the same for persons found not guilty by reason of mental disease or defect of the same six offenses.

Sections 2, 3, and 5, all, however, require that a registrant convicted of one of the more inclusive list of offenses provide to the Department of Public Safety his "identifying factors", which factors are defined in Section 1(3) in the following manner:

"Identifying factors" means fingerprints, photographs, and a description of any other identifying characteristics as may be required by the Commissioner of Public Safety. The commissioner shall also require a sample of the registrant's blood taken for DNA . . . analysis, unless such sample has been previously obtained in accordance with section 54-102g of the general statutes.

As pointed out in your question, a potential statutory variation exists between Sections 2, 3, and 5 and Section 10 of Public Act 98-111, in that they contain different trigger dates for registration of different offenders. Section 10 states that an offender must be convicted or found not guilty by reason of mental disease or defect of one of the six offenses listed and be in the custody of the Commissioner of Correction on or after October 1, 1994. Section 2 and 5, however, are effective for persons released into the community only after October 1, 1998, while Section 3 requires registration for persons convicted of or found not guilty by reason of mental disease or defect of a sexually violent offense who have been or are released into the community on or after October 1, 1988.

Given this possible statutory variation, and given that the mandate that blood samples for DNA analysis be part of all registration packages is included only within the definitional portion of Public Act 98-111, the question arises as to whether or not the Department of Public Safety is required to receive and analyze blood samples of all registrants.

1. The Department of Public Safety Must Require Blood Samples of All Registrants. In applying a statute it is presumed that "no part of a statute is superfluous." Hayes v. Smith, 194 Conn. 52, 58 (1984). "We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions." Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303 (1997); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 407 (1987). "Accordingly, care must be taken to effectuate all provisions of the statute" and no statute should be construed such that any portion is "void or insignificant." State v. Szymkiewicz, 237 Conn. 613, 621 (1996).

Since every part of a statute should be given effect, that portion of Public Act 98-111 stating that the Commissioner of Public Safety "shall also require a sample of the registrant's blood taken for DNA analysis unless such a sample has previously been obtained," should be given effect. While the use of the word "shall" in a statute does not invariably impose a mandatory duty, that is the ordinary understanding. Doe v. Statewide Grievance Committee, 240 Conn. 671 (1997). When the words "shall" and "may" are used in the same statute, those words "must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." Caulkins v. Petrillo, 200 Conn. 713, 717 (1986). In Section 1(3), the legislature stated that the identifying factors to be required of registrants include "fingerprints, photographs, and a description of any other identifying characteristics as may be required by the Commissioner of Public Safety." Thus, while it is within the discretion of the Commissioner to require additional characteristics as he sees fit, no such discretion is awarded the Commissioner with regard to the drawing of a blood sample for DNA analysis. The statute provides that the Commissioner "shall . . . require a sample of the registrant's blood taken for DNA analysis." Accordingly, despite any variance between the time frames for various classes of registrants, the language of the statute clearly indicates that the Department of Public Safety is charged with the duty of collecting blood samples for DNA analysis under this statute for all persons required to register.

Furthermore, the mere fact that the various sections of Public Act 98-111 provide different dates regarding the registration and correlative blood sample of various offenders whose offenses are of varying severity does not detract from the core purpose of the act to expand the number of offenders required to register in an effort both to prevent and solve crimes. Moreover, any differences apparently are due to the expansion of the offenses and offenders requiring registration. All of the offenses listed in Section 54-102g are included either within Sections 2 or 3 of Public Act 98-111. Likewise, the expanded time frames requiring registration, included in sections that are new, are consistent with the purpose of the statute expanding those offenders who are registered.

This interpretation of the statute is in accord with the legislative history of Public Act 98-111, which was clearly intended to "strengthen . . . our existing Megan's Law in several ways." ___ Conn. Judicial pt. 4, pg. 1069 (March 9, 1998) (remarks of Tom Siconolfi, Director of Justice Planning for the Office of Policy testifying on behalf of Governor Rowland). Mr. Siconolfi specifically stated in support of the bill, "Registrants must provide fingerprints, photographs, DNA sample to the State Police". Id.

"A statute should be interpreted according to the policy which the legislation seeks to serve." Aaron v. Conservation Commission, 183 Conn. 532, 538 (1981). Given the clear intent of the legislature to broaden registration, those portions of the statute that are newly adopted should be recognized as requiring a blood sample of all offenders previously required to register as well as those offenders who are now additionally required to register, either because of the expanded list of offenses or the expanded dates.

2. The Department of Public Safety Must Incorporate All Blood Samples Into The Existing DNA Database.

An interpretation of the statute requiring a blood sample from all registrants for DNA analysis within the existing statutory framework is the only interpretation of Public Act 98-111 that gives due accord to the language of the act. Moreover, the duty of the Department of Public Safety to require a blood sample is meaningless absent the concomitant duty to receive, analyze and include within the existing data bank the required blood samples. A blood sample without analysis in accordance with generally accepted standards, as prescribed for the existing DNA data bank pursuant to Sections 54-102h - 54-102l, is useless. The legislature was certainly aware, in requiring a blood sample under Public Act 98-111, of the previously enacted law establishing the statewide DNA database, Section 54-102g(c), as well as the law establishing the detailed protocol for the collection of these samples by a qualified individual using specified medical supplies, Section 54-102h, and the law requiring the actual analysis by the state police forensic science laboratory pursuant to nationally accepted standards, Section 54-102i.

To interpret Public Act 98-111 to require a blood sample of a registrant that is not analyzed and maintained in such a way violates the maxim of statutory construction that eschews "absurd results" and seeks to effect the "manifest purpose" of the law. Sutton v. Lopes, 201 Conn. 115, 121 (1986). That the legislature intended the analysis of blood samples taken pursuant to this act to be consistent with the process for DNA analysis already established by the existing law is evident in the final clause of Section 1(3) of the new act, which requires a blood sample "unless such sample has been previously obtained in accordance with Section 54-102g of the general statutes." Clearly, the legislature intended to create a "harmonious and consistent body of law" in developing the current Megan's Law to require one expanded DNA database including data on all registrants, whatever the date or circumstances of the registration.

QUESTION:

What process should be utilized with respect to the DNA requirement for individuals who have been discharged from custody or who are convicted out of state and move into Connecticut and who has the authority to conduct the draw?

RESPONSE:

The Department of Public Safety is charged with establishing a registration process for those registrants no longer within the custody or supervision of the Connecticut Department of Correction, the judicial system or the Psychiatric Security Review Board, and for those registrants coming into Connecticut after having been convicted out of state. The Department of Public Safety has the authority under Public Act 98-111 to effectuate the law by designating qualified professionals, consistent with the requirements already in effect under Section 54-102h(a), regarding the drawing of blood. The Department of Public Safety should coordinate with the Office of Policy and Management, the Judicial Department, the Board of Parole, the Psychiatric Security Review Board and the Department of Correction in establishing a means of having available qualified personnel trained in the statutory requirements available to draw the blood as well as a means of payment. The Department of Public Safety should also work with the other agencies involved as well as the entity drawing the blood to establish a means of ensuring the identity of the registrant and the transport of the blood sample in accordance with Sections 54-102h through 54-102i.

QUESTION:

There is confusion as to the Department of Correction's duties with regard to drawing blood on persons defined as "registrants" under the Act. Under Section 10 of the new act, the Department of Correction's duties with regard to drawing blood for purposes of DNA analysis is limited to persons convicted of or found not guilty by reason of mental defect of the following six offenses when such person is within custody of the Department of Correction: 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a, and 53a-72b. Section 7 of the Act, however, imposes upon the Department of Correction certain duties with regard to the registration of and/or notification to certain offenders being released from its custody as outlined in Sections 2, 3 and 5 of the Act. Sections 2 and 3 include more than 20 specific offenses, and exclude some of the offenses included in the list in Section 10 of the Act. Section 5 includes any offense determined by the court to have been committed for a sexual purposes.

The confusion arises because the Act provides that registration includes "identifying factors" as defined in Section 1(3) of the new act. This Section states, "The Commissioner shall also require a sample of the registrant's blood taken for DNA analysis, . . unless such sample has been previously obtained in accordance with section 54-102g of the general statutes." This Section, albeit definitional, seems to require that the Department of Correction take a blood sample of every person it registers under Sections 7, 2, 3 and 5 of the Act. Given the language of Sections 10 and Sections 1 through 7, then, the following question arises:

Is the Department of Correction required to draw blood for DNA analysis from any person that it registers under Section 7 of the Act or only those persons as set forth in Section 10 of the Act?

RESPONSE:

As stated in response to the question above regarding DNA analysis as part of registration, it is the opinion of the Office of the Attorney General that registration under Public Act 98-111 includes the provision of a blood sample for DNA analysis. Section 7 provides, with respect to the Department of Correction, that it shall:

prior to releasing into the community any person convicted of a criminal offense against a minor, a sexually violent offense or a felony found by the sentencing court to have been committed for sexual purposes, except a person being released unconditionally at the conclusion of his sentence . . shall require as a condition of such release that the person complete the registration procedure established by the Commissioner of Public Safety under Sections 2, 3, and 5 of this act. . . . The . . . Commissioner of Correction . . . shall transmit the completed registration package to the Commissioner of Public Safety who shall enter the information into the registry established under section 8 of this act.

Given these prescribed duties and given the mandate of Public Act 98-111 that registration include a blood sample for DNA analysis by the state police forensic laboratory, it is clearly the obligation of the Department of Correction to obtain a blood sample from all persons within its custody who are required to register under Sections 2, 3 or 5 of the act, in addition to its other duties under the previously existing law and Public Act 98-111. It should be noted that, while the list of offenses triggering the registration requirement has expanded and the list of inclusive dates is expanded under Sections 2, 3, 4 and 5 of the new act, all of the offenses previously included in Section 54-102g are included in the expanded lists of offenses automatically requiring registration. Thus, the expanded list of offenses requiring registration and the expanded time frames requiring registration of those offenses are consistent with the legislative intent of "expand[ing] the specific offenses which would qualify one for the sex offender registry." 41 Conn. H.R. proc., pt. 11, page 3715 (May 2, 1998) (remarks of Rep. Lawlor moving for passage of the bill in concurrence with the Senate).

QUESTION:

Section 1(2) of the Act defines "Criminal offense against a victim who is a minor" as:

(A) a violation of subdivision (2) of section 53-21, subdivision (2) of subsection (a) of 53a-70, subdivision (1), (4) or (8) of subsection (a) of section 53a-71, subdivision (2) of subsection (a) of section 53a-72a, subparagraph (A) or (D) of subdivision (1) of subsection (a) or subdivision (6) of subsection (a) of section 53a-73a, subdivision (2) of subsection (a) of section 53a-86, subdivision (2) of subsection (a) of section 53a-87, section 53a-196a or 53a-196b,

(B) a violation of section 53a-92, 53a-92a, 53a-94, 53a-94a, 53a-95, 53a-96 or 53a-186 of the general statutes, provided the court make a finding that at the time of the offense, the victim was under 18 years of age, or (C) a violation of any of the offenses specified in subparagraph (A) or (B) of this subdivision for which a person is criminally liable under section 53a-8, 53a-48, or 53a-49 of the general statutes.

Does the language "provided the court make a finding that at the time of the offense, the victim was under 18 years of age" apply to both Sections (A) and (B) or only to (B)?

RESPONSE:

As contained in Section 1(2) of Public Act 98-111, the phrase "provided the court makes a finding that at the time of the offense, the victim was under 18 years of age" applies only to those offenses listed in part (B) of Section 1(2).

The legislature enacted a tripartite paragraph in Section 1(2) labeling the paragraphs A, B, and C. The legislature included the phrase requiring the court to make a specific finding that the victim was under 18 at the time of the offense only within Part B. This fact alone makes reasonable the interpretation of this statute that the language included in Part B is only meant to modify those offenses included in Part B. An examination of the offenses specifically enumerated in both Parts A and B makes clear that such an interpretation is the only interpretation that is logically consistent with the language of this statute or those statutes listed in Parts A and B.

All of the statutes listed in Part A of Section 1(2) are, by definition, crimes against minors, many of which include the age of the victim as an element of the offense. Section 53-21(2), the Risk of Injury to a Minor statute, specifically provides that the victim be under the age of 16. Section 53a-70(a)(2) is defined as sexual intercourse with a person under 13 years of age. Sections 53a-71(a)(1), (4) and (8) provide that it is a felony to have sexual intercourse with children thirteen to sixteen, under 18, or with a student in a school, respectively. Section 53a-72a(a)(2) prohibits incest. Sections 53a-73a(a)(1)(A) and 53a-73a(a)(1)(D) make it a misdemeanor to subject a person under 15 to sexual contact or to subject a person under 18 to sexual contact when in a supervisory capacity. Sections 53a-87(a)(2)(2) and 53a-86(a)(2) make it a felony to promote prostitution in persons under 18 and 16 respectively. Sections 53a-196a and 53a-196b both specifically refer employing or promoting "a minor" in an obscene performance.

The legislature, as stated above, is presumed to act with knowledge of existing statutes, particularly those specifically referenced in the new law, and the legislature is presumed to act in a manner consistent with existing law. Thus, it is unlikely that the legislature intended the court to make a finding that the victim of an offense is a minor when the minority of the victim is already a statutory element of the offense. Rather, that language was intended to apply specifically to the offenses in section (B) which may or may not relate to a crime in which the victim is a minor: 53a-92 (kidnapping in the first degree); 53a-92 (kidnapping in the first with a firearm); 53a-94 (kidnapping in the second degree); 53a-94a (kidnapping in the second with a firearm); 53a-95 (unlawful restraint in the first degree); 53a-96 (unlawful restraint in the second degree); and 53a-186 (public indecency).

For those offenses included in Section C, which include "a violation of any of the offenses specified in subparagraph (A) or (B) of this subdivision for which a person is criminally liable under  53a-8, (criminal liability for acts of another); 53a-48 (conspiracy) or 53a-49 (attempt), the finding that the victim of the offense is a minor is likewise limited to those offenses listed in Section B.

QUESTION:

Section (1)(10) defines "Sexually violent offense" as:

(A) a violation of section 53a-70, except subdivision (2) of subsection (a) of said section, 53a-70a, 53a-70b, 53a-71, except subdivision (1), (4) or (8) of subsection (a) of said section, 53a-72a, except subdivision (2) of subsection (a) of said section, 53a-72b, or 53a-73b, except subparagraph (A) or (D) of subdivision (1) of subsection (a) of said section or subdivision (6) of subsection (a) of said section or subdivision (6) of subsection (a) of said section, or of section 53a-92 or 53a-92a of the general statutes, provided the court makes a finding that the offense was committed with intent to sexually violate or abuse the victim, or (B) a violation of any of the offenses specified in subparagraph (A) of this subdivision for which a person is criminally liable under section 53a-8, 53a-48, or 53a-49 of the general statutes.

Does the language "provided the court makes a finding that the offense was committed with intent to sexually violate or abuse the victim" apply only to  53a-92 and 53a-92a (regarding kidnapping) or to all of the enumerated sections?

RESPONSE:

Section 1(10) defining sexually violent offenses, includes language similar to  1(2) defining criminal offenses against a victim who is a minor. In this case, included within Section (A) are a number of offenses, including "[S]ection 53a-92 or 53a-92a of the general statutes, provided the court makes a finding that the offense was committed with the intent to sexually violate or abuse the victim."

The language requiring the court to make such a finding in order for an offender to be required to register applies only to Sections 53a-92 and 53a-92a, as the other offenses included in Section 1(10) by definition include action with the intent to sexually violate or abuse the victim: Section 53a-70 (sexual assault in the first degree); Section 53a-70a (aggravated sexual assault in the first degree); 53a-70b (sexual assault in spousal or cohabiting relationship); Section 53a-71 (sexual assault in the second degree); Section 53a-72a (sexual assault in the third degree); Section 53a-72b (sexual assault in the third degree with a firearm); and Section 53a-73a (sexual assault in the fourth degree).

This is in accord with the clear legislative intent in enacting Public Act 98-111 to increase the number of offenses automatically requiring registration. 41 Conn. Senate proc., pt. 6 pg. 1696 (April 28, 1998) (remarks of Sen. Williams) ("The most significant changes include increasing the number of offenses that require registration."). In fact, the legislature adopted the proposed bill in the Senate only after removing a portion of the bill granting a judge discretion to waive registration. Id. at p. 129. Thus, the legislature intended to create a list of offenses which automatically require registration, without any specific finding necessary by a judge except in those cases in which the nature of the offense, kidnapping for example, does not necessarily include the intent to sexually abuse or violate.

QUESTION:

How will the courts notify the Department of Correction that it has made any of the following findings, thus necessitating registration?

(a) Pursuant to  1(2), that the victim was, at the time of the offense, under 18 years of age?

(b) Pursuant to  1(10), that the offense was committed with intent to sexually violate or abuse the victim?

(c) Pursuant to Section 5, that the felony was committed for sexual purposes?

Will such a finding be indicated on the mittimus?

RESPONSE:

As stated in response to previous questions, a conviction of the majority of the offenses contained in Sections 2 and 3 will automatically require registration, whether any other information is provided to the Department of Correction or not.

How the Department of Correction will be notified when a court makes a finding that requires registration for other offenses included in the act that are not "automatic" offenses is a question that must be answered directly by the Judicial Department. The Department may wish to initiate discussions with the Judicial Department and the Chief State's Attorney's Office to develop a process to insure these findings are developed and conveyed to the Department of Correction.

QUESTION:

What does it mean to be "released unconditionally" as that term is used in Section 7 of the act and given the definition contained in Section 1(9) of the act? Does this include persons released from the Department of Correction to a probationary sentence?

RESPONSE:

Section 7 provides, in pertinent part:

[T]he Commissioner of Correction . . . prior to releasing into the community any person convicted of a criminal offense against a victim who is a minor, a sexually violent offense or a felony found by the sentencing court to have been committed for sexual purposes, except a person being released unconditionally at the conclusion of his sentence or commitment, shall require as a condition of his release that such a person complete [the registration requirements].

While the statute discusses a registrant being "released unconditionally", confusion arises as Conn. Gen. Stat. Sections 53a-29 and 53a-30 specifically refer to and define "conditional discharge". Despite the somewhat similar language, it is the opinion of this office that Public Act 98-111 does not refer to, incorporate or discuss conditional discharge as defined in Section 53a-29 et al, but uses the language above as it is commonly understood.

This language requires the Department of Correction to retain custody of an inmate for the maximum possible time under the inmate's sentence if the inmate declines to complete the registration package. In other words, if the Department of Correction has discretion to place conditions of any sort upon an inmate's release into the community, the Department of Correction, to be consistent with the act, must require this inmate's registration as a condition of release. These conditions would include the Department of Correction's discretionary release of an inmate pursuant to Conn. Gen. Stat.  18-100c, or the release of an inmate prior to the end of an inmate's sentence on the basis of statutory good time credits able to be forfeited pursuant to a disciplinary scheme on the basis of the inmate's refusal to register.

QUESTION:

Under Section 7 of the act, what information is included within the phrase, "Except with regard to information that is not available to the public pursuant to court order, rule of court or any other provision"? How will the Department of Correction be made aware of any court order specific to a given registrant? Will it be indicated on the mittimus?

RESPONSE:

For an answer regarding how a court will make the Department of Correction aware of any order, a specific response must be sought from the Judicial Department.

With regard to information prohibited by "any other provision of the general statutes," this is a category of information the Department of Correction will need to monitor on an on-going basis.

QUESTION:

Under Section 3 of the Act, is it the responsibility of the Department of Correction to review its records to determine what persons within its custody who have been convicted or found not guilty by reason of mental disease or defect of a sexually violent offense since October 1, 1988, and register and/or notify those persons of the registration requirements, and again, does that registration include a blood draw for DNA analysis?

RESPONSE:

It is not the date of conviction, but the date of release that triggers the registration requirements under Sections 3 and 7. Section 3(a) of Public Act 98-111 states, "Any person who has been convicted or found not guilty by reason of mental disease or defect of a sexually violent offense and is released into the community on or after October 1, 1988" is subject to the registration requirements. Thus, even if a person was convicted or found not guilty by reason of mental disease or defect prior to October 1, 1988, of one of the offenses enumerated in Section 3, if he is "released into the community on or after October 1, 1988" he is subject to the registration requirement.

Section 7 is consistent with Section 3 in that the date of conviction is nowhere mentioned. As Section 7 references and incorporates Section 3, it is the date of release that triggers the obligation to register. Accordingly, upon the effective date of Public Act 98-111, the law requires the Department of Correction to determine which persons are within its custody who at any time have been convicted or found not guilty by reason of mental disease or defect of the offenses automatically requiring registration and with regard to those persons, comply with the mandate of Section 7.

QUESTION:

Does an appeal stay the registration requirement? If so, at what stage or circumstance?

RESPONSE:

It is the opinion of this office that an appeal does not stay the registration requirements of Public Act 98-111 under any circumstances. Public Act 98-111 requires registration of persons who "have been convicted" of various offenses. Section 1(1) of the act defines conviction as "a judgment entered by a court upon a plea of guilty, a plea of nolo contendere or a finding of guilty by a jury or the court." Public Act 98-111 and its legislative history are silent on the effect of an appeal of such a judgment.

In a criminal case, the imposition of the sentence on the basis of a conviction is the judgment of the court. State v. Walzer, 208 Conn. 420, 424 (1988), citing, State v. Smith, 149 Conn. 487, 489 (1962) . If, after a judgment of conviction, a defendant appeals or gives notice of appeal, and is admitted to bail, the execution of his sentence is stayed pending the outcome of the appeal. Conn. Gen. Stat.  54-95; Walzer, supra, 208 Conn. at 425. A stay of execution does not, however, address the conviction, that is, the adjudication of guilt of the crime(s) charged. That aspect of the judgment is complete upon the verdict, plea of guilty or plea of nolo contendere. Thus, a stay of the execution of the sentence, which is punitive in nature, is not tantamount to a stay of the registration requirements under Public Act 98-111.

The registration requirement under Public Act 98-111 is not part of the offender's sentence. Like the previous Connecticut's Megan's Law, the registration requirement is regulatory, not punitive, as it serves the "'important nonpunitive goals' of protecting the public from potential dangers and facilitating future law enforcement efforts." Doe v. Pataki, 120 F.3d 1263, 1283 (2d Cir. 1997) (holding New York's Megan's Law, with provisions similar to Public Act 98-111, to be regulatory and nonpunitive in nature); see also, Roe v. Office of Adult Probation, 125 F.3d 47, 54 (2d Cir. 1997). Accordingly, a person convicted of one of the offenses included within the act is required to register once that conviction has been entered as a judgment of the court regardless of whether or not he has put the court on notice of a pending appeal.

Section 54-102l provides that:

A person whose DNA profile has been included in the data bank pursuant to sections 54-102g to 54-102k, inclusive, may request expungement on the grounds that the criminal conviction on which the authority for including his DNA profile was based has been reversed and the case dismissed. The state police forensic science laboratory shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receipt of (1) a written request for expungement pursuant to this section and (2) a certified copy of the court order reversing and dismissing the conviction.

The legislature is presumed to have enacted a statutory scheme that is consistent and harmonious, particularly regarding the same subject matter. Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 347 (1996). To require a reversed conviction in order to exempt a registrant from the registration requirement is consistent with Section 54-102l, which requires as much in order to exempt an offender from inclusion in the statewide DNA data bank.

As Public Act 98-111 requires inclusion within the DNA data bank as part of registration, and as Public Act 98-111 does not specifically exclude persons appealing their conviction from the registration requirements, the intent of the act is clearly to require registration unless and until the conviction(s) resulting in registration is reversed and dismissed.

You have also asked several questions concerning the constitutional validity of Public Act 98-111 and the immunity of state personnel implementing the statutory requirements. Please be advised that we are satisfied the statute will withstand constitutional scrutiny and state officials' good faith implementation of the statute will provide ample protection from individual liability. Additionally, resources of this office will be available to advise you concerning these matters on a case by case basis.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Lynn D. Wittenbrink
Assistant Attorney General


Footnote:

1 The term "release into the community" is a term specifically defined in Public Act 98-111, Section 1(9) as follows:

"Release into the community" means, with respect to a conviction or a finding of not guilty by reason of mental disease or defect of a criminal offense against a victim who is a minor, a sexually violent offense or a felony found by the sentencing court to have been committed for sexual purposes, (A) a sentence of probation or any other sentence under section 53a-28 of the general statutes that does not result in the offender's placement in the custody of the Commissioner of Correction; (B) release from a correctional facility at the discretion of the Board of Parole, by the Department of Correction to a program authorized by section 18-100c of the general statutes or upon completion of the maximum term or terms of the offender's sentence or sentences, or to the supervision of the Office of Adult Probation in accordance with the terms of the offender's sentence; or (C) release from a hospital for mental illness or a facility for persons with mental retardation by the Psychiatric Security Review Board on conditional release pursuant to section 17a-588 of the general statutes or upon termination of commitment to the Psychiatric Security Review Board.


Back to the 1998 Opinions Page
Back to Opinions Page



Content Last Modified on 6/6/2005 3:49:34 PM