Attorney General: Commissioner Armstrong & Commissioner Spada, Department of Correction & Department of Public Safety, 2003-003 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 6, 2003

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

Honorable Arthur A. Spada
Department of Public Safety
1111 County Club Road
Middletown, CT

Dear Commissioner Armstrong and Commissioner Spada:

Your staff has asked whether persons convicted of violating Conn. Gen. Stat. 53a-73a, Fourth Degree Sexual Assault, under Conn. Gen. Stat. 53a-8 (Accessory), 53a-48 (Conspiracy), or 53a-49 (Attempt) are required to register pursuant to Conn. Gen. Stat. 54-251. That statute requires registration of persons convicted of a "nonviolent sexual offense," defined as persons convicted of violating Conn. Gen. Stat. 53a-73a.

You correctly note that Connecticut's sex offender registration law, originally enacted in 1998 as Public Act 98-111, required registration of persons convicted of those offenses designated for purposes of registration as Criminal Offenses Against a Minor, which was defined in 1998 to include, inter alia, convictions for Fourth Degree Sexual Assault under Conn. Gen. Stat. 53a-73a(a)(6), 53a-73a(a)(1) A, or 53a-73a(a)(1)(D). Then, as now, 54-251 required persons to register if convicted of Offenses Against a Minor under Conn. Gen. Stat. 53a-8 (Accessory), 53a-48 (Conspiracy) or 53a-49 (Attempt).

In 1999, Public Act 99-183 modified the registration law so that no violation of Conn. Gen. Stat. 53a-73a (Fourth Degree Sexual Assault) under any subsection is currently designated a Criminal Offense Against a Minor for purposes of registration.1 At the same time, P.A. 99-183, 1 created a new category of registrable offenses entitled Nonviolent Sexual Offenses. That category is defined as those persons convicted of violating Conn. Gen. Stat. 53a-73a, Fourth Degree Sexual Assault. See Conn. Gen. Stat. 54-250(5); 54-251. Unlike 54-250(2)(c) which specifically provides that violations of the offenses specified as "criminal offenses against a victim who is a minor" include violations for which a person is criminally liable under sections 53-8 (accessory), 53a-48 (conspiracy) and 53a-49 (attempt), 54-250(5), the new registration category of "Nonviolent Sexual Offense," does not include a similar reference to accessory, conspiracy and attempt liability.

For the reasons that follow, we conclude that P.A. 99-183 1 does not require registration for persons convicted of Sexual Assault in the Fourth Degree under either the attempt (53a-49) or conspiracy (53a-48) statutes, but does require registration for persons convicted of Sexual Assault in the Fourth Degree as an accessory under Conn. Gen. Stat. 53a-8.

In order to answer your question, it is necessary to examine the nature of criminal liability for attempt, conspiracy and accessory offenses. The Connecticut Supreme Court has discussed the differences among these three offenses as follows:

Attempt and conspiratorial liability differ substantially from the liability imposed on an accessory. First, both attempt and conspiracy are offenses in and of themselves, while accessorial liability is not. Attempt is a distinct, inchoate offense and a defendant may be punished for attempting to commit a substantive offense without actually committing the crime. Likewise, conspiracy has been recognized as a crime distinct from the commission of the substantive offense. There is, however, no such crime as "being an accessory." The defendant is charged with committing one substantive offense; the accessory statute merely provides alternative means by which a substantive crime may be committed.

State v. Foster, 202 Conn. 520, 527-28 (1987) (citations, quotations omitted).

In other words, attempt and conspiracy are each crimes separate and distinct from the underlying criminal offense, while accessorial liability is simply one method of committing the underlying offense. The distinction is significant to our analysis because in enacting the law requiring registration of persons convicted of Fourth Degree Sexual Assault pursuant to Conn. Gen. Stat. 53a-73a, the legislature chose not to list the separate offenses of attempt, conspiracy or accessory, as it had done with regard to persons convicted of a Criminal Offense Against a Minor.

Generally, in the interpretation of a statute, the objective is to 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.

Conway v. Wilton, 238 Conn. 653, 663 (1996).2 "It is well settled that a statute must be applied as its words direct." Pascarelli v. Moliterno Stone Sales, Inc., 44 Conn. App. 397, 400 (1997). Further, "Each part or section of a statute should be construed in connection with every other part or section." Stein v. Hillebrand, 240 Conn. 35, 42-43 (1997).

Attempt and conspiracy are crimes that are separate and distinct from Fourth Degree Sexual Assault, a "Nonviolent Sexual Offense" which requires registration. Consequently, since the legislature did not include attempt and conspiracy in the "Nonviolent Sexual Offense" category, we must conclude that the legislature did not intend to include attempt or conspiracy convictions in the Nonviolent Sexual Offenses category as registrable offenses.

By contrast, criminal liability under the accessory statute is indistinguishable from criminal liability for the underlying offense of Sexual Assault in the Fourth Degree: both are the same substantive crime and both, therefore, fall within the registration category of "Nonviolent Sexual Offense." Because the crime of accessory "is merely an alternate means by which a substantive crime may be committed" (State v. Foster, supra) the legislature did not need to specify that persons convicted as accessories to Sexual Assault in the Fourth Degree are required to register.

In conclusion, according to Conn. Gen. Stat. 54-251(5) and 54-251, persons convicted of a "Nonviolent Sexual Offense" under the attempt or conspiracy statutes need not register, while persons convicted of a "Nonviolent Sexual Offense" as accessories must register.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL



Lynn D. Wittenbrink
Assistant Attorney General


1Conn. Gen. Stat. 54-250(2) now defines "Criminal offense against a victim who is a minor as:"

(A) a violation of subdivision (2) of section 53-21 of the general statutes in effect prior to October 1, 2000, subdivision (2) of subsection (a) of section 53-21, subdivision (2) of subsection (a) of section 53a-70, subdivision (1), (4) or (8) of subsection (a) of section 53a-71, subdivision (2) of subsection (a) of section 53a-72, subdivision (2) of subsection (a) of section 53a-86, subdivision (2) of subsection (a) of section 53a-87, section 53a-196a, 53a-196b, 53a-196c or 53a-196d, (B) violation of section 53a-92, 53a-92a, 53a-94, 53a-94a, 53a-95, 53a-96 or 53a-186, provided the Court makes a finding that, at the time of the offense, the victim was under eighteen years of age, (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, or (D) a violation of any predecessor statute to any offense specified in subparagraph (A), (B), or (C) of this subdivision the essential elements of which are substantially the same as said offense.

2The legislative history is silent on the issue presented in your request for an opinion.


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