Ex Post Facto Argument Won't Save Sex Tourist Pedophile
In 1980, Gary Hardeman pled guilty to the felony of committing lewd and lascivious acts upon a child under the age of 14. He was required to register as a sex offender until the offense was expunged. Before he was able to expunge the offense however, the law was changed to require ongoing registration.
In 1986, he was convicted of annoying a child, which required registration until expungement. He successfully expunged that offense five years later, though the law was again changed and retroactively required anyone convicted of a sex offense to register continuously regardless of expungement.
Twice convicted, twice required to register. You might think that the second registration requirement, due to the retroactive change in law, might be his ex post facto complaint. Nope. The court stated, and the defendant conceded, that there is a long line of precedent that states that registration laws are constitutional because they are not punitive.
So what's his beef?
In 2012, Hardeman was indicted for engaging in illicit sexual conduct in a foreign place (sex tourism) and for committing that offense while under a duty to register. The second offense carries a 10-year penalty. Hardeman moved to dismiss the latter count, arguing that the combination of the retroactive registration requirement and second charge violated the ex post facto clause.
The district court agreed, setting up this appeal.
Ex post facto applies when a law is retroactive (applies to past events) and it increases the penalty by which a crime is punishable. Hardeman's argument is interesting, but it conflicts with common sense, doesn't it?
The Ninth Circuit pointed out the obvious - the latter law punishes present conduct. Had Hardeman not traveled to Mexico in order to commit illicit sexual conduct, he would not be facing punishment. The statute at issue is essentially a sentencing enhancement statute that punishes recidivism, which has long been held to not violate ex post facto.
To further the point, the court cited last year's Elkins decision that held that the Sex Offender Registration and Notification Act (SORNA), which criminalized failure to register, did not violate the ex post facto clause when combined with retroactive registration requirements because the punishment is for failure to register, not for the previous conviction.
Related Resources:
- United States v. Hardeman (Ninth Circuit Court of Appeals)
- SORNA Trumps Juvenile Delinquent's Privacy Concerns (FindLaw's Ninth Circuit Blog)
- First Circuit Upholds SORNA Registration Requirements (FindLaw's First Circuit Blog)