In Pennsylvania, an individual who is convicted of a sexually violent offense must be assessed before sentencing to determine if the individual should be designated as a “sexually violent predator” (SVP). After the assessment, a hearing is then held in which the Commonwealth must prove to the court, by clear and convincing evidence, that the individual is a sexually violent predator. According to Section 9799.24(e)(3) of the Sex Offender Registration and Notification Act, the court alone then determines if the evidence was sufficient to prove the individual is a sexually violent predator.
However, as of October 31, 2017, this is no longer the case. In Commonwealth v. Butler, the Superior Court determined that Section 9799.24(e)(3) of SORNA violates both the federal and state constitutions.
In Butler, the Defendant pled guilty to statutory sexual assault and corruption of minors. Following a hearing, the trial court determined that the Commonwealth proved by clear and convincing evidence that the Defendant was a sexually violent predator. He was sentenced to thirty months of imprisonment followed by ninety months of probation. Additionally, because of his designation as a sexually violent predator, he must register with the Pennsylvania State Police as a sexual offender for life. If the Defendant was not designated as a sexually violent predator, he would only have been required to register for fifteen years. His “designation as [a sexually violent predator] exposed him to an increased minimum registration requirement.”
In a recent case, Commonwealth v. Muniz, the Supreme Court of Pennsylvania held that, contrary to previous holdings, registration requirements should be understood as punitive. The court further explained that the US Supreme Court has held that it is “unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Applying the Supreme Court’s rationale in Muniz, the Superior Court in Butler concluded that “if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond reasonable doubt.”
Accordingly, Section 9799.24(e)(3) of SORNA is in violation as it permits a judge – not the fact-finder of the case – to determine if the evidence proves by clear and convincing evidence – not by reasonable doubt – whether the individual is a sexually violent predator. The Butler court announced that “until our General Assembly enacts a constitutional designation mechanism” to identify sexually violent predators, courts cannot designate individuals as such or hold SVP hearings. Thus, until the legislature makes the necessary changes to the statute, no individual, regardless of his/her convictions, can be classified as a sexually violent predator.