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Problems with Discretionary Sex Offender Registration

The Arizona laws for sex offender registration are located in Arizona Revised Statues §13-3821. There is a long list of offenses for which registration is mandatory. If a registration is "mandatory" that means that no one, not even the judge, can omit or delete the registration requirement. There is also a shorter list of offenses in §13-3821 for which registration is discretionary, i.e., the statute leaves it to the judge to decide whether or not to require the defendant to register as a sex offender. At least two of the discretionary registration statutes could, if a judge decided to impose a registration requirement, lead to a grave injustice.

It goes without saying that the purpose of registration is to warn of the community that a sex offender is in their midst. We typically understand "sex offender" to mean a person that has non-normative sexual proclivities. But the registration statute casts its net so broadly that it catches a couple cases that, while sounding like sex offenses, don't arise from sexual deviancies. For example, "indecent exposure" is an offense that contemplates discretionary registration for the first two times it is committed. But indecent exposure isn't necessarily a "sex offense." It can be to be sure - i.e. when the flasher opens the trenchcoat as soon as somebody walks by. However, indecent exposure can also arise from the mere carelessness of somebody taking a leak in an alley without knowing that others are nearby. While we certainly want to dissuade people from urinating in alleys, we also know full well that such an instance does not amount to sexual deviancy.

The public sexual indecency charge presents another circumstance under which the offense can result from carelessness rather than a sexual deviancy. To be sure, there are those out there who take sexual pleasure in having other people to watch their sexual activity. On the other hand, there are folks charged with this offense out of simple carelessness… out of not paying enough attention to their surroundings when they get engaged in amorous activity.

We are relying on thoughtful and reasonable judges to refrain from imposing the sex offender registration requirement in these cases – let's hope they get it right.