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Justices Question Use of ‘I Forgot’ Defense in Case of Sex Offender Who Failed to Register on Time
By KENNETH OFGANG, Staff Writer/Appellate Courts
Several California Supreme Court justices appeared hesitant yesterday to permit defendants accused of failing to update their sex offender registrations to offer a defense based on having forgotten that they were required to do so.
“If we were to recognize a broad exception for forgetfulness, it would basically eviscerate the law,” Chief Justice Ronald M. George told Richard Such of the First District Appellate Project.
Such represents Donald Barker, a convicted rapist sentenced to nine years in prison by a San Mateo Superior Court judge for “willfully” failing to re-register within five days of his birthday as required by Penal Code Sec. 290. Barker, who was in a residential program at the time of his arrest, testified that he had been notified of the requirement but was “too busy” and “totally forgot about it.”
Justice Ming Chin picked up on the chief justice’s comment, asking Such whether courts wouldn’t “be faced with that defense in virtually every failure to register case?”
Such responded in the negative, saying such concerns “are largely imaginary.” The defense is likely to be viable only in cases like Barker’s, in which the registration deadline is missed only by a few days, he contended.
The testimony in Barker’s case was that the five-day period ended on a Friday, and the following Monday a police officer assigned to processing registrations called him. He returned the call within 15 minutes and went to the station within an hour to register, a fact cited by the judge in sentencing him as a second- rather than a third-strike offender.
The creation of a forgetfulness defense will not discourage registration, Such insisted. Defendants are not going to intentionally subject themselves to arrest, detention without bail, trial, and possible conviction just because they think they can plead forgetfulness if caught.
George was unpersuaded. “Why should we expect sex offenders to act reasonably?” he asked.
Justice Marvin Baxter asked how far a ruling in favor of the defendant would extend, inquiring whether an attorney who fails to appear in court would be entitled to assert a failure-to-remember defense.
Such responded that if failure to appear were prosecuted as criminal contempt, it would have a willfulness element and forgetting might be a defense. And it is likely, he said, that a showing of willfulness—in the sense of knowing one had an appearance scheduled and refusing to appear—would be required if the penalty were 25 years to life, as Barker was facing.
Such did draw a sympathetic response from one member of the court, Justice Joyce L. Kennard. “Reasonable minds can, and do, differ as to whether forgetfulness can apply to a situation such as this,” she said, noting that there was a dissent in the Court of Appeal.
She compared Barker’s situation to that of someone who forgets his or her spouse’s birthday, even though there may be “dire consequences” as a result.
Deputy Attorney General Janet Neeley, arguing for the prosecution, rejected the analogy.
While someone may indeed forget a spouse’s birthday or anniversary, she importuned, there are obvious incentives for the person to remember those dates. Allowing a forgetfulness defense, she contrasted, would work to the advantage of those who intentionally choose not to register.
Sex offenders have many reasons for not complying, she explained. They may be concealing themselves from police scrutiny in order to commit new crimes, she explained, or they may be in violation of parole conditions requiring them to stay away from children or places where children are normally present.
In response to a question from Justice Kathryn M. Werdegar, Neeley said the Court of Appeal had correctly interpreted the statute’s willfulness requirement as meaning simply that the defendant had to have been given notice of the registration requirement and been able to understand it.
A defendant who is made aware of the requirement but misses the deadline, she said, is guilty of being “willing to fail to prioritize [his] obligation to register.” That interpretation, she argued, is consistent with the purpose expressed in the preamble to the statute, which is to protect the public from sex offenders.
Copyright 2004, Metropolitan News Company