NH Supreme Court Requires Sex Offender Registration Despite Fictionalized Victim

In Czyzewski v. New Hampshire Department of Safety, decided today, the Court provided a classic example - and a very defensible example - of how Courts will literally ignore the language of a statute in order to reach a desired result.

Czyzewski tried to induce a 13 year old who he met on the internet to engage in sexual activity with him - a serious sex crime. It is a serious crime, even though there was no 13 year old. The "child" was a police officer engaged in a sting operation, chatting away online and pretending he was a sexually-vulnerable 13 year old.

After conviction for the crime of attempted sexual assault, the State of New Hampshire ordered defendant to register as a sex offender. Czyzewski fought this Order in Court, seeking a declaratory judgment that he did not have to register because the registration statute required sex offender registration for the crime of sexual assault only "‘where the victim was under [the age of] 18 at the time of the offense." Czyzewski argued that because there was no victim, but rather an adult police officer who was not under the age of 18, he should not have to register under the plain language of the statute.

The unanimous Court disagreed, essentially ignoring the language of the statute, based on the reasoning that the legislature could not possibly have meant what it said because the legislature also criminalized attempt crimes that do not involve any actual victim.

The Court, in my opinion, is right. Contrary to the view of Justice Scalia that Courts should limit themselves to so-called "textual" analysis... and contrary to the famous and simplistic claim of Chief Justice Roberts that Judges merely "call balls and strikes" ... Courts have a difficult job. Courts must determine the intent of the legislature in enacting a law. Courts must use their judgment, not just mindlessly adhere to the "plain language" of a law, because legislative bodies cannot possibly anticipate every fact pattern that might arise in the future. In this case, the Court's decision is sensible and without doubt adheres to the legislative intent in enacting the sex offender registry law, even if it strays from the literal language the legislature chose.

Read Czyzewski v. New Hampshire Department of Safety.