SORNA Classification based on Court-Martial Conviction
A.L. v. Pennsylvania State Police, 247 A.3d 120 (Pa. Cmwlth. 2021), allocatur granted Aug. 10, 2021, appeal docket 57 MAP 2021
This case arises from a challenge to the Pennsylvania State Police’s (PSP) classification of A.L., a Armed forces member, as a tier 3 sex offender under the Pennsylvania Sex Offender Registration and Notification Act (SORNA) based upon his court-martial conviction for sexual offense, which PSP compared to a state conviction for sexual assault.
SORNA sets forth a three-tiered classification system for sex offenders in Pennsylvania. A sex offender’s tier classification is determined based upon the sexual offense for which he/she was convicted and defines the period during which he/she is required to register with PSP. When an individual who has been convicted of a military sexual offense registers with PSP, SORNA requires PSP to determine the comparability of that individual’s military sexual offense to a Pennsylvania sexual offense for purposes of sex offender tier classification and registration requirements based on the elements of the convicted offense and whether such elements are comparable to the elements of a Pennsylvania crime.
PSP found that A.L.’s conviction under 10 U.S.C. § 920(b)(3)(A) for commission of a sexual offense based on the victim’s inability to consent due to intoxication was comparable to a conviction for sexual assault under Section 3124.1 of the Pennsylvania Crimes Code and thereby classified A.L. as a Tier III offender under SORNA. A.L. requested that PSP reconsider his classification as a Tier III sex offender, contending that the military offense for which he was convicted is properly analogous to a Tier I offense, not a Tier III offense. PSP denied A.L.’s request and A.L. petitioned Commonwealth Court for injunctive and declaratory relief. Commonwealth Court found that A.L. was entitled to an administrative hearing on his request. On remand PSP adopted the hearing examiners’ decision, which concluded that Petitioner’s conviction under 10 U.S.C. § 920(b)(3)(A) was for a military offense comparable to those offenses identified in Section 9799.14(d) of SORNA:
The hearing examiner, relying upon a statement made by the Military Appeals Court in its opinion upholding Petitioner’s conviction—i.e., that the Military Appeals Court “[found] compelling evidence that [Petitioner] was aware of [the airman’s] intoxicated state and intentionally acted to take advantage of her incapacitated condition”—reasoned that Petitioner “was not convicted upon the arguably negligent element of ‘reasonably should [have] known’ of the victim’s impairment, but instead that condition was ‘known’ by him.” (R.R. at 111, 171 n.5.) Based on his presumption that Petitioner was convicted because he “knew” of the airman’s intoxicated state, the hearing examiner further reasoned:
The mens rea requirement for [Petitioner’s] conviction included, that he “knew” that his victim was impaired by an intoxicant. Because this military mens rea standard is at least as high as that for the Pennsylvania crime, the listed Pennsylvania offenses and the military offense of sexual assault for which [Petitioner] was convicted have a sufficiently comparable mens rea requirement.
Tier III sexual offenses involving sexual intercourse thus include as those other elements: (1) the victim is unconscious or unaware that sexual intercourse is occurring, (2) the victim has a mental disability that renders the victim incapable of consent, (3) there was no consent, or (4) the victim is physically incapable or [sic] declining participation or communicating unwillingness to participate. An offense where the victim is incapable of consenting to the sexual act due to impairment by intoxication and that condition is known by the defendant is certainly comparable. There is no consent with a person who is incapable of consenting. While these various sexual offenses involve differing elements, they all target the same behavior by the defendant—having sexual intercourse with someone despite recklessly disregarding whether the victim consented. This is the same behavior targeted by the military offense—committing a sexual act, i.e., having sexual intercourse, with a person incapable of consenting due to impairment by intoxication known to the defendant. The public policy behind all these offenses is to provide [sic] taking advantage of someone’s lack of consent or inability to consent to sexual intercourse. The military offense of sexual assault for which [Petitioner] was convicted is comparable to the Tier III sexual offenses for which reporting is required.
…. For none of the Tier II or Tier I or lesser offenses is the victim’s consent or ability to consent such as by an impairment an element. For none of these offenses does an element touch upon the victim’s consent or ability to consent. The military offense of sexual assault for which [Petitioner] was convicted is not comparable to these Tier II, Tier I[,] and lesser Pennsylvania sexual offenses involving sexual intercourse.
(R.R. at 9-11 (footnote omitted) (citations omitted).)
Slip op. at 8-9. Petitioner appealed, arguing in relevant part, that:
… in making its equivalency determination, PSP focused solely on the basic elements of each offense—i.e., the involvement of sexual intercourse without consent. Petitioner suggests that this “narrow analysis” neglects to consider the substantial differences between the mens reas required for each offense, the potential sentence for each offense, and the potential grading for each offense, all factors that must be considered given the punitive nature of SORNA. With this in mind, Petitioner contends that there is a significant difference between the mens rea required for a conviction under 10 U.S.C. § 920(b)(3)(A) and the mens rea required for a conviction under Section 3124.1 of the Crimes Code—i.e., a conviction under 10 U.S.C. § 920(b)(3)(A) can be based upon a negligence mens rea, whereas a conviction under Section 3124.1 of the Crimes Code requires the offender to act with specific intent. Petitioner further contends that PSP’s reliance upon the Military Appeals Court’s opinion to infer that Petitioner was convicted, not under a negligence mens rea standard, but rather, because he “knew” that the airman could not consent, is misplaced, because the Military Appeals Court’s opinion “does not have any bearing on the mens rea standard used by the [court members] in the original court[-]martial” but, instead, “exists as part of the [M]ilitary [A]ppeals [C]ourt’s determination that ‘a rational factfinder could have found beyond a reasonable doubt that [Petitioner] committed the offense.’ ” (Petitioner’s Br. at 16 (quoting R.R. at 111).)
Slip op. at 10-11 (footnotes omitted). PSP countered that there is no significant difference between the mens rea required by 10 U.S.C. § 920(b)(3)(A) and the mens rea required by Section 3124.1 of the Crimes Code, as the least culpable mens rea required by both offenses is recklessness. PSP further contended that Petitioner “was convicted not because he acted negligently or recklessly, but because he acted intentionally.” Slip op. at 11.
Commonwealth Court found PSP’s classification was based on the presumption that A.L. was convicted because he “’knew’ that the airman was intoxicated and, therefore, unable to consent, which the court found was not supported by the evidentiary record, explaining that:
…in order to make the presumption that Petitioner “knew” of the airman’s intoxicated state and inability to consent at the time of the offense, PSP relied upon a statement made by the Military Appeals Court in its opinion upholding Petitioner’s conviction—i.e., that the Military Appeals Court “[found] compelling evidence that [Petitioner] was aware of [the airman’s] intoxicated state and intentionally acted to take advantage of her incapacitated condition.” (R.R. at 111, 171 n.5.) PSP ignores, however, that the Military Appeals Court, an appellate body, reviewed the record to determine whether there was sufficient evidence to support Petitioner’s conviction and made that statement simply as a means to conclude that “a rational factfinder could have found beyond a reasonable doubt that [Petitioner] committed the offense.” (Id. at 111.) This does not mean that the court members necessarily reached the same conclusion. There is simply no way for the Military Appeals Court, PSP, or this Court to know whether the court members found Petitioner guilty of a violation of 10 U.S.C. § 920(b)(3)(A) because he “knew” or because he “should have known” of the airman’s intoxicated state and inability to consent to the sexual act, either of which would support a conviction under the UCMJ.
Slip op. at 13-14. Commonwealth court thus agreed with A.L. that because his conviction under 10 U.S.C. § 920(b)(3)(A) could have been based negligence and negligent conduct is not included within the offense of sexual assault under Section 3124.1 of the Crimes Code, A.L.’s conviction under 10 U.S.C. § 920(b)(3)(A) is not comparable to a conviction under Section 3124.1 of the Crimes Code, reasoning:
As explained more fully above, the requisite culpability—i.e., mens rea—associated with Petitioner’s conviction under 10 U.S.C. § 920(b)(3)(A) is that Petitioner either “knew” or “reasonably should have known” of the airman’s intoxicated state and inability to consent to the sexual act. Under Pennsylvania criminal law, “reasonably should have known” is most synonymous with negligent culpability. See Section 302(b)(4) of the Crimes Code, 18 Pa. C.S. § 302(b)(4) (“A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.” (emphasis added)). While not specifically set forth therein, the offense of sexual assault under Section 3124.1 of the Crimes Code requires the offender to act intentionally, knowingly, or recklessly. See Section 302(c) of the Crimes Code, 18 Pa. C.S. § 302(c) (“When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto.”). Negligent conduct—i.e., a sexual act with a complainant when the person “should be aware” that the complainant was incapable of consent—is not encompassed within Section 3124.1 of the Crimes Code.
Slip op. at 14-15 (footnotes omitted).
The Supreme Court granted allocatur to consider the following issues:
(1) When comparing a military criminal offense to a Crimes Code offense pursuant to 42 Pa.C.S. § 9799.14(b)(21), (c)(17), or (d)(13), is the Pennsylvania State Police required to ensure that all of the elements of crimes, including the mens rea, are equivalent?
(2) If the Pennsylvania State Police is required to consider the mens rea when comparing a military criminal offense to a Crimes Code offense pursuant to 42 Pa.C.S. § 9799.14(b)(21), (c)(17), or (d)(13), should the mens rea requirement only be considered a factor when making the determination?
For more information, contact Kevin McKeon or Dennis Whitaker.