State v. Dickerson ( 2014 )

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STATE OF CONNECTICUT v. DWIGHT DICKERSON
(AC 35725)
Beach, Sheldon and Norcott, Js.
Argued May 21—officially released July 22, 2014
(Appeal from Superior Court, judicial district of New
Haven, geographical area number twenty-three, Lager,
J. [judgment]; Holden, J. [motion for exemption].)
S. Max Simmons, with whom was Diane Polan, for
the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Mary A. SanAngelo, senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Dwight Dickerson,
appeals from the judgment of the trial court denying
his motion for exemption from lifetime registration on
the Connecticut sex offender registry on the ground that
the statutory scheme imposing the lifetime registration
requirement upon him violates his rights under the equal
protection clauses of the United States and Connecticut
constitutions. The defendant claims initially that the
challenged statutes violate the fourteenth amendment
to the United States constitution by differentiating,
without a rational basis, between himself and others
like him who have been convicted of sexual assault in
the second degree in violation of General Statutes § 53a-
71 (a) (2),1 which is statutorily categorized as a ‘‘sexually
violent offense’’ for which lifetime sex offender registra-
tion is required, and persons who have been convicted
of other forms of sexual assault in the second degree
which have not been so characterized, and thus for
which sex offender registration is limited to a period
of ten years. As his fallback position, the defendant
argues that even if the statutorily mandated difference
in registration requirements survives his federal equal
protection challenge because it is found to be supported
by a rational basis, it must nonetheless be struck down
under what he claims to be the heightened standard of
review applicable to equal protection challenges under
article first, § 20, of the Connecticut constitution, as
amended by articles five and twenty-one of the
amendments.
The state disagrees, arguing first that there is indeed
a rational basis for requiring lifetime sex offender regis-
tration for persons convicted of violent second degree
sexual assaults, while imposing a shorter registration
period upon persons convicted of other forms of second
degree sexual assault. Therefore, it argues, because the
defendant cannot establish that his state equal protec-
tion challenge to the sex offender registration statutes
is subject to review under a higher standard of scrutiny
than his federal equal protection challenge to those
statutes, both challenges must be rejected because the
differential treatment authorized by those statutes is
supported by a factual basis. We agree with the state,
and thus affirm the judgment of the trial court.
The following procedural history, as set forth by the
court, is relevant to our resolution of this claim: ‘‘The
[defendant] pleaded guilty to one count of sexual
assault in the second degree under the Alford doctrine2
and two counts of fourth degree sexual assault. The
trial court imposed sentence on December 14, 1994.
The court sentenced the [defendant] to eight years
incarceration suspended after serving four years, to be
followed by five years of probation. The court sen-
tenced the [defendant] to a one year period of incarcera-
tion on each count of fourth degree sexual assault for
a total effective sentence of eight years suspended after
four years incarceration and five years probation. . . .
‘‘While incarcerated [the defendant] was a model
inmate. He had no disciplinary actions taken against
him. While in prison he took advantage of virtually every
opportunity available to him, including sex offender
classes, a course in life planning skills, basic and
advanced courses in nonviolent conflict resolution, a
course in anger and aggression, two religious courses
given by the Prison Fellowship, and the Emmaus Bible
Correspondence Course. He took two classes offered
by Asnuntuck [Community] College (with a 3.5 GPA).
He worked as an assistant teacher in the GED course
in Cheshire Correctional Institution and as a math
instructor in Osborn Correctional Institution, and his
supervisors have recommended him very highly.
‘‘In 1996, after serving two years of his original four
year sentence, [the defendant] was paroled directly to
his family, pursuant to the trial court’s order, after hav-
ing been approved by his treatment provider to live
with his young children.
[The defendant] successfully completed five years of
probation. Since [his] release in 1996 . . . he has not
been arrested or otherwise involved with the criminal
justice system. He also continued to seek treatment for
his behavioral issues. He successfully completed five
years of sex offender treatment with the Center for the
Treatment of Problem Sexual Behavior in Middletown.
While in the program he took and passed three poly-
graph tests and also had his home computer searched
multiple times for inappropriate material, and none was
ever found.
‘‘From 2002 to 2007, [the defendant] paid for and
received private counseling. His clinical therapist
attested that [the defendant] ‘has accomplished suc-
cessful control of his prior adjustment issues.’ He has
also sought out educational opportunities at his church;
in 1999, he completed a course in parenting adolescents
at the Church on the Rock.
‘‘[The defendant] has also had a successful working
career since his release from incarceration. From 1997
to 2003 he worked as a machinist for Moroso, GKN
Westland Aerospace, and AMTEC, learning to work on
computerized numerical control machines. In 2003 he
joined Sikorsky Aircraft as a multimachine specialist;
in 2009 he became final assembly mechanical inspector,
inspecting helicopters before they are delivered to mili-
tary or civilian customers. He has had no disciplinary
issues at work, has been continuously employed at
Sikorsky since 2003, and has been highly recommended
by his supervisor.
‘‘[The defendant] has made extraordinary efforts to
obtain higher education since [his] release. In January,
2004, he began taking classes at Albertus Magnus Col-
lege in New Haven, where he had a 3.7 GPA. In 2005,
he became a nondegree student at Yale University; after
one year, he was admitted to the degree program. He
attended Yale while working full-time at Sikorsky and
while supporting his two children through college. [The
defendant] graduated from Yale in 2010 with a B.A. in
sociology and a focus on urban studies; his GPA was
3.23. In the fall of 2011, he began a master’s program
in sociology at Southern Connecticut State University
while continuing to work full-time.
‘‘[The defendant] actively participates in and contri-
butes to his community. Since his release, he has been
an active member of first the Kingdom Life Christian
Church in Milford and then the Church on the Rock in
New Haven. He has been highly recommended by the
pastors of both churches. He plays keyboards and trum-
pet in his church’s band and is an active musician in
the community, giving volunteer performances at Emer-
gency Shelter Management Services in New Haven and
at the Seacrest Retirement Center in West Haven. In
2008, he helped establish a summer scholarship pro-
gram at the Neighborhood Music School in New Haven.
‘‘Further, the facts reveal that [the defendant] is also
the founder and CEO of Tri-Cord, an organization dedi-
cated to providing tools to formerly incarcerated people
to help them become successful. He does motivational
speaking based on his own challenges and successes.
[The defendant] is an active member of the New Haven
Reentry Roundtable and a respected spokesperson for
formerly incarcerated people. On May 7, 2012, the Con-
necticut Department of Correction granted [the defen-
dant] direct access to DOC facilities as a ‘VIP
Professional Partner.’ On May 11, 2012, the Judicial
Branch notified him that Tri-Cord had been selected to
provide training services related to family matters and
the criminal system.
‘‘Prominent members of the community offered let-
ters of support for the [defendant]. Bishop Jay Ramirez,
senior pastor of Kingdom Life Christian Church in Mil-
ford, Connecticut, stated in a letter of support, ‘In this
line of work I hear so much garbage and so many prom-
ises to change. Too often it simply never comes to pass.
From time [to time] I have the privilege of participating
in someone’s genuine conversion or restoration. [The
defendant] is one of these people.’ . . .
‘‘The lifetime sex offender registration requirement
has imposed numerous significant hardships on [the
defendant]. He has been unable to find employment
commensurate with his skills and education. He has
been denied interviews for supervisory and manage-
ment positions at Sikorsky, and for the company’s lead-
ership training program despite having a completely
clean personnel file, several years of experience, and
an outstanding education. He has been unable to find
temporary jobs as a machinist despite his experience
and skills. He has also suffered harassment from
coworkers. In 2008, [the defendant] applied for a pardon
but was denied by the Board of Pardons and Paroles,
despite his successful rehabilitation and many contribu-
tions to the community. The board cited his status as
a registered sex offender as the reason for denying his
application.’’ (Citation omitted; footnote omitted.) On
February 3, 2012, the defendant filed a motion for
exemption from lifetime registration on the Connecticut
sex offender registry. The court heard argument on
the defendant’s motion on September 11, 2012, and
subsequently denied the defendant’s motion, issuing an
accompanying memorandum of decision dated May 10,
2013, from which this appeal followed.
We begin our analysis of the defendant’s claim, as
did the trial court, with a review of the relevant statutory
authority governing motions for exemption from the
sex offender registry, as set forth in General Statutes
§ 54-251 (b) and (c), and of the history of the sex
offender registration requirements, as codified in Gen-
eral Statutes § 54-250 through 54-261, also known as
Megan’s Law. ‘‘The legislature enacted [Megan’s Law]
to protect the public from sex offenders . . . . The
requirement to register as [a] sex offender is regulatory,
rather than punitive, in nature . . . .
‘‘[As our] Supreme Court has observed, the goal of
Megan’s Law . . . is to alert the public by identifying
potential sexual offender recidivists when necessary
for public safety. . . . This goal is accomplished by
requiring persons convicted of certain offenses to regis-
ter with the [Commissioner of Emergency Services and
Public Protection] and by mandating disclosure of that
registry to the public.
‘‘The law designates four classes of offenses: (1) the
victim is a minor or the sexual offense is nonviolent;
General Statutes § 54-251; (2) the sexual offense is vio-
lent; General Statutes § 54-252; (3) the sexual offense
was committed in another jurisdiction; General Statutes
§ 54-253; or (4) the felony was committed for a sexual
purpose. General Statutes § 54-254. Our Supreme Court
[has held] . . . that [o]nly under the last classification
is the trial court given discretion whether to impose
the registration requirement . . . we did not explain
the basis for that conclusion. The text of the statutory
scheme, however, makes that distinction clear. The first
three provisions provide that a defendant shall regis-
ter . . . .
‘‘[Before the trial court, the defendant did] not chal-
lenge the factual underpinnings that form the basis for
mandatory registration under § 54-250 et seq.; neither
[was] there any dispute that the applicable language of
this statute is cast in mandatory terms. The obligation
to register as a sex offender is triggered by the entry
of the judgment of conviction(s) of predicate sexual
offenses. . . . The [defendant did] not claim exemp-
tion pursuant to any exception under § 54-250. Absent
that, our registration scheme does not authorize or pro-
vide for individualized assessment nor offer the regis-
trant the opportunity to demonstrate rehabilitation or
shorten [his or her] registration requirement.’’ (Cita-
tions omitted; internal quotation marks omitted.)
I
FEDERAL EQUAL PROTECTION CHALLENGE
The defendant was convicted of second degree sexual
assault under § 53a-71 (a) (2) for engaging in sexual
intercourse with a victim who was ‘‘mentally defective
to the extent that [she] was unable to consent to such
sexual intercourse.’’ The challenged statutes, particu-
larly § 54-250 (11),3 categorize that offense as a ‘‘sexu-
ally violent offense,’’ and thereby require, pursuant to
§ 54-252 (a),4 that persons convicted of that offense
register as sex offenders for life. The defendant first
claims that the court erred in finding that the lifetime
registration requirement does not violate his right to
equal protection of the laws under the fourteenth
amendment to the United States constitution. Specifi-
cally, he argues that the court was unable to articulate
any rational basis for establishing different sex offender
registration requirements for those who commit differ-
ent forms of second degree sexual assaults. The state
claims, to the contrary, that there is indeed a rational
basis for imposing different sex offender registration
requirements upon those who commit different types of
second degree sexual assault, and thus that the lifetime
registration requirement imposed upon the defendant
for his conviction of a violent sexual assault does not
violate his right to equal protection of the law under
the federal constitution. We agree with the state.
The question of whether the application of the statu-
tory scheme imposing sex offender registration upon
the defendant violates his equal protection rights is a
question of law over which we have plenary review.
See State v. Long, 268 Conn. 508, 530, 847 A.2d 862 (en
banc), cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L.
Ed. 2d 340 (2004). The equal protection clause of the
fourteenth amendment to the United States constitution
provides that no state shall ‘‘deny to any person within
its jurisdiction the equal protection of the laws.’’ U.S.
Const., amend. XIV, § 1. ‘‘[T]he concept of equal protec-
tion . . . has been traditionally viewed as requiring the
uniform treatment of persons standing in the same rela-
tion to the governmental action questioned or chal-
lenged. . . . Conversely, the equal protection clause
places no restrictions on the state’s authority to treat
dissimilar persons in a dissimilar manner. . . . Thus,
[t]o implicate the equal protection [clause] . . . it is
necessary that the state statute . . . in question, either
on its face or in practice, treat persons standing in the
same relation to it differently. . . . [Accordingly], the
analytical predicate [of an equal protection claim] is a
determination of who are the persons [purporting to
be] similarly situated. . . . The similarly situated
inquiry focuses on whether the [defendant is] similarly
situated to another group for purposes of the challenged
government action. . . . Thus, [t]his initial inquiry is
not whether persons are similarly situated for all pur-
poses, but whether they are similarly situated for pur-
poses of the law challenged.’’ (Citations omitted;
internal quotation marks omitted.) Kerrigan v. Com-
missioner of Public Health, 289 Conn. 135, 157–58, 957
A.2d 407 (2008).
‘‘To determine whether a particular classification vio-
lates the guarantees of equal protection, the court must
consider the character of the classification; the individ-
ual interests affected by the classification; and the gov-
ernmental interests asserted in support of the
classification. . . . Where, as here, the classification
at issue neither impinges upon a fundamental right nor
affects a suspect group it will withstand constitutional
attack if the distinction is founded on a rational basis.
. . . Rational basis review is satisfied so long as there
is a plausible policy reason for the classification . . . .
[I]t is irrelevant whether the conceivable basis for the
challenged distinction actually motivated the legisla-
ture.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Morales, 240 Conn. 727, 739, 694 A.2d 758(1997). ‘‘Rational basis review demands only that the
challenged classification be rationally related to a legiti-
mate government interest. . . . A party challenging a
law under rational basis review bears the burden of
proving that the law’s class-based distinctions are
wholly irrational.’’ (Citation omitted.) State v. Dyous,
307 Conn. 299, 317, 53 A.3d 153 (2012).
The defendant here claims that the statutory scheme
at issue treats differently individuals who have been
convicted of second degree sexual assault for commit-
ting violent offenses and those who similarly have been
convicted of second degree sexual assault, but whose
offenses are categorized as offenses against minors or
nonviolent offenses. Specifically, he claims that
because the statutory scheme requires lifetime registra-
tion for violent offenders, but only a ten year registra-
tion requirement for offenses against minors and
nonviolent offenders, it violates his right to equal pro-
tection of the law under the United States constitution.
The state argues, to the contrary, that the defendant’s
claim is flawed because there are no sexual assaults—
and thus no registration requirements—that are desig-
nated as having been committed solely against adult
victims. Rather, it claims that the statutory scheme at
issue in this case applies to offenses committed against
both adult and minor victims alike.5 We agree.
It is undisputed that the statutory scheme imposing
sex offender registration requirements neither affects
a suspect group nor implicates a fundamental right for
the purposes of the federal equal protection clause, and
therefore must be analyzed under rational basis review.
Furthermore, we conclude that the defendant is simi-
larly situated, for the purpose of the statutory scheme
at issue in his equal protection challenge, to those who
have been convicted of nonviolent second degree sex-
ual assaults. Thus, we turn to whether there is a plausi-
ble policy reason for this classification.
In the present case, we have no difficulty in ascertain-
ing a rational basis for the disparate treatment in the
statutory lifetime sex offender registration requirement
for those who have been convicted of violent second
degree sexual assaults as compared to the ten year
registration requirement for those who have been con-
victed of nonviolent second degree sexual assaults. We
agree with the court’s assessment and finding that a
rational basis exists for the differentiation in registra-
tion requirements between violent and nonviolent sec-
ond degree sexual assault offenders.
The court explained, ‘‘[i]t is well established that [t]he
legislature enacted [Megan’s Law] to protect the public
from sex offenders. . . . [T]he lifetime registration
requirement for those convicted of sexually violent
offenses reflects an effort to target those sex offenders
who engage in particularly predatory conduct. While
the defendant contends that the application of the regis-
tration requirements could lead to inequitable results
in certain situations, it is not the role of the judiciary
to second-guess the legislature. Although there may
be other, perhaps even better, options available to the
legislature to accomplish its legitimate objectives,
rational basis review affords great deference to legisla-
tive choices and does not authorize this court to substi-
tute its judgment, or that of the [defendant], for that
of this state’s elected representatives, as long as the
classifications drawn by the legislature are reasonable.
. . . [E]qual protection is not a license for courts to
judge the wisdom, fairness, or logic of legislative
choices. . . . Rational basis review is satisfied [as]
long as there is a plausible policy reason for the classifi-
cation . . . . [I]t is irrelevant whether the conceivable
basis for the challenged distinction actually motivated
the legislature. . . . To succeed, the party challenging
the legislation must negative every conceivable basis
which might support it.’’ (Citations omitted; internal
quotation marks omitted.)
We conclude that the defendant has failed to demon-
strate that there is no rational basis for the difference
between the registration requirements for those con-
victed of violent second degree sexual assaults and
those convicted of nonviolent second degree sexual
assaults.6 Requiring lifetime sex offender registration
for those who have been convicted of violent second
degree sexual assaults is rationally related to the gov-
ernment’s legitimate interest in protecting the public
from sex offenders whose actions demonstrate a will-
ingness to use force or the threat of force to overcome
the will of victims who have not expressed consent to
engage in sexual intercourse—and in this case, a victim
who was not even capable of expressing such consent
by reason of mental defect. Accordingly, the defendant’s
federal equal protection challenge must be rejected.
II
STATE EQUAL PROTECTION CHALLENGE
The defendant’s fallback argument is that even if his
federal equal protection challenge does not survive
rational basis review, the equal protection clause of the
Connecticut constitution provides an independent and
greater basis to support his claim because it requires
heightened review. The state argues that although the
defendant raises a claim under the state constitution,
he does not demonstrate that the state equal protection
clause provides any additional protection or that his
claim is subject to heightened review thereunder. We
agree with the state that the defendant’s equal protec-
tion challenge under the Connecticut constitution also
must be rejected because he has not established that
his claim is subject to heightened review, or is different
in any other material respect from his federal equal
protection challenge.
The equal protection clause of the Connecticut con-
stitution, article first, § 20, as amended by articles five
and twenty-one of the amendments, provides in relevant
part that ‘‘[n]o person shall be denied the equal protec-
tion of the law . . . .’’7 ‘‘It is well established that fed-
eral constitutional and statutory law establishes a
minimum national standard for the exercise of individ-
ual rights and does not inhibit state governments from
affording higher levels of protection for such rights.
. . . [Hence], although we often rely on the United
States Supreme Court’s interpretation of the amend-
ments to the constitution of the United States to delin-
eate the boundaries of the protections provided by the
constitution of Connecticut, we have also recognized
that, in some instances, our state constitution provides
protections beyond those provided by the federal con-
stitution, as that document has been interpreted by
the United States Supreme Court. . . . The analytical
framework by which we determine whether, in any
given instance, our state constitution affords broader
protection to our citizens than the federal constitutional
minimum is well settled.’’ (Internal quotation marks
omitted.) State v. Wade, 297 Conn. 262, 286–87, 998 A.2d
1114 (2010).
‘‘[I]n State v. Geisler, 222 Conn. 672, 685, 610 A.2d
1225 (1992), we set forth six factors that, to the extent
applicable, are to be considered in construing the con-
tours of our state constitution so that we may reach
reasoned and principled results as to its meaning. These
factors are: (1) the text of the operative constitutional
provision; (2) holdings and dicta of this court and the
Appellate Court; (3) persuasive and relevant federal
precedent; (4) persuasive sister state decisions; (5) the
history of the operative constitutional provision, includ-
ing the historical constitutional setting and the debates
of the framers; and (6) contemporary economic and
sociological considerations, including relevant public
policies.’’ Kerrigan v. Commissioner of Public Health,
supra, 289 Conn. 157. The defendant claims that the
fourth, fifth and sixth Geisler factors weigh in favor of
a more expansive reading of the state equal protection
guarantee, and thus support his argument that the court
erred in finding that his right to equal protection of the
law under the Connecticut constitution was not violated
by imposing the lifetime sex offender registration
requirement upon him. We will consider each Geisler
factor in turn to determine whether the equal protection
clause of the Connecticut constitution affords greater
protection to claimants than its federal counterpart.
With regard to the first Geisler factor—the text of
the operative state and federal constitutional provi-
sions—the court noted that ‘‘the defendant acknowl-
edge[d] that the text of the equal protection clause of
the Connecticut constitution is very similar to [that of]
the federal equal protection clause and is therefore not
particularly instructive in the present case.’’ Indeed, on
appeal, the defendant stated in his brief that ‘‘[t]he text
of article first, § 20, is substantively identical to that of
the Fourteenth Amendment, so the first Geisler factor
does not come into play.’’ Although the defendant
argues that the first factor is thus inapplicable to this
court’s analysis, we conclude that it is not only relevant
to that analysis, but supportive of the court’s conclusion
that the equal protection guarantee set forth in the
Connecticut constitution is the same as that set forth
in the United States constitution.
The defendant claims as well that the second and
third Geisler factors—the holdings and dicta of our
Supreme Court and this court, as well as persuasive
and relevant federal precedent—‘‘do not apply because
no Connecticut or federal court appears to have
addressed th[is] specific question . . . .’’ Here, once
again, although the defendant argues that the second
and third factors are inapplicable to the court’s analysis,
we find that the lack of Connecticut and federal prece-
dent on this issue actually demonstrates that Connecti-
cut’s equal protection provision affords no greater
protection to persons bringing state equal protection
claims of the sort here presented than federal equal
protection claims. The trial court concluded, and we
agree, that ‘‘the defendant has not shown that the
Geisler factors concerning relevant Connecticut and
federal precedent support his argument.’’
The defendant next claims that the fourth Geisler
factor—persuasive sister state decisions—supports his
state equal protection challenge because relevant sister
state decisions ‘‘reject unequal treatment for people
convicted of offenses that are almost identical in nature
and severity [to that of the defendant].’’ In this regard,
the defendant cites to several California cases for the
proposition that other jurisdictions have invalidated
aspects of sex offender registration laws that create
arbitrary distinctions between different classes of
offenders. In particular, the defendant claims that in
People v. Hofsheier, 37 Cal. 4th 1185, 1207, 129 P.3d 29,
39 Cal. Rptr. 3d 821 (2006), the California Supreme
Court held that unequal treatment of defendants who
have been convicted of oral copulation with a minor—
an offense that required mandatory registration—and
defendants who have been convicted of sexual inter-
course with a minor—an offense that afforded the court
discretion whether or not to require registration—vio-
lated equal protection because there was no plausible
rationale for distinguishing between these two offenses
and their respective registration requirements. He
attempts to draw a parallel between Hofsheier and the
facts of this case to lend support to his argument that
the distinctions between the registration requirements
for different forms of Connecticut’s second degree sex-
ual assaults lack any rational basis. We are not per-
suaded.
In Hofsheier, the twenty-two year old defendant, who
had pleaded guilty to felony oral copulation with a six-
teen year old minor, an offense which required manda-
tory sex offender registration, claimed a federal equal
protection violation because the similar offense of
unlawful sexual intercourse with a minor was not sub-
ject to mandatory registration, but only to registration
only at the court’s discretion. Id., 1192. The court found
that individuals who were convicted of oral copulation
and those who were convicted of sexual intercourse
with minors were similarly situated, and thus concluded
that there was no rational basis for treating the two
groups differently. Id., 1200–1207. The ‘‘contrasting
treatment of persons convicted of oral copulation with
minors and those convicted of unlawful sexual inter-
course with minors raise[d] the equal protection issue’’
in that case; id., 1198; because ‘‘[t]he only difference
between the two offenses [was] the nature of the sexual
act.’’ Id., 1200. Although the California sex offender
registration statute at issue in Hofsheier distinguished
between oral copulation and sexual intercourse with
minors for registration purposes, the challenged Con-
necticut statutes in this case makes no such similar
distinction between oral copulation and sexual inter-
course for purposes of incarceration, fine or registra-
tion, nor do they impose different requirements for one
form of second degree sexual assault over the other.
Moreover, the California Court of Appeal expressly
declined to extend the holding of Hofsheier in People
v. Jeha, 187 Cal. App. 4th 1063, 114 Cal. Rptr. 3d 711(2010), a case factually similar to the present case. In
Jeha, the defendant, who was convicted of sexual pene-
tration of an unconscious victim, an offense which
required mandatory sex offender registration, claimed
an equal protection violation because the allegedly simi-
lar offenses of sexual or oral penetration of a minor
required registration only at the court’s discretion. Id.,
1068. Although the defendant in Jeha urged the court
‘‘to find him similarly situated with other defendants
whose sex offenses involved consensual participants
but whose status as minors rendered them unable to
give legal consent’’; id., 1076; the court rejected this
argument, reasoning that ‘‘[a] sex offense against an
intoxicated or unconscious person is not one that
involves a voluntary participant. . . . The forcible
nature of [the] defendant’s sex offense sets him apart
from the [defendant] in Hofsheier and following cases
in which an equal protection challenge . . . was sus-
tained.’’ (Citation omitted.) Id., 1076–77. The California
Court of Appeal thus held that there was no equal pro-
tection violation in Jeha because the victim in that case
had been unconscious at the time of the sexual assault
and therefore was unable to consent to penetration. Id.
The court in the present case aptly noted that ‘‘the
distinction drawn by the Connecticut legislature in
requiring those convicted of sexually violent offenses
to register for life is not arbitrary,’’ as was the distinction
ruled unconstitutional in Hofsheier. It thus concluded
that ‘‘the defendant’s argument pursuant to Hofsheier
and its progeny is not persuasive.’’ We agree, and con-
clude that the fourth Geisler factor does not support
the defendant’s state equal protection challenge.
With regard to the fifth Geisler factor—the history of
the operative constitutional provision—the defendant
claims that our Supreme Court, in Kerrigan v. Commis-
sioner of Public Health, supra, 289 Conn. 141, held that
the equal protection clause of the Connecticut constitu-
tion provides broader protection to claimants thereun-
der than to claimants under the federal equal protection
clause, lending support to his state equal protection
challenge. Although the court in Kerrigan found that
Connecticut’s equal protection provision guarantees
greater protection than its federal counterpart with
regard to same sex marriage, that conclusion was
reached as a result of the court’s determination that
sexual orientation is a quasi-suspect class and that laws
that treat people differently on that basis are subject
to intermediate or heightened scrutiny, rather than
rational basis review, to which the defendant’s chal-
lenge is subject under the federal equal protection
clause. Nowhere in his brief does the defendant suggest
that Connecticut’s equal protection analysis under
rational basis review differs in any way from the federal
analysis, or that historical factors support a heightened
review of his present claim. Thus, we conclude that
the fifth Geisler factor does not lend support to the
defendant’s claim for a heightened standard of review
on his state equal protection challenge.
As to the sixth and final Geisler factor—contempo-
rary economic and sociological considerations, includ-
ing relevant public policy—the defendant claims that
because there is an increasing awareness that registra-
tion can be unduly harsh to those offenders who pose
little risk of reoffending, this factor weighs in his favor.
Specifically, he claims that exempting him from lifetime
registration would enable him to ‘‘become a contribut-
ing member of society . . . be free of the legal restric-
tions and ongoing harassment that he currently suffers
as a result of registration . . . [and] help him gain
employment more commensurate with his education
and qualifications . . . .’’ The court held, and we agree,
that ‘‘[t]he defendant fails to take into account the legiti-
mate public safety reasons for requiring registration
among those convicted of sexually violent offenses,’’
and thus we conclude that the sixth Geisler factor does
not lend support to the defendant’s state equal protec-
tion challenge.
In sum, we conclude that the court properly found
that none of the Geisler factors supports the defendant’s
claim that heightened scrutiny must be applied to his
state equal protection challenge to the requirement that
he submit to lifetime registration as a sex offender as
a result of his conviction of second degree sexual
assault in violation of § 53a-71 (a) (2). For that reason,
because the defendant’s state equal protection chal-
lenge, like his federal equal protection challenge, is
subject to rational basis review, that challenge must
also be rejected for the reasons set forth in part I of
this opinion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-71 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the second degree when such person engages in
sexual intercourse with another person and . . . (2) such other person is
mentally defective to the extent that such other person is unable to consent
to such sexual intercourse . . . .’’
We note that although § 53a-71 (a) (2) was amended in 2000; see Public
Acts 2000, No. 00-161, § 2; since the time of the defendant’s crime in 1992,
that amendment has no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
2
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
3
General Statutes § 54-250 (11) provides: ‘‘ ‘Sexually violent offense’
means (A) a violation of section 53a-70, except subdivision (2) of subsection
(a) of said section, 53a-70a, 53a-70b, 53a-71, except subdivision (1), (4), (8)
or (10) or subparagraph (B) of subdivision (9) of subsection (a) of said
section or subparagraph (A) of subdivision (9) of subsection (a) of said
section if the court makes a finding that, at the time of the offense, the
victim was under eighteen years of age, 53a-72a, except subdivision (2) of
subsection (a) of said section, or 53a-72b, or of section 53a-92 or 53a-92a,
provided the court makes a finding that the offense was committed with
intent to sexually violate or abuse the victim, (B) a violation of any of the
offenses specified in subparagraph (A) of this subdivision for which a person
is criminally liable under section 53a-8, 53a-48 or 53a-49, or (C) a violation
(A) or (B) of this subdivision the essential elements of which are substantially
the same as said offense.’’
4
General Statutes § 54-252 (a) provides in relevant part: ‘‘Any person who
has been convicted or found not guilty by reason of mental disease or defect
of a sexually violent offense, and (1) is released into the community on or
after October 1, 1988, and prior to October 1, 1998, and resides in this state,
shall, on October 1, 1998, or within three days of residing in this state,
whichever is later . . . register such person’s name, identifying factors and
criminal history record, documentation of any treatment received by such
person for mental abnormality or personality disorder, and such person’s
residence address and electronic mail address, instant message address or
other similar Internet communication identifier, if any, with the Commis-
sioner of Emergency Services and Public Protection on such forms and in
such locations as said commissioner shall direct, and shall maintain such
registration for life. . . .’’
The defendant was sentenced, on his conviction of second degree sexual
assault, to a total effective term of eight years imprisonment, suspended
after four years, followed by five years probation. In 1996, after serving two
years of his original four year sentence, the defendant was paroled directly
to his family. In addition to his second degree sexual assault conviction,
the defendant pleaded guilty to two counts of fourth degree sexual assault
under General Statutes § 53a-73a arising from two separate incidents in 1993
and 1994. An offense resulting in a conviction of fourth degree sexual assault
is categorized as a nonviolent sexual offense and requires only a ten year
registration period. See General Statutes §§ 53a-73a, 54-250 (5) and 54-251
(a). Such registration, however, is required only for defendants who were
released from custody after October 1, 1998. General Statutes § 54-251 (a).
Because the defendant was released prior to October 1, 1998, his conviction
of two counts of fourth degree sexual assault do not require registration.
Thus, his only conviction requiring registration, and thus the only one before
this court on appeal, is that of second degree sexual assault.
5
The defendant attempts to argue that the statutory scheme at issue in
this case imposes a harsher registration period for offenses against adults
than those against minors, and that no rational basis could possibly exist
for treating people who offend against minors less harshly than those who
commit the same crimes against adults. The defendant’s argument, as the
state notes, is flawed for several reasons.
All convictions for engaging in intercourse that is compelled by threat or
force, against an adult or a minor, require lifetime registration. General
Statutes §§ 53a-70 (a) (1) and 54-250 (11). Convictions for engaging in inter-
course with minors under age thirteen when the actor is more than two
years older also require lifetime registration. General Statutes §§ 53a-70 (a)
(2) and 54-250 (11). Further, convictions for engaging in intercourse with
any victim, whether an adult or a minor, who is incapable of consenting
because of mental disease or defect, or because of a physical incapacity,
also require lifetime registration. See General Statutes §§ 53a-70 (a) (4)
(mentally incapacitated), 53a-71 (a) (2) (mentally defective), 53a-71 (a) (3)
(physically helpless) and 54-250 (11). Additionally, convictions for engaging
in intercourse with other vulnerable persons, regardless of their age, when
the actor is in a position of authority or control, require lifetime registration.
See General Statutes §§ 53a-71 (a) (5) (persons in custody), 53a-71 (a) (6)
(psychiatric patients), 53a-71 (a) (7) (medical patients), 53a-71 (a) (11)
(persons receiving developmental services) and 54-250 (11).
Sexual assaults committed upon older minors, such as engaging in inter-
course with minors between thirteen years of age or older but under sixteen
years of age, who may actually consent but who cannot legally consent, or
intercourse with minors under the age of eighteen when the actor is a
guardian, teacher, coach, or in another position of authority, all are subject
to a ten year registration period. See General Statutes §§ 53a-71 (a) (1), 53a-
71 (a) (4), 53a-71 (a) (8), 53a-71 (a) (9), 53a-71 (a) (10), 54-250 (2) and 54-
251 (a). The reason for a limited registration period in these scenarios is
in part because of the presumed existence of a relationship between the
actor and the minor. Although sexual assaults against an older minor with
whom the actor has a relationship, such as guardian, teacher or coach, still
may be predatory, persons who commit sexual assaults through the use of
force or the threatened use of force pose a greater danger to the public
than those who partake in sexual acts with older minors who may actually
consent, but cannot legally consent.
To summarize, intercourse that is compelled, or engaged in with minors
under age thirteen or with certain other vulnerable persons, regardless of
the victim’s age, require lifetime registration. To the contrary, noncompelled
intercourse with older minors requires registration for ten years. We there-
fore conclude that the defendant’s argument that he is similarly situated to
those who commit second degree sexual assault against minors is flawed,
and thus that the differentiation between second degree sexual assaults and
their respective registration requirements at issue here actually is between
violent and nonviolent sexual assaults.
6
The defendant additionally cites to the relevant legislative history in
support of his federal equal protection challenge, claiming that the registra-
tion requirements for second degree sexual assault are the ‘‘arbitrary result
of historical accident,’’ and that what legislators thought they were voting
for differed from the actual text of the statute. As the court properly noted,
‘‘[i]n order for a statute to withstand rational basis review, we consider
whether the classification and disparate treatment inherent in a statute bear
a rational relationship to a legitimate state end and are based on reasons
related to the accomplishment of that goal . . . . [U]nder this analysis, the
legislature is not required to articulate the purpose or rationale for its
classification. The test . . . is whether [the] court can conceive of a rational
basis for sustaining the legislation; we need not have evidence that the
legislature actually acted upon that basis.’’ (Internal quotation marks
omitted.)
Moreover, where the text of the statute is ‘‘plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the [statute] shall not be considered.’’ (Internal quotation marks
omitted.) State v. Maguire, 310 Conn. 535, 572, 78 A.3d 828 (2013). The
defendant acknowledges that the plain meaning of § 54-252 (a) requires
lifetime registration. The legislative history of the lifetime sex offender
registration requirement, therefore, is not relevant to our review of the
defendant’s claim on appeal.
7
Article first, § 1, of the Connecticut constitution additionally provides:
‘‘All men when they form a social compact, are equal in rights; and no man
or set of men are entitled to exclusive public emoluments or privileges
from the community.’’ The present claim has not been made under the
foregoing provision.