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A Jury Rejected the Charges, but He Still Has to Register As a Sex Offender for Life

New York's highest court says accusations can be considered for registration purposes even when the defendant was acquitted.

New York Court of AppealsNew York Court of AppealsIn New York a defendant can be forced to register as a sex offender for the rest of his life based on accusations a jury rejected. So the state's highest court ruled last week in a case that illustrates how fear and loathing of sex offenders lead to results that would be recognized as unjust and illogical in any other context.

Quinn Britton's 13-year-old niece, identified in court documents as A.B., accused him of raping her during a Thanksgiving Day visit to her grandmother's home in Brooklyn, where her uncle lived, when she was 11. Britton denied any inappropriate behavior, and his mother said A.B. had spent the whole evening watching TV in the living room with her.

The girl's older brother said she had described a sexual assault to him, but it differed in key details from the account she gave police. A.B. told her brother Britton had tried to engage in vaginal intercourse with her but couldn't because his penis "wouldn't fit." By contrast, she told police Britton had penetrative sex with her for about 10 minutes. A detective testified that Britton had admitted touching, kissing, and performing oral sex on A.B., but he had no recording or written statement to corroborate the confession, which Britton denied making.

The jurors struggled to make sense of these conflicting accounts. Since there was no physical evidence, the case came down to a question of whether to believe A.B. or Britton. During three days of deliberations, the jurors sent the judge three notes indicating that they were deadlocked. Each time he told them to keep deliberating.

Finally the jurors emerged with a verdict that seemed to split the difference between those inclined to believe Britton and those inclined to believe A.B. They found Britton guilty of second-degree sexual abuse, a misdemeanor, based on the allegation that he kissed A.B.'s breasts, but not guilty of three felonies: first-degree rape, based on the allegation of penetrative sex, and two counts of a first-degree sexual act, based on allegations that he performed oral sex on the girl and forced her to perform oral sex on him.

During a post-trial hearing, the judge nevertheless assumed that Britton had committed the felonies and therefore assigned him to risk level two under New York's Sex Offender Registration Act (SORA), which triggers lifetime registration. Had the judge considered just the crime of which Britton was convicted, he would have been assigned to risk level one, which requires registration for 20 years.*

In a 6-to-1 ruling last week, the New York Court of Appeals upheld Britton's classification, noting that it was supposed to be based on "clear and convincing evidence," a less demanding standard than the proof beyond a reasonable doubt required for a criminal conviction. It is possible, in other words, for an alleged crime to figure in a defendant's risk level even when there is not enough evidence for a guilty verdict.

Writing in dissent, Judge Jenny Rivera charges her colleagues with improperly applying the "clear and convincing evidence" standard, which requires "a high degree of probability" that an allegation is true. A.B.'s testimony should not be treated as reliable under SORA, Rivera argues, because the jury did not find it credible.

"The verdict can only be understood as reflecting that the jurors did not fully credit A.B.'s version," Rivera writes. "The acquittals here powerfully reflect the unreliability of A.B.'s testimony. As the trial judge recognized, the jurors were presented with two versions and they had to choose one. In other words, they either believed A.B. or they did not when she testified that defendant had penetrative and oral sex with her in his room."

The Appellate Squawk blog, written by a New York attorney who specializes in criminal appeals, portrays the majority's willingness to second-guess the jurors by crediting testimony they rejected as another example of the special rules that seem to apply in cases involving sex crimes. "Naturally the Court doesn't admit that it moves the goalposts for sex cases," it says. "But these days, when it comes to accusations of sexual misconduct, the standard of proof is that they were made. The Court is simply going with the flow—which, by definition, is downhill."

[Thanks to Bill Dobbs for the tip.]

*This post has been revised to correct the registration term for level-one sex offenders.

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  • Leo Kovalensky II||

    Because, FYTW.

  • Fist of Etiquette||

    Some courts seem to find juries more of a formality than a real part of the process.

  • sharmota4zeb||

    Some courts in America don't bother with juries in the first place when they decide of someone must be locked up.

  • Martinned||

    Not sure why you're blaming the court when it was the legislature that adopted a different test for the registration than for conviction. I'm not saying the Court of Appeals got this right, but the law clearly assumes the possibility of exactly this happening.

  • Diane Reynolds (Paul.)||

    New York's highest court says accusations can be considered for registration purposes even when the defendant was acquitted.

    Oh, you didn't take this #MeToo thing seriously?

  • BYODB||

    Whoops, sounds like they just fucked up on due process grounds at the very least.

  • Mickey Rat||

    We are cool with judicial activism, right?

  • Rhywun||

    Only if it's principled.

    /a certain Reason contributor

  • Leo Kovalensky II||

    "It wouldn't fit"

    And as we all know, if it doesn't fit you must acquit.

  • Leo Kovalensky II||

    I've heard of a hung jury before, but never acquittal based on a hung defendant.

  • Citizen X - #6||

    Christ, what a dick.

  • gormadoc||

    The case of Ed Johnson is close.

  • Hank Phillips||

    You mean Jack Johnson?

  • Juice||

    The sex offender registry restricts a person's liberty. Being put on it without conviction violates the 5th amendment. It's pretty obvious.

  • JuanQPublic||

    Obvious, yes, but they hinge it on the notion that the registry "isn't punishment", therefore, they circumvent the Constitution altogether, and even apply ex post facto law to it, which is more than clearly prohibited by the Constitution.

  • BYODB||

    Of course it's not punishment, you get to skip all the school zones!

    /sarc

  • Juice||

    Maybe they don't think it's punishment, but it's certainly a restriction of a specific person's liberty without due process, which is unconstitutional.

  • WC46||

    Juice, don't be fooled for a second. They KNOW the registry is punitive from the foundation up. You see, unending punishment or punishment without prior notice under the guise of civil regulation is the weapon of choice of despotism. The "civil" argument is there as window dressing to skirt around the flagrant constitutional violations found within the registry laws and associated restrictions. This "civil not punitive" language is an end-run-around constitutional safeguards that legislators (WHO IN MOST CASES ARE LAWYERS) know would spell certain doom for their cherished law if it was ever legitimately judged by the strict scrutiny standard. Rational basis is a joke. That standard says, "It may be crappy but they have a good reason for this crappy law so we're going to let it pass." Any and every sex offender registry law and associated restriction should be subject to strict scrutiny and forced to be word-for-word compliant with the Constitution of the U.S. and the respective state wherein it was drafted.

  • The Federal Farmer||

    The 6th Circuit in Michigan disagrees that SORNA isn't ex post facto punishment in Does v. Snyder. (https://tinyurl.com/y9u2v2fa)

  • Flinch||

    So much for an acquittal. With justice this bent, the next step is the implosion of language itself accompanied by anarchy. Leave it to the fascists running NY to punish somebody for being not guilty. How dare they? The arrest is enough for the state, Dredd style. No love for real offenders, but we've gone from public safety to a "j'accuse" standard. What's next from the crime syndicate pulling Cuomo's strings... guillotines in Central Park?

  • Fuzzyedia||

    Ah, an appeal to the Bill of Rights within the US Criminal justice system.

    How adorable.

  • TwelveInchPianist||

    Judges always screw up the easy cases. Punishing someone for acquitted conduct violates double jeopardy. The fact that the second fact-finder uses a lower burden of proof is utterly irrelevant. Better judges, please.

  • JuanQPublic||

    Yes, but it's "not punishment".

  • Juice||

    Doesn't have to be.

  • WC46||

    This is not an isolated situation. There's a man who was cleared of statutory rape in California. The girl admitted she lied about the alleged sexual encounter. The conviction was completely vacated, but he moved to another state and is required to register for life based on a conviction that was thrown out. He has 6 binders of legal documents proving this charge was totally dismissed as if it had never happened and yet in the state he lives in now he has to register!!!

    This man has been so harassed and threatened with arrest by state police that he wears a lapel camera everywhere he goes so that his every move and word can be documented. If this is not sick, twisted, and perverted on the part of the receiving state, than nothing is. Having to register for an offense where one is completely exonerated of any and all guilt? Really? Are we willing to sit there in cold indifference and let factually innocent people remain on a life-crippling registry for a crime that was abundantly proven TO HAVE NEVER HAPPENED????

    I read this article maybe a week or so ago, but now can't find it to save my blasted hyde!!!

  • juris imprudent||

    NY is not content for CA to lead the country to ruin.

  • Diane Reynolds (Paul.)||

    Race to the bottom!

  • $park¥ leftist poser||

    That will certainly get you on the registry.

  • Rhywun||

    This gives me a thought: the easy way to get rid of these unconstitutional "registries" would be to uncover (or manufacture, if needed) evidence of "racial bias" in them.

  • Diane Reynolds (Paul.)||

    I thought exactly that was done with the no-fly list, but the government just didn't give a fuck so hard, not even that shut it down.

  • LarryA||

    Of course it's hard to generate racial statistics on the no-fly list, since they won't tell you who's on it.

  • Eidde||

    So it hasn't been proven to *not* be racist, then?

  • Flinch||

    That, or it runs smack into one of the lefts sacred cows: title IX.

  • Rich||

    another example of the special rules that seem to apply in cases involving sex crimes.

    "In the criminal justice system, sexually-based offenses are considered especially heinous."

    So, apparently they call for especially heinous special rules.

  • John||

    A jury acquitting someone means that they did not find proof beyond a reasonable doubt. It makes no finding beyond that. It could be that there was clear and convincing evidence or that there was no evidence. The act of acquittal says nothing other than the jury did not find there was proof beyond a reasonable doubt.

    This decision is appalling for a lot of reasons but mostly because it is an appellate court that did not hear any of the actual testimony making a factual finding. Appellate courts are not there to hear the witnesses and do not and should not be making factual findings. Appeal courts can affirm or overturn factual findings but that is different. That is just the court saying "it is possible a jury could find this" or "it is impossible a reasonable jury could find this". It is not making any actual determinations.

    That is exactly what they are doing here. They are deciding that this guy is guilty by clear and convincing evidence even though they never saw any of the trial and have nothing except the record to judge it from. That is not how it is supposed to work. This is a flat out due process violation. The Supreme Court needs to weigh in on this. This is unbelievable.

  • J. S. Greenfield||

    Agree with your first paragraph -- the jurors acquitting does not mean that they found the defendant more credible than the alleged victim. They might have believed she was more likely telling the truth, but couldn't reach a level of confidence that was "beyond a reasonable doubt."

    Disagree with your assertion that the appellate court here is engaging in unusual or inappropriate fact-finding. It would be quite ordinary for them to view the record of a trial and conclude that the evidence presented could or could not be consistent with a given standard of proof, such as "beyond a reasonable doubt" or "clear and convincing evidence." Here I would presume that they were not reviewing de novo, but rather, evaluating whether the trial judge acted within his reasonable discretion, given the evidence presented.

    The real problem here is that evidence not accepted by a jury using a "beyond a reasonable doubt" standard is allowed to be used to impose (or enhance) what is effectively a criminal punishment.

    Contrary to the article's implication, however, this is not unique to sex crimes. Even is non-sex-related cases, judges often use their own findings of fact to impose harsher sentences than the actual conviction warrants. This is a more general, and fundamental problem.

  • TwelveInchPianist||

    "A jury acquitting someone means that they did not find proof beyond a reasonable doubt. It makes no finding beyond that. It could be that there was clear and convincing evidence or that there was no evidence. "

    So what?

    The constitution says that you can't be "twice put in jeopardy of life or limb," not that you can be twice put in jeopardy of life and limb, as long as they use a lower standard of proof the second time.

  • BYODB||


    Finally the jurors emerged with a verdict that seemed to split the difference between those inclined to believe Britton and those inclined to believe A.B. They found Britton guilty of second-degree sexual abuse, a misdemeanor, based on the allegation that he kissed A.B.'s breasts, but not guilty of three felonies: first-degree rape, based on the allegation of penetrative sex, and two counts of a first-degree sexual act, based on allegations that he performed oral sex on the girl and forced her to perform oral sex on him


    This whole paragraph has me convinced that I'd rather live in a puritan society than ours, because at least the puritans rules are god damn simple by comparison. Sure, their rule(s) might be worse but at least you don't need a Moby Dick length user manual for your dick.

  • Libertymike||

    You fundamentally misread the development of progressivism in this progressive utopia. Puritanism is one of the philosophical antecedents of progressivism.

  • BYODB||

    Of course it is, that's the joke. At least the puritans were honest about it.

  • John||

    We are no less judgemental and nasty today than people have always been. We are just judgemental and nasty about different things.

  • Mickey Rat||

    Someone said that human nature has no history, despite the progressives acting that it does.

  • Rhywun||

    I really don't get it. On what basis did they buy some of the allegations but not all of them?

  • MarkLastname||

    My guess is they hedged their bets. Thought he might be guilty but wasn't sure, so split the difference.

  • sharmota4zeb||

    Do you remember the witch trials. Those little old ladies were accused of harming children. There's a reason Quakers streaked during Puritan masses in colonial times.

  • Longtobefree||

    So now the whole country is a college campus where accusation equal conviction.

  • Marcus Aurelius||

    Thankful that none of my family members drink to excess during the holidays.

    Sounds like a Clue game, with four (five?) different conflicting testimonies.

  • Cynical Asshole||

    The Court is simply going with the flow—which, by definition, is downhill."

    Well, you know what else flows downhill...

  • BYODB||

    Pretty much everything?

  • MarkLastname||

    Hitler?

  • turco||

    Guilty until proven innocent

  • SchillMcGuffin||

    I recall there was similar "consideration of non-convicted charges" bullshit under the Federal Sentencing Guidelines. Not sure whether they're still in effect, but the whole thing reeked of unconstitutionality a decade or so ago.

  • Hank Phillips||

    It's only been a decade since 1987?! Where did the time go?

  • Don't look at me.||

    Seems like yesterday.

  • Bubba Jones||

    The outrage should be that he was convicted on the basis of no evidence.

    Not that he got life on the registry instead of 20 years.

  • sharmota4zeb||

    If the sex offender registry law says that there is a lower standard of proof to get registered as a sex offender, then the court is correct to apply that lower standard when determining if someone's name goes on the list. Do the Libertarians have any candidates running in New York who are unafraid to debate sex offender laws?

  • Mark22||

    The jury never determined that he met the lower standard either.

  • Jgalt1975||

    It's been too long since law school, so maybe I'm overlooking something, but it seems like this decision may violate the requirement of the Apprendi v. New Jersey, 530 U.S. 466 (2000) decision concerning the jury deciding facts required for sentencing.

  • Hank Phillips||

    See? This is the Republican Party bringing back the rest of the 1873 version of the Republican Comstock law that Margaret Sanger was trying to get repealed in May of 1932, while Herbert Hoover's Dry Killers were shooting people to death over felony light beer. The "Asset Forfeiture Panic of 1873" was about how mystical bigots rifling the mail marches to Shibboleth and Hoovervilles as surely as night follows day. So here we are 145 years later--45 of those years with a working Libertarian Party, and those looters haven't changed an i-dot.

  • Mark22||

    This is the Republican Party bringing back the rest of the 1873 version

    How is a law against transporting indecent materials by the US post office in any way related to a judge's decision to force a teenager to register as a sex offender?

    of the Republican Comstock law

    In what way was the Comstock Act specifically "Republican"? AFAIK, both parties voted for it overwhelmingly.

    that Margaret Sanger was trying to get repealed in May of 1932

    Margaret Sanger was a eugenicist and a racist. She may have been accidentally on the right side of history on this one, but mentioning her leads credence or moral authority to nothing.

  • PaulTheBeav||

    It creeps me out how often Reason has an article taking the side of accused pedophiles. Maybe they're right every time, but there are a lot of other injustices in the world. Why so much focus on this particular kind?

  • Mark22||

    Sexual intercourse between a 13 year old and an 11 year old may be many things, but "pedophilia" it is not.

    Why shouldn't Reason take the side of an accused anything? Being accused of something isn't the same as having been found guilty of something.

    The accusation was based on the memory of a woman from decades earlier when she was 11 years old, with no witnesses and no physical evidence.

    Why focus on this? Because innocent people are accused of horrible crimes all the time and deserve to be defended. If a mere accusation of a crime is sufficient to punish you for life, then justice is dead.

  • PaulTheBeav||

    It creeps me out how often Reason has an article taking the side of accused pedophiles. Maybe they're right every time, but there are a lot of other injustices in the world. Why so much focus on this particular kind?

  • FRegistryTerrorists||

    Because obviously there is a "SEX offender" witch hunt that is active in America. Americans need to be stopping it.

  • swampwiz||

    It sounds like the perp won't actually start doing any undeserved penance until 20 years hence.

  • Vicki Henry||

    Moral Revenge at its best.
    Women Against Registry ~ Fighting the Destruction of Families

  • Eidde||

    This would require courts to re-evaluate a lot of precedents, but they ought to say that being put on a sex-offender list is a criminal punishment.

    That would mean you need to have, or waive, a trial by jury before being found guilty and put on the list.

    Just because the courts say the moon is made of green cheese, or that a criminal punishment isn't a criminal punishment, doesn't mean we have to agree.

  • Eidde||

    In this case, a jury convicted on the charge that puts you on for 10 years, but acquitted on the charge that puts you on for life. And the courts put him on a list for life.

    If this doesn't violate the right to trial by jury, then I'm not sure what would.

  • Fuzzyedia||

    Prosecutors and judges (who are either ex-prosecutors, or wish they were been ex-prosecutor's) have been cooking up new procedures and jury instruction rules designed to undermine decades of due process and Constitution protection progress
    The integrity of the jury system is probably the last friction point preventing Prosecutors and judges from playing god and creating the 100% link they always wanted between charging and imprisoning the people they don't like without passing Go.
    It was only a matter of time until judges and prosecutors started cooking up a direct assault on what remains of the already severely stripped down remaining trial by jury system. Unless the America people start demanding jury nullification to stop prosecution by technicality and stop leaving it to legislators, prosecutors and judges to decide when the Bill of Rights will apply and when it won't, nothing will change.
    I see no sign the majority of fat, comfortable middle class Americans that serve as a majority on most juries are interested in doing anything more than blindly trusting anyone and everyone in uniform within the Carceral state.

  • WC46||

    Did you know that in most court rooms a defense attorney can be jailed for contempt of court by even mentioning jury nullification? Even though it is the right of the jury to nullify, they are instructed as if it would be a crime to do so. The rationale is they agreed to follow the letter of the law. Calling a law bad and refusing to punish the accused by returning a null verdict, according to judges and prosecutors, is not in harmony with the law.

    That's the trap that stops nullification.

    Here's the kind of case that begs for nullification. A convicted sex offender (let's say a child molester since they are the worst of the worst) is in illegal possession of a handgun. He is on a public registry with unlimited public access. Now let's say a neighbor doesn't like this man living in his neighborhood, but it's the only place the molester can find that complies with the residency restrictions. The neighbor decides to kill the molester and accosts said molester in his own house. The molester pulls the gun and kills the neighbor in self-defense. The molester now is charged with felon in possession of a handgun and murder. I'd push for nullification because had the registered molester NOT had that gun, he would be dead. We have a right to nullify bad laws.

  • Carter Mitchell||

    Well, that would eliminate about 95% of the laws in this country.

  • Tionico||

    and that would be a good start.

    There are far too many "offenses" that will lead to debarring an individual the use of arms, and now too many things that are not evev "offenses".

    Out of work, behind on your alimony/child support, no guns for you Bonzo.
    In my county, shooting a feral nuisance cat is a felony. because its a cat. They're too smart for traps....
    Open rural state highway, wide, smooth, good visibility, posted at 45 when it should be 60, caught doing 66 its felony negligent driving. no guns.
    Handgun, unloaded, in locked glove box when you pull into the Post Office car park to post a packet... caught.. felony. That and all your other guns are gone.
    Visitor from my neighbouring state, carrying concealed lawfully, walks into any br or tavern i my state, thinking its like home where you can (as long as you don't DRINK while carrying) somehow gets "made" and is now a felon.

  • Mark22||

    Finally the jurors emerged with a verdict that seemed to split the difference between those inclined to believe Britton and those inclined to believe A.B.

    How does that possibly amount to "beyond a reasonable doubt"?

  • FRegistryTerrorists||

    Obviously it doesn't and it shouldn't be allowed in any way.

  • FRegistryTerrorists||

    Folks, we need to get rid of juries immediately. A criminal case can NEVER be decided by "whom does the jury believe" and yet it so often is. People just don't seem to understand that a person has be PROVEN guilty beyond all reasonable doubt. It certainly sucks that oftentimes we will not be able to convict guilty people simply because there is not enough proof, but we MUST accept that. We CANNOT be convicting innocent people. It's immoral.

    The vast majority of people obviously don't have nearly enough sense to be true juror. Many people couldn't distinguish their opinion from a fact if their life depended on it. We all need to stop believing that having juries is just, fair, or okay. It's not.

    Also, it is crystal clear to all informed, moral, intelligent, un-biased Americans that Nanny Big Government's SEX Offender Registries (SORs) are not REALLY for public safety, protecting children, or any of the rest of the lies everyone tells. There is no way that any actual American can support the SORs today. The SORs are truly idiotic social policy that should've been destroyed a decade ago.

    The SORs have all of us in more danger than we would be if they didn't exist. The SORs aren't needed or significantly beneficial either. The simple fact is that if a person is ACTUALLY going to protect himself and his family, then he must protect from ALL people, Registered or not. It gives a person zero benefit to know if a person is Registered or not.

  • AD-RtR/OS!||

    These are the judges that are destroying the American Republic.

  • George Hilman||

    Mr. Britton should file a lawsuit against the judge(s) for operating out of their lawful jurisdiction.

  • TxJack 112||

    A shining example of how the "State" will determine your guilt and assign your punishment regardless of how the law is written. The judge basically said the jury is wrong and I have determined the person committed felonies and will be punished accordingly. With luck the SOTUS will reverse the ruling but clearly this is another example of how judges have amassed too much power and no longer care about interpreting the law but writing and/or re-writing it as they see fit.

  • VinniUSMC||

    A Jury Rejected the Charges [well, not all of the charges], but He Still Has to Register As a Sex Offender for Life [as opposed to the 20 years he would otherwise have had to register].

    The article's title makes it sound as if a man was put on the registry just for being accused of misconduct. He was put on the registry for a longer amount of time than he otherwise would have, yet he's still a convicted creepy child molester.

    One can argue the usefulness or Constitutionality of the list, but the framing of this article is a bit absurd.

  • Plopper||

    Actually, if you read the court documents the burden of evidence was never met even for the lesser charge they convicted him of. It should have ended in mistrial.

    The only evidence against him was conflicting testimonies and one detective claiming he confessed to some things.

    The fact the jury convicted him of any charge with the fact there was still tons of doubt to be had is the real travesty here, not having to be put on the list for longer.

    So basically... he *was* convicted for only being accused of misconduct. There was no other evidence to be had.

  • Carter Mitchell||

    If you're foolish enough to live in Sewer York to begin with, I have no sympathy for you. But, wake up, get out of the state, tell their idiotic judges to f%#k off.

  • Tionico||

    from the article:

    Britton denied any inappropriate behavior, and his mother said A.B. had spent the whole evening watching TV in the living room with her. The girl's older brother said she had described a sexual assault to him, but it differed in key details from the account she gave police.

    These two sentences right here SHOULD have led to a very quick acquittal on ALL charges. Conflicting mutually exclusive accounts from multiple "witnesses" destroy all credibiity for the little skank.

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