Opinion
No. 0-361 / 99-1968.
Filed July 26, 2000.
Appeal from the Iowa District Court for Des Moines County, Thomas R. Brown, District Associate Judge.
The minor child appeals from a juvenile court ruling ordering him to register as a sex offender pursuant to Iowa Code section 692A.2(1) (1997). REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Scott Schroeder, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
David appeals a juvenile court order requiring him to register as a sex offender pursuant to Iowa Code section 692A.2 (1997). We reverse and remand.
I. Background Facts and Proceedings On several occasions when David was fourteen, he took his five year old niece to a secluded location, removed her pants, and rubbed his penis between her legs, pointing it toward her vaginal area. During one of these episodes, he also placed his mouth on her vagina. His niece reported these incidents.
The State filed a petition seeking to have David adjudicated delinquent based on the offense of second-degree sexual abuse. Iowa Code §§ 709.1, .3 (1997). Following negotiations with the State, David admitted to the offense of assault with intent to commit sexual abuse, in violation of Iowa Code section 709.11. The juvenile court adjudicated David delinquent and, on October 20, 1997, placed him on probation.
The juvenile court did not inform David of his duty to register as a sex offender pursuant to Iowa Code section 692A.5(1)(b) nor did the court require him to read and sign a form stating that the duty had been explained to him. Iowa Code § 692A.5(1)(e). At a subsequent hearing, the court and State conceded these mandates were not followed. However, because David does not challenge these oversights on appeal, we need not address them. Bear v. Woodward State Hosp. Schs, 576 N.W.2d 303, 305 (Iowa 1998).
Approximately three weeks later, David's attorney filed an application to exempt him from the sex offender registration requirement. The court postponed hearing on the application until the next review hearing and ruled David would not have to register in the interim. The issue did not arrive before the court for substantive consideration until almost two years later. After receiving testimony, the court ordered David to register as a sex offender. This appeal followed.
II. Scope of Review We generally review juvenile delinquency proceedings de novo. In re S.M.D., 569 N.W.2d 609, 610 (Iowa 1997). However, our review of whether David should have been placed on the registry is for abuse of discretion. In re S.M.M., 558 N.W.2d 405, 407 (Iowa 1997). An abuse of discretion will be found where a decision is clearly untenable or unreasonable. City of Windsor Heights v. Spanos, 572 N.W.2d 591, 592 (Iowa 1997). "A decision is unreasonable where it is not based on substantial evidence or is based on an erroneous application of the law." Id. (citing 5 Am.Jur.2d Appellate Review § 695, at 365 (1995)).
III. Sex Offender Registration Iowa Code section 692A.2 provides:
. . .[a] person who is convicted, as defined in section 692A.1, of either a criminal offense against a minor or a sexually violent offense as a result of adjudication of delinquency in juvenile court shall not be required to register as required in this chapter if the juvenile court finds that the person should not be required to register under this chapter.
The statute begins with the general requirement that certain classes of offenders register, then allows a juvenile court to exercise discretion to excuse registration in some cases. S.M.M., 558 N.W.2d at 407. The burden is on the juvenile to rebut the presumption in favor of registration. Id.
In support of its conclusion that David should register, the juvenile court stated:
All right. I would like to make a few observations. First, the issue was discussed as to whether David was a pedophile, and I think that the evidence shows that he is not, but he is a sexual predator. The act occurred on a helpless person and David knew it. In simpler times we would not be having this hearing because the relatives of the victim would take it upon themselves to eliminate David from society.
Now, we've advanced beyond that point, but the emotions of the family are still there, and it's no wonder that — that this has destroyed the family. I've heard a lot of talk about apology. An apology is not going to help the victim one wit [sic]. It might help the perpetrator, but it isn't going to help the five-year-old, now eight-year-old girl, because what damage is done is done and it cannot be reversed.
David has testified and all the evidence indicates he wishes he could get back together with his brother. That's extremely self-centered. Everything I have heard from David directly or indirectly is about David's problems, not [the niece's] problems here.
In a sense, the sexual registration program is a two-fold as has been argued here, is to identify sexual perpetrators to society to say, watch out, this person is likely to reoffend.
But in another sense, admittedly even though the legislature doesn't say so, it's kind of like the mark of Cain. If you're familiar with the biblical story, it's a mark of shame. And quite frankly, I have not seen shame in David. I have not seen it. His response to all this uproar in the family is he just wishes the family could get back together.
They're never going to get back together. Never. It's never going to happen. There are some things — It's like shooting a gun. Once that bullet leaves the gun, no amount of wishing is ever going to call it back. It goes where it goes and it does what it does.
We delayed the decision basically through oversight of the Court here. We would have addressed this issue a long time ago if it would have been brought to the attention of the Court.
And I guess one of the mysteries I have at this point is why it was never even considered to be waived to adult court. He was fourteen at the time it occurred, it's a Class D Felony. If it were waived to adult court, he would be in jail for twenty-five years, and I'm not sure why that wasn't even a consideration.
So, yes, in a sense it is a punishment. It is a mark of Cain. But it's not going to affect David as much as his act affected Jordan, nor affect him as much as if this Court had waived jurisdiction and prosecuted him as an adult. He would be in prison and he would be on the receiving end of sexual predators.
So I think that the crime demands and the circumstances demand that David register as a sexual offender, and I will so order.
The court relied on its belief that the legislature intended Iowa Code Chapter 692A to serve as a punitive statute. The court denied the registration exemption on the ground David had not been punished sufficiently in light of what could have happened to him had he been tried and convicted as an adult. This was an impermissible reason for denying the exemption. See State v. Pickens, 558 N.W.2d 396, 400 (Iowa 1997) (noting statute has a remedial purpose of protecting society, not deterrence or retribution purposes, even though disseminations are "unpleasant consequences of the offense"); cf. State v. Sinclair, 582 N.W.2d 762, 765 (Iowa 1998) (noting sentencing court may not consider or rely on unprosecuted offenses unless admitted by defendant or otherwise proven). It is true the court also alluded to the fact that David expressed little remorse for his actions, a factor which we believe a court may consider in deciding whether to grant an exemption to the registration requirement. However, the decision to deny the exemption did not turn on David's lack of remorse but on the court's perception that David was treated too leniently. We conclude the court's stated reasons for refusing to grant David an exemption from registration reveal an abuse of discretion. Accordingly, we reverse the juvenile court's order and remand for further proceedings. We do not suggest what the registry decision should be, leaving that decision to the juvenile court's sound discretion. In light of our decision, we need not address David's contention that the juvenile court must consider his best interests in deciding whether he should be excluded from the registry.
REVERSED AND REMANDED.