People v. Kochevar, 2018 IL App (3d) 140660 (August). Episode 527 (Duration 8:40)
Another Romeo and Juliet Defender escapes from having to register as a sex offender.
People v. Tetter, 2018 IL App (3d) 150243 (January). Episode 463 (Duration 8:43)
Kochevar and C.R. had been acquainted for several years through their participation in track. In 2012, when he was 16 (nearly 17) and C.R. was 14, the relationship grew closer.
After Kochevar turned 18, their relationship became sexual.
Both were attending Prophetstown High School. C.R.’s parents called the police when they learned of the sexual nature of the relationship.
Defendant signed a written confession outlining the details of the relationship.
Defendant was charged by information with one count of misdemeanor criminal sexual abuse.
The count alleged that on March 15, 2013, he committed an act of sexual penetration with C.R., who was at least 13 but under 17 years of age and he was less than 5 years older than C.R.
The jury found Kochevar guilty of one count of criminal sexual abuse.
After the verdict was entered, one of the jurors sent a letter to the trial judge saying the verdict was correct but urging him to be lenient in sentencing. He was sentenced to 24 months’ probation and required to register as a sex offender and undergo sex offender treatment and aftercare.
We next consider Kochevar’s constitutional challenge alleging the “Illinois statutory scheme of penalties that apply to a convicted sex offender, including community notification, and, inter alia, restrictions on movement and employment are unconstitutional as applied to him.” He cites the following offending statutes: the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2016)), Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2016)), section 11-9.3 of the Criminal Code of 2012 (720 ILCS 5/11-9.3 (West 2016)), section 5-5-3(o) of the Unified Code of Corrections (730 ILCS 5/5-5-3(o) (West 2016)), and section 21-101 of the Code of Civil Procedure (735 ILCS 5/21-101 (West 2016)).
As Applied Constitutional Challenge
Kochevar’s as-applied challenge rests on two arguments:
first, that, relying on Tetter, 2018 IL App (3d) 150243, the restrictions constitute punishment and their application to him renders that punishment grossly disproportionate to the severity of the crime in violation of the eighth amendment to the United States Constitution (U.S. Const., amend. VIII); and,
second, again relying on Tetter, the restrictions constitute a “penalty” and their application to him violates the clause of the Illinois Constitution requiring “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.
Case Law Says SORA Is Constitutional
Of course, the major obstacle to Kochevar’s requested relief is the unwavering position of our supreme court that the statutes in question do not constitute punishment. See People v. Adams, 144 Ill. 2d 381, 387-89 (1991), in which the court held that the restrictions of SORA are not punishment but rather are merely collateral consequences of conviction for covered sexual offenses, through People v. Malchow, 193 Ill. 2d 413 (2000), in which the court reaffirmed the sex offender laws are not punishment, and including its recent decision in People v. Pepitone, 2018 IL 122034, ¶ 18, in which it found the statute that “completely bars sex offenders who have targeted children from public parks” is facially constitutional. See also 720 ILCS 5/11-9.4-1(b) (West 2016).
The supreme court could not have made its position clearer.
The SORA statutes do not constitute punishment or penalty.
But The Laws Have Gotten More Oppressive
We acknowledge, as a different panel of this court recently did in Tetter, 2018 IL App (3d) 150243, the heavy weight of supreme court precedent and still urge reconsideration and a different result in light of more recent statutory changes.
Tetter noted that in the years since those decisions were issued, the Illinois legislature has significantly increased the number, severity, and technicality of requirements and restrictions on sex offenders. Tetter, 2018 IL App (3d) 150243, ¶ 45.
We are mindful of the deference due the legislature’s enactment of laws, and we recognize that the sex offender statutory scheme has been developed to address legitimate and important state concerns. It is also true, however, that the checks and balances built into our state and federal constitutions require the courts to evaluate or reevaluate challenged legislation to ascertain when or if it runs afoul of federal and state constitutional rights and protections.
That duty is triggered in a situation such as this in which a claim has been raised that statutes deemed civil and regulatory appear to have evolved and become penal.
They Went With Tetter
This court in Tetter applied those factors to the sex offender statutory scheme and concluded that the scheme has become penal. Having and intending to convey no disrespect to the supreme court or to the legislature, we endorse, adopt, and incorporate the arguments set out in Tetter that make such a case, and we apply its findings in this case.
The Tetter majority undertook a careful, thorough, and thoughtful retrospective of sex offender registration and notification cases in the Illinois and federal courts and constructed a compelling argument that changes in the implementation and reach of the registration itself and the increasingly burdensome and debilitating restrictions of the legislative program have gradually, but inexorably, transformed rationally based, protective consequences into a statutory scheme that is indeed punitive.
Using the five-factor test set out inKennedy v. Mendoza-Martinez, 372 U.S. 144, 165, 168-69 (1963), Tetter meticulously tracks the evolution of sex offender registry cases and the legislatively enacted registration, notification, and restriction regulations to assess whether legislation intended to create a civil regulatory scheme is “so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil.” Tetter, 2018 IL App (3d) 150243, ¶ 41 (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997), quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)).
In sum, we are persuaded that Tetter’s legal analysis is sound, and we agree with its conclusion that the sex offender statutory scheme has morphed from civil regulation into something that is indeed punitive.
Our conviction of the rightness of this conclusion is strengthened when we apply the statutory restrictions to Kochevar and assess their necessity in light of his offense and his individual characteristics.
The record in this case does not reveal a “sex offender who targets children” or a “sexual predator.”
We do note, however, that he has acknowledged and rationalized continuing to see C.R. after he was charged and in violation of no contact orders. What the record does show is a typical teenager—brash, occasionally rash, with soft spots and spurts of poor, but largely harmless, judgment—generally living life much like other teens.
He was graduating, going off to college, full of potential and plans when he was removed from this relative homogeneity, charged, convicted, and sentenced for criminal sexual abuse. As a mandatory part of his sentence, he was and is required to register as a sex offender. Because he was 18 years old at the time of his offense, certain benefits, which would have been applicable to him had he acted six to seven months earlier, are unavailable. A few keystrokes on any internet browser will bring up Kochevar’s name, his picture, the name and citation of his offense, and the fact of his conviction on the Illinois sex offender website. Id. § 120(c), (d).
His status as a sex offender is thus broadcast to the world, and he faces a lifetime of employment rejection, public disdain, impairment of his enjoyment of parental involvement and his discharge of parental responsibilities, curtailment of his liberty to live where he chooses and to move freely about his community, suspicion, and permanent stigma.
Excessive & Disproportionate
Pursuant to our conclusion that Kochevar’s subjection to the sex offender restrictions is punishment, we next assess his claims that this punishment is both excessive and disproportionate.
The reality of the sex offender registration and notification strictures is that, under most of the regulations, the same penalties are imposed upon conviction of a sex offense involving a minor without consideration of whether it is a single act of teen sex or persistent predatory sexual conduct; the second alternative does not apply.
Accordingly, we analyze Kochevar’s claim to determine whether, as to him, the penalties in the statute are so wholly disproportionate as to shock the moral conscience of the community. By contrast with that sentence and under any reasonable standard of comparison, the pervasive negative impact of the SORA regulations is genuinely shocking in this case.
Of paramount importance, there is nothing in the record that suggests that this young man targeted children, targeted underage girls, or even targeted C.R. According to the record, based on Kochevar’s statements, he and C.R. were engaged in a friendship that evolved over time into a relationship that was sexual. He was not a predator. We find nothing in his personal record or in the record on appeal that suggests that the rigid technical strictures of the sex offender statutes are necessary to restrain instincts or predilections to prey on children that Kochevar gives no evidence of having now or ever having had.
The imposition of the restrictions is punitive, and because it is unnecessary in order to secure Kochevar’s compliance with the statutes’ expressed purpose of preventing abuse of children, it is grossly disproportionate to his crime and violates the eighth amendment to the United States Constitution.
Further, that the severe punitive impact on Kochevar constitutes a penalty subject to evaluation under the proportionate penalties clause seems clear to us. This was a young man who the record shows had worked hard to excel academically, athletically and, most importantly, as a decent human being and was planning for a promising future.
He was charged with and convicted of a sexual crime and removed from the typical teen pool. Now, after having served his sentence, he is tethered to that youthful mistake by a plethora of restrictions, some of which are effective for 10 years and others for the rest of his life.
This system that the legislature has devised affirmatively obstructs the State’s constitutional objective of restoring this particular offender to useful citizenship in violation of the proportionate penalties clause of the Illinois Constitution.
For all of the foregoing reasons, we find Illinois’s statutory sex offender scheme, as applied to Kochevar, violates both the eighth amendment to the United States Constitution and the proportionate penalties clause of the Illinois Constitution.
We affirm Kochevar’s conviction, jail sentence, and term of probation. We vacate his requirement to register as a sex offender and to comply with SORA (730 ILCS 150/1 et seq. (West 2016)), the Notification Law (730 ILCS 152/101 et seq. (West 2016)), section 11-9.3 of the Criminal Code of 2012 (720 ILCS 5/11-9.3 (West 2016)), section 5-5-3(o) of the Unified Code of Corrections (730 ILCS 5/5-5-3(o) (West 2016)), and section 21-101 of the Code of Civil Procedure (735 ILCS 5/21-101 (West 2016)). The matter is remanded to the Whiteside County circuit court for the entry of an order consistent with this opinion.