IN THE INTEREST OF T.H., Minor Child. T.H., Minor Child, Appellant.
review from the Iowa Court of Appeals.
from the Iowa District Court for Woodbury County, Brian L.
Michaelson, Senior Judge.
juvenile statutorily required to register as a sex offender
challenges the provision as cruel and unusual punishment
under the Iowa and United States Constitutions.
Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey &
Daane, Sioux City, and Kathryn C. Stevens, Public Defender,
Sioux City (until withdrawal) for appellant.
J. Miller, Attorney General, Mary A. Triick, Assistant
Attorney General, and Diane Murphy, Assistant County
Attorney, for appellee.
appeal, we must decide if substantial evidence was presented
to establish that a juvenile committed a sex offense by force
and whether the mandatory sex offender registry statute for
certain juvenile sex offenders violates the prohibition
against cruel and unusual punishment under either the Iowa or
United States Constitution. The juvenile court found the
juvenile committed a sex offense by force and ordered him to
register as a sex offender. We transferred the appeal to the
court of appeals. It found substantial evidence that the
juvenile committed a sex offense by force and that the sex
offender registry requirements imposed by law did not violate
the prohibition against cruel and unusual punishment under
either the Iowa or United States Constitution. On our further
review from the court of appeals decision, we affirm the
decision of the juvenile court and the decision of the court
Factual Background and Proceedings.
about July 15, 2015, T.H., a fourteen-year-old boy, knocked
on the door of I.N., a sixteen-year-old girl whom T.H. had
known for a few years. I.N. answered the door, and T.H. told
her he had a gift for her. He told I.N. he had ordered a ring
and wanted to give it to her. I.N. asked her mother if she
could talk with T.H. on the front porch, and her mother gave
her permission. Once the two were outside, they talked for a
few minutes, and T.H. began to kiss I.N., over her
objections. T.H. then sat on the porch and asked I.N. to join
him. She initially refused, but T.H. continued to insist.
sat down on the porch next to T.H., who then exposed his
penis and shoved the back of I.N.'s head downward toward
it. I.N. protested repeatedly, and as she said "no,
" T.H.'s penis entered her mouth. T.H. kept his hand
on I.N.'s head so she could not raise her head. I.N. then
bit T.H.'s penis in order to free herself, prompting T.H.
to release her head. T.H. asked her why she had bit him, and
I.N. responded that she did not want to do this and had said
no. I.N. slapped T.H. in the face, and T.H. went home.
ran inside and told her mother what had happened. I.N.'s
mother called the police. I.N. was interviewed by the police
and a few days later interviewed by the Child Advocacy
Center. The police also interviewed T.H. Although T.H.
initially denied the incident, after an officer falsely
represented to him that there was surveillance footage of the
encounter, T.H. admitted to forcing I.N. to perform oral sex
and that she bit him in the process. After the police
interview, without an officer in the room, T.H. wrote an
apology letter to I.N. He wrote,
I sorry for forcing you to suck my penis. I'm so sorry.
If you forgive me, I'll be happy. So just remember I
still care about you.
the incident, I.N. has experienced recurring nightmares about
the incident and is wary around boys who resemble T.H. She
also has had difficulty participating in school when the
topic of sexual abuse is discussed.
21, 2015, the State filed a delinquency petition alleging the
delinquency of T.H. based on a number of incidents. The State
alleged T.H. committed sexual abuse in the third degree by
performing a sex act by force or against the will of I.N. in
violation of Iowa Code section 709.4(1)(a) (2016).
Based on domestic incidents that occurred in late June 2015,
the State also alleged two counts of simple assault for
punching and choking his mother, one count of simple assault
for punching his brother, and one count of criminal mischief
in the fifth degree for throwing a mop through a window of
juvenile court held an adjudicatory hearing during which I.N.
testified about the incident, as well as the detective who
conducted the investigation. Following the witnesses'
testimonies, the juvenile court dismissed the four counts
relating to the domestic incidents. On December 11, the
juvenile court adjudicated T.H. delinquent for performing a
sex act by force and against the will of I.N. in violation of
Iowa Code section 709.4(1)(a). The court, therefore,
found that T.H. had committed sexual abuse in the third
degree and that his offense was committed with force.
court soon thereafter issued its dispositional order, which
discussed T.H.'s mental health history, past behavioral
problems, and prior rehabilitation efforts by the State.
T.H.'s father has never played a role in his life, and
his mother has been married three times. Her second husband
was an alcoholic, and her third husband abused her, sometimes
in T.H.'s presence. After the third husband left the
home, T.H. kept in contact with him, as he provided drugs to
T.H. and his friends. Currently, the man who is living in
T.H.'s home is a multistate offender with prior arrests
for narcotics possession, domestic violence, and child
endangerment. T.H.'s mother has a history of substance
abuse, although she has been sober for over seven years. She
currently works the overnight shift at Wal-Mart. From 2004 to
2008, T.H. lived with his maternal grandmother and
stepgrandfather in Texas, and they have since continued to
request custody of T.H.
to the incident with I.N., T.H. had received a number of
services to address his mental health and behavioral needs.
In August 2011, T.H. was removed from his home by the police
and taken to St. Luke's Hospital for aggressive behavior.
In September 2011, he was placed in the Four Oaks PMIC
Program and resided in the facility for seven months. In
December 2012, T.H. was committed to the Cherokee Mental
Health Institute (MHI) after threatening to stab kids at
school with a paper knife, drawing pictures of shooting
people and blowing up houses, and stating that voices in his
head were telling him to do bad things. He remained at
Cherokee MHI until February 2013, when he received a
placement at the Boys and Girls Home in Sioux City. Through
each of the out-of-home placements, T.H. was given services
relating to anger management, coping mechanisms,
age-appropriate social skills, communication skills, and
self-esteem. T.H. was returned to his parental home in August
2013 with a good prognosis.
in January 2014, the Sioux City police were frequently called
to assist with family disturbances in his home. T.H.'s
mother struggled to contain T.H.'s behavior and sought
assistance from juvenile officers and a therapist. In
September 2014, after T.H. broke a window in the family home,
he was placed on an Informal Adjustment and assigned twenty
hours of community service. T.H.'s mother also pursued
outpatient mental health services and medication for T.H.
School liaison services were also added to support him at
school. In June of 2015, police were twice called to address
incidents within his home after T.H. punched his brother and
mother and placed his mother in a choke hold during an
argument. Juvenile officers discussed the possibility of a
second Informal Adjustment, but opted to give T.H. one month
to demonstrate his ability to live in the home without
aggression. Less than a month later, T.H. was brought to
detention for sexually abusing I.N.
being placed in detention, T.H. completed two psychological
evaluations. T.H. was diagnosed with a schizoaffective
disorder, bipolar type; an attention deficit/hyperactivity
disorder, combined presentation; an oppositional defiant
disorder, moderate; and an unspecified anxiety disorder. T.H.
expressed a desire not to be returned to his parental home,
stating he was afraid he would hurt his mother, brother, or
do something sexual again.
the above circumstances and T.H.'s history of prior
services, the court concluded that it was in T.H.'s best
interests to be placed in a residential treatment facility.
The court ordered T.H. to be placed in the S.T.O.P. program
at the Four Oaks facility where he would receive a number of
services. The court also found that T.H.'s offense is a
tier III sexual offense, and therefore, T.H. was required to
register as a sex offender pursuant to Iowa Code section
692A.102(1)(c)(10). The court explained it had no
discretion to defer or waive the sex offender registration
requirements, as T.H. was fourteen years old and committed
his offense with force. Accordingly, the court ordered T.H.
to register as a sex offender pursuant to Iowa Code section
appealed and raised two issues. First, he asserted there was
insufficient evidence to find he committed sexual abuse by
force. Second, he argued the mandatory sex offender
registration constituted cruel and unusual punishment in
violation of both the Iowa and United States Constitutions.
We transferred the case to the court of appeals. It concluded
there was substantial evidence to support a finding that T.H.
sexually abused I.N. by force. It also found that mandatory
sex offender registration for juveniles was not cruel and
granted T.H.'s application for further review.
Standard of Review.
delinquency proceedings are "special proceedings that
provide an alternative to the criminal prosecution of
children where the best interest of the child is the
objective." In re M.L., 868 N.W.2d 456, 460
(Iowa Ct. App. 2015). We consider the sufficiency of the
evidence in juvenile delinquency adjudications de novo.
In re D.S., 856 N.W.2d 348, 351 (Iowa 2014). We
review constitutional challenges de novo. State v.
Roby, 897 N.W.2d 127, 137 (Iowa 2017).
Sufficiency of Evidence.
person commits sexual abuse in the third degree when the
person performs a sex act under various circumstances,
including when "[t]he act is done by force or against
the will of the other person." Iowa Code §
709.4(1)(a). T.H. alleges the State introduced
insufficient evidence that he committed a sex act "by
force or against the will" of I.N.
essence of the claim asserted by T.H. is built upon two
propositions. First, he used the nature of their relationship
to support the absence of any evidence of force. T.H.
asserted he had been pursuing a relationship with I.N., they
maintained a friendly relationship, they had spent time
together alone in the past, I.N. never felt threatened or
fearful during any past encounter, and he was invited by I.N.
into her home to be alone with her at the time in question.
Second, he claimed the testimony of I.N. about the event was
both implausible and inconsistent, claiming the sex act that
occurred was voluntary.
our review of the transcript, we find substantial evidence to
support the crime, including the element of force. I.N.
testified T.H. forced her head into his erect penis, and she
responded by repeatedly telling him "no." T.H.
acknowledged to police that he forced I.N.'s head down
into his penis and that he asked her why she did not want to
perform oral sex. Upon our de novo review, we also consider
the findings of the juvenile judge who heard the testimony
and evaluated the credibility of the witnesses. In re
A.K., 825 N.W.2d 46, 49 (Iowa 2013).
Mandatory Juvenile Sex Offender Registration.
next argues that the mandatory sex offender registration
requirement constitutes cruel and unusual punishment because
the governing statute does not permit the juvenile court to
waive the registration requirement for juveniles like himself
who were found delinquent of a sex act under aggravated
circumstances. He argues the constitutional protections
entitle all juveniles to an individualized assessment by the
juvenile court to determine if registration should be waived
or imposed. T.H. builds his argument on those cases requiring
an individualized hearing before sentencing juvenile
offenders to imprisonment without parole. See generally
State v. Lyle, 854 N.W.2d 378 (Iowa 2014); State v.
Ragland, 836 N.W.2d 107 (Iowa 2013); State v.
Pearson, 836 N.W.2d 88 (Iowa 2013); State v.
Null, 836 N.W.2d 41 (Iowa 2013).
address this argument, we must first determine the operation
of the sex offender registry statute with respect to juvenile
offenders. This task requires us to consider two statutory
schemes: the sex offender registry statute and the statute
governing the adjudication and disposition of juvenile
offenders. Second, we will review the requirements of the sex
offender registry statute as applied to T.H.
Mandatory registration for certain juveniles.
The Iowa Sex Offender Registry statute broadly governs the
registration of sex offenders in Iowa. Under the statute, any
person "convicted" of an offense designated as a
tier I, II, or III crime is required to register with the
Iowa Sex Offender Registry. Iowa Code § 692A.103(1).
Generally, this registration requirement applies to juvenile
offenders. Juveniles adjudicated delinquent of a qualifying
offense are considered "convicted" for registration
purposes. Id. § 692A.101(7).
the registration statute permits the juvenile court to
"waive the registration" for juvenile offenders
if it "finds that the person should not be required to
register." Id. § 692A.103(3).
Additionally, if a juvenile court does not initially waive
the registration requirement, it may subsequently
"modify or suspend the registration requirements"
upon a showing of good cause prior to the discharge of a
juvenile from the jurisdiction of the court. Id.
the statute does not permit the juvenile court to waive the
registration requirements, or modify or suspend the
requirements, for juveniles fourteen years of age or older at
the time of their sex offense and who committed their offense
"by force or the threat of serious violence, by
rendering the victim unconscious, or by involuntary drugging
of the victim." Id. § 692A.103(4). If a
juvenile commits a sex offense under these circumstances, the
juvenile must register as a sex offender and may not petition
the juvenile court to modify or suspend the registration
requirements prior to the discharge from the jurisdiction of
the court. Id. § 692A.103(5)(e).
Accordingly, under the sex offender registration statute,
juveniles who are found delinquent of an aggravated sex
offense must register as sex offenders, and the requirement
cannot be waived under the statute by the juvenile court.
provisions of the sex offender registration statute, however,
must be read in conjunction with the juvenile justice
provisions of chapter 232. In particular, the statute
governing dispositional orders for juvenile offenders directs
the juvenile court to "determine whether [a] child shall
remain on the sex offender registry prior to termination of
the dispositional order." Id. §
232.54(1)(i). Importantly, unlike the provisions
governing the waiver of the registration requirement for
juveniles, the authority of the juvenile court to determine
if a juvenile should remain on the registry after
the dispositional order terminates does not exclude juveniles
who commit sex crimes under aggravated circumstances. Thus,
an aggravated sex offender must initially register under the
statute. However, any time a court acts to terminate a
child's dispositional order that "require[d] [the]
child to register as a sex offender pursuant to chapter 692A,
the juvenile court shall determine whether the child shall
remain on the sex offender registry prior to the termination
of the dispositional order." Id.
approach is not only consistent with the language of chapter
692A and chapter 232, but it is also in line with the
objective of the juvenile law. Retaining the juvenile
court's jurisdiction is consistent with the research that
shows juvenile sex offenders can achieve rehabilitation far
easier than adult sex offenders. See Robert E.
Shepherd Jr., Advocating for the Juvenile Sex Offender,
Part 1, 21 Crim. Just. 53, 54 (2006) ("Adolescent
sex offenders are far less predatory, are less likely to
engage in serious or aggressive behaviors, are far more
amenable to successful treatment, are more readily treated
and supervised within the community, and have significantly
lower recidivism rates."); see also Roper v.
Simmons, 543 U.S. 551, 569-71, 125 S.Ct. 1183, 1195-96
(2005) (recognizing the "diminished culpability of
juveniles" and their greater capacity for
rehabilitation); Lyle, 854 N.W.2d at 400 (noting a
juvenile's "greater capacity for growth and
reform"). Thus, the juvenile court is able to relieve a
juvenile sex offender from the registration requirements when
rehabilitation under a dispositional order is achieved prior
Sex offender registry requirements. Generally, when
a juvenile is required to register as a sex offender, the
registration begins on the date the juvenile delinquent is
released from placement in a juvenile facility; the date the
juvenile delinquent begins attending a public or private
education institution as a student; or the date of conviction
if probation, incarceration, or placement in a juvenile
facility was not ordered as a disposition. See Iowa
Code § 692A.103(1). Once registration occurs, numerous
restrictions and requirements are imposed. Thus, we turn to
consider the impact of the registration requirements on T.H.
was fourteen years old at the time of his offense. In its
delinquency adjudication, the juvenile court specifically
found that T.H. committed the offense with force, as he used
his hand to shove I.N.'s head toward his penis.
Therefore, the juvenile court indeed lacked discretion to
waive or defer his requirement to register as a sex offender,
and it may not subsequently act to modify or terminate his
registration requirement during the period of his
dispositional order. For at least the duration of his
dispositional order, T.H. must abide by the following terms
of the sex offender registry.
must appear in person to register with the sheriff of each
county where he resides, works, or attends school.
Id. § 692A.104(1). If T.H. changes his
residence, employment, or school he must notify the county
sheriff within five business days. Id. §
692A.104(2). If T.H. moves to, works in, or attends school in
a new jurisdiction, he must notify the sheriff in the county
of his principal residence of his presence in the new
jurisdiction. Id. § 692A.104(5). If T.H. plans
to leave the county for more than five days, he must notify
the sheriff of his intentions and provide the location and
period of time that he will be staying out of the county.
Id. § 692A.105. Every three months, T.H. must
appear in person to verify the location of his residence,
employment, and school. Id. §
692A.108(1)(c). He will also pay an annual
registration fee of twenty-five dollars. Id. §
T.H. committed an offense against a minor, he is subject to a
number of exclusion zones and employment restrictions. He may
not be present upon, nor loiter within 300 feet of, the
property of an elementary or secondary school, except for the
school he attends. Id. §
692A.113(1)(a)-(b). He similarly may not be
present upon, nor loiter within 300 feet of, the property of
a public library, absent prior written permission by the
library administrator. Id. §
692A.113(1)(f)-(g). T.H. also may not be
present upon, nor loiter within 300 feet of, the property of
a child care facility, absent prior written permission by the
facility. Id. §
692A.113(1)(d)-(e). T.H. may not loiter on
the premises of any facility for dependent adults, nor may he
be present at an event that provides services or programming
for dependent adults. Id. § 692A.115(1).
Finally, T.H. may not be present upon nor loiter within 300
any place intended primarily for the use of minors including
but not limited to a playground available to the public, a
children's play area available to the public, a
recreational or sport-related activity area when in use by a
minor, a swimming or wading pool available to the public when
in use by a minor, or a beach available to the public when in
use by a minor.
Id. § 692A.113(1)(h).
the duration of his registration, T.H. may not work or
volunteer for a "municipal, county, or state fair or
carnival when a minor is present on the premises."
Id. § 692A.113(3)(a). He also may not
work or volunteer at a "children's arcade, an
amusement center having coin or token operated devices for
entertainment, or facilities providing programs or services
intended primarily for minors, when a minor is present."
Id. § 692A.113(3)(b). T.H. similarly
may not work or volunteer at a "public or nonpublic
elementary or secondary school, child care facility, or
public library." Id. §
692A.113(3)(c). He is also prevented from working or
volunteering at "any place intended primarily for use by
minors including but not limited to a playground, a
children's play area, recreational or sport-related
activity area, a swimming or wading pool, or a beach."
Id. § 692A.113(3)(d). He may not work
or volunteer for any business that "operates a motor
vehicle primarily marketing, from or near the motor vehicle,
the sale and dispensing of ice cream or other food products
to minors." Id. § 692A.113(3)(e).
As well, T.H. may not be employed by a "facility
providing services for dependent adults or at events where
dependent adults participate in programming."
Id. § 692A.115(1).
T.H. is a minor, he is not subject to any residency
restrictions. Id. § 692A.114(3)(e).
However, if T.H. is still required to register after becoming
an adult, he will not be permitted to reside within 2000 feet
of a school or child care facility. Id. §
692A.114(2). As well, should the juvenile court see fit, T.H.
may be supervised by an electronic tracking and monitoring
system. Id. § 692A.124(3).
registration information will be publicized on the sex
offender registry website, which is searchable by "name,
county, city, zip code, and geographic radius."
Id. § 692A.121(1). The website will also
publish T.H.'s full name, photographs, date of birth,
home address, and physical description, including scars,
marks, or tattoos. Id. §
692A.121(2)(b)(1)(a)-(e). The website provides the
statutory citation and text of his offense, as well as
informs the public whether T.H. is subject to residence
restrictions, employment restrictions, and exclusion zones.
Id. § 692A.121(2)(b)(1)(f)-(h).
of the general public may also contact the county
sheriff's office and request additional information about
T.H. A member of the public that contacts the sheriff and
provides T.H.'s date of birth, which is publicized on the
sex offender registry website, may request a list of schools
T.H. has attended, the names and addresses of his current and
former employers, locations and dates of any temporary
lodging, and his vehicle information. Id. §
violates any of the above requirements, he commits an
aggravated misdemeanor. Id. § 692A.111(1). Any
subsequent violation is a class "D" felony.
Id. Additionally, if T.H. violates a registration
requirement, he must "register for an additional ten
years, commencing from the date [his] registration would have
expired." Id. § 692A.106(4). T.H.'s
registration term will be tolled until he resumes compliance
with the statutory requirements. Id. §
required to register for at least the duration of his
dispositional order. Id. §
232.54(1)(i). If the juvenile court determines that
T.H. should remain on the registry beyond the duration of his
dispositional order, T.H. will register for a minimum of ten
years from the date of his initial registration. Id.
§ 692A.106(1). However, T.H. may petition for
modification after five years if he satisfies a number of
conditions. Id. § 692A.128(2). T.H. must
complete all ordered sex offender treatment programs, submit
to a risk assessment and be deemed a low risk to reoffend,
not be incarcerated, and obtain a stipulation to the
modification from the director of the judicial district
department of correctional services. Id. However, if
T.H. is no longer under the juvenile court or department of
correctional services' supervision at the time he
requests modification, he need not produce the stipulation.
Id. 692A.128(6). Accordingly, if T.H. abides by all
of the registration requirements, completes all of the
ordered treatment programs, and progresses to the point that
he may be deemed a low risk to reoffend, he may be released
from the obligation to register as a sex offender after five
Cruel and Unusual Punishment.
T.H. alleges that mandatory sex offender registration, as
applied to juveniles, is grossly disproportionate and,
therefore, constitutes cruel and unusual punishment in
violation of the Iowa and United States Constitutions.
See U.S. Const. amend. VIII; Iowa Const. art. I,
§ 17. While we have previously heard similar challenges
to the Iowa Sex Offender Registry scheme, we have not
considered the issue in the context of juveniles, nor have we
meaningfully considered a cruel and unusual punishment
challenge in light of the significant legislative overhaul of
the statutory scheme in 2009. Thus, while our prior sex
offender cases are relevant considerations, they are not
Sex offender registry as punishment. Before we can
assess whether mandatory sex offender registration for
certain juveniles is cruel and unusual, we must first
determine that registration is, in fact, punishment. See
State v. Crooks, 911 N.W.2d 153, 165 (Iowa 2018)
(disposing of a constitutional challenge to Iowa's waiver
provision for youthful offenders by concluding the statute
was not punitive); see also Doe v. Miller, 405 F.3d
700, 723 n.6 (8th Cir. 2005) ("In view of our conclusion
that the statute is not punitive, it follows that the law is
not a 'cruel and unusual punishment' in violation of
the Eighth Amendment."); Rainer v. State, 690
S.E.2d 827, 828 (Ga. 2010) (finding sex offender registration
did not constitute cruel and unusual punishment because
registration is regulatory, rather than punitive, in nature).
determine whether mandatory sex offender registration for
certain juveniles is punishment, we find cases considering
the issue in the context of ex post facto challenges
instructive. In State v. Seering, we considered
whether the 2000-foot residency restriction for certain
offenders was sufficiently punitive to violate the ex post
facto prohibition. 701 N.W.2d 655, 667 (Iowa 2005). To
ascertain whether the provision was sufficiently punitive, we
first considered whether the legislature intended the statute
to be punitive, rather than civil, in nature. Id.
"If the law was intended to be civil and nonpunitive,
then we look to see if it is nevertheless 'so punitive
either in purpose or effect as to negate' the nonpunitive
intent." Id. (quoting Smith v. Doe,
538 U.S. 84, 92, 123 S.Ct. 1140, 1147 (2003)).
we first consider whether, in mandating registration for
juveniles over the age of fourteen who commit their crimes
"by force or the threat of serious violence, by
rendering the victim unconscious, or by involuntary drugging
of the victim, " the legislature intended to impose
criminal punishment. Iowa Code § 692A.103(4). We have
previously determined the legislative intent behind enacting
chapter 692A was "to protect the health and safety of
individuals, especially children, not to impose
punishment." Seering, 701 N.W.2d at 667;
see also In re S.M.M., 558 N.W.2d 405, 408 (Iowa
1997) ("The purpose of chapter 692A is clear: to require
registration of sex offenders and thereby protect society
from those who because of probation, parole, or other release
are given access to members of the public.").
to 2009, the statute granted juvenile courts discretion with
respect to all juveniles adjudicated delinquent of a
qualifying offense. See Iowa Code § 692A.2(6)
(2007) ("A person who is convicted . . . of [a
qualifying offense] as a result of adjudication of
delinquency in juvenile court shall be required to register
as required in this chapter unless the juvenile court finds
that the person should not be required to register under this
chapter."). In 2009, the legislature amended chapter
692A and revoked that discretion with respect to juveniles
like T.H., who were at least fourteen years old at the time
of their offense and who committed their offense through
certain aggravated means. 2009 Iowa Acts ch. 119, § 3
(codified at Iowa Code § 692A.103 (Supp. 2009)).
legislature amended the chapter in an effort to more closely
comply with the Federal Sex Offender Registration and
Notification Act (SORNA), Title I of the Adam Walsh Child
Protection and Safety Act of 2006. Maxwell v. Iowa
Dep't of Pub. Safety, 903 N.W.2d 179, 185 n.4 (Iowa
2017); see generally 2009 Iowa Acts ch. 119
(amending Iowa Code ch. 692A). SORNA requires juveniles to
abide by the registry requirements, including possible
lifetime registration, if the juvenile was "14 years of
age or older at the time of the offense and the offense
adjudicated was comparable to or more severe than aggravated
sexual abuse." 34 U.S.C. § 20911(8) (Westlaw
through Pub. L. No. 115-173). But see id. §
20927(b)(1) (providing a state may avoid a noncompliance
penalty if implementing certain SORNA provisions "would
place the jurisdiction in violation of its constitution, as
determined by a ruling of the jurisdiction's highest
court"). SORNA was promulgated "[i]n order to
protect the public from sex offenders and offenders against
children." Id. § 20901. Thus, although the
provisions have been amended since our decisions in
Seering and S.M.M., we believe the
legislative intent behind our current sex offender statute
remains protective and nonpunitive.
we also consider whether the effects and impact of chapter
692A on juveniles is sufficiently punitive to render the
scheme penal in nature. In this inquiry, we are guided by the
Mendoza-Martinez factors, which consider
whether (1) "the sanction involves an affirmative
disability or restraint, " (2) "it has historically
been regarded as a punishment, " (3) "it comes into
play only on a finding of scienter, " (4) "its
operation will promote the traditional aims of
punishment-retribution and deterrence, " (5) "the
behavior to which it applies is already a crime, " (6)
"an alternative purpose to which it may rationally be
connected is assignable for it, " and (7) "it
appears excessive in relation to the alternative purpose
assigned." Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168-69, 83 S.Ct. 554, 567-68 (1963).
Affirmative disability or restraint. Chapter 692A,
as applied to juveniles, plainly imposes an affirmative
disability or restraint. As discussed, juvenile registrants
are hindered in meaningfully reintegrating into their
communities upon release from treatment facilities or
out-of-home placements. While juvenile registrants may
continue to attend public school and are not subject to the
2000-foot limitation, they nevertheless may not be present
upon, nor loiter within 300 feet of, "any place intended
primarily for the use of minors." Iowa Code §
restriction could prevent juveniles from participating in
prosocial after-school activities, sports teams, and youth
clubs that are available to their peers, which in turn
severely limits their opportunities to develop communication
and social skills with children their own age. Further,
juveniles may not visit or loiter near public libraries,
other elementary or secondary schools, and child care
facilities. Id. §
692A.113(1)(a)-(g). Juveniles who hope to
obtain after-school or part-time employment are similarly
limited in their options. See id. §§
692A.113(3)(a)-(e), .115. Thus, the statute
in many respects isolates juvenile registrants from their
peers outside of school hours.
actual exclusion zones, juvenile registrants must appear, in
person, to register with the sheriff of the county in which
they reside, attend school, or work. Id. §
692A.104(1). Juveniles like T.H. who were adjudicated of a
tier III offense must appear in person every three
months to verify their residence, employment, and
school. Id. § 692A.108(1)(c); cf.
Smith, 538 U.S. at 101-02, 123 S.Ct. at 1151-52 (finding
Alaska's sex offender statute did not require in-person
updates and, therefore, did not impose an affirmative
restraint). In fact, the statutory scheme, which requires
in-person check-ins, employment conditions, and the
possibility of electronic monitoring, is strikingly similar
to supervised probation. Despite the protective purpose of
the registry's requirements, the totality of the
obligations under the statute impose an affirmative restraint
on juvenile registrants. This factor therefore weighs in
favor of finding the statute punitive.
Historically regarded as punishment. We next
consider whether compliance with the sex offender registry,
for juveniles, entails conduct that is historically regarded
as punitive. In Seering, we considered whether the
2000-foot rule was sufficiently akin to banishment. 701
N.W.2d at 667. We found the rule "only restricts sex
offenders from residing in a particular area. Offenders are
not banished from communities and are free to engage in most
community activities. The statute is far removed from the
traditional concept of banishment." Id. at
Smith, the Supreme Court considered an ex post facto
challenge to Alaska's sex offender scheme. The Court
rejected the comparison of Alaska's statutory
requirements to banishment and public shaming.
Smith, 538 U.S. at 98, 123 S.Ct. at 1150. The Court
noted that colonial-era practices that required offenders to
"stand in public with signs cataloguing their offense,
" branded murders with an "M" or thieves with
a "T, " and outright banished offenders from their
original community, all involved "stag[ing] direct
confrontation between the offender and the public."
Id. at 97-98, 123 S.Ct. at 1150 (quoting Adam J.
Hirsch, From Pillory to Penitentiary: The Rise of
Criminal Incarceration in Early Massachusetts, 80 Mich.
L. Rev. 1179, 1226 (1982) (first quote)). Indeed, punishments
"such as public shaming, humiliation, and banishment,
involved more than the dissemination of information. They
either held the person up before his fellow citizens for
face-to-face shaming or expelled him from the
community." Id. The stigma resulting from
Alaska's sex offender laws, however,
results not from public display for ridicule and shaming but
from the dissemination of accurate information about a
criminal record, most of which is already public. Our system
does not treat dissemination of truthful information in
furtherance of a legitimate governmental objective as
punishment. On the contrary, our criminal law tradition
insists on public indictment, public trial, and public
imposition of sentence. Transparency is essential to
maintaining public respect for the criminal justice system,
ensuring its integrity, and protecting the rights of the
accused. The publicity may cause adverse consequences for the
convicted defendant, running from mild personal embarrassment
to social ostracism. In contrast to the colonial shaming
punishments, however, the State does not make the publicity
and the resulting stigma an integral part of the objective of
the regulatory scheme.
Id. at 98-99, 123 S.Ct. at 1150.
the dissemination of accurate information about a criminal
record is not historically punitive for adults, juveniles are
traditionally shielded from such publication. Under the
juvenile court's jurisdiction, juveniles surrender
certain procedural safeguards afforded to adults- namely a
trial by jury-in exchange for the benefits of a confidential,
rehabilitative system. Juvenile courts were built on the
"idea [that] crime and punishment [were] to be
abandoned. The child was to be 'treated' and
'rehabilitated' and the procedures, from apprehension
through institutionalization, were to be 'clinical'
rather than ...