Being on the sex offender registry isn’t punishment, according to the Supreme Court of the United States. Which is to say, we do not have to check off the box of criminal procedural rights before we put someone on it. We can even do it retroactively.
Which has led to some people asking: Why isn’t Donald Trump on the sex offender registry? The basis is simple enough.
On May 9, 2023, after a scant three hours of deliberation, a New York jury delivered its verdict: by a preponderance of the evidence, it found that Trump had “sexually” abused the columnist E. Jean Carroll by groping her in the dressing room of a department store. Carroll had buttressed her claims with accounts of people she had told at the time, as well as other women who said they had faced similar treatment. It certainly didn’t help that there was widely viewed video of the former president saying that he sometimes grabbed women “by the pussy”—a statement which, at the time it surfaced just before the 2016 election, helped confirm him as the president of choice for social conservatives.
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As Mark Herrmann noted recently in The Daily Beast, the judge in the Carroll case “later held that Trump’s conduct was, in the common vernacular, rape.”
Rep. Elise Stefanik (R-NY), who derided the case as yet another manifestation of Trump’s harrowing struggle against unfair Democratic public officials, then had something like a stroke when recently confronted with the fact that the nominal leader of her party was determined by a jury to be a sexual abuser. Rather than answer a direct question, the congresswoman sputtered out the party line about a witch hunt, like a doll with its string tugged.
But however satisfying such a registration might be for those who argue that Trump ought not be within a thousand feet of a school, it is not to be.
In New York, where the verdict was reached, only those who are incarcerated or on probation or parole may be placed on the sex offender registry. And if you’re hoping that a federal registration requirement kick in, no dice there as well—the offender must have been “convicted” of an offense.
There are a number of justifications for this. For instance, criminal convictions require proof beyond a reasonable doubt, while civil verdicts are reached only based on a preponderance of the evidence. And yet, the vast majority of cases in both systems are resolved by plea bargains or settlement, and studies show that juries often do not require much evidence at all to find something true beyond a reasonable doubt.
And it’s certainly not based on the egregiousness of the conduct. What E. Jean Carroll alleged, if proven in a New York criminal courtroom, would have likely led to a substantial sentence and sex offender registration. Rather, it seems like the reason we reserve sex offender registration for people the government prosecutes, rather than for those who are successfully sued for abuse, is because we fundamentally believe the decisions of prosecutors in such matters are more trustworthy.
If New York legislators felt so inclined, they could certainly expand registration to people who are found liable for sexual crimes. And, again, they could even impose registration retroactively on someone who had been found liable. So could virtually any state in the country that wanted to modify its sex offender statute.
This is where we can do little but shrug and lament, “It is what it is.” The former president might reasonably be described as a “rapist”—but in the eyes of the criminal justice system, he doesn’t meet the bar to be registered as a sex offender.
Say what you will about Donald Trump, but the man has been a one-man law school, teaching Americans in a scant eight years about little-known portions of the Constitution, from emoluments, to insurrection, to what constitutes a “natural born citizen.” Now, the sexual registration issue provides a valuable opportunity to talk about punishments and retroactive laws. He might not give me a great deal of confidence about the future of our country, but he has provided lawyers with endless chances to talk about our pet subjects.
Lucky us.
