Court reviewing Safety Dept. appeal

4-4-2010 New Hampshire:

CONCORD – The New Hampshire Department of Safety is appealing a ruling that it violated a Milford man’s rights by requiring him to register as a sex offender for life. The man is identified only as “John Doe” in court documents, and his case is scheduled to be argued before the state Supreme Court April 22.

No one disputes that the Department of Safety can require persons convicted of sexual assaults in other states to register as sex offenders when they move to New Hampshire.

John Doe argues that in his case, however, police told him he would have to register for only 10 years. When the 10 years was up, however, officials apparently scoured his case files and cited information beyond his conviction to require him to register for life, Doe and his lawyer, Marcia Thunberg of Concord, argue.

John Doe was convicted of “gross sexual assault, class C” in 1991 in York County, Maine, court records state. The charge alleged that he committed a sexual act with an adult woman who was “unconscious or otherwise physically incapable of resisting” and thus did not consent.

Doe paid $254 in restitution, completed a substance abuse program and a short term in prison, and moved back to New Hampshire in 1993, court records show. He remained on probation until 1994, and in 1993, his parole officer notified him that he was required to register as a sex offender for 10 years, court records show.

In 2003, however, Milford Police notified Doe that he would be required to register for life, based on a finding that his conviction was equivalent to a felonious sexual assault in New Hampshire, court records show.

In 2007, Doe’s lawyer asked the Department of Safety to review the decision. This time, the Department concluded that Doe’s conviction was tantamount to aggravated felonious sexual assault, and again required him to register for life. The decision was upheld in an administrative hearing, and Doe appealed to Merrimack County Superior Court, where a judge ruled in his favor.

Although the charges against Doe didn’t allege that he had penetrated the woman in any way, the Department of Safety concluded that Doe was in fact guilty of digitally penetrating the woman, based on information from police reports, including an interview with Doe.

Merrimack County Superior Court Judge Larry Smukler ruled against the Department last year, finding it was unfair to hold Doe accountable for something that he hadn’t been charged with or convicted of doing.

The Department of Safety overstepped its authority by reviewing case documents and reports beyond the court records, Smukler said, and based solely on the court records, Doe’s Maine conviction would only amount to a misdemeanor sexual assault charge in New Hampshire, Smukler said.

The Department of Safety appealed, arguing that officials correctly classified Doe’s conviction as a felony sexual assault even before reviewing any of the case records beyond his conviction itself, and that a direct comparison of the laws in both states show that Maine’s “gross sexual assault” is similar to a felony sexual assault in New Hampshire. ..Source.. ANDREW WOLFE