Did actions amount to 'sexual offense'? Michigan Supreme Court to hear challenge to sex offender registration in oral arguments today

A man who twice flicked a three-year-old boy's penis while babysitting is challenging a court order requiring him to register as a sex offender, in a case that the Michigan Supreme Court will hear in oral arguments next week. The defendant in People v Lee admitted touching the boy's genitals, but said he did so to get the child's attention when the boy would not put on his pajamas after his bath. The defendant pled guilty to third-degree child abuse; at sentencing, the trial judge rejected a prosecutor's request to have the defendant register under Michigan's Sex Offender Registration Act. But 20 months after the defendant served his sentence, another judge ruled that the defendant must register as a sex offender. The court applied a catch-all provision in SORA that requires registration for a violation of state law that "by its nature constitutes a sexual offense against an individual who is less than 18 years of age." The Michigan Court of Appeals upheld the lower court, reasoning that the defendant's actions did amount to a "sexual offense" because the state's child abuse statute defines "sexual contact" to include touching a child's genitals "to inflict humiliation" or "out of anger." The defendant had admitted flicking the boy's penis as a form of "bullying" and the trial judge had stated that the defendant's touching was "a rather abusive assault on a young man's self-dignity and self value," the Court of Appeals noted. Moreover, although the defendant had completed his jail term, he was still on probation and under the lower court's jurisdiction, so the judge did not violate legal procedure when he ordered the defendant to register under SORA, the appellate panel concluded. Also before the Supreme Court is People v Kowalski, in which the defendant made sexual comments in an internet chat room to a police detective posing as a 15-year-old girl. A jury convicted the defendant of accosting a minor for immoral purposes and using a computer to do so, but the Court of Appeals reversed the defendant's convictions and ordered a new trial. The trial court failed to instruct the jury that the defendant had to commit certain acts (the actus reus) in order to be convicted of the crime, the Court of Appeals said: "The trial court's instructions omitted any mention that the jury must find that defendant actually accosted, enticed, or solicited the victim to engage in the prohibited acts." The prosecutor appeals that ruling; the defendant has also appealed, arguing in part that his trial lawyer was ineffective and that the prosecutor did not present sufficient evidence to establish the defendant's guilt beyond a reasonable doubt. The Court will hear two other criminal cases, People v Novak and People v Bailey. Also before the Court is Krohn v Home-Owners Insurance Company, in which the Court will consider a claim under the state's no-fault law to recover the costs of experimental surgery. The Court will hear oral arguments in its courtroom on the sixth floor of the Michigan Hall of Justice on April 5, beginning at 9:30 a.m. The Court's oral arguments are open to the public. Published: Tue, Apr 5, 2011

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