The District of Columbia Sex Offender Registration Act of 1999 (“SORA”), D.C.Code §§ 22-4001 through 22-4017 (2001), imposes registration requirements on sex offenders who live, work, or attend school in the District of Columbia and authorizes the Metropolitan Police Department to inform the community about them through various means of public notification, including posting their photographs, names, and other personal information on the Internet. In the past decade every state in the United States has enacted such a sex offender registration and notification law, though the terms of the statutes vary from jurisdiction to jurisdiction. Appellants, eight individuals who have been directed to register in the District of Columbia as required by SORA, ask us to declare the legislation unconstitutional. Appellants contend that SORA inflicts punishment and therefore violates the Ex Post Facto, Double Jeopardy, and Due Process Clauses of the Constitution in its application to persons who, like themselves, committed sex offenses before its enactment or were acquitted of sex offenses by reason of insanity. Appellants further contend that even if it is not viewed as a penal enactment, SORA deprives them of procedural and substantive due process by denying them individualized hearings on whether they are presently dangerous and by infringing on their fundamental rights and liberty interests. Appellant W.B. adds the claim, specific to him alone, that the Superior Court denied him procedural due process by assigning the burden of persuasion to him instead of to the government when he sought judicial review of an administrative determination that he is subject to a lifetime registration requirement rather than a ten-year registration requirement.
During the pendency of appellants’ appeals to this court, the United States Supreme Court granted two certiorari petitions to consider similar constitutional challenges to the sex offender registration and notification acts of Alaska and Connecticut. Each of those acts is comparable to our SORA. We stayed appellants’ cases following oral argument to await the outcomes in the Supreme Court. In Smith v. Doe,
We conclude that the Supreme Court has settled most, though not all, of the issues presented in the instant appeals. In line with the reasoning in the Supreme Court’s decision on the Alaska act, we hold that the District’s SORA is not punitive. Hence the application of SORA to persons who committed sex offenses before it was enacted or who were acquitted of sex offenses by reason of insanity does not, for either of those reasons, offend the Ex Post Facto, Double Jeopardy or Due Process Clauses. In accordance with the Supreme Court’s decision on the Connecticut act, we further hold that SORA does not deny procedural due process by requiring all persons who have committed sex offenses to register without affording them a hearing on their current dangerousness.
Although the Supreme Court did not decide whether the Alaska and Connecticut laws denied substantive due process, as no such claim was raised in either case, we also reject appellants’ challenge to the District of Columbia SORA on that ground. We conclude that SORA does not infringe any fundamental rights or liberty interests of appellants and therefore is constitutional so long as it is rationally related to a legitimate governmental goal — a test the law meets easily.
Finally, we grant appellant W.B.’s individual claim in part. Specifically, we hold that due process requires the government to shoulder the burden of persuasion on the factual issue that determined whether W.B. would have to register for life or for ten years. We further hold that the standard of proof that the government must meet as to that issue is the usual “preponderance of the evidence” standard, not a higher, “clear and convincing evidence” standard that W.B. proposes.
I.
A. The District of Columbia Sex Offender Registration Act of 1999
In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. § 14071, to address the problem of recidivism by sex offenders. As subsequently amended, the Act required each state and the District of Columbia, as a condition of receiving certain federal funds, to establish a program of sex offender registration and community notification. In response to the Wetter-ling Act, the Council of the District of Columbia enacted the SORA of 1999.
Registration
SORA imposes registration requirements on sex offenders based on the nature of the offenses they committed rather than on an individualized assessment of their risk of recidivism. Thus, SORA requires persons who have committed serious sex offenses
Upon registering, a sex offender is required to provide CSOSA with a photograph, fingerprints and other identifying information, including his or her “name, all aliases used, date of birth, sex, race, height, weight, eye color, identifying marks and characteristics, driver’s license number, social security number, law enforcement agency identification numbers, home address or expected place of residence, and any current or expected place of employment or school attendance.” D.C.Code § 22-f007(a)(2); see also § 22-4014. In addition, CSOSA is directed to obtain criminal history data and detailed information concerning the sex offense that the registrant committed. The period for which the offender must remain registered with CSOSA depends on the nature of that offense. Offenders who have committed the most serious offenses must register for life; all others must register for ten years or until the end of any period of probation, parole, supervised or conditional release, or convalescent leave, whichever is later. See D.C.Code §§ 22-4001(6), -4002. During the applicable registration period, a sex offender must report any changes of address or other registration information. See D.C.Code § 22-4009(a). Registrants also are required to verify their addresses and other information annually, or in the case of lifetime registrants, quarterly. See D.C.Code § 22-f008(a)(l); 6A DCMR § 409.1.
SORA authorizes CSOSA to adopt procedures to implement the statutory registration requirements. See D.C.Code § 22-4007(a). Among other things, CSOSA is authorized “to direct that a sex offender meet with a responsible officer or official at a reasonable time for the purpose of complying with any requirement adopted by the Agency under this chapter.” D.C.Code § 22-4007(b). A sex offender
CSOSA gathers the information that it collects from sex offenders in a central registry. See D.C.Code § 22-4010(a). SORA directs CSOSA to share this information with the Federal Bureau of Investigation, the National Sex Offender Registry, the Metropolitan Police Department, and other law enforcement and governmental agencies. See D.C.Code § 22-4010(b). Except for records made public in accordance with the notification provisions described below, “no sex offender registration information shall be available as a public record” under the District of Columbia Freedom of Information Act. D.C.Code § 22-4017.
Notification
SORA’s provisions for the public dissemination of registrant information are also offense-based. For notification purposes, SORA divides sex offenders into three classes depending on the nature of their registration offenses. Offenders who are required to register for life are in Class A. Ten-year registrants who have committed offenses against minors or sexual abuse of wards, patients, or clients are in Class B. Other ten-year registrants are in Class C. See D.C.Code § 22-4011(b)(2)(A), (B), (C).
SORA authorizes the Metropolitan Police Department (“MPD”) to provide both “active notification” and “passive notification” to the public of information concerning registered sex offenders. The statute defines “active notification” to mean “affirmatively informing persons or entities about sex offenders” by any authorized means, including “community meetings, flyers, telephone calls, door-to-door contacts, electronic notification, direct mailings, and media releases.” D.C.Code § 22-4011(b)(l)(A). The MPD may provide active notification about Class A offenders “to any person or entity.” D.C.Code § 22-4011(b)(3). The MPD also may provide active notification about Class B and Class C offenders to specified groups with particular needs for the information, such as schools and other organizations that serve vulnerable populations, victims and their families, and law enforcement agencies.
“Passive notification” means “making information about sex offenders available for
SORA does not specify what particular information collected from or on registrants may be disseminated to the public by means of active or passive notification. In practice, not everything is published. An MPD regulation provides that the following personal descriptive information may be disclosed publicly for all three classes of registrants: the offender’s name and any aliases, date of birth, sex and race, height and weight, eye and hair color, any identifying marks or characteristics, and a photograph of the offender. Other identifying data furnished by registrants, such as their fingerprints, driver’s license and social security numbers, are kept confidential and not disclosed to the public. Where the offender resides, works or attends school may be identified “by block only” (i.e., precise addresses are not to be published). The police also may disclose offense information,
The record before us does not include information about any specific active notification activities of the MPD but does reveal how the MPD fulfills its passive notification responsibilities. The MPD maintains complete lists of registrants in all three classes with photographs and other information in registry books available for public inspection at all police stations in the city. The MPD also maintains an Internet website at which visitors may inspect the registry of Class A and Class B offenders. See DISTRICT OF COLUMBIA SEX OFFENDER REGISTRY available at http://www. mpdc.dc.gov/ serv/sor/sor.shtm (last visited Mar. 26, 2004). The introduction to the registry on the website includes the following statement:
This information is not intended to create alarm or panic. Our intent is to inform our citizens and to enhance community safety and awareness. The Metropolitan Police Department has not considered or assessed the specific risk of reoffense for any individual registrant included in the registry. In addition, it has made no determination that any offender included in the registry is currently dangerous. Offenders are included in the registry solely by virtue of their conviction record.
Unlawful use of this information to threaten, intimidate, harass, or injure a registered sex offender will not be toler*439 ated and will be prosecuted to the full extent of the law.
http://www. mpdc.dc.gov/serv/ sor/imprem-inder.shtm (last visited Mar. 26, 2004). The warning against unlawful use of registry information is repeated at various places throughout the website. The “Frequently Asked Questions” section of the site explains that the registry information is provided “not to punish or stigmatize sex offenders, but rather to provide factual information that will allow adults in this community to make more informed decisions about whom they associate with or entrust their children to.” http:// www.mpdc.dc.gov/serv/sor /faqs.shtm (last visited Mar. 26, 2004). There are also more ominous-sounding statements. “Remember,” it is emphasized, “the purpose of community notification is to reduce the chance of future victimization of persons by this offender. Knowledge of the sex offender should assist you and your family in avoiding the sex offender and becoming a victim.” Id.
B.The Appellants and the Course of Proceedings
Appellants are eight persons who committed sex offenses before the enactment of SORA and who have been designated as Class A offenders subject to SORA’s lifetime registration regimen. Appellant K.M. was convicted of rape in South Carolina in 1969. He was paroled in 1984 after serving fifteen years in prison. K.M. successfully completed parole and has no subsequent convictions. Six of the appellants — W.M., S.M., D.T., M.D., R.H., and C.P. — were found not guilty by reason of insanity of either rape or assault with intent to commit rape (plus other offenses, including murder in D.T.’s case) in the District of Columbia between 1975 and 1986. They all are on conditional release from St. Elizabeth’s Hospital. Appellant W.B. was found not guilty by reason of insanity of sodomy in 1973. He too enjoys conditional release privileges from St. Elizabeth’s Hospital.
In the Superior Court, appellants challenged CSOSA’s determination that they were required to register as sex offenders, arguing inter alia that SORA violates the Ex Post Facto, Double Jeopardy, and Due Process Clauses of the Constitution. Appellant W.B. also challenged his designation as a Class A rather than a Class B offender, disputing CSOSA’s factual determination, on which his classification depended, that his sodomy offense involved his use of force. The Superior Court rejected appellants’ challenges and ordered them to comply with SORA. Each appellant filed a timely notice of appeal to this court.
We eventually consolidated the eight appeals. We also granted a partial stay pending appeal to appellants K.M. and D.T., prohibiting the MPD and CSOSA
II.
A. Does SORA Inflict Punishment on Appellants in Violation of the Ex Post Facto, Double Jeopardy and Due Process Clauses?
Retroactive application of a law that inflicts greater punishment than did the law that was in effect when the crime was committed is forbidden by the Ex Post Facto Clauses of the Constitution.
In answering the question of whether SORA imposes punishment, we are guided by the Supreme Court’s resolution of the identical question about the Alaska Sex Offender Registration Act in Smith v. Doe, supra. The registration and notification provisions of the Alaska Act are similar to those of SORA. All sex offenders who are physically present in Alaska must register for either fifteen years or for life. The requirement is retroactive and applicable without regard to the current dangerousness of the particular offender. A sex offender who knowingly fails to comply with the Act is subject to criminal prosecution. The offender must submit to being photographed and fingerprinted, provide virtually the same information as the District of Columbia requires, verify the information either annually or quarterly, and notify the police if he or she moves. The information that the offender furnishes is maintained by the Alaska Department of Public Safety in a central registry of sex offenders, and the Department makes much of that information available to the public on the Internet.
“The framework for our inquiry,” the Court said, “is well established”; it focuses on the legislature’s intentions and the statute’s effects:
We must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks,521 U.S. 346 , 361,117 S.Ct. 2072 ,138 L.Ed.2d 501 (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State’s] intention to deem it ‘civil.’ ” Ibid, (quoting United States v. Ward,448 U.S. 242 , 248-249,100 S.Ct. 2636 ,65 L.Ed.2d 742 (1980)). Because we “ordi*441 narily defer to the legislature’s stated intent,” Hendricks, supra, at 361,117 S.Ct. 2072 “ ‘only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,” Hudson v. United States,522 U.S. 93 , 100,118 S.Ct. 488 ,139 L.Ed.2d 450 (1997) (quoting Ward, supra, at 249,100 S.Ct. 2636 ); see also Hendricks, supra, at 361,117 S.Ct. 2072 ; United States v. Ursery,518 U.S. 267 , 290,116 S.Ct. 2135 ,135 L.Ed.2d 549 (1996); United States v. One Assortment of 89 Firearms,465 U.S. 354 , 365,104 S.Ct. 1099 ,79 L.Ed.2d 361 (1984).
Id. at 92,
Since the question before us “is first of all a question of statutory construction,” id. (quoting Hendricks,
The Judiciary Committee Report states that SORA’s registration and notification scheme is designed to “promote public safety in at least three ways: by facilitating effective law enforcement; by enabling members of the public to take direct measures of a lawful nature for the protection of themselves and their families; and by reducing registered offenders’ exposure to temptation to commit more offenses.”
We are obliged to consider next whether SORA’s statutory scheme is “so punitive either in purpose or effect as to negate [the Council’s] intention to deem it ‘civil.’ ” Smith,
Appellants also cite the procedural integration of SORA with the sentencing of sex offenders in Superior Court. When a defendant is found to have committed a registration offense, the Superior Court is required to enter an order “certifying” that the defendant is a sex offender subject to the requirements of SORA and to advise the offender of his SORA duties. D.C.Code § 22-4003(a). As we have already mentioned, SORA further provides that compliance with its requirements “shall be a mandatory condition of probation, parole, supervised release, and conditional release of any sex offender.” D.C.Code § 22-4015. And under SORA a sex offender’s registration period is to ex
In our view, these features of SORA, which are similar to features of the Alaska law considered in Smith, do not signify that SORA is punitive rather than regulatory in nature. By virtue of their convictions in Superior Court, sex offenders become subject to SORA’s requirements, so it makes sense to coordinate the implementation of SORA with the criminal process. The Supreme Court explained in Smith why such coordination does not mean that SORA itself is part of the punishment:
The policy to alert convicted offenders to the civil consequences of their criminal conduct does not render the consequences themselves punitive. When a State sets up a regulatory scheme, it is logical to provide those persons subject to it with clear and unambiguous notice of the requirements and the penalties for noncompliance.... Invoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive.
We conclude that the intent of the Council, like that of the Alaska Legislature, “was to create a civil, nonpunitive regime.” Id. at 96,
The “most relevant” factors, the Supreme Court stated, “are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposés an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.” Id. at 97,
Lastly, the Supreme Court rejected the contention that the requirements of a law like SORA are excessive in relation to its valid purpose, either (1) because the requirements apply to all sex offenders “without regard to their future dangerousness” or (2) because the law “places no limits on the number of persons who have access to the information” disseminated to the public about offenders who are obligated to register. Id. at 103,
The Supreme Court’s rationale in Smith applies with undiminished force to the law at issue in this case. We hold that the District of Columbia Sex Offender Registration Act of 1999 is not punitive and does not inflict punishment on appellants in violation of the Ex Post Facto, Double Jeopardy, or Due Process Clauses of the Constitution.
B. Does SORA Deprive Appellants of Procedural Due Process?
Appellants’ second contention is that SORA deprives them of procedural due process by infringing on Constitutionally or statutorily protected liberty interests — broadly speaking, their interests in being free from registration requirements, intrusions on their privacy, and public stigmatization — without first affording them a hearing on whether they are, in fact, dangerous. The Supreme Court disposed of the identical contention in Connecticut Department of Public Safety, supra.
Like SORA, Connecticut’s sex offender registration act requires all persons in the state who have committed designated sex offenses to register with the Department of Public Safety for ten years or life and requires the Department to publicize the information obtained from registrants on an Internet website and elsewhere. Much like the District of Columbia’s website, the State of Connecticut’s website explains that offenders are listed “solely by virtue of their conviction record and state law” and adds that the Department of Public Safety “has made no 'determination that any individual included in the registry is currently dangerous.” See Doe v. Dep’t of Public Safety ex rel. Lee,
The Supreme Court reversed. It held that due process does not require a state to provide a hearing on a fact, current dangerousness, “that is not material to the State’s statutory scheme.” Conn. Dep’t of Public Safety,
The District of Columbia too has decided to apply its registration and notification provisions to all sex offenders, whether or not they are currently dangerous. As in Connecticut, such dangerousness is a fact “of no consequence.” Id. at 7,
We have already held that the District’s decision does not violate the Ex Post Facto Clause, the Double Jeopardy Clause, or any substantive prohibition on the imposition of punishment to be found in the Due Process Clause. Appellants contend, however, that SORA violates principles of substantive due process in other ways. We turn now to examine that remaining issue, which is one the Supreme Court has not resolved. See Conn. Dep’t of Public Safety,
C. Does SORA Deny Substantive Due Process by Significantly Infringing Appellants’ Fundamental Rights or Liberty Interests?
The Constitutional guarantee of due process of law has “a substantive component, which forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores,
The substantive due process challenge to an “offense-based” sex offender registration statute that appellants advance with such rhetorical force rarely has been attempted, and — to our knowledge — it never has met with success. Most recently, for example, the Ninth Circuit rejected a substantive due process attack on Alaska’s law (on remand from the Supreme Court after Smith) in Doe v. Tandeske,
Normally, “[s]tate legislation which has some effect on individual liberty or privacy may not be held unconstitutional simply because a court finds it unnecessary, in whole or in part.” Whalen v. Roe,
[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” [citing Moore v. East Cleveland,431 U.S. 494 , 503,97 S.Ct. 1932 ,52 L.Ed.2d 531 (1977) (plurality opinion)]; Snyder v. Massachusetts,291 U.S. 97 , 105,54 S.Ct. 330 ,78 L.Ed. 674 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” Palko v. Connecticut,302 U.S. 319 , 325, 326,58 S.Ct. 149 ,82 L.Ed. 288 (1937).
Glucksberg,
The Supreme Court has found comparatively few rights and liberties to be “fundamental” for due process purposes. “[I]n addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the rights to marry; to have children; to direct the education and upbringing of one’s children; to marital privacy; to use contraception; to bodily integrity, and to abortion _ We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.” Id. at 720,
By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” [citing Collins, supra], lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court....
The interests in personal freedom and privacy that appellants assert are not among those that the Supreme Court has heretofore declared to be “fundamental” or, as the Court said in Lawrence, “central” to the liberty protected by the Fourteenth Amendment.
To begin with, we cannot conclude that appellants’ interest in being free of SORA’s registration obligations is fundamental in a constitutional sense. While the requirements of registration, verification and updating do impose a burden and may be irksome, they do not infringe significantly on appellants’ basic liberties. Registrants are not prevented, for example, from .changing their physical appearance, or from residing, working, attending school, or traveling wherever, whenever and with whomever they wish. They remain able to go about their daily lives and exercise their rights unimpeded. Registration is intended, to be sure, to facilitate the government’s ability to check on sex offenders, but not to a degree that is disruptive of their individual liberty. Nor do the . registration requirements of SORA represent as radical a departure from American norms as appellants suggest. Criminal registration laws are not a recent innovation. See Lambert v. California,
The collection and subsequent public disclosure of information from registrants that SORA authorizes is an intrusion on
Since SORA does not threaten rights and liberty interests of a “fundamental” order, appellants cannot succeed on their substantive due process challenge. As has already been discussed, SORA easily passes rational basis review. Appellants do not contend otherwise. Our rejection of appellants’ substantive due process claim therefore disposes as well of their procedural due process challenge to SORA.
The statute thus survives all of appellants’ constitutional challenges. We turn to the remaining issue, raised by appellant W.B., which concerns the burden of persuasion and the standard of proof in proceedings in Superior Court to review CSO-SA’s factual determinations.
A. WJB.’s Challenge to His Classification by CSOSA
In 1969, W.B. was convicted of sodomy with a thirteen-year-old boy in violation of former D.C.Code § 22-3502(a). After his conviction was reversed on appeal in United States v. Bennett, 148 U.S.App. D.C. 364,
Sodomy on a minor is a registration offense under SORA, and if it involved the use of force, it is a lifetime registration offense. See D.C.Code § 22-4001(6)(A), (8)(B). . In 2001, CSOSA determined that W.B.’s thirty-three-year-old sodomy offense was forcible and that he therefore was a Class A offender who would have to register for life (rather than a Class B offender who would have to register for ten years). See D.C.Code § 22-4011(b)(2)(A). Although WJB.’s 1973 judgment was silent as to whether he used force to commit his crime (force not being an element of the offense of sodomy as statutorily defined), and CSOSA had been unable to obtain a description of the offense conduct because of the age of the case, CSOSA based its finding on a statement in the D.C. Circuit’s opinion in Bennett, supra.
Pursuant to D.C.Code § 22-4004, W.B. sought judicial review of CSOSA’s classification determination in Superior Court. In support of his motion, W.B'. submitted an affidavit in which he averred that his sodomy offense did not involve force. The offense occurred, according to the affidavit, after he had been drinking and had become “intoxicated.” W.B. requested a hearing at which CSOSA would have the burden of proving that he used force. Opposing that request, the government proffered a 1968 police report that purported to recount the victim’s claim that W.B. had grabbed him by his arm (i.e., employed force) when he initially refused W.B.’s advances. The government also submitted the D.C. Circuit’s opinion in Bennett on which CSOSA had relied.
The Superior Court denied W.B.’s motion without a hearing. Allocating the burden of persuasion by a preponderance of the evidence to W.B. rather than to CSOSA, the judge ruled that no hearing was necessary because W.B. “cannot meet that burden on the record before the court.”
B. Who Has the Burden of Persuasion and What is the Standard of Proof?
In pertinent part, D.C.Code § 22-4004(a)(l)(A)(ii) provides that a person may seek review in Superior Court of a determination by CSOSA that he is required to register, or to register for life, if the determination “depends on a finding or findings which are not apparent from” his conviction or insanity acquittal as to “[w]hether certain sexual acts or contacts were forcible.” The statute is silent, however, as to who bears the burden of persuasion in Superior Court on such a factual issue, and as to the standard of proof. W.B. contends that principles of procedural due process require the government to bear the burden of persuasion and to do so by clear and convincing evidence. The government disagrees on both counts. We hold that the burden of persuasion on the predicate factual issue of use of force belongs with the government. We conclude, though, that proof by a preponderance of the evidence is sufficient.
In deciding what procedures due process requires for a governmental deprivation of an individual’s life, liberty or property on the basis of disputed facts or issues, courts must consider three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requisites would entail.
Mathews v. Eldridge,
To begin with, the individual liberty interests at stake may not be fundamental ones for purposes of substantive due process, but they are significant. If nothing else, the registration duties that SORA imposes are a nontrivial restriction on the individual’s liberty, and there is a material difference between having to register for ten years and having to register for life. When the government seeks to restrict a citizen’s liberty on account of contested facts specific to that individual, it is normally and normatively the government that bears the burden of proving those predicate facts in a fair proceeding — not the individual’s duty to disprove them. That norm is intrinsic to SORA’s basic scheme, which permits no registration obligations at all to be imposed on an individual unless the government has already proved that the individual committed a registration offense in a judicial proceeding. See D.C.Code § 22-4001(3).
We see no reason to depart from the norm in the present situation, where the duration and extent of the obligations depends on the establishment of other facts in addition to the fact of adjudication. As W.B.’s case illustrates, placing the burden of persuasion on the registrant means that
The government argues, however, that a determination by CSOSA comes to the Superior Court with a presumption of regularity, such that the party attacking the determination should shoulder the burden of proving it in error. For example, in Parke v. Raley,
Thus, we hold that when a person disputes CSOSA’s finding that “certain sexual acts or contacts were forcible,” D.C.Code § 22-4004(a)(l)(A)(ii), due process requires the government to bear the burden of persuasion. Accord, E.B. v. Verniero,
The judge in appellant W.B.’s case erred in assigning him the burden of persuasion and ruling against him because he did not meet it. We therefore must remand WJB.’s case for the Superior Court to reconsider its decision under a proper allocation of the burden. An evidentiary hearing likely will be necessary, since the outcome may depend on W.B.’s credibility if the trial judge finds the government’s
IV.
In conclusion, having held that the District of Columbia Sex Offender Registration Act of 1999 does not violate the Ex Post Facto, Double Jeopardy, or Due Process Clauses of the Constitution, we affirm the orders of the Superior Court requiring appellants to register as sex offenders. In view of our holding as to the burden of persuasion in a review proceeding under D.C.Code § 22-4004(a)(l)(A), we remand appellant W.B.’s case for further proceedings in which the government will bear the burden of persuasion as to CSOSA’s detér-mination that he must register as a Class A offender rather than a Class B offender. We will vacate the partial stays that have been in effect for the pendency of these appeals.
So ordered.
Notes
. The 1999 SORA replaced 1996 legislation, D.C. Law 11-274, that was never implemented.
. Most sex offenses are within the coverage of SORA, but the Act does not apply, generally speaking, to offenses that are non-assaultive and that do not involve minors. See D.C.Code § 22-4001(6) & (8) (defining the terms "lifetime registration offense” and "registration offense,” respectively) and § 22-4016 (excluding offenses between consenting adults and certain other offenses).
. The provision for judicial review of a CSO-SA determination is discussed more fully in Part III, infra, where we address appellant W.B.’s challenge to his classification and the applicable burden of persuasion and standard of proof.
. Specifically, active notification concerning Class B and Class C offenders may be given to:
(A) Law enforcement agencies;
(B) Organizations that deal with or provide services to vulnerable populations or victims of sexual offenses, including but not limited to schools, day care centers, other child care and youth-serving organizations, facilities caring for or providing services to the elderly or persons with impairments, shelters, churches, and victims rights and victims services entities;
(C) Victims of and witnesses to a sex offender’s crime or crimes and parents, guardians, and family member[s] of such persons; and
(D) Any person where the Metropolitan Police Department has information indicating that the sex offender may pose a specific risk to that person, and parents, guardians, and family members of such a person.
D.C.Code § 22-4011(b)(3).
.- Specifically, the police may disclose the "[o]ffense(s) requiring registration, date(s) of conviction, jurisdiction(s) of conviction, and any other registration offense(s), including for all such offenses information concerning the age of the victim and whether the offense was committed against a stranger.” 6A DCMR § 420.l(i). Court case numbers also may be disclosed. 6A DCMR § 420.1 (j).
. The website includes a range of safety tips for children, including suggestions for what to tell them about a sex offender in the neighborhood — e.g., to "[k]eep the information general” and "[a]void scary details”; to stay away from the person and not to accept rides, visit or help the person look for a puppy or kitten; to "tell your parents if this person offers you toys, money, gifts, rides, or other stuff”; and to "call 911 immediately if this person approaches you and your parents are not home.” Id.
. Thus, in addition to the warnings against committing crimes against registrants, visitors to the website are told specifically that they cannot "chase the sex offender out of the community” and should not confront or harass sex offenders living in their neighborhoods. Id.
. U.S. Const., Art. I, § 9, cl. 3; Art. I, § 10, cl. 1.
. COUNCIL OF THE DISTRICT OF COLUMBIA, COMM. ON THE JUDICIARY, REPORT ON BILL 13-350, "THE SEX OFFENDER REGISTRATION ACT OF 1999,” at 3 (1999) [hereinafter, "Judiciary Committee Report”].
. It bears noting, too, that despite its name, even Title 22 contains regulatory statutes that are unquestionably nonpunitive. See, e.g., Chapter 39, pertaining to HIV testing of certain convicted offenders. See also Chapter 38, providing for the commitment of sexual psychopaths.
. Appellants also cite the fact that in the Sentencing Reform Amendment Act of 2000, D.C. Law 13-302, effective June 8, 2001, the Council authorized the Superior Court in its discretion to sentence criminal defendants convicted of registration offenses to longer terms of supervised release, up to the length of their SORA registration periods, than would be allowed otherwise. See D.C.Code § 24-403.01 (b)(4) (2001). This post-SORA legislation does not indicate that the Council viewed SORA itself as punitive; it merely reflects the Council’s consistent view that some sex offenders are so dangerous that they may require extended post-release supervision as part of their criminal sentences. Indeed, the authorization of lengthier supervised release terms for sex offenders manifests the Council's recognition that SORA’s registration scheme by itself falls well short of the degree of supervision that would be permissible as part of a criminal sentence.
. The Supreme Court has explained that for purposes of determining whether a nominally civil (or regulatory) statutory scheme is so punitive in its operation that it must be viewed as a criminal penalty, the seven factors listed in Mendoza-Martinez "provide useful guideposts.” Hudson, 522 U.S. at 99,
(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims*444 of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.
Id. at 99-100,
."The two remaining Mendoza-Martinez factors — whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime — are of little weight in this case. The regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern. The obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation.” Id. at 105,
. "Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” Id. at 99,
. "Although the public availability of the information may have a lasting and painful impact on the convicted sex offender, these consequences flow,” the Court stated, "not from the Act’s registration and dissemination provisions, but from the fact of conviction, already a matter of public record. The State makes the facts underlying the offenses and the resulting convictions accessible so members of the public can take precautions they deem necessary before dealing with the registrant.” Id. at 101,
. Appellants in the instant case make much of the fact that SORA allows CSOSA to compel registrants to appear in person for verifications and periodic updates, and that CSO-SA has exercised this discretionary authority. But occasional in-person meetings may be necessary to effectuate SORA’s goals — for in
. "The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.... 'Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application....’” Id. at 103-04,
. Nor, the Court held, is the duration of the statutory reporting requirements excessive. "Empirical research on child molesters, for instance, has shown that, ‘contrary to conventional wisdom, most reoffenses do not occur within the first several years after release,’ but may occur 'as late as 20 years following re
. Thus, while in theory information on the website is broadcast to the entire world, in actuality the information will be limited mainly to a small and self-selecting subset of the populace that has reason to seek the information.
We do not ignore SORA’s active notification provisions, but as with the provisions allowing CSOSA to require in-person interviews, see footnote 16, supra, we do not assume that they will be abused either.
. In support of this latter point, the Court cited a study reporting that recidivist sex offenses frequently are committed in jurisdictions other than those in which the previous offenses took place. Of course, it is not only registrants who may move from one jurisdiction to another; any member of the public may be thinking of relocating and therefore have a legitimate interest in checking another jurisdiction's sex offender registry website.
. The impingement .must be more than minimal. See, e.g., Zablocki v. Redhail,
. It should be borne in mind that we are addressing substantive due process standards for legislative enactments. The Supreme Court has said that the criteria are somewhat different when executive action is challenged as violative of substantive due process. "[I]n a [substantive] due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis,
. One treatise organizes the rights not enumerated in the Bill of Rights that the Supreme Court has found to be fundamental, and hence entitled to strict judicial scrutiny under substantive due process principles, into the following six categories: (1) freedom of association; (2) the right to vote and participate in the electoral process; (3) the right to interstate travel; (4) a right to fairness in the criminal process; (5) a right to fairness in procedures concerning individual claims against governmental deprivations of life, liberty, or property; and (6) "a fundamental right to privacy which includes various forms of freedom of choice in matters relating to the individual’s personal life,” including freedom of choice in marital decisions, child bearing and child rearing. 2 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW § 15.7 (3d ed.1999).
. Lawrence may be a harbinger of future refinements in substantive due process doctrine, though not such as would affect materially our analysis in this case. See generally Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L.Rev. 1894 (2004). Although the High Court did not state explicitly that the liberty interest at stake in Lawrence was "fundamental,” Justice Kennedy’s majority opinion attached profound importance to the liberty of all "adult persons in deciding how to conduct their private lives in matters pertaining to sex,”
. Appellants may have what the Supreme Court has called (in an entirely different context) a “nontrivial'' privacy interest in their home addresses. United States Dep’t of Defense v. Federal Labor Relations Auth.,
. Cf. Conn. Dep’t of Public Safety,
. SORA does not require CSOSA to hold an evidentiary hearing, and the agency did not do so in W.B.’s case before reaching its conclusion as to his classification.
. As to what constituted "the record before the court," the judge stated that she had "considered” the police report submitted by the government, the statement quoted in Bennett, W.B.’s admission in his affidavit that “he was intoxicated and [by implication] cannot recall many details of the offense,” and "the fact that petitioner was found to be not guilty by reason of insanity, thus undermining his version of events.”
. In a motion for reconsideration, W.B. argued inter alia that the judge erred in assigning the burden of proof to him rather than to CSOSA. Insisting that he remembered his offense "vividly,” W.B. also argued that the judge had misinterpreted his affidavit (which said only that he did not recall what he had been drinking when he "became intoxicated”) and that she should not have deemed him less credible on account of his acquittal by reason of insanity. The judge denied reconsideration without addressing these arguments.
. In every case there will have been a prior adjudication of a registration offense and a factual record will have been made. The adjudication is not subject to relitigation. SORA's "offense-based system of sex offender registration is designed to minimize litigation with respect to whether a person must register as a sex offender.” Judiciary Committee Report at 8-9. Only certain narrow factual issues (which usually will be determinable from the record of the prior adjudication if not from the face of the judgment) may remain, to be addressed in a proceeding under D.C.Code § 22-4004(a)(l)(A) — for example, the age of the victim, or whether force was used to commit the offense.
. We note that D.C.Code § 22-4004(a)(l)(B) allows a person who is required to register by CSOSA to seek judicial review if the person "asserts that the records establishing that he or she” committed a registration offense “are erroneous.” It may be appropriate to assign the burden of persuasion to the petitioner
. Nor is this a situation in which an agency’s factual determination deserves deference because special administrative expertise was needed.