In
State v. Bani,
With respect to the registration aspect of the statute, which mandates lifetime registration and monitoring of sex offenders,
Bani
concluded that “[t]here is nothing inherent in the act of registering that imposes on any of Bani’s protected liberty interests.”
Bani,
For the reasons discussed herein, we hold that the lifetime registration component of the Hawaii sex offender registration statute implicates a protected liberty interest under the Hawaii State Constitution, article I, section V and requires that minimum requirements of due process-—notice and the opportunity to be heard—be afforded to convicted sex offenders. Such a proceeding may be instituted by a sex offender in a special proceeding. We hold further, that Defendant-Appellant John R. Guidry (Guidry) is not entitled to relief on other grounds asserted by him.
We cannot agree, however, that a hearing prior to registration is mandated as contended by Guidry. In
Bani,
this court said that the act of registration, itself, does not impose on a defendant’s protected liberty interest.
Bani,
The record does not indicate that Guidry filed an action for such a hearing. In light of the foregoing, we affirm the court’s June 3, 1999 order denying Guidry’s motion to dismiss and its judgment of conviction and sentence under HRS § 846E-6 for Guidry’s failure to comply with registration requirements. .
I.
In 1992, Guidry was convicted of sexual assault in the second degree, a class B felony.
1
Guidry was required to register under
On March 24, 1999, Guidry was charged as follows: Count I, Failure to Register Change of Registration Information as a Sex Offender, HRS § 846E-6 (Supp.2001), and Counts IJ.--IV, Sexual Assault in the Fourth Degree, HRS § 707-733(l)(b) (Supp.2001). On April 27,1999, Guidry filed a Motion for Severance of Charges that was granted by the court. 2 Thus, the failure to register charge was severed and is reviewed separately in this appeal.
On May 3, 1999, Guidry filed a Motion to Dismiss Count I of the Indictment Based on the Unconstitutionality of HRS chapter 846E (motion to dismiss). On June 3, 1999, the court 3 filed its order denying the motion to dismiss (1999 Order).
In the 1999 Order, the court “ineorpo-rate[d] by reference the following passages” of the order “filed on December 15, 1998, in Cr. No. 98-0072, State of Hawai’i v. Russell Akina,” as follows:
Conclusions of Law
I. The Statute—HRS Chapter 846E “Sex Offender Registration and Notification”
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III. CLAIMS BASED ON DEFENDANT’S LIBERTY INTERESTS
Y-H. However, based on the record before it, the Court finds that the requirement of lifetime registration with no possible avenue for relief violates the procedural due process rights of the defendant ....
V-I. Defendant’s remedy, hoivevеr, is not dismissal of his case based on these grounds. The failure to report his change in address is as relevant to the registration portion of the statute as it is to the notification portion. Even if, in a later action, the notification provisions of the statute are enjoined until some remedial legislative action, defendant’s duty to report changes in residence would continue. The twin problems of lifetime reporting and Internet access must be addressed by an action for injunctive relief The 'prayer for relief is not before this Court.
V-J. The Defendant’s Motion to Dismiss for Violation of Defendant’s Procedural Due Process Rights, filed April 14, 1998, and Motion to Dismiss for Violation of Article I, Section 6 of Hawai'i Constitution and Violation of Fundamental Right to Privacy under the United States Constitution, filed April 14,1998 are denied.
(Emphases added.)
As such, although the court concluded that compelling lifetime registration with no possible avenue for relief violated procedural due process, the court decided that Guidry was not entitled to a dismissal of the charges. Instead, the court noted that Guidry could seek injunctive relief from the unconstitutional portions of the statute and denied the motion.
Accordingly,. Guidry’s case proceeded to trial. 4 The jury found Guidry guilty as charged, and the court sentenced Guidry to five years’ probation, as entered in the August 5,1999 notice of entry of the judgment. 5
II.
The subject of the instant appeal is limited to Guidry’s motion to dismiss, based on the unconstitutionality of HRS chapter 846E. On appeal, Guidry contends that HRS chapter 846E violates: (1) the procedural due process requirements of the United States and Ha-wai'i Constitutions;
6
(2) the prohibition
In response, Plaintiff-Appellee State of Hawaii (the prosecution) argues that HRS chapter 846E does not violate the due process clauses of the United States or the Hawaii Constitutions, because: (1) Guidry has not made a sufficient preliminary showing to sustain a procedural due process claim that he has a protected interest within the meaning of the due process clause; (2) the procedures at issue satisfy due process; (3) the private interests affected by the registration and notification arе based on speculation, and are derived from his conviction rather than the operation of HRS chapter 846E; (4) in “targeting only the most dangerous of sex offenders as subject to its registration and notification requirements,” HRS chapter 846E poses no significant risk of an erroneous deprivation; and (5) the government has a compelling interest in protecting the public from harm cause by sex offenders. 7
III.
HRS chapter 846E applies to a convicted sex offender, 8 defined as “[a]ny person convicted of a ‘sexually violent offense’ or a ‘criminal offense against a victim who is a minor[.]’ ” HRS § 846E-1. 9 This definition encompasses the full range of sex crimes from the most severe cases of rape to misdemeanor sexual assault. 10
Convicted sex offenders are required to rеgister with the attorney general; notify the attorney general in writing of any change in name, employment, or residence address within three working days of the change; mail a signed and completed form to the attorney general every ninety days in order to verify registration information; and report in person every five years to the county chief of police of the county where the sex offender’s residence is located for purposes of having a new photograph taken. HRS §§ 846E-2, -4, -5, -6.
A registrant who recklessly fails to comply with any of these requirements will be guilty of a misdemeanor. Intentional or knowing failure to comply with registration requirements constitutes a Class C felony, which is punishable by up to five years imprisonment. HRS § 846E-9 (Supp.2003); 12 HRS § 706-660 (1993). 13
IV.
The Fourteenth Amendment to the United States Constitution and article I, section 5 of the Hawai'i Constitution provide in relevant part that no person shall be deprived of “life, liberty, or property without due process of law[.]” Under the Hawai'i Constitution, we conduct a two-step inquiry in analyzing procedural due process claims; first, we must ask whether the State has deprived the Guidry of a constitutionally protected “liberty” or “property” interest; second, we “determine what specific procedures are required to satisfy due process.”
Bani,
V.
As to the first step, to prevail on his due process claim in this case, Guidry must demonstrate that he possesses a constitutionally protected interest in liberty, and that state action has deprived him of that interest. In
Bany,
this court cited to jurisdictions that have held that registration alone does not involve a protected liberty interest.
See Bani,
These cases found nothing unconstitutional about the initial act of registering with the state, but did not address the liberty interest diminished by lifetime registration. In visiting another aspect of the registration provision, from a temporally different point in the offender’s subjection to HRS chapter 846E, we now hold that lifetime registration implicates a defendant’s protected liberty interest. 15
Registration—the requirement that a citizen regularly report to the police for an extended term of years—engages serious libeHy interests, and presents an importantly distinct kind of constitutional clanger. It is a continuing, intrusive, and humiliating regulation of the person himself. To require registration of persons not in connection with any particular activity asserts a relationship betiueen government and the individual that is in principle quite alien to our traditions, a. relationship 'which when generalized has been the hallmark of totalitarian government.
Id.
at 43 (emphases added) (citations and internal quotation marks omitted). Additionally, the district court in
Doe v. Pataki,
More intrusive than the mere burden of initially registering with the state, the various lifetime registration requirements result in the specific deprivation of a right to be free from excessive government regulation. The registration requirement imposes unending governmental regulation of basic life activities
despite the completion of, and following any criminal sentence.
The Massachusetts court also noted in
Doe,
His prison bars and chains are removed, it is true, ... but he goes from them to a perpetual limitation of his libeHy. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicile without giving notice to the “authority immediately in charge of Ms surveillance;” and without permission in writing. He may not seek, even in other scеnes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by their continuity and deprive of essential libeHy.
(Emphases added.)
17
Similarly, the lifetime requirements associated with registration set
Given the expansive reach of the first generation of sex offender registration acts, many other jurisdictions have recognized that liberty interest is encumbered by registration statutes which may be less burdensome than Hawaii’s.
18
In
Pataki,
the court examined the New York State Sex Offender Registration Act.
Pataki,
[i]n light of these requirements plаced on registrants, there can be no genuine dispute that registration alters the legal status of all convicted sex offenders subject to the Act for a minimum of ten years and, for some, permanently. These requirements obviously encroach on the liberty of convicted sex offenders, and, therefore, they suffer a tangible impairment of a right in addition to mere harm to reputation.
Id. 19
These cases clearly demonstrate that absent a meaningful opportunity for dispensation, the subjection of offenders, who have already served their criminal sentences, to lifetime requirements is beyond the scope of permissible regulation. Thus, we hold that requiring lifetime registration of all sex offenders without qualification, noncompliance with which is punishable by criminal penalties, implicates a liberty interest that cannot be curtailed absent procedural protections.
VI.
Having determined that HRS § 846E-2 implicates Guidry’s liberty interest, it must be decided whether Guidry was afforded the requisite procedural safeguards of due process required by article I, section 5 of the Hawai'i Constitution by balancing certain factors. In the present ease, it is undisputed that Guidry received no hearing or process regarding his lifetime registration, as HRS § 846E-2 requires an automatic registration of all “sex offenders” 20 who fall within the enumerated categories.
But before evaluating factors' relevant to that question, it is important to note that the Supreme Court recently decided that in order to “assert a right to a hearing under the [federal] Due Process Clause[, a person] must show that the facts they seek to establish in that hearing are relevant under the statutory scheme.”
Connecticut Dep’t of Pub. Safety v. Doe,
The Supreme Court held that
even assuming, arguendo, that respondent has been deprived of a liberty interest, [the federal] due process [clause] does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute. ... [T]he fact that respondent seeks to prove—that he is not currently dangerous—is of no consequence under Connecticut’s Megan’s law.... Indeed, the disclaimer on the website explicitly states that respondent’s alleged nondangerousness simply does not matter.
Id.
at 7,
Although the Supreme Court in
Connecticut Dep’t of Pub. Safety
did not require a hearing under the sex offender registration and notification statute at issue in order to satisfy due process under the federal constitution, this court has provided broader due process protection under the Hawai'i Constitution.
23
See Connecticut Dep’t of Pub. Safety,
Under a statutory scheme similar to our own, the Florida third district court of appeals distinguished
Connecticut Dep’t of Pub. Safety
in holding that a determination of “dangerousness” was material under the Florida statute. Specifically, the district court held that “[u]nlike the Connecticut statute, which makes no determination that an offender is dangerous, FSPA [ (Florida Sexual Predator Act)] specifically provides that sexual predators ‘present an extreme threat to the public safety.’ ”
Espindola v. State,
We would not characterize HRS chapter 846E as the Supreme Court characterized the Connecticut statutes.
Connecticut Dep’t of Pub. Safety,
VII.
In
Bani,
this court balanced certain factors in determining that the defendant was enti-
tied
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 requirement would entail.
Bani,
A.
With regai'd to Guidry’s interest, a person has a strong interest in his or her freedom from unreasonable government restraints and intrusions. Under the registration requirements of chapter 846E, Guidry can no longer change his location for any two-week period without informing local authorities of his plans. HRS § 846E-4(e). For the remainder of his life, he must correspond with authorities every ninety days to verify his address and employment and have a new picture taken every five years. HRS §§ 846E-5, -4(e). These mandates apply without any opportunity to demonstrate that such governmentаl intrusions are not warranted. If Guidry fails to stay abreast of these strict lifetime obligations, he will be subject to misdemeanor or felony charges as was the case here. HRS § 846E-9.
As discussed above, it is fundamental that liberty is protected by the minimum requirements of due process—notice and an opportunity to be heard.
See Dep’t of Pub. Safety,
B.
Regarding the risk of erroneous deprivation, as discussed above, the current procedures under the registration provision of HRS chapter 846E applicable here are extremely broad and contain absolutely no safeguards to prevent erroneous deprivations of a registrant’s liberty interests. Without any opportunity to petition for release from the registration requirement, an offender who does not present a threat to society may nonetheless be subject to lifetime registration. Similarly, the Massachusetts court has held that the automatic registration of every person convicted under. Massachusetts’ sex offender registration statute was not justified because the “general legislative category does not adequately specify offenders by risk” and the court could “envision situations ... where the risk of reoffense by one convicted under G.L. [ (general laws) ] c[hapter] 265 § 23 [ (pertaining to rape and abuse of a child) ], may be minimal and the present danger of that person to children not significant.”
Doe,
C.
On the other hand, the State has an interest in protecting its citizens against sex offenders who have shown a high rate of recidivism. As noted in Bani,
the legislature stated that its goal in enacting HRS chapter 846E was to “protect ... the public from sex offenders and ... [to]protect ... children from predatory sexual activity.” 1997 Haw. Sess. L. Act 316, § 1 at 749. The legislature explicitly found that “sex offenders who use physical violence, sex offenders ivho prey upon children, and repeat sex offenders present an extreme threat to the jmblic safety.” Concerns were expressed about the victims of sex offenders, who often suffer devastating and long-term consequences. “[The cost to individuals,” the legislature notеd, “and to society at large, while incalculable, is exorbitant.]”
Bani,
D.
When balancing the interests set out above, “Registration is a stringent regulatory regime, permissible only ‘where the danger is great and the measures are carefully calibrated to the needs of the particular case.’ ”
Doe,
VIII.
In
Bam,
this court recognized that the initial act of registration was not subject to liberty interests. But in this case, we have determined that automatic
lifetime
requirements are subject to due process protection. “However, we have repeatedly recognized that ‘[d]ue process is not a fixed concept requiring a specific procedural course in every situation.’ Instead, ‘due process is flexible and calls for such procedural protections as the particular situation demands.’ ”
Bani,
Although the court indicated Guidry should have proceeded by way of injunctive relief, we believe the proper avenue for obtaining such a hearing is to permit sex offenders to file a petition to institute a special proceeding before the court. At such a hearing, the State shall have the burden of proving, by a preponderance of the evidence, that the sex offender is required to continue to register under HRS chapter 846-E, and the sex offender shall be given the opportunity to rebut evidence presented by the State to demonstrate that the offender does not continue to represent a threat to the community. Such a procedure would be similar to the procedural framework set forth in HRS
Accordingly, under* the Hawaii Constitution, article I, section 5, due process requires that a convicted sex offender under HRS § 846E-1 be afforded the right to a judicial hearing at which evidence may be offered to demonstrate that continuance of all or part of the lifetime registration requirements are not necessary in a particular ease to fulfill the public need to which the sex offender act responded. We recognize the compelling policies behind sex offender registration provisions and the legislature’s laudable effort to prevent the reoccurrence suffered by victims of violent sex crimes. Yet, these policies must be addressed within constitutional bounds.
Cf. Poritz,
IX.
Guidry also challenges his conviction on the ground that registration violates the constitutional prohibition against ex post facto laws. Article I, section 10 of the United States Constitution states that “[n]o State shall ... pass any ... ex post facto Law[.]” The federal ex post facto clause prohibits legislatures from “retroactively altering] the definition of crimes or inereas[ing] the punishment for criminal acts.”
Collins v. Youngblood,
First, as to legislative intent, Guidry concedes that the legislature expressly stated that the purpose of the statute is to “protect[ ] the public from sex offenders ... and proteet[ ] children from predatory sexual activity.” 1997 Haw. Sess. L., Act 316, at 749. However, Guidry argues that the
“true
intent of the legislature was to impose greater punishments” because HRS chapter 846E is in the penal code. (Emphasis in original.) HRS chapter 846E is not, in fact, within the Hawaii Penal Code but rather, in “Title 38. Procedural and Supplementary Provision.” This placement of HRS chapter 846E within the criminal procedure section of the HRS cannot defeat the express purpose of the legislature that HRS chapter 846E be remedial rather than punitive.
See Smith,
Next, it must be determined whether, despite the stated non-punitive intent of the legislature, the statute’s effects negate the state’s nonpunitive intent. In
Russell,
the Ninth Circuit evaluated the punitive effect of a statute under the factors set out in
Kennedy v. Mendoza-Martinez,
[ (1) ] [w]hether 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 ofscienter, [ (4) ] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [ (5) ] whether the behavior to which it applies is already a crime, [ (6) ] whether alternative purposes to which it may rationally be connected is assignable for it,[ 26 ] and [ (7) ] whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.[ 27 ]
Russell,
With respect to the first factor, we note that in the case of a notification provision, the New Jersey Supreme Court has held that “even remedial sanctions carry the ‘sting of punishment[.]’ ”
Poritz,
Sixth, although it may be contended that the statute has an alternative purpose besides the remedial purpose stated by the legislature, Guidry apparently concedes that “this factor weighs in favor of construing the statute as remedial rather than punitive.” Seventh, based on Guidry’s concession, the effects of the statute are not excessive as to the alternative purpose. Six of the seven factors appear to weigh against an ex post facto violation. Therefore, it cannot be said that Guidry has provided the “clearest proof’ that the statutory scheme is so punitive it has negated the State’s remedial purpose. Consequently, HRS chapter 846E meets the second prong of the “intent-effects” test and is thus not violative of the federal ex post facto clause.
Although the Hawai'i Constitution does not contain an ex post facto clause, HRS § 1-3 (1993) provides similar protection. The statute provides that “[n]o law has retrospective operation unless otherwise expressed or obviously intended.” Guidry does not discuss how HRS chapter 846E would violate the ex post facto law in Hawai'i. Thus, this issue need not be discussed. Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(7) (2003) (“Points not argued may be deemed waived.”).
X.
Also, Guidry contends that HRS chapter 846E violates the cruel and unusual punishment clauses of the United States Constitution and the Hawai'i Constitution. He asserts that “the court impliedly denied [the cruel and unusual punishment] challenge based on the conclusion ... that [the] provision [ (requirements of registration) ] of [c]hapter 846E did not amount to ‘punishment.’ ”
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Supreme Court has held that because the
The “cruel and unusual” punishment provision in the Hawai'i Constitution incorporates a proportionality test. When interpreting article I, section 12 of the Hawai'i Constitution this court has held that
[t]he standard by which punishment is to be judged under the “cruel and unusual” punishment provision[ ] of the ... Hawaii Constitution ] is whether[,] in the light of developing concepts of decency and fairness, the prescribed punishment is so disproportionate to the conduct proscribed and is of such duration as to shock the conscience of reasonable persons or to outrage the moral sense of the community.”
State v. Davia,
XI.
Additionally, Guidry contends that HRS chapter 846E violates his right to privacy under the United States and Hawai'i Constitutions.
28
According to Guidry, this right to privacy pertains to the “vast amount of personal information that is compiled and publicly released” under HRS chapter 846E. Although Guidry mentions that his right to privacy is violated by the, “compilation and public release” of registration information, his arguments primarily focus on the disclo
sure
Guidry notes that, unlike other sex offender registration and notification statutes, HRS chapter 846E does not cаtegorize offenders, for the purposes of notification, “based on risk level” and “does not require any evidence of future dangerousness.”
29
Guidry refers to New Jersey’s sex offender statute, as discussed in
Poritz,
where the New Jersey court,
inter alia,
mentioned that “the degree and scope of disclosure” of registration information “is carefully calibrated to the need for public disclosure” based on the risk of reof-fense. “The greater the risk of reoffense, the greater is the scope of disclosure.”
This court has not expressly addressed whether, under HRS chapter 846E, the release of a sex offender’s registration information violates his or her right to privacy.
30
Bani,
In the present case, Guidry has not been afforded a hearing to determine whether public notification of his status as a sex offender is warranted. Under the provisions in effect at the time of his violations, HRS chapter 846E (Supp.1998) did not provide for a Bani hearing. Accordingly, as to Guidry, the public notification provisions are void and unenforceable. See id. Because the provisions are void as to Guidry, we need not determine whether, if such provisions did apply, they violated Guidry’s right to privacy.
XII.
Next, Guidry argues that HRS chapter 846E, in classifying persons required to register as sex offenders, violates the equal protection clauses of both the United States and the Hawaii constitutions. 31 Such a classification, according to Guidry, implicates a fundamental privacy right in information that is personal and intimate. 32
Under both the United States and the Hawaii constitutions, classifications with re
spect
In the alternative, Guidry argues that even if HRS chapter 846E is not seen as implicating a fundamental right, the statute fails the ‘rational basis’ test in that the classification of persons who present no future danger to the public as “sex offenders” is not rationally related to the purpose of protecting the public.
As previously discussed, with respect to the disclosure of Guidry’s registration information, “the public notification provisions of HRS chapter 846E are void and unenforceable” as applied to Guidry.
Bani,
In regard to the compilation of registration information, it can be implied from the holding in
Bani
that the
initial
act of registration requirement does not implicate any fundamental rights to privacy.
Cf. Bani,
In regard to Guidry’s first point, this court has said that one who “alleges that a statute is unconstitutionally overbroad, other than a statute affecting the freedom of expression, must be directly affected by the claimed overbroad aspects.”
34
State v. Tripp,
Guidry would not fall within these hypothetical applications of the statute as raised above. Guidry’s underlying crime did not involve kidnaping or unlawful imprisonment.
35
As to the offense which ■ subjected Guidry to register as a sex offender, he was convicted of sexual assault in the second degree, which is expressly classified under HRS chapter 846E as a “sexually violent
As to Guidry’s second point, that the statute is under inclusive, this court has reasoned that
“[a] statute does not violate the equal protection clause merely because it could have included other persons, objects, or conduct within its reach. ... The legislature is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.... [IJfthe laiv presumably hits evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. Thus it was for the legislature to determine the relative seriousness of the various crimes and to provide for more severe punishment deemed to pose the greatest and most pervasive danger to the well being of society.
State v. Freitas,
“[S]ex offenders ... present an extreme threat to the public safety” and “commit far more offenses that they are prosecuted for and victimize far more individuals than ever report the crimes.... In particular, victims of sex offenders suffer devastating and long term consequences....
1997 Haw. Sess. L., Act 316, at 749;
Bard,
Assuming
arguendo,
the “rational basis test” would apply, we inquire as to whether HRS 846E “rationally furthers a legitimate state interest.”
Baehr,
Guidry argues that the “statute fails the ‘rational basis’ test” for reasons “similar” to those mentioned in his arguments with rеspect to strict scrutiny. Insofar as Guidry claims that the statute is not rationally related to protecting the public because it classifies “persons who present no future danger to the public as sex offenders[,]” Guidry in effect reiterates his argument that the statute is overbroad. In the record herein, Gui-dry has not established that he fits within the category of one who is not dangerous.
37
In
XIII.
On the foregoing grounds, we affirm the court’s August 5, 1999 judgment as to Count I.
. Although it is true that the Ninth Circuit in
Russell
has held that registration does not violate due process, that court was not faced with the issue of whether the lifetime requirement of registration constitutes an impairment of liberty. The court's opinion primarily addressed the constitutionality of registration under tire right to privacy; however, in its one paragraph discussion of due process, it held that because the statute did not deprive plaintiffs of their privacy rights, it similarly did not impinge on any of their liberty interests.
See Russell,
Notes
. The indictment did not indicate if Guidry was charged under HRS § 707-731(l)(a) (Supp.2001) or 707-731(l)(b) (Supp.2001), both which fall within the definition of "sex offender” under HRS § 486E-1. None of the parties challenge Guidry’s status as a sex offender under HRS Chapter 846E-1.
. The Honorable Victoria S. Marks presided.
. The Honorable Frances Q.F. Wong presided.
. The Honorable Richard K. Perkins presided over the jury trial.
. The indictment states that "[o]n or about the [1st] day of September, 1998, to and including the 18th day of March 1999, ... [Guidry] as a sex offender, did intentionally and knowingly fail to notify the Attorney General of a new residence in writing within three working days of changing residence, thereby committing the offense of Failure to Register Change of Registration Information as a Sex Offenderf.]” As such, HRS chapter 846E (Supp.2001) applies and is discussed herein and we do not address any subsequent amendments to HRS chapter 846E.
.We do not consider the due process claim as to the notification issue as that was decided in Bani.
. The prosecution also' argues that HRS chapter 846E does not violate: (1) the prohibition against ex post facto laws; (2) the prohibition against cruel and unusual punishment; (3) the right to privacy; or (4) equal рrotection.
. In its entirety, HRS § 846E-1 defines a "sex offender" as:
(1) Any person convicted of a "sexually violent offense” or a "criminal offense against a victim who is a minor”; or
(2) Any person who is charged with a "sexually violent offense” or a "criminal offense against a victim who is a minor” and is found unfit to proceed or who is acquitted due to a physical or mental disease, disorder, or defect pursuant to chapter 704.
. HRS § 846E-1 provides in relevant part, the following definitions:
"Criminal offense against a victim who is a minor” means any criminal offense that consists of:
(1) Kidnapping of a minor, except by a parent;
(2) Unlawful imprisonment in the first degree of a minor, except by a parent;
(3) Criminal sexual conduct toward a minor;
(4) Solicitation of a minor who is less than fourteen years old to engage in sexual conduct;
(5) Use of a minor in a sexual performance;
(6) Solicitation of a minor to practice prostitution;
(7) Any conduct that by its nature is a sexual offense against a minor, but excludes conduct that is criminal only because of the age of the victim, as provided in section 707-730(l)(b) or section 707-732(l)(b), if the perpetrator is eighteen years of age or younger;
(8) An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraphs (1) through (7); or
(9) Any state, federal, or military law similar to paragraphs (1) through (8).
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"Sexually violent offense" means an act committed on, before, or after July 1, 1997, that is:
(1) An act defined in section 707-730(l)(a), 707-73 0( 1 )(b), 707-731 (1 )(a), 707-731 (l)(b), 707-732(l)(a), 707-732(l)(e), and 707-733(l)(a);
(2) A criminal offense that is comparable to a sexually violent offense as defined in paragraph (1) or any federal or out-of-state conviction, for any offense that under the laws of this State would be a sexually violent offense as defined in paragraph (1); or
(3) An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraph (1) or (2).
.Thus, persons convicted of sexual assault in the fourth degree, HRS § 707-733(l)(a) (Supp. 2001), must also abide by the registration requirements of chapter 846E. HRS § 846E-1.
Sexual assault in the fourth degree is a misdemeanor offense that includes the crime of "knowingly subject[ing] another person to sexual contact by compulsion or causing another person to have sexual contact” HRS § 707-733(l)(a). HRS § 707-700 (2003) defines "compulsion,” inter alia, as an "absence of consent." HRS § 707-700 (2003) defines "sexual contact” as any touching of the sexual or other intimate parts of a person not married to the actor .. . whether directly or through ... clothing or other material ...” Thus, registrants are bound to these requirements for life even in the case of a misdemeanor offense that may have been nonviolent and not against a minor.
. HRS § 846E-2 entitled "Registration requirеments,” requires in pertinent part that “[a] sex offender shall register with the attorney general and comply with the provisions of this chapter for life." (Emphasis added.)
. HRS § 846E-9 entitled "Penalty,” has not been amended since its enactment in 1997. It states that:
(a) For a first offense:
(1) Any person required to register under this chapter who recklessly fails to comply with any of the requirements of this chapter shall be guilty of a misdemeanor; and
(2) Any person required to register under this chapter who intentionally or knowingly fails to comply with any requirements of this chapter shall be guilty of a class C felony.
(b) For any second or subsequent offense, any person required to register under this chapter who recklessly, intentionally, or knowingly fails to comply with any of the requirements of this chapter shall be guilty of a class C felony.
.HRS § 706-660 states that:
A person who has been convicted of a class B or class C felony may be sentenced to an indeterminate term of imprisonment except as provided for in section 706-660.1 [relating to imprisonment for use of a firearm, semiautomatic firearm, or automatic firearm in a felony] and section 706-606.5 [relating to sentencing of repeat offenders]. When ordering such a sentence, the court shall impose the maximum length or imprisonment which shall be as follows:
(1) For a class B felony—10 years; and
(2) For a class C felony—5 years.
The minimum length of imprisonment shall be determined by the Hawai'i paroling authority in accordanсe with section 706-669 [ (relating to procedures for determining minimum term of imprisonment) ].
. This court said that "the registration component does not interfere with any of Bani’s protected liberty interests”
Bani,
. In
Bani,
this court held that "Bani has established that the public notification provisions of HRS chapter 846E implicate a liberty interest protected by the due process clause of the Hawaii Constitution.”
. According to the Supreme Court,
[i]t is apparent from our decisions that there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of ..[liberty]. These interests attain this constitutional status by virtue of the fact that they have been initially recognized and protected by slate law, and we have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status.
Paul,
. The Supreme Court described, in the context of an eighth amendment analysis, post imprisonment penalties including,
inter alia,
government surveillance for life. The "[s]ubjeclion to the surveillance of the authorities” included,
inter alia,
the lifetime requirement of giving notice of one’s domicile, and "not being allowed to change
it without the knowledge and permission" of the authorities.
Weems,
.The cases cited herein have held that registration and notification taken together are unconstitutional under the "stigma plus” test. The test was first utilized by the United States Supreme Court in
Paul.
Under the test, an individual’s interest in liberty is not guaranteed by due process unless some other more tangible interest has been impaired.
Dep't of Public Safety,
We decline to follow the "stigma plus" test under the present circumstances. The test concerns cases involving damage to reputation, which alone is not enough to trigger a liberty interest. The type of deprivation that flows from Hawaii’s absolute lifetime registration statute does not involve stigma, but rather, infringes upon an individual’s right to be free from perpetual government intrusion. This goes to the very heart of liberty and does not fall within the ambit of the “stigma plus” analysis.
. This court has held in
State v. Chun,
.Under Connecticut’s sex offender statute, “the registration requirement runs for ten years in most cases; those convicted of sexually violent offenses must register for life. Conn. Gen.Stat. §§ 54-251, 54-252, 54-254 (2001).”
Connecticut Dep't of Pub. Safety,
. The Supreme Court found “it unnecessary to reach [the] question” of whether, "under
Paul v. Davis
the respondent has failed to establish that petitioners have deprived him of a liberty interest” by the public disclosure of Connecticut’s sex offender registry.
Connecticut Dep't of Pub. Safety,
. The Supreme Court’s decision in
Connecticut Dep’t of Pub. Safety,
is not determinative in the present case, inasmuch as we confirm Guidry's due process claim under the Hawai'i Constitution. "As the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai'i Constitution, we are free to give broader protection under the Hawai'i Constitution than that given by the federal constitution.”
State v. Wallace,
. These factors were apparently adapted from
Mathews v. Eldridge,
. Of course the legislature may adopt and prescribe specific procedures for such a hearing.
. In
Mendoza-Martinez,
the Supreme Court examined the legislative intent for any other purpose than the one purported.
. The Supreme Court reasoned in
Smith
that the question was "whether the regulatory means chosen are reasonable in light of the nonpunitive objective.”
. Guidry cites to
Whalen v. Roe,
where the United States Supreme Court held that "the federal right to privacy, based on the due process clause of the Fourteenth Amendment, protects ... the individual interest in avoiding disclosure of personal matters[.]”
. Additionally, Guidry contends that the Hawaii Constitution recognizes a right to privacy in highly personal and intimate matters, such as "sexual relations.” As noted by the prosecution "[s]exual assaults are not private matters, but rather criminal offenses which are readily available through public records....” We do not agree that Guidry’s information regarding his sexual assault in the second degree offense should be protected under the right to privacy regarding one’s "sexual relations."
. In
Bani,
this court acknowledged that "the legislature attempl[ed] to exempt HRS chapter 846E from the constitutional right to privacy.”
Bani,
. The Fourteenth Amendment to the United States Constitution provides in pertinent part that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws.” Article I, section 5 of the Hawaii Constitution provides in relevant part that “no person shall be ... denied the equal protection оf the laws.”
. Guidry notes that the court did not expressly address his equal protection arguments in the 1999 Order, and maintains that the court erred in failing to dismiss his charges based on such equal protection grounds.
. Guidry does not contend that his classification as a sex offender constitutes a suspect classification.
. Guidry did not claim the statute infringed on his constitutional right to freedom of expression.
.As correctly noted by the prosecution, "offenders of either kidnapping or unlawful imprisonment [would] be subject to [HRS chapter 846E] if the victim is a minor.” See HRS § 846E-1.
. HRS 846E-1, classifies as "sexually violent offensefs]”, inter alia, acts defined under HRS § 707-731(1 )(a) and HRS § 707-73 l(l)(b). HRS § 707-731, entitled "Sexual Assault in the Second Degree” provides in relevant part that:
(1) A person commits the offense of sexual assault in the second degree if:
(a) The person knowingly subjects another person to an act of sexual penetration by compulsion;
(b) The person knowingly subjects to sexual penetration another person who is mentally defective, mentally incapacitated, or physically helpless;
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. As noted Guidry was previously convicted of sexual assault in the second degree, under HRS § 707-731(1), a class B felony. See supra. In the present case, he was charged with three counts of sexual assault in the fourth degree. The prosecution notes that "inasmuch as [Gui-dry] presently is facing three counts of [s]exual [a]ssault in the [fjourth [d]egree under [HRS § ] 707-733(l)(b), one can hardly presume he 'present[s] no danger to the public.’ ”