Will Judge Kent have to Register as a Sex Offender?

While people are asking if Judge Kent is getting off easy, I think it is relevant to consider whether he will be subject to the registration requirements of the AWA after he is released from prison. Since Judge Kent took a deal as to the obstruction charge and not the sexual assault charges, he might think he won't be required to register as a sex offender. However, that question is far from settled. Importantly, Judge Kent was indicted under 18 U.S.C. 2241. The express terms of SORNA provide that a crime under 2241 yields a Tier III classification. 

The 9th Circuit, in U.S. v. Byun, adopted a non-categorical approach to interpreting what constitutes a "sex offense" for SORNA purposes. The result means that in the Ninth Circuit, obligation to register is determined on a case-by-case basis by looking at whether the underlying conduct of the crime was of a sexual nature (within the other limitations of the AWA). Because of the allegations against Judge Kent, I think the 9th Circuit approach would require him to have to register as a sex offender. The only other circuit (that I know of) that has considered the categorical approach issue is the 11th Circuit. However, as I have noted before, I can't make much sense of that opinion and it is unclear how Judge Kent would be treated under that approach. If Judge Kent decides to return to Texas after serving his sentence, he will be subject to the dictates of the 5th Circuit (assuming the USSC never decides the issue). If that circuit follows the 9th, then I think the indictment under 2241 will mean that Judge Kent will be classified as a "sex offender" and will be required to register as a Tier III offender. 

Comments

[lawdoc]

This is federal jurisdiction so the Adam Walsh Act is in effect. If the crime has an element of a sexual act or contact it is a sex offense. The judge's crime had an element of sexual contact so, it should be a sex offense making the judge a sex offender.

But who makes that determination? And when does the judge get notified of his requirement to register? What happens if the sentencing court neglects to find him guilty of a registerable offense, and just sentences him for obstruction of justice without any requirement to register? What happens if the state where he resides has not passed the Adam Walsh Act, or other law, that would require that he register?

There is a big difference between a territory and a state when it comes to federalism.