Dyche, Emberton and Huddleston, Judges. The opinion of the court was delivered by: The issues presented are: Back to Top I. The victim managed to escape and fled to the kitchen. Hyatt was subsequently arrested and charged with first-degree sexual abuse. On July 18, a grand jury charged Hyatt in an indictment with one count of first-degree sexual abuse. On October 8, Hyatt pled guilty, and the circuit court sentenced him to imprisonment for one year. The sentence was suspended and Hyatt was placed on probation for three years.
At some point after Hyatt had pled guilty to first-degree abuse, the victim divulged additional details about the abuse. According to the victim, Hyatt had also forced her to perform oral sex on him and forced her to have sexual intercourse.
Hyatt was then charged in an indictment with first-degree rape and first-degree sodomy. On January 11, , Hyatt pled guilty to amended charges of second-degree rape and second-degree sodomy. He was sentenced to imprisonment for five years on each count to be served consecutively.
Hyatt requested assistance of counsel at the hearing and sought to appear in person. On the morning of the hearing, the prerelease sex offender risk assessment conducted by Dr. Wagner, a licensed psychologist, arrived by facsimile. The Commonwealth did not enter the original into evidence at the hearing, nor was Dr. Wagner present to testify. Thus, relying exclusively on the report, the court classified Hyatt as a high risk sex offender pursuant to KRS In particular, legislators expressed concern for the high rate of recidivism by the perpetrators of sex crimes.
The act, codified at KRS Under the Act, an actor who committed a sex crime was required to register beginning January 1, , if the actor was: Back to Top The [B]oard shall develop a risk assessment procedure that shall be used by certified providers in assessing the risk of recommitting a sex crime by a sex offender and the threat posed to public safety.
The procedure shall be based upon, but not limited to the following factors: A certified provider then conducts a risk assessment based on the criteria set forth in the law and the procedures established by the Board. Back to Top KRS The information that the sex offender must provide to the registry includes: In particular, Hyatt claims that these statutes expose him to double jeopardy and are ex post facto laws. Back to Top A. Supreme Court in Hudson v. The Clause protects only against the imposition of multiple criminal punishments for the same offense,.
The General Assembly does not maintain detailed records of its debates or its committees hearings. The sex offender registration statutes are codified in Chapter 17 of KRS, a chapter dealing with public safety. This suggests that the statutes serve a regulatory purpose, but does not conclusively resolve this question.
The statutes can be grouped according to their purpose. As discussed, the Board is responsible for creating procedures for conducting assessments. None of the factors suggest a punitive purpose, and the factors are an indication that the registration serves a regulatory function.
Other statutes — KRS Based on the classification of the criminal, the statutes allow the dissemination of varying amounts of personal information. Back to Top In light of the statutory scheme, we cannot say that the statutes punish prisoners twice.
Rather, the statutes create a mechanism for protecting public welfare and safety by monitoring the location of sex offenders and providing information to law enforcement officials and the public. Although we have determined that the language of the statutes does not indicate a punitive purpose, we must then determine whether the statutes do, in actuality, punish a criminal twice for the same crime. To apply the second part of the analysis, the U.
Supreme Court in Kennedy v. Supreme Court in Hudson concluded that the indefinite barring of someone from the banking industry did not arise to the level of affirmative disability or restraint.
However, he must notify the appropriate officials of his location by updating his registry information pursuant to KRS We do not believe that this arises to the level of affirmative disability or restraint. Under the second Kennedy factor, we must determine whether this sanction has traditionally been viewed as punishment.
Traditional forms of punishment include incarceration, incapacitation and rehabilitation. The laws in question do not impose restrictions on sex offenders that can be equated with traditional forms of incarceration or incapacitation. The registry laws do not force sex offenders to conform their conduct. The purpose of the sex offender registration laws is to protect the public welfare and safety by notifying the public of the location of sex offenders and, possibly, other personal information.
The dissemination of information has not been considered a traditional form of punishment. We are mindful of the fact that shaming punishments, such as banishment and pillory, have historically been used to punish criminals. However, these practices involved more than the mere dissemination of information. Moreover, the possibility of a shaming effect from disclosure of registry information is certainly not the clearest of proof necessary to overcome the legislative intent that the Act serve regulatory and not punitive purposes.
Dissemination of information is fundamentally different from traditional forms of punishment. Back to Top In addition, we must determine whether the provisions of the laws are implicated only by a showing of scienter under the third Kennedy factor. Instead, the statutes apply to all persons convicted of a sex crime. The circuit court conducts a hearing on the risk assessment results and classifies the sex offenders. Next, we must determine if the statutes further the traditional aims of punishment, namely retribution and deterrence.
It would be intellectually dishonest to argue that the statutes do not serve any deterrent function. If a sex offender knows that law enforcement officials are aware of the location of his residence and place of employment, the sex offender may be less likely to commit another sex crime. However, as the U. Back to Top Fifth, we must consider whether the statutes apply to acts which are already crimes under Kentucky law.
The sex offender registration statutes only apply to individuals convicted of a sex crime. Thus, it cannot be denied that the sex offender registration statutes only apply to convicted sex offenders. However, we do not believe this fact makes the registration statutes punitive for double jeopardy purposes. In upholding the constitutionality of the statutes, the Court found that the suspension statute was not punitive. Finally, the sixth and seventh Kennedy factors require us to determine whether the registration laws have a remedial purpose and whether the laws are excessive compared to the remedial purpose.
We conclude that the laws do not have such a purpose and are not excessive. Kentucky sex offender registrations laws both protect the public and aid law enforcement in monitoring sex offenders. Congress and many states have considered the heinousness of sex crimes and their impact on children. We recognize that the registration laws do impose at least some burden on sex offenders. In his brief, Hyatt asserts that: Being designated as a high risk sex offender has also caused Mr.
Hyatt considerable personal hardship. Two newspaper articles have been published about his release. He has been unable to find stable employment. An attempt was made to involuntarily commit him to Eastern State Hospital.
He is currently incarcerated in the Franklin County jail accused of stealing a car. He has received threatening letters from the families of some women with whom he allegedly corresponded while in prison.
As a direct result of his high risk designation, Mr. Hyatt has had affirmative disabilities and restraints imposed upon him from four different sources: As Hyatt himself acknowledges, many of the burdens of which Hyatt complains are not a result of the statutes but from the potential abuse by the public of the information contained in the sex offender registry.
While Hyatt must register for life — subject to his right to petition for reclassification pursuant to KRS Supreme Court said in Weaver v. Hyatt committed the crimes to which he pled guilty prior to The sex offender registration statutes did not become effective until Thus, we conclude that the first element has been met.
We must now focus on whether Hyatt has been disadvantaged by the application of the statutes. In answering this question, we must consider whether the statutes are punitive or regulatory. Supreme Court applied many of the same Kennedy factors in determining whether a statute was an ex post facto law. In the same manner, we will apply the Kennedy factors in this case that were articulated earlier.
Thus, the laws, KRS Back to Top IV. Although this issue was not raised below, Hyatt believes that it can be raised for the first time on appeal in light of the decision in Commonwealth Health Corp. A certified provider conducts the assessment and sends a report to the court.