There’s no better way of starting this blog than first introducing the Pennsylvania Association for Rational Sexual Offense Laws (PARSOL). It is an all-volunteer, grassroots organization that was founded in 2017 in response to the growing realization that ‘sex offender’ registries were becoming unwieldy, unnecessarily punitive, and ineffective at their stated goal of keeping people safe from sexual harm. We promote policies that are supported by robust empirical evidence to be most effective at promoting public safety and that are grounded in both the Pennsylvania and U.S. Constitutions. We advocate for public safety measures that work for all Pennsylvanians, including policies based on prevention, laws that respect our Constitution, and the dignity of all people. As the primary organization in the Commonwealth working towards this end, we try to produce accurate information at high-quality standards.
My involvement with PARSOL started through a friend in the early stages before there was a board of directors. Three individuals had a vision and shared that vision with others. It was this group, of which I’m proud to be a part, that brought the organization to life. Our first meeting was at one of the founder’s homes. After assessing each other's capabilities, we decided who would fit best in certain leadership roles. I just started taking notes and before I knew it, I was selected as secretary of the board. I was also interested in the legal aspects of the organization and sharing those thoughts with the public. It only made sense to join the Legal Committee and the Education and Information (E & I) Committee. I was elected as chair of the Education and Information Committee and then a few years later was elected as the chair of the Legal Committee. Currently, I sit on the board of directors as secretary, chair of the E & I Committee, and chair of the Legal Committee. My passion for change comes from the understanding of what true justice means (I’ll get into that a bit later).
Before I continue any further, it is important to note that PARSOL does not condone any form of sexual violence or non-consensual sex. People who commit sexual crimes should be prosecuted, and that procedure should be Constitutional, fair, and consistent with the legitimate best interests of all Pennsylvanians. Once an individual has completed their sentence, their debt to society should be considered paid, and no law, whether punitive or regulatory, should prolong or add to that sentence. Paying one’s debt to society through incarceration, parole, probation, and fines should re-establish that person back into the community as if nothing had happened; a clean slate if you will. But that is not how we, flawed human beings, often see it. It is easier to judge than to forgive because it is in our nature to point out someone’s transgressions instead of working on our inner problems.
Pennsylvania’s founding father, William Penn, understood this concept from first-hand experience. He lived in England where the Church of England was the only recognized faith. Anything else was considered heretical. Therein lies the issue, Penn was a Quaker. For this, he was heavily persecuted and slandered. He saw that the only way to restore his reputation was to flee England and create a land that would be open to religious freedom and second chances. In his 1682 Frame of Government of Pennsylvania, Penn wrote, “That all scandalous and malicious reporters, backbiters, defamers, and spreaders of false news, whether against Magistrates, or private persons, shall be accordingly severely punished, as enemies to the peace and concord of this Province.” Hence the idea of the right to protect your reputation.
It wasn’t until the 1790 Pennsylvania Constitution Article 9 Section 1, almost 100 years after the Frame of Government was written, that reputation was officially a constitutional right. “That all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness,” emphasis added. It was in the 1838 Pennsylvania Constitution that it was moved to Article 1 Section 1 and has stayed there ever since.
The Sexual Offender Registration and Notification Act (SORNA) was first established as Megan’s Law in 1996 under Governor Tom Ridge. The first Pennsylvania version of Megan’s Law included a small list of sexual criminal acts against minors. Its purpose was to put Persons Forced to Register (PFRs) on notice and make communities aware of any PFRs in their neighborhood. It started out with “good” intentions but as it was amended to include a wider range of offenses and registration requirements, it morphed into an uncontrollable beast. It was struck down by the Supreme Court of Pennsylvania (SCOPA) numerous times but became a disastrous mess of confusion and chaos after each new enactment. New legal issues arise with each version the Pennsylvania General Assembly passes.
Megan’s Law I was considered unconstitutional in the case of Com. v. Donald Williams (Williams I) where SCOPA found the presumption of being a Sexually Violent Predator (SVP) and bearing the burden of rebutting such a presumption by clear and convincing evidence cannot fall on the defendant. On September 25, 2003, SCOPA found the penalties for failure to register and verify one's residence of Megan’s Law II were unconstitutionally punitive in Com. v. Gomer Williams (Williams II). Megan’s Law III violated Pennsylvania’s Constitution Article 3, Section 3 Single Subject Rule when the General Assembly added provisions for asbestos removal in the legislation, see Com. v. James Neiman. SORNA was enacted on December 20, 2012 in response to the passage of the Federal Adam Walsh Act. SORNA was ruled unconstitutional as it violated both the Federal and State constitutional Ex Post Facto clauses in the case of Com. v. Jose Muniz in 2017. Finally, with SORNA II, we hope SCOPA will find it unconstitutional as violating Pennsylvania’s Constitutional Right to Reputation under Article 1, Section 1 in the case of Com. v. George Torsilieri. I gave you this brief history lesson because of where we stand today with SORNA here in Pennsylvania.
The main argument in Torsilieri is that SORNA violates Pennsylvania’s Constitution, Article I, Section 1, Right to Reputation. The General Assembly made a legislative finding that “Sexual offenders pose a high risk of committing additional sexual offenses, and protection of the public from this type of offender is a paramount governmental interest,” 42 Pa.C.S. § 9799.11(a)(4). Mr. Torsilieri’s legal team used the Irrebuttable Presumption Doctrine as their vehicle to challenge the statement. The Irrebuttable Presumption Doctrine involves a three-prong test. An irrebuttable presumption is unconstitutional where (1) it encroaches on an interest protected by the due process clause; (2) the presumption is not universally true; and (3) reasonable alternative means exist for ascertaining the presumed fact.
To meet the first prong of the test we need an interest protected by the due process clause, ergo, Pennsylvania’s Constitution Article 1, Section 1 Right to Reputation. The right to reputation is a fundamental right guaranteed under the Pennsylvania Constitution, entitled to the protection of due process, see Pennsylvania Bar Association v. Commonwealth, 607 A.2d 850 (Pa. Cmwlth. 1992). We can check that one off.
The defense argued that the legislative irrebuttable presumption is not universally true as required under the second prong. In the evidentiary hearing before the Chester County Court of Common Pleas, Mr. Torsilieri’s legal team brought in three world-renowned experts in the field of sexual offense recidivism to testify to the fact that PFRs have a very, very low recidivism rate. In terms of recidivism, we are talking about committing again, the same class of offense. The experts provided over 25 years of research to prove the General Assembly’s presumption is false. The Commonwealth only brought in a statistician to rebut the statistics and discredit the experts. The judge presiding over the hearing clearly saw through the Commonwealth’s tactics. Another prong checked off.
Whether reasonable alternative means exist for ascertaining the presumed fact, one of the experts for Mr. Torsilieri identified several risk assessment tools that have been proven to be accurate in detecting individuals who are at a greater likelihood of recidivism. These tools are the Static-99 and Static-99R. These tests were developed by Dr. Karl Hanson. There are published research studies on them if you would like to learn more about them. The Common Pleas Court also noted that there were other effective means available to reduce sexual recidivism. The third prong is marked off.
It was without doubt the decision the Chester County Common Pleas Court had to make. SORNA was blatantly unconstitutional in violating the right to reputation. There were many other grounds as well in which the statute was ruled unconstitutional, but this was the primary argument. Of course, the Commonwealth didn’t like this decision, so they appealed it to SCOPA. SCOPA heard the oral arguments on May 23, 2023.
Ronald Eisenberg for the Pennsylvania Attorney General’s Office repeatedly stated that it is not the court’s position to determine the legislature’s foundation for creating a public registry in his argument. Yet, the constitutionality of the legislation and the administration’s actions in enacting it is very much in the court’s purview. Mr. Torsilieri’s leading attorney, Aaron Marcus, stated at the oral arguments, “There is a difference between the conviction and the effect of the registry’s label of a ‘high risk of danger’ on individuals, particularly things like unemployment and joblessness, houselessness, depression, and even suicide are affected by the label. SORNA says that individuals on this registry pose a risk of sexual danger, not just at the time of conviction, but now and forever into the future as long as they are on the registry.” It was even discussed that recidivism rates decrease over time as long as the individual refrains from reoffending.
Near the end of the argument, Justice Brobson said an ultimate truth. Attorney Aaron Marcus noted most people on the registry do not reflect any elevated recidivism risk from anyone else convicted of a crime. Brobson said, “but that’s based on statistics of how many recidivate. Which is a different question from at what risk are they recidivating.” Marcus replied, “you always have to determine risk based on observed results. That is always going to be the case.” Brobson rebutted, “that’s what we’re arguing in the court of law but that may not be how the General Assembly saw it.” And to that, I say, “true.” They might not see it that way because they are not qualified to make public policies that venture into specialized realms. It would be one thing if the General Assembly would ask the experts and follow the science, but that’s not what they’ve done.
One of my favorite quotes comes from Milton Friedman, “One of the great mistakes is to judge policies and programs by their intentions rather than their results.” We see this play out with many legislative policies where our legislators experiment and play with legislation without regard for our constitutional rights and the data presented to them years down the road. They don’t want to admit to their mistakes because no politician wants to publicly acknowledge the broken system. There shouldn’t be any shame in that. Sometimes we follow bad ideas. Changing your mind based on new evidence and allowing others to do the same is something our Commonwealth, Nation, and World should be built on. We have this very chance in Com. v. Torsilieri. Judges, not swayed by popular beliefs, are seeing the evidence of failed policies. It takes guts to admit a mistake. Most individuals who commit a sexual offense will admit they did wrong. Not necessarily because the court or treatment group told them to, but because they genuinely want to become a better person. That is what I believe true justice is.
Currently, we are awaiting an opinion from SCOPA on the fate of SORNA. There are so many intricacies to this case that it’s impossible to predict what will happen. The best case possible is either 1) the majority of the Court decides to strike down the entire statute or 2) the decision is a tie. In the case of a tied decision, the appellate court procedures demand the lower court’s opinion stand. As for a timeline of when to expect the opinion, it can come down sometime this week or a few months from now. SCOPA is not bound by a timeline.
For more about the Com. v. Torsilieri case and Pennsylvania’s Constitutional Right to Reputation, visit our Torsilieri Headquarters page at https://parsol.org/thq/. Be sure to also sign up for our emailing list to get all the latest PARSOL updates, news, and events as they happen at parsol.org.