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Origins of the “Civil Action”; The Sex Offender Registry is Definitely Civil

by merlin on July 22nd, 2016
  • Sumo

Section 9-2-3 of the Official Code of Georgia is a basic definitional section.  It reads as follows:

“As used in this title, the term:

(1) “Action” means the judicial means of enforcing a right.

(2) “Civil action” means an action founded on private rights, arising either from contract or tort.

(3) “Penal action” means an action allowed in pursuance of public justice under particular laws. ”
Because there are no particular laws specifically setting out the manner that a petition for removal from the Sex Offender Registry should be decided (there is, of course, a section clearly placing the responsibility for responding to such an action with the Office of the District Attorney, and the section itself is found under the Code Title dealing with Penal Institutions, but neither of these are decisive, and the cases that have addressed the issue have uniformly stated that “[t]he sex offender registry itself is civil in nature”.  Taylor v. State, 304 Ga.App. 878, 884 (Ga. Ct. App. 2010)), the question arises as to whether it should be decided under criminal law procedural rules, in which the burden is “beyond a reasonable doubt”, or under civil law provisions, in which the burden is “the preponderance of the evidence”, which is a far lower bar to meet and acknowledges the complex realities of human nature, as well.

Section 16-2-1(a) of the Official Code of Georgia is the parallel criminal law procedural statute to the Civil Practice Act definitions set out above:

“(a) A “crime” is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.”

This does not leave much room for deciding the degrees of rehabilitation that someone placed on the Sex Offender Registry has undergone.  It only allows for a “yes” or “no” decision – either these two things existed, or they didn’t.  As a consequence, it is ill-fitted for this task.

However, though the cases insist that the Sex Offender Registry is civil in nature, they don’t really talk about just how that is, and the Office of the District Attorney insists otherwise.  The only way that civil law procedural rules can govern, as provided for by Section 9-11-1 of the Official Code (“This chapter governs the procedure in all courts of record in this State in all actions of a civil nature, whether cognizable as cases at law or in equity…”) is if it as action “founded on private rights, arising either from contract or tort”, as described above.

Being on the Registry is a consequence of a violation of the social contract, in that a person has been found guilty of committing an offense of a sexual nature.  The governing principle underlying criminal justice in the United States, that unites Americans as a society, is that there are certain rules we agree upon and their violation has agreed-upon consequences.  This implied social contract is a concept that arises first with the philosophical principles of Thomas Hobbes, who wrote the classic work, Leviathan, in which he postulated that man outside of society lived a life that was “nasty, brutish, and short”.  Social interaction, therefore, is a necessity prompted by self-interest.  Subsequently, the work Second Treatise of Government by John Locke expanded on this theme, declaring that “[m]en being, as has been said, by nature, all free, equal and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent.”  This is the essence of the implied social contract that the Sex Offender Registry represents.

It is inherently a right arising from contract, meaning that it is “civil in nature”, according to the law.  It is subject, therefore, to the Civil Practice Act, by statute.

 

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