SUMMARY The Risk Assessment Instrument (RAI) contains risk factors that cannot be directly applied to cases involving sexual abuse against an animal. The court has considered the evidence and argument presented by parties at a Sex Offender Registration Act (SORA) hearing, the legislative history of SORA, the Penal Law, the guidelines written to accompany the RAI, and the studies the RAI cites as authority. Based on this analysis, the court finds the appropriate designation for the defendant is a Level 1 offender and declines the People’s request for an upward departure. DECISION AND ORDER I. Legislative History Megan’s Law and the corresponding statutes in New York’s Sex Offender Registration Act (SORA) came into effect on January 21, 1996 (Megan’s Law, L 1995, ch 192; see Correction Law art 6-C). SORA includes a statutory provision creating the Board of Sexual Examiners (the Board), designed to “develop guidelines and procedures to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety” (Correction Law §168-l [5]). The Board then created the RAI in the form of a scoring sheet which assigns a number of points for various risk factors concerning the defendant, the defendant’s acts, or the nature of the victim at the time of the offense. When assigning a risk level to a convicted defendant, courts are directed by statute to base a final determination on the Board’s recommendation, as well as any evidence presented by the parties (Correction Law §168-n). The legislative intent, statutory construction and commentary on these laws all support an inference that animal victims were not anticipated as part of assessing a defendant’s risk level. A. The Legislature enacted SORA to protect human members of the community from recidivism The legislature’s goal in enacting SORA was to protect the public from “the danger of recidivism posed by sex offenders,” to help the “criminal justice system to identify, investigate, apprehend and prosecute sex offenders,” and to comply with the Federal Crime Control Act (Legislative Findings and Intent, L 1995, ch 192, §1, McKinney’s Cons Laws of NY, Book 10B, Correction Law §168, 1997-1998 Pocket Part at 83). “Rather than imposing punishment for a past crime, SORA is a remedial statute intended to prevent future crime” (People v. Gravino, 14 NY3d 546, 556 [2010] [internal quotation marks and emphasis omitted], quoting Matter of North v. Board of Examiners of Sex Offenders of State of NY, 8 NY3d 745 [2007]). Courts have repeatedly acknowledged that the underlying purpose of SORA is “to protect the public from sex offenders” (People v. Mingo, 12 NY3d 563, 574 [2009]); People v. Perez, 35 NY3d 85, 87 [2020]). Protecting the public has been interpreted to mean human members of the community (see People v. Cook, 29 NY3d 121, 126 [2017]) (where the Court of Appeals discussed risk Factor 7: “The need for community notification, however, is generally greater when the offender strikes at persons [who do not know him well] ” [emphasis added]). Through SORA, the legislature and the courts identified the importance of disseminating sex offender information to law enforcement and the public to help prevent future offenses toward people in the community. It is clear that the legislature intended to include sexual misconduct with animals as a registerable offense under SORA (Correction Law §168-a [2] [a] [i]; Penal Law §130.25). In an effort to protect the public from the risk of recidivism, the legislature identified someone who is guilty of sexual misconduct with an animal as someone who could potentially reoffend against a human, and therefore requires registration and supervision. It is not contested that the defendant pled guilty to a registerable offense, but at issue is whether or not the assessment of his risk level was accurately applied to that registerable offense. Understanding that the intent of SORA is to protect human members of the public from recidivism, the question becomes whether the risk assessment tools outlined under SORA can adequately score a relationship between past sexual misconduct with an animal and future sex crimes against people. B. The RAI is not calibrated to assess the link between animal sexual misconduct and recidivism against humans SORA created the Board and its duty to develop guidelines and procedures to assess a defendant’s risk of a re-offense, and also to determine whether a defendant warrants the designation of sexual predator, sexually violent offender, or predicate sex offender as defined in Corrections Law §168-a (7) (see Correction Law §168-l). The Board then created the RAI as a mathematical scoring sheet which assigns groups of points for defendants and victims with various characteristics. The instrument also provides four “overrides” which make an offender presumptively a Level 3 regardless of his score. After creating the RAI, the Board published the “Sex Offender Registration Act Risk Assessment Guidelines and Commentary” (the Guidelines) to accompany the instrument and act as a guide when applying the score sheet to individual cases. The most recent set of Guidelines was published in 2006. Nowhere in the RAI or the Guidelines does the Board make any clinical or professional assessment of any relationship between sexual offenses against animals and potential recidivism against humans. Animals are never once discussed in the RAI or the Guidelines in any capacity at all. Comparatively, the Guidelines do describe in detail the effect of human relationships and characteristics on the potential for a defendant’s recidivism. For example, throughout the Guidelines the Board uses hypothetical examples of sexual crimes between two people, not a person and an animal.1 It was the legislature’s intent to protect the people from the dangers of sexual predator recidivism. In carrying out that goal, the Board examined what characteristics would make someone more likely to reoffend, and none of those characteristics include sexual offenses against animals. C. The Board references Penal Law definitions to guide the court when using the RAI In addition to relying on studies and scholarly research, the Board relies on the definitions in the Penal Law to guide application of the RAI.2 The Board itself is recognized as a specialized entity based on its expertise in certain professional fields (see People v. Francis, 30 NY3d 737, 743, 747 [2018]). “Where a statute’s interpretation involves special knowledge and understanding we defer to the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable” (id.) (internal quotation marks and citation omitted). When the Board relies on Penal Law definitions, the court must defer to that application when not “irrational or unreasonable.” The Penal Law defines terms used in all criminal sex offenses (Penal Law §130.00). Again, all definitions describe conduct between two people, or describe characteristics of human victims (see Penal Law §130.00 [2] [a], [b], [3], [5],-[7]). When SORA, the Penal Law, and the Board’s own Guidelines all reference factors regarding sexual crimes between people, the court is not bound to apply those same risk factor categories in a case involving sexual misconduct with an animal. RAI risk factor categories that score points based on the characteristics of human victims are not transferable to animal victims. D. Ongoing examination and proposed changes to the RAI The RAI was first distributed for use in January of 1996 and has not been revised since November of 1997 (see People v. McFarland, 29 Misc 3d 1206[A], 2010 NY Slip Op 51705[U] [Sup Ct, NY County 2010], affd 88 AD3d 547 [1st Dept 2011], lv denied 18 NY3d 860 [2011]). It has been 26 years since this instrument has been updated despite ongoing research in the field of criminal behavior and sex offenses.3 The accuracy of the RAI when applied to independent cases is currently being examined; proposed legislation in the state senate currently discusses the potential defects in the RAI and a need to update the tool itself to achieve more accurate results.4 In particular, the relationship of animal abuse to the rate of recidivism against humans represents an area of research without clear answers. “The nature of violence in our society is more complex than many studies linking animal abuse and violence against humans represent” (Stacy A. Nowicki, Comment, On the Lamb: Toward a National Animal Abuser Registry, 17 Animal L. 197 [2010])5. The RAI (and by extension the court) is ill equipped to determine an accurate rate of recidivism against humans by animal sexual offenders without the benefit of clear psychiatric or physiological study on that topic. Taking into consideration that our state government is examining the scope and efficacy of the RAI, the court cannot substitute its judgement for the legislative process and alter the clear language of the statute currently in use. The Penal Law, incorporated into SORA, and the RAI Guidelines themselves all describe assessing risk of re-offense to human victims. Simply put, the RAI does not measure, assess or correlate whether a person who commits a sex offense against an animal is more or less likely to reoffend against a person. II. Procedural Background The defendant was arrested and accused of sexual misconduct (Penal Law §130.20 [3]), overdriving, torturing and injuring of an animal (Agriculture and Markets Law §26-353), and harassment (Penal Law §240.56 [1]) which occurred throughout February 1, 2018 and March 11, 2018. The defendant pled guilty on November 5, 2018 to attempted sexual misconduct (Penal Law §110/130.20 [3]) and overdriving, torturing and injuring of an animal (Agriculture and Markets Law §26-353). After pleading guilty to the qualifying offense of sexual misconduct, a SORA risk assessment hearing was ordered pursuant to Correction Law §168-d (3). Before the hearing could take place, the defendant absented himself and a bench warrant was issued. On July 21, 2022 the defendant was returned to court after being arrested for another matter. The People filed an updated notice pursuant to Correction Law §168-d (3) on August 1, 2022 and petitioned the court to designate the defendant a Level 2 offender. The SORA hearing began on September 20, 2022 and was completed on November 14, 2022. The People submitted an RAI, along with plea minutes, treatment documentation, a complaint, veterinarian records and a pre-sentence report. Based on this evidence, the People argued that the defendant should be designated at risk Level 2. The defendant argued that the RAI was miscalculated and incorrectly scored points in subsections meant only to apply to human victims. At issue in this case is whether the subsections of Risk Factor 2 (sexual contact with the victim), Risk Factor 6 (other victim characteristics), and Risk Factor 7 (relationship with victim) used in the People’s RAI apply to human and animal victims equally. For the reasons herein, the court finds the RAI tool does not consider animal victims in these subsections and designates the defendant at risk Level 1. III. The Defendant’s Risk Assessment Score Throughout the SORA hearing, the People argued that the legislature intended to protect the public from sexual offender recidivism, and that animals were considered members of the public to be protected. The court finds the People’s argument to be unsupported by the extensive legislative history underlying SORA and the studied Guidelines created by the Board. The court agrees in part, that the legislature did intend to protect the public from sex offender recidivism, but only as to humans and not animals. The People would have the court expand the definition and interpret the term “victim” to include humans as well as animals and treat both equally within the confines of the RAI. The court cannot and will not arbitrarily interpret that humans and animals are equals within the RAI; such a conclusion would be an unjustified leap in legislative interpretation. The RAI was created after consulting academic study and then applying technical findings to actual cases. Following that research, the Board did not include any assessment on how sexual misconduct against an animal may affect a sex offender’s likelihood to reoffend against a person. The SORA legislation, the comments and Guidelines created by the Board and the RAI itself do not support such a conclusion at this time. The RAI itself is broken up into fourteen different factors, each with a designated score value to calculate the risk of a defendant’s recidivism based on specific facts. These factors can be separated into three approaches when determining risk, based on either: 1) characteristics of the defendant himself; 2) the defendant’s actions; and 3) characteristics of the victim. The factors that focus on a defendant or his actions are applicable independent of whether he committed a crime against a human or an animal, whereas the factors that focus on the characteristics of human victims are not transferable to animal victims for the reasons stated above. A discussion of each specific risk factor in the RAI and the defendant’s score follows. A. Risk Factor 1: Use of Violence (15 points) This risk factor was not in contention between the parties and the People presented veterinarian records reflecting physical injury caused to the dog, as well as plea minutes with the defendant’s admission to kicking the dog made. Based on this evidence, the court scored 15 points against the defendant for the “inflicted physical injury” section under risk Factor 1. The Guidelines state that “research on sex offenders shows that an offender’s use of violence is positively correlated with his likelihood of reoffending” (the Guidelines, at 7, citations omitted). As an example, “a sex offender who rapes at knifepoint or inflicts physical injury to the victim poses a far greater threat to public safety than one who rubs himself against another on a crowded subway” (id., citations omitted). The Board’s description of the research and rationale behind scoring a defendant on “inflicting physical injury” indicates a focus on the defendant’s actions, not the characteristics of the victim. The court scored the defendant 15 points for his admitted act of violence that caused physical injury. B. Risk Factor 2: Sexual Contact with Victim (Zero points) The People argued that 10 points should be added to the defendant’s score for “contact under the clothing”. The defendant objected and argued that this section only applies to human victims because wearing clothing is a human characteristic. Both parties could not cite to any caselaw applying this risk factor to animal victims. The People argued that the legislature intended “contact under the clothing” to mean contact with genitals and that in this case the defendant pled guilty to facts including masturbating a dog; therefore the defendant’s actions constituted “contact under the clothing” and the Court should score the defendant accordingly within this risk factor. The court finds these arguments overbroad and farfetched. The legislature intended SORA and the RAI to protect people in the community where an offender may reside or have contact. If an offender committed sexual touching over the clothing, the RAI assigns less points, whereas offenders who continue touching under the clothing are scored more points. It is only reasonable to conclude that the RAI rates an offender a higher score when they expend greater effort by going beyond a clothing barrier to commit a sexual offense, and a lower score to an offender who is deterred by clothing. Whether or not the victim is wearing clothing at the time of the offense, and then the defendant’s actions in reference to the victims clothing, is the basis for the score. Clothing is not a factor equally applicable to animals and humans. Without specific language or signs of intent to broaden the category to “genital touching” in general, this factor can only apply to human victims wearing clothing. The court scored the defendant zero points for “contact under clothing” because the characteristic of clothing only applies to human victims. C. Risk Factor 3: Number of Victims (Zero points) There was no argument regarding the number of victims in this case. The People presented the criminal complaint among other documentation accusing the defendant of offending a single animal. Furthermore, the Guidelines specifically state that “this category focuses upon the number of people whom the offender victimized in the case (or cases) that ultimately resulted in the instant conviction” (the Guidelines, at 10) (emphasis added). The Guidelines clearly base this category on the human characteristic of the number of victims and excludes animals. The court scored the defendant zero points under this category. D. Risk Factor 4: Duration of Offense Contact with Victim (20 points) The parties agreed on the duration of the offense in question, which the defendant admitted was on many occasions between January 2018 and March 2018. The RAI bases this risk factor on the acts of the defendant, not the nature or characteristics of the victim. In this section “the Board opted for a definition of continuing course of sexual contact that includes both the nature and length of the offender’s conduct” (the Guideline, at 10, emphasis added). The court can reasonably conclude that the Board intended to score the duration of an offender’s sexual offenses, and not the type of victim involved. Therefore, the court scored the defendant 20 points under this category. E. Risk Factor 5: Age of Victim (Zero points) The People did not argue for the scoring of any points under this risk factor. Additionally, the Guidelines only refer to children or elderly people when discussing the applicability of this section (the Guidelines, at 11). The age ranges in this section were adopted by the Board from Penal Law §§130.05 (3) (a), 130.35 (3), and 130.50 (3) (id.); each of those sections refer to people, not animals. The plain langue in Factor 5 clearly correlates to human ages and not animal ages. It is unreasonable to assume that the legislature or the Board intended these ages to apply to humans and animals alike. The court scored zero points under this category. F. Risk Factor 6: Other Victim Characteristics (Zero points) This risk factor calls for adding points if a victim “suffered from mental defect or incapacity or from physical helplessness”. The People scored the defendant 20 points under “physical helplessness” and argued that animals are by nature physically helpless as they are vulnerable, cannot overwhelm an offender in their own defense, and cannot report instances of abuse. To this point, the defendant argued that the logic in People v. Persico (68 Misc 3d 919 [Suffolk Dist Ct 2020]) should be applied. Although not a binding authority, the court finds the reasoning in Persico a persuasive analysis of risk Factor 6. “The omission of the term ‘animal’ is the clearest indication that no points should be assessed for animal victims under risk factor 6. Had the Legislature intended for a point assessment, the term ‘animals’ would have been included” (id. at 926).6 If the court adopted the People’s argument, all animal victims would automatically result in an additional 20 points scored against a defendant because animals would be considered “physically helpless” as a group. The RAI does score automatic points based on victim characteristics in certain categories, like age; a defendant who committed a sexual offense against a child or elderly person is automatically scored additional points because those populations were specifically studied and showed a direct correlation to a higher risk of recidivism (the Guidelines, at 11).7 In contrast, the Guidelines do not mention special characteristics of animals as a group, and do not rely on specific studies warranting automatic addition of points. Without clear designation of an “animal victim” category as a special victim characteristic, the court cannot apply physical helplessness to animals and humans equally. Furthermore, the Board’s Guidelines refer the court to the definition of “physical helplessness” written in the Penal Law, which states “‘Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act” (Penal Law §130.00 [7]). The People argue that the court should not apply Penal Law definitions when interpreting and applying the RAI to the defendant’s case because assessing risk levels is a regulatory rather than penal procedure. Despite the fact that SORA hearings are regulatory in nature (People v. Gravino, 14 NY3d 546 [2010]) the SORA statue implicates Penal Law definitions when outlining which crimes trigger mandatory regulation (Correction Law §168-a [2]). The Board itself refers the court to use Penal Law definitions when applying risk Factor 6 (the Guidelines, at 11). With a foundation in Penal Law, it only follows that Penal Law definitions are applicable to both SORA and the RAI which was created in support of that statute. Therefore, the court adopts the definition from the Penal Law restricting the term “physical helplessness” to people, excluding animals, and scored the defendant zero points under this category. G. Risk Factor 7: Relationship with Victim (Zero points) The People scored the defendant 20 points and argued that he befriended and lured a dog for the purpose of sexual misconduct. The Guidelines on Factor 7 only discuss the effect of human relationships and risk of reoffending against humans (the Guidelines at 12). When people establish a relationship between each other, many complex social factors come into play; as the Guidelines discuss, an offender who specifically takes up a vocation in order to offend against a certain group of people will score higher than an offender who victimizes an acquaintance (id.). Based on the examples listed in the Guidelines, the court can reasonably infer that a score under Risk Factor 7 depends on the characteristics of human relationships. The Board gives no guidance on what factors to consider when a person establishes a relationship with an animal. There is no evidence about animal relationships and recidivism in either the legislative history or the studies cited when the Board created the RAI. The court cannot arbitrarily conclude that the risk of recidivism is equally affected by human sexual offender relationships as it is by animal sexual offender relationships. For these reasons, the court scored zero points under this category. H. Remaining risk factors (20 points) The People did not score any points on risk Factors 8 through 11, which all describe criminal history of a defendant. The People did not score any points on risk Factors 14 and 15, which referred to the defendant’s release environment, which was unknown at the time of the SORA hearing. Likewise, there was no basis for the court to score points under these categories. The remaining points the People scored fell under post-offense behavior. Under risk Factor 12 (acceptance of responsibility), the People presented the court with a probation report and treatment program record indicating that the defendant did not continue with a mandatory treatment program. The defendant did not contest or present any mitigating evidence regarding treatment. Based on this evidence, the court scored 10 points against the defendant for this category. The People then scored the defendant 10 points for risk Factor 13 (conduct while confined/supervised). The People stated that that the defendant absconded from the country while awaiting a SORA hearing, and was only returned to court involuntarily based on a new arrest. They provided the arrest report on the additional case. The defendant did not contest the arguments for actions while supervised. According to this information, the court scored the defendant 10 points for unsatisfactory conduct while violating conditions of his release pending the SORA hearing. I. Denying an upward departure In lieu of the application of the abovementioned risk factors, the People also argued for an upward departure from the RAI score, specifically because the instrument does not take into account animal victims. The People asked the court to take judicial notice of animal traits such as helplessness and their nature to be manipulated by treats and affection. The People also cited to a psychiatric journal investigating the practice of bestiality and whether there was a link between animal sexual abuse and human sexual abuse.8 The court has considered both of these points and does not find them as aggravating factors warranting an upward departure. There is no doubt that sexual misconduct against an animal is a unique crime involving deeply troubling aspects of human behavior. The study provided by the People is directly on point to this issue, but the study itself repeatedly acknowledges the lack of long-term clinical study on this subject. The People’s cited study was not included in those used by the Board to develop the RAI; no studies based on examining animal sexual abuse and the risk of recidivism were cited in the Board’s Guidelines’ bibliography. Even though the People’s arguments are compelling in nature, the court is nevertheless bound by the words and omissions of the statute and RAI tool as they are written by the legislature. IV. Conclusion SORA was enacted in order to protect the public against recidivism from sexual offenders. It is a regulatory statute, but one based on the Penal Law and can only be applied to defendants convicted of specific crimes. Where aspects of statutory construction are ambiguous in SORA, the court must apply the longstanding maxim of lenity used to construe ambiguity in criminal statutes in a defendant’s favor (see People v. Jackson, 106 AD2d 93 [2d Dept 1984]; Huddleston v. United States, 415 US 814 [1974]). “Lenity is warranted where the courts have the task of discerning the undeclared will of the legislature in an ambiguous statute” (People v. Badji, 36 NY3d 393 [2011], citing Bell v. United States, 349 US 81, 83 [1955]). The SORA and RAI Guidelines contain no instruction on risk assessment for defendants convicted of sexual offenses against animals, yet SORA includes sexual misconduct with an animal as a registerable offense. The legislative history and Guidelines all assess the risk of recidivism for sexual misconduct against human victims. The defendant’s case demonstrates the gap between SORA legislation and the risk assessment Guidelines when it comes to animal sexual abuse; in that gap, the court is left to contend with the “undeclared will of the legislature” and therefore construes the RAI in favor of the defendant for factors that clearly refer to human victims. The RAI was developed by a panel of chosen professionals in specialized fields who relied on academic studies and scholarly research to create a risk assessment guide. The tool itself serves a complex goal of protecting the public from recidivism, and the methods used to achieve that goal are currently being discussed in our legislature. Legislative officials are examining whether the RAI itself needs revision. Given the amount of consideration and technically sensitive analysis behind the RAI, the court cannot read animals into the tool when they are not represented in any of the statute’s language, or the information used to create the tool itself. The court would be acting arbitrarily and abusing its discretion if it unilaterally scored the defendant points in the RAI under risk factors clearly studied and intended for human victims. For these reasons, the RAI factors discussed above do not apply to animal victims and without scoring under these subsections, the defendant was calculated with a final score of 55 points under the RAI, a Level 1 risk offender. Without specific factual arguments warranting an upward departure, the court declines to find aggravating factors based on the mere fact that the RAI does not apply specific sections to animal victims. The court relies on the legislative intent behind SORA, Penal Law definitions, the methodology used to develop the RAI, and the RAI commentary guidelines, as well as the evidence presented at the hearing to designate the defendant a Level 1 offender, over the People’s objection. This constitutes the decision and order of the Court. Dated: March 24, 2023
