Judge takes stand against sex offender registry

Waupaca case raises underage-consent issue

By Dan Wilson, Post-Crescent, May 4, 2006

A Waupaca County judge has ordered convicted sex offender Sam Roloff's name to be added to the state's sex offender registry, but not until nearly 100 years have passed.

Circuit Judge Philip Kirk said the list, which now numbers more than 18,000 people, is rendered useless when it includes people like Roloff who engaged in consensual sex with underage parties. 

"It's diluted," he said this week. "It has lost the purpose for which it was designed. It should apply to people like the David Spanbauers (who molested and killed children) or priests who abuse children, but it gets applied to consensual sex because it was outside the age requirement."

The law includes a "Romeo and Juliet" clause that allows a judge to exempt a defendant from registration if the defendant is 19 years old or younger and the victim is within four years of age. It does not recognize legal consent for underage people, even when they willingly engage in sex, because experts point out that juveniles don't have the maturity or judgment to consent.

That's the heart of the debate that has pitted Kirk against the state attorney general's office and a state appeals court, both of which are trying to force Kirk to put Roloff on the sex offender registry. Roloff was 20 when he had sex with four girls, all between the ages of 15 and 17.

Roloff, of Waupaca, was convicted of three felonies last year under a plea agreement. The plea deal included a joint recommendation of six months in jail and an unspecified term of probation. As a convicted sex offender, Roloff also should appear on the state's sex offender registry.

Kirk, however, doesn't think Roloff should be on the registry because the girls willingly participated in the sexual acts, some of which were videotaped by one of the girls. Those under the age of 17 cannot legally consent to sex even if they willingly participate. 

"This was the first case to come along that provided a vehicle to have this issue addressed," Kirk said. "It's pushing the legal, judicial envelope."

Kirk viewed the videotape before the Nov. 7 sentencing.

"I was aghast at the behavior of all parties," Kirk said, according to the sentencing transcript. "There was no way to separate, in terms of culpability, that of these four teenage girls.

"I think that the voluntarism of the parties' behavior is an appropriate consideration for sentencing purposes. This was a 'Girls Gone Wild' home video made by the girls. They produced it; they starred in it."

Kirk refused to impose a sentence on the felony charges so that Roloff would not become a registered sex offender. Instead, he placed Roloff on probation for four years and ordered him to serve six months in jail on the misdemeanors that were part of the original set of charges.

The state attorney general's office intervened by securing a court order from the 4th District Court of Appeals, Madison, that forced Kirk to complete the sentencing. At a second sentencing hearing April 21, Kirk placed Roloff on probation for two years and 200 days on the felony charges and ordered him to register on the sex offender list.

But the judge added a twist. Kirk stayed the sentence for 100 years, effectively keeping Roloff off the sex offender registry for life. 

"The sex offender registration is a death knell for anybody," Kirk explained. 

A person remains on the list for 15 years after they complete parole or probation. Convictions on first- and second-degree sexual assault carry mandatory lifetime registration. The state Department of Corrections lists 28 offenses that require registration upon conviction.

The attorney general's office plans to appeal Kirk's sentence, although officials there declined to comment. Waupaca County Dist. Atty. John Snider also declined to comment, saying only "the matter is being pursued at the appellate level."

Although Roloff is not on the sex offender registry, the girl who made the videotape is registered. She was convicted of sexual exploitation of a child, and a different judge placed her on probation for four years and ordered her to register as a sex offender.

Kathleen Lhost, executive director of the Sexual Assault Crisis Center of the Fox Cities, said the statute should be revisited. Lhost, an attorney, also served on the bench as Outagamie County court commissioner. 

"Once you are on that list it has the potential of ruining your life because employers look at it," she said. "I think it is a problem because it doesn't distinguish between someone who makes a mistake with a younger girl who is factually consenting and someone who is aggressive and forcing himself upon people in a more violent way.

"I am sure that is what Judge Kirk is trying to do, to force the issue so the Legislature looks at it again and returns some discretion to the judges." 

Roloff's attorney, Tom Johnson, said cases like Roloff's are all too common. 

"The issue isn't the statute's existence, it is the indiscriminate use of the designation sexual predator," Johnson said. "There isn't any discretion. It is either on or off. You demonize them. When are we going to wake up as a society and acknowledge that teens are sexually active?"