October 22, 1997

The Honorable Ron J. Volesky
State Representative
356 Dakota Avenue South
Huron, SD  57350-2513

OFFICIAL OPINION NO. 97-04

Registration of juveniles as sex offenders

Dear Representative Volesky:

You have requested an Attorney General's opinion from this Office regarding the registration of juveniles as sex offenders under SDCL 22‑22‑31.  Your request is based upon the following factual scenario:

FACTS:

A juvenile treatment facility that provides in-patient sex offender treatment for juvenile perpetrators has a client who was fifteen years old when adjudicated of a juvenile sex offense.  The juvenile is reaching the end of the juvenile's treatment at age sixteen.  An official with the Department of Corrections has indicated that the juvenile must sign the sex offender registry upon the juvenile's return home.  

Based upon the above facts, you have asked the following question:

QUESTION:

Does a juvenile who was adjudicated below the necessary age to register under SDCL 22‑22‑31 have to register as a juvenile sex offender once the juvenile reaches the necessary age?

IN RE QUESTION:

SDCL 22‑22‑31 requires persons convicted or adjudicated* of certain criminal offenses to register as sex offenders. The portion of the statute that deals specifically with your question reads as follows:

Any person residing in this state who has been convicted whether upon a verdict or plea of guilty or a plea of nolo contendere, or who has received a suspended imposition of sentence which has not been discharged pursuant to § 23A-27-14 prior to July 1, 1995, for commission of a sex crime, as defined in § 22-22-30, or any person who is a juvenile fifteen years of age or older adjudicated of a sex crime, as defined in subdivisions 22-22-30 (1) or (9), or of felony sexual contact, as defined in § 22‑22‑7.2, shall, within ten days of coming into any county to reside or temporarily domicile for more than thirty days, register with the chief of police of the municipality in which the person resides, or, if no chief of police exists, then with the sheriff of the county in which the person resides.  [Emphasis added.]

First, the statute applies to any juvenile fifteen years of age or older.  Since the juvenile in your factual scenario was adjudicated at the age of fifteen, that juvenile must clearly register as a sex offender under SDCL 22‑22‑31.  

Second, if a juvenile offender is adjudicated below the age of fifteen, it appears that the juvenile would not have to register as a sex offender once the juvenile reaches the age of fifteen.  The question you ask raises issues involving statutory interpretation and construction.  

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute.  The intent of a statute is determined from what the Legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used.  Words and phrases in a statute must be given their plain meaning and effect.

Schipke v. Grad, 1997 S.D. 38, ¶ 6, 562 N.W.2d 109, 111.  Because the statute uses the present tense "is" when it provides "any person who is a juvenile fifteen years of age or older adjudicated of a sex crime," it would be my interpretation that only those juveniles adjudicated at the ages of fifteen, sixteen, or seventeen must register as a sex offender.  See South Dakota Department of Labor v. Tri State Insulation Company, 315 N.W.2d 315, 316 (S.D. 1982); AFSCME Local 1922 v. South Dakota Department of Transportation, 444 N.W.2d 10, 13 (S.D. 1989).  If a juvenile is ten, eleven, twelve, thirteen, or fourteen years old when adjudicated, it would be my interpretation that those juveniles do not have to register as a juvenile sex offender under SDCL 22-22-31.  This would be true even after the juvenile's fifteenth birthday.

You should be advised that this interpretation is consistent with the remarks made by legislators, at the time this law was debated and voted upon.  A subsequent Legislature could, of course, change the policy.

As qualified above, my answer to your question is "no."  

--------------------------------------------------------------------------------

* The provisions in SDCL 22-22-31, making the sex offender registry a public document, may, in some circumstances, conflict with the confidentiality provisions of the juvenile justice code, i.e. SDCL §§ 26-7A-27, 26-7A-36, and 26-7A-38.  Under the rules of statutory construction, SDCL 22-22-31 would prevail as it is later in time and is more specific.  This opinion though does not answer that question.