Due in part to the efforts of Kevin Gillson, the circuit courts in Wisconsin have had the option of keeping juvenile sex offenders off the state registry for the last decade.
Then-Gov. Tommy G. Thompson signed Wisconsin Act 130 into law on April 17, 1998. The revisions to Wis. Stat. 301.45(1m) gave judges the ability to exempt offenders who are between the ages of 12 and 18 from registering as sex offenders. However, they must not be more than 4 years older than the person they had sexual contact with.
In 1996 then-18-year-old Gillson was charged with sexual assault of a child for having sex with his 15-year-old girlfriend, Stephanie Damiana, who became pregnant. He received two-years of probation and successfully lobbied to have his name removed from the registry.
“It’s a law which needed to be made,” said Robert D. Stansbury, who served as Gillson’s attorney. “It’s pretty obvious that it was tailored to fit very limited circumstances, such as Kevin’s and probably used to [cover] kids in the high school dating scenario.”
Throughout the last decade, attorneys and judges have used the law to guide them in cases where there was a relationship involving willing juvenile partners.
“We’ve had individuals on registry who may have applied (to be removed) in our county last year,” said Racine County District Attorney Michael E. Nieskes. “Judges have reviewed and granted some of those, so it does happen.”
Nieskes added that recommendations for exemption or withdrawal from the registry typically come from defense attorneys.
Milwaukee Circuit Court Judge Mary E. Triggiano said cases are carefully evaluated as to whether they meet criteria for an exemption.
“It’s certainly something that judges take into consideration and it’s been raised in cases,” said Triggiano, who is the presiding judge in Milwaukee County Children’s Court.
For Nieskes, cases in which both parties are closer in age and the victim is well into the teen years help enhance the likelihood that the offender will not be required to register.
“A victim who is 15 years and 9 months is different than one who is 13 years old,” said Nieskes.
He also indicated that mental maturity and coercion are investigated and a psychological evaluation may be required to help assess if the juvenile is a risk.
Since most requests to have a juvenile kept off the registry are made by the defense, the prosecution can oppose, endorse or remain indifferent.
Triggiano said that a recent state Supreme Court case has given judges even more latitude when reviewing inclusion of minors on the sex offender registry.
In State v. Cesar G. (2004), the Supreme Court overturned a Court of Appeals decision to allow circuit courts discretion to stay that part of a dispositional order requiring a delinquent child to register as a sex offender.
“We can review cases every 60 days and make sure the child is getting the appropriate treatment and [decide] whether or not to continue the stay,” said Triggiano.