A.L. v. Pennsylvania State Police (Pa. 2022)

A.L. v. Pennsylvania State Police, No. 57 MAP 2021 (Pa. 2022)

Nature of Case: Appellee is a former member of the armed forces. In 2013, while in the Navy, Appellee had intercourse with an adult victim when her ability to consent was impaired by alcohol. The Uniform Code of Military Justice (“UCMJ”) defines the offense of sexual assault, in relevant part, as: “commit[ting] a sexual act upon another person when the other person is incapable of consenting… due to (A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person.” Appellee was charged with sexual assault under the UCMJ by general court-martial with a panel of service members concluding that the victim’s condition was “known or reasonably should have been known” by Appellee.

After his discharge from the Navy, Appellee moved to Pennsylvania where he registered with the Pennsylvania State Police (“PSP”) subject to registration under the Pennsylvania Sexual Offender Registration and Notification Act (“SORNA”). To assess Appellee’s registration tier, the PSP sought to identify the Pennsylvania crime to which the military offense was comparable. The PSP eventually concluded that the military offense was comparable to sexual assault under the Pennsylvania Crimes Code, which is committed when a “person engages in sexual intercourse . . . with a complainant without the complainant’s consent.” Sexual assault as defined above under the Crimes Code is a Tier III offense requiring lifetime registration.

Appellee appealed the PSP’s determination, arguing that his conviction was not comparable to sexual assault under the Pennsylvania Crimes Code, and that his conviction may have been based on mere negligence which would not meet the required mens rea under the Pennsylvania Crimes Code. The PSP rejected Appellee’s argument. Appellee subsequently appealed to the Commonwealth Court which reversed the PSP in a published opinion, finding that the two offenses are not comparable. The PSP then petitioned the Pennsylvania Supreme Court for allowance of an appeal.

The present case asks the Court to determine whether sexual assault as defined under the Uniform Code of Military Justice is comparable to sexual assault as defined under the Pennsylvania Crimes Code so as to make Appellee a lifetime Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA”) registrant.

Holding: The Pennsylvania Supreme Court affirmed the holding of the Commonwealth Court, concluding that (1) the categorical approach and modified categorical approach are applied, when determining whether a prior extra-jurisdictional offense is comparable to a Pennsylvania crime listed in a SORNA tier level, (2) under the categorical approach, all elements of the offenses, including scienter, are compared, and (3) sexual assault under the UCMJ was not comparable to sexual assault under Pennsylvania law. As a consequence, Appellee’s court-martial conviction cannot be the basis for his classification as a Tier III lifetime registrant under SORNA.