Man Convicted of Rape Challenges Law on Registration of Sex Offenders

When Fernando Urbina pleaded guilty to raping his estranged wife in 1991, Megan Kanka was a thriving 4-year-old girl some 3,000 miles away.

But three years later, the New Jersey girl would be brutally slain by a paroled child molester, and a new California law named in her memory would alter the course of Urbina’s life.

Under Megan’s Law, the Ventura County man must register as a sex offender with local authorities--or risk a second felony conviction.

Urbina cried foul and filed court papers in November arguing that the registration constitutes punishment imposed after the fact.

With no legal precedent in California, Urbina’s motion in Ventura County Superior Court finds itself in murky legal waters.

A judge has denied Urbina’s motion, but the request could be made again depending on the outcome of a similar case pending before the California Supreme Court and another case recently appealed to the U.S. Supreme Court.

At issue is whether the registration and notification provisions established by Megan’s Law--a federal law passed in 1994 in the wake of the girl’s murder--are constitutional.

Law enforcement advocates say the get-tough measures, by now enacted in all 50 states, provide a valuable tool for authorities to track paroled sex offenders and to notify residents of their presence.

But defense attorneys say the law’s provisions are spurred by hysteria and cast such a wide net that those individuals who have served their time are never given a second chance and allowed to get on with their lives.

“Megan’s Law originally came into effect because of child sex offenders, but the scope of the law now goes much further,” said Ventura lawyer Arnold W. Gross, who represents Urbina. “It covers a wide range of offenses--including the types that in the past were not registerable.”

That is what happened in Urbina’s case.

In 1991, he pleaded guilty to spousal rape. According to court records, Urbina had broken into his wife’s home in Port Hueneme and raped her on the living room floor while holding a hunting knife. The couple had been separated for two years.

At the time of his sentencing, Urbina was told by Judge Steven Z. Perren that he would not have to register as a sex offender because spousal rape did not require registration.

But in 1993 the state statute changed, and spousal rape became an offense that required registration. Subsequently, Megan’s Law made registration retroactive to 1944.

Urbina, who was paroled in 1995 after serving four years of an eight-year sentence, didn’t learn until September 1997 that he would have to register.

“He was stunned,” Gross said. “He made one bad mistake that at the time had some very, very severe consequences. . . . He has paid his dues. He has done his time.”

Gross contends that his 33-year-old client is not a dangerous sexual predator likely to attack again. He described the single incident of spousal rape as an extreme offense that arose out of a marital dispute.

“He has had no other criminal convictions or charges since he was out on parole,” Gross said, and as such should not continue to be punished by a lifetime registration requirement.

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Deputy Dist. Atty. Audry Rohn, who argued against the Urbina motion last month, disagreed.

“This guy is a rapist,” she said. “He went into the house and he brutally raped her. It was horrible. I think if somebody . . . has done it once, I think the odds are pretty good that he could do it again.

“If he is never going to do it again,” she added, “he has nothing to worry about.”

In considering Urbina’s challenge, Perren indicated that there were two issues for him to resolve. First, the question of whether Urbina was properly informed about not having to register at the time of his sentencing. The judge concluded that he was. Second, does a registration requirement imposed years after the fact run afoul of ex post facto, or “after the fact,” prohibitions?

“This really troubled me, because I thought when I first received the paperwork, this was clearly an ex post facto law,” Perren said during the court hearing. “It was a punishment imposed after the fact. Just seemed clear as a bell to me. Well, I’m wrong.”

The judge said that after researching the subject, he could find “no authority in California directly on point,” but that a pending case before the California Supreme Court should soon resolve the issue.

Perren said such issues have been taken up by state courts in Washington, Oregon and Louisiana. In most instances, ex post facto challenges like the one raised by Urbina have been rejected. Louisiana is the only state whose courts have ruled to the contrary, he said.

During the hearing, Perren also referred to a federal district court opinion handed down in August 1997 that found the requirements in New Jersey’s law to be regulatory--not punitive.

After citing those cases, Perren concluded that the “crushing weight of authority nationwide is that it is not an ex post facto law,” and denied Urbina’s motion.

Challenges to the validity of criminal registration laws have been made on other constitutional grounds, including privacy rights, vagueness, double jeopardy and arguments that they are a form of cruel and unusual punishment.

Legal experts say future challenges to Megan’s Law could continue until such issues are resolved by the nation’s high court.

“There are enough serious constitutional questions that they are going to have to be resolved by the appellate courts and ultimately the Supreme Court,” said Samuel Pillsbury, a criminal law professor at Loyola Law School. “The ex post facto issue is certainly one of them.”

In denying Urbina’s motion, Perren told the paroled rapist to register with his local chief of police. Failure to register is a felony.

“If you don’t register,” the judge said, “things get real serious and they get serious real fast.”

In the past two years, Ventura County prosecutors have filed charges against 30 people who failed to comply with the state’s registration requirements.

Of those cases, the penalties ranged from 16 months in county jail to four years in state prison.

And because it’s a felony not to register, most paroled sex offenders run the risk of second- or third-strike convictions that could send them to prison for life.

“The punishment is usually pretty harsh,” says Deputy Dist. Atty. Adam Pearlman, who handled the prosecution of registration cases for two years.

In Ventura County, about 1,200 individuals are registered as sex-offenders. Pearlman said about half of them live in Oxnard.

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Gross declined to discuss where in Ventura County his client is living, saying that Urbina wants to get on with his life. He said Urbina has now registered with local authorities.

A decision to appeal Perren’s ruling is on hold, he said, until the state Supreme Court and U.S. Supreme Court take up the issue.

“He is employed,” Gross said of his client. “He is in Ventura County. He is not happy with what has happened.”