Ron Fortune v. State of Iowa

IN THE SUPREME COURT OF IOWA

No. 19–1721

Submitted February 16, 2021—Filed April 9, 2021

RON FORTUNE,

Appellant,

vs.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Humboldt County, Kurt J.

Stoebe, Judge.

Required sex offender registrant appeals denial by the district court

of his application for modification of registry requirements. REVERSED

AND REMANDED.

Appel, J., delivered the opinion of the court, in which all justices

joined.

Philip B. Mears (argued) of Mears Law Office, Iowa City, for

appellant.

Thomas J. Miller, Attorney General, and John R. Lundquist

(argued), Assistant Attorney General, for appellee.

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APPEL, Justice.

In this case, Ronny Fortune appeals a decision of the district court

denying his application under Iowa Code section 692A.128 (2018) to

modify the requirement that he register as a sex offender. The question of

the proper method of handling such modification applications has been a

recurrent issue in the district courts.

In 2003, Fortune was convicted of three counts of lascivious acts

with a child in violation of Iowa Code section 709.8 (2003). He was

sentenced to three consecutive five-year sentences and two years of work

release or parole. Although he entered an Alford plea to the criminal

charges, Fortune told the evaluating professional conducting his risk

assessment that he engaged in inappropriate sexual conduct with a seven-

year-old child over the course of approximately two years.

As a result of his convictions, Fortune is a tier III sex offender. See

Iowa Code § 692A.102(1)(c)(12) (2018). A tier III offender is required to

report to the sheriff’s office four times a year. Id. § 692A.108(1)(c).

Because his offense was against a minor, he is subject to the exclusion

zone restrictions set forth in Iowa Code section 692A.113. Finally, because

his lascivious acts conviction qualified as an “aggravated offense,” Fortune

is subject to lifetime registration as a sex offender. Iowa Code

§§ 692A.101(1)(a)(4), .106(5).

Fortune filed an application for modification of his sex offender

registration requirements. After holding an evidentiary hearing, the

district court denied Fortune’s modification application. The district court

denied a posttrial motion to reconsider, enlarge, or amend the findings.

Fortune appealed. For the reasons expressed below, we vacate the order

of the district court and remand for further proceedings.

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I. Background Facts and Proceedings.

A. Introduction. After his conviction for three sexual offenses,

Ronny Fortune was sentenced to three consecutive prison terms totaling

fifteen years, with two years of work release. Fortune served his prison

sentence, completed some sex offender treatment in prison, and was

transferred to work release on June 9, 2009. Fortune was paroled on

December 16. In January 2010 Fortune completed all sex offender

treatment. He successfully completed parole and was discharged from his

sentence on January 3, 2011.

On February 6, 2013, Fortune was convicted of disorderly conduct.

The charge originated as a domestic abuse assault. On June 16, 2017,

Fortune was convicted of failure to comply with the sex offender registry

requirements. The charge arose from his failure to report an alias

Facebook profile he created after Facebook took down the profile in his

name as a result of a report to Facebook from Fortune’s wife’s ex-husband

that Fortune was a sex offender.

On August 3, 2018, Fortune filed an application to modify his sex

offender registration requirements in Humboldt County pursuant to Iowa

Code section 692A.128.

B. Department of Corrections Risk Assessments.

1. Overview. The Iowa Department of Corrections (DOC) and the

Department of Correctional Services (DCS) utilize three tools to assess the

risk posed by sexual offenders: the STATIC-99R, the Iowa Sex Offense Risk

Assessment (ISORA), and the STABLE 2007. DOC and DCS policy

requires that all three tests be used in modification assessments.

In addition to these three tests, there are methods for “combined”

scores. The STATIC-99R can be combined with the ISORA, and again with

the STABLE 2007 for a composite score which is also generally described

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in terms of risk. Thus, in the usual workup in a modification matter, DOC

and DCS provide five assessments based on tests or a combination of tests.

In this case, DCS’s assessment for Fortune based on the above tools

was as follows:

STATIC-99R Average risk

ISORA Low risk

STATIC-99R/ISORA Combined Low risk

STABLE 2007 Low risk

STATIC-99R/STABLE 2007 Combined Low risk.

While the general category descriptors are helpful, the tests merit further

examination for a full understanding of their meaning.

2. STATIC-99R. Two features of the STATIC-99R suggest that the

general description of “average risk” may be overstated in Fortune’s case.

First, the age of the offender is calculated at the time of release from prison.

At that time, Fortune was under 34.9 which earned him a point on the

assessment and tended to make his evaluation less favorable. At the time

of the hearing, of course, Fortune was well over the age of 40.

In addition, the STATIC-99R assesses risk at the time of release from

prison. An offender’s risk of reoffense declines the longer the offender has

been released into the community without another sex offense. Conviction

of a nonsexual criminal offense, however, tends to lessen this decreased

risk of reoffense. For the STATIC-99R, the rate of reoffense for a person

whose risk is rated as average is 4–8%.

3. ISORA. ISORA is a newer tool that was developed by the DOC in

2010. On this test, Fortune scored a 2, which put him in the low-risk

range to reoffend. A DOC study found that individuals in the low-risk

category have less than a 1% recidivism rate for another sexual offense.

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4. STABLE 2007. STABLE 2007 is an additional scoring measure

that is essentially a clinical impression based on the offender’s interview

with a qualified assessor. Fortune scored a 3 on that test. A score of 3

carries a low-risk designation.

5. Combined scores. According to DCS, combined scoring more

effectively determines the recidivism risk level for males. On both

combined scores, Fortune was classified as low risk.

C. Testimony at the District Court Hearing.

1. Ashley Lappe. Ashley Lappe, a psychologist for the First Judicial

District who prepared Fortune’s assessment, testified at the hearing. She

confirmed many details about the testing methodology described above.

She indicated that the risk for sexual reoffending in general is cut in half

for every five years of unsupervised release without sexual reoffending.

She testified that Fortune’s registration violation bothered her to some

degree but that it would not impact the scores on the ISORA or STATIC-

99R.

2. Ronny Fortune. Fortune testified that since his release from

prison, he received a degree in criminal justice, training as a paramedic,

and a degree in culinary arts and hospitality. He has been working full

time since his release from prison in a glove factory, as a sales executive,

and more recently in the culinary and hospitality sector.

Fortune married in 2013 and has four stepchildren with his wife.

Prior to their marriage, Fortune’s wife’s ex-husband discovered that

Fortune was on the registry and threatened to report them for child

endangerment. Fortune and his wife met with a lawyer and they decided

to get married. By getting married, Fortune could attend to the children

without fear of a child endangerment offense.

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Fortune testified about his violation of the sex offender registry

provision in 2017. He stated that his wife’s ex-husband reported him to

Facebook and Facebook deleted his account. Fortune then created a

Facebook profile using his mother’s maiden name without notifying the

sheriff.

Fortune testified that he volunteered as a paramedic for a year.

During that time, he tried to become a volunteer firefighter. Due in part

to the publicity surrounding his registration violation, he was told to wait

until he was off the registry before becoming a volunteer firefighter.

D. Ruling of the District Court. The district court denied

Fortune’s application. In denying the application, the district court noted

that Fortune’s sex offender risk assessment test scores were not uniformly

low risk, that he committed two offenses since his release from prison, that

the circumstances of his marriage were alarming because of the presence

of children in the home, that the nature of the underlying offense was

appalling, that Fortune did not present a stipulation to modification from

the DCS, that Fortune lacked remorse for the underlying offense and

showed resentment of registration, and that Fortune did not present a

compelling reason for release from the registry.

II. Standard of Review.

Iowa Code section 692A.128 provides that the district court may

consider modification of the sex offender registration obligation if certain

criteria are met. This initial threshold determination is reviewed for

correction of errors at law. State v. Iowa Dist. Ct., 843 N.W.2d 76, 79–80

(Iowa 2014). Any other questions involving interpretation of Iowa Code

chapter 692A are also reviewable for correction of errors at law. See

Schaefer v. Putnam, 841 N.W.2d 68, 74 (Iowa 2013).

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Once the initial threshold is met, the district court may grant

modification. Iowa Code § 692A.128(5). As will be explained in greater

detail below, the term “may” ordinarily vests the trial court with discretion.

See, e.g., State v. Adams, 554 N.W.2d 686, 690 (Iowa 1996) (“The use of

the word ‘may’ shows the legislature’s intention to confer a discretionary

power, not to impose a requirement.”). “An abuse of discretion occurs

when a district court exercises its discretion on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.” State v. Wilson,

878 N.W.2d 203, 210–11 (Iowa 2016). “A ground or reason is untenable

when it is not supported by substantial evidence or when it is based on an

erroneous application of the law.” State v. Gomez Garcia, 904 N.W.2d 172,

177 (Iowa 2017) (quoting Graber v. City of Ankeny, 616 N.W.2d 633, 638

(Iowa 2000) (en banc)).

III. Discussion.

A. Statutory Framework. The provision for modification of sex

offender registry requirements is contained in Iowa Code section

692A.128. The statute generally provides that in order to be considered

for modification, the offender must satisfy several threshold requirements.

See id. § 692A.128(2). First, the offender must have “successfully

completed all sex offender treatment programs that have been required.”

Id. § 692A.128(2)(b). Second, the offender must show that “[a] risk

assessment has been completed and the sex offender was classified as a

low risk to reoffend.” Id. § 692A.128(2)(c). Third, the offender must not be

“incarcerated when the application is filed.” Id. § 692A.128(2)(d).

In addition, for tier III offenders, such as Fortune, at least five years

must have elapsed since the registration requirement began. Id.

§ 692A.128(2)(a). Finally, if a person is under the supervision of the DOC,

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the applicant must obtain a stipulation from the judicial district DCS

agreeing to the modification. Id. § 692A.128(2)(e).

When the threshold criteria have been met, the district court may

proceed to consider modification of the registration requirements. Id.

§ 692A.128(5). Under Iowa Code section 692A.128(5) “[t]he court may, but

is not required to, conduct a hearing on the application to hear any

evidence deemed appropriate by the court. The court may modify the

registration requirements under this chapter.” The central question in this

appeal is how the district court should treat an application for modification

where the offender has met the statutory requirements.

B. Positions of the Parties.

1. Fortune. According to Fortune, the issue presented in this case

is what kind of discretion exists, if any, after an offender has clearly

established the listed statutory criteria for modification have been met.

Fortune argues that once the initial criteria have been satisfied, there is

essentially a presumption that the person should be modified off the

registry.

Fortune asserts that the word “may” does not grant unlimited

discretion. He emphasizes that the purpose of the statute “is protection of

the health and safety of individuals, and particularly children, from

individuals who, by virtue of probation, parole, or other release, have been

given access to members of the public.” Iowa Dist. Ct., 843 N.W.2d at 81.

Fortune points out that he has met all of the threshold requirements

for modification. He argues that the label low risk is, in fact, “really low

risk” because the risk to reoffend is in the low single digits, at the worst,

according to the DOC assessment tools. He then claims that the district

court should look only at the specific factors identified by the legislature

in Iowa Code section 692A.128(2). Because he has met all the statutory

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criteria to qualify for modification—completion of all required sex offender

programming, a low-risk evaluation by the DOC, not incarcerated, and a

five-year period since release from prison—Fortune argues he is entitled

to modification.

In the alternative, Fortune asserts that even if the district court has

discretion to consider factors other than the statutory criteria, these

additional factors must relate to the applicant’s risk of reoffending. So

even assuming the district court has discretion to consider other factors,

Fortune claims the district court gave insufficient weight to the fact that

he was evaluated as a low-risk offender and met the other qualifications

for modification. Fortune also claims the district court improperly

considered or gave too much weight to Fortune’s average-risk rating on the

STATIC-99R considered in isolation from the other validated assessment

tools, the failure of DCS to stipulate to modification, his two criminal

offenses since his release, his 2013 marriage, the nature of his underlying

sexual offense, his lack of remorse, and his lack of a compelling reasons

for modification.

Based on the above errors, Fortune asks us to find that the district

court abused its discretion in denying his application for modification.

Fortune urges us to reverse the district court and remand with

instructions to the district court to grant his application.

2. State. The State offers a different framework for considering

modification petitions. The State does not contest that Fortune met the

threshold requirements for modification in section 692A.128. But,

according to the State, the mere fact that Fortune meets the statutory

qualifications is not dispositive of the modification question. Instead, the

State sees the statutory requirements as eligibility criteria. The State

notes that if satisfaction of the statutory requirements alone were

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adequate, the legislature would have provided that the district court “shall”

grant the modification.

The State thus sees the word “may” as vesting broad discretion in

the district court to consider many factors in determining the modification

question. While the State recognizes that the discretion is not without

limits, the State argues that the factors weighed in this case were

sufficiently correlated to the public safety goals of Iowa Code chapter 692A

to justify denial of Fortune’s application.

C. Proper Legal Framework for Evaluation of Modification

Applications. We begin our analysis with consideration of the proper legal

framework for evaluation of modification petitions. In considering the

proper framework, we consider the statute as a whole and seek to

determine legislative intent from the language of the statute and its

statutory context. See, e.g., In re A.J.M., 847 N.W.2d 601, 607 (Iowa 2014).

We have stated in a number of contexts that the purpose of sex offender

registration is to protect the public. Specifically, we have noted “the

purpose of the registry is protection of the health and safety of individuals,

and particularly children, from individuals who, by virtue of probation,

parole, or other release, have been given access to members of the public.”

Iowa Dist. Ct., 843 N.W.2d at 81; see also In re A.J.M., 847 N.W.2d at 604

(“The paramount purpose of the sex offender registry requirement is to

protect society from sex offenders after they have been released back into

society following the disposition of their case.”).

While the purpose of protecting the public supports the registration

statute in general, the purpose of the modification provision is to permit

some offenders, who are eligible, to obtain relief from the burdensome

registration provisions. As we have noted, the eligibility for modification

after statutory standards are satisfied “balances the registry’s protective

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purpose with our legislature’s related recognition—in enacting the

modification provision—of an individual’s interest in removal from the

registry when appropriate.” Iowa Dist. Ct., 843 N.W.2d at 84. In other

words, the legislature has determined that for the purpose of modifying

sex offender registration requirements imposed on sex offenders, one size

does not fit all.

With these statutory purposes in mind, we now consider how the

district court should approach modification applications. The first step for

the district court is determining whether an applicant has met the gateway

requirements of Iowa Code section 692A.128. If the statutory

requirements are not met, that is the end of the matter and the district

court must deny the modification. This determination of compliance with

the statutory requirements by the district court is reviewable on appeal for

errors at law. Cf. Schafer, 841 N.W.2d at 74 (“We review subject matter

jurisdiction rulings for correction of errors at law.”); Wesley Ret. Servs.,

Inc. v. Hansen Lind Meyer, Co., 594 N.W.2d 22, 29 (Iowa 1999) (“This

statute does not provide for the exercise of discretion by the district court;

if the statutory prerequisites for arbitration are met, the court ‘shall’ order

arbitration. Therefore, our review is for the correction of errors of law.”

(emphasis omitted) (citation omitted)).

If the applicant meets the threshold statutory requirements, the

district court proceeds to the second step, namely, determining, in its

discretion, whether the registration requirements should be modified. In

this second step, the district court should consider the statutory factors

and any other factors that the district court finds relevant to the

modification issue. This second-step determination is reviewable on

appeal for abuse of discretion. See, e.g., People v. Carbajal, 312 P.3d 1183,

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1190–91 (Colo. App. 2012); White v. State, 195 A.3d 108, 330 (N.H. 2018);

In re Hamilton, 725 S.E.2d 393, 399 (N.C. Ct. App. 2012).

We come to these conclusions based upon the language and

structure of the statute. Under section 692A.128(5), the district court may

hold a hearing. At such a hearing, the district court is permitted to

consider any evidence the district court deems appropriate. Id. Further,

the legislature provided that the district court “may” grant modification,

without further qualification. Id. This statutory trifecta of discretion

compels us to reject the notion that if the statutory requirements are met,

the district court must grant modification. Mandatory modification would

be inconsistent with the discretionary language of the statute. See Adams,

554 N.W.2d at 690 (“The use of the word ‘may’ shows the legislature’s

intention to confer a discretionary power, not to impose a requirement.”).

No one doubts that the statutory requirements are certainly important

factors to be considered by the district court on the ultimate issue of

modification, but they cannot be considered exclusive factors. See Matos

v. State, 184 So. 3d 1194, 1195 (Fla. Dist. Ct. App. 2015) (per curiam)

(noting that the statute specifies a district court may grant modification if

offender meets all statutory criteria but vests discretion for consideration

of other factors).

We next consider what factors are relevant in deciding whether to

grant or deny the petition for modification. The Iowa statute is silent on

this issue. Other jurisdictions vesting discretionary authority in district

courts to grant modifications from sex offender registration are more

explicit but not always more helpful. See generally Wayne A. Logan,

Database Infamia: Exit from the Sex Offender Registries, 2015 Wis. L. Rev.

219, 230–31 [hereinafter Logan]. For instance, a Mississippi statute

requires that applicants must show they

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properly maintained [their] registration as required by law and

that [the district court must determine that] future

registration of the petitioner will not serve the purposes of this

chapter and the court is otherwise satisfied that the petitioner

is not a current or potential threat to public safety.

Miss. Code Ann. § 45–33–47(3) (West, Westlaw current through 2021 Reg.

Sess.). A Hawaii statute declares that applicants must show they have

met statutory prerequisites, “substantially complied with registration

requirements,” “[are] very unlikely to commit a covered offense ever again,”

and registration “will not assist in protecting the safety of the public.”

Haw. Rev. Stat. Ann. § 846E–10(f)(1)–(4) (West, Westlaw current through

Act 1 of the 2021 Reg. Sess.). A Virginia provision states that modification

may be granted if the district “court is satisfied that such person no longer

poses a risk to public safety.” Va. Code Ann. § 9.1–910(B) (West, Westlaw

current through 2021 Reg. Sess.). Although the Iowa statute does not use

similar express language, we think these statements of statutory purpose

behind the modification provisions of registration statutes similar to Iowa’s

provide a degree of insight as to potential approaches to the problem of the

relevant factors for the district court to apply in considering applications

for modification.

From the context, purpose, and text of the statute, and absent

legislative guidance, we conclude the district court should consider only

those factors that bear on whether the applicant is at low risk to reoffend

and there is no substantial benefit to public safety in extending the

registration requirements. We note that “low risk” does not mean no risk.

As noted by one authority, “professional norms prohibit psychosexual

evaluators from making ‘statements asserting that [an individual] is no

longer at any risk to reoffend.’ ” Logan, 2015 Wis. L. Rev. at 232 (quoting

Ass’n for Treatment of Sexual Abusers, Practice Standards and Guidelines

for the Evaluation, Treatment, and Management of Adult Male Sexual

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Abusers 22 (2005)); see also Patterson v. Foote, 204 P.3d 97, 102 (Or. Ct.

App. 2009) (“The requirement that the petitioner prove that he or she no

longer poses a ‘threat to the safety of the public’ likewise provides no

support for the state’s insistence upon proof of a complete and total

absence of a risk of reoffense.”). And, conclusory appeals to public safety

do not defeat a modification application. The threat to public safety must

be tied to the individual applicant and the record established in each case.

In considering relevant factors, the district court has broad

discretion, but that discretion is not unlimited. As Fortune suggests in

his alternate argument, the discretionary regime in the modification

statute has some similarities with criminal sentencing. Though the

purposes of criminal sentencing and a modification are distinctly different

(one to punish the offender, the other to protect the public), both permit

the district court to consider a wide range of potentially relevant factors,

provided those factors are rationally related to the underlying goals of the

discretionary regime. See State v. Roby, 897 N.W.2d 127, 138 (Iowa 2017).

In a modification proceeding, once the statutory requirements have

been met, the district court, in addition to compliance with the statutory

requirements, may consider additional factors that are relevant to the

question of whether the offender poses a sufficient risk of reoffense or that

public safety would require the registration regime be continued to provide

a degree of control on the offender and provide information to the public.

Specifically, a district court commits an abuse of discretion when it fails

to consider a relevant factor, or considers an improper or irrelevant factor,

on the question of whether the ongoing risks of danger from the sex

offender justifies continuation of the registration requirements. See Roby,

897 N.W.2d at 137. In the exercise of discretion under Iowa Code section

692A.128, the district court must take care to ensure that public safety,

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and not punishment, provides the lens through which facts are evaluated.

See State v. Pickens, 558 N.W.2d 396, 400 (Iowa 1997) (“[T]he statute was

motivated by concern for public safety, not to increase the punishment.”).

Where only proper factors have been considered, we find an abuse of

discretion only where there is a clear error of judgment. Roby, 897 N.W.2d

at 137. The district court’s stated reasons for a decision on modification

must be sufficient “to allow appellate review of the trial court’s

discretionary action.” Cf. State v. Barnes, 791 N.W.2d 817, 827 (Iowa

2010) (applying the principle to a sentencing case).

D. Application of Legal Principles. We now proceed to apply the

above legal principles to Fortune’s specific challenges in this case, namely,

that the district court abused its discretion in denying relief. Based on

our review of the record, we conclude that the district court improperly

considered a number of factors in the modification proceeding.

Fortune questions the district court’s treatment of his risk

assessment conducted by DCS. The district court found the fact that the

STATIC-99R demonstrated average risk was significant. But the testimony

at the hearing by the State’s psychologist clearly established that Fortune

should be categorized as a low-risk offender, that the composite

assessments classifying him as a low-risk offender were more weighty than

individual tools, and that the STATIC-99R overstated his risk in light of

the years that had elapsed since his release from prison and his advancing

age.

The district court originally stated in the order that this factor was

determinative, and then later backpedaled. In context, we think the fact

that Fortune’s STATIC-99R was not low risk must be considered in its

complete context. On balance, based on the available validated empirical

tools as appropriately adjusted, the State’s psychologist testified that

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Fortune is a low-risk offender, a factor that the legislature had determined

makes him eligible for, but does not require, modification. The district

court cannot disqualify Fortune from eligibility for modification for his

assessment that meets the statutory requirement for consideration as a

low-risk offender. To the extent the district court reached a contrary

conclusion, it committed legal error.

Fortune chastises the district court for twice mentioning in its order

that DCS did not make a recommendation with respect to Fortune’s

modification application. But Fortune’s assessment prepared by DCS

states that the department did not stipulate because “Mr. Fortune is not

currently under supervision.” In response to Fortune’s rule 1.904 motion

challenging the district court’s reliance on the lack of stipulation, the

district court stated that the discussion in its order was simply a part of

the narrative. Because we are remanding this case to the district court, it

is not necessary to determine the extent to which the district court

regarded the factor as significant. On remand, we are confident that the

district court will give no weight to this factor.

Fortune questions the district court’s reliance on his two criminal

convictions as consideration of improper factors. On this point, we agree

with the State. The 2013 simple misdemeanor is not described in detail

and happened years prior to the hearing, but we cannot say the district

court abused its discretion in giving the offense some consideration. But

see Carbajal, 312 P.3d at 1192 (holding that district court consideration

of trespass conviction was an improper factor in its discretion to grant

modification if it was “the sole basis for continuing to impose

registration.”). Similarly, the district court did not abuse its discretion in

taking into consideration the 2017 parole violation, which shows that

Fortune engaged in an effort to work around the Facebook policy of

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denying access to its platform for sex offenders. These convictions were

appropriately considered by the district court in making its assessment of

the future risk posed should modification be granted.

On Fortune’s claim that the district court improperly considered the

facts and circumstances surrounding his marriage, we agree. The fact

that Fortune had been married for more than six years and was

participating in normal family life ordinarily would be considered a positive

factor for Fortune. While it is true that he married after learning from a

lawyer that by doing so he would avoid a potential criminal charge of child

endangerment, there is no evidence in the record that he violated the law

at any time surrounding the date of his marriage or that the department

of human services had unanswered concerns as suggested by the district

court. To the extent there may have been a whiff of suspicion in 2013

arising from a quick marriage, that whiff has dissipated after a six-year

marriage and family life without incident. We do not think his marriage

six years ago can be considered a risk factor today to justify the

continuation of registration requirements. We conclude the district court

erred when it considered his marriage as a factor weighing against

modification based on the record developed before the district court.

With respect to Fortune’s attack on the district court’s emphasis on

the underlying nature of the offense, we think the results of the risk

assessment tools should not generally be overridden by nonvalidated risk

assessments made by the district court based upon the nature of the crime

and its apparent relationship to recidivism. First, consideration of the

nature of the crime comes perilously close to punishment, an

impermissible goal of the sex offender registration. Further, the nature of

the crime has already been factored into the equation in two ways. First,

as a tier III offender, Fortune must have at least five years in the

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community without reoffense to be eligible for modification compared to

shorter periods of time for less serious offenses. Iowa Code

§ 692A.128(2)(a). Second, the nature of the crime is a factor considered in

the validated assessment tools. District courts should be cautious in

rejecting the validated risk assessments based on a case-by-case judicial

impression of the underlying offense.1

In some cases, however, it may be possible to identify increased risk

based upon what appears to be repeated patterns of behavior. For

example, an offender might be engaging in what is ordinarily innocent

behavior that looks more suspicious in light of the facts of the underlying

crime. For instance, an offender who loiters at the same location as a past

offense might raise concerns. To that extent, the similarity of patterns

between past offenses and present behavior could be quite relevant. The

focus, however, must be on the present danger or threat to public safety,

not on punitive response to past crime.

Another factor relied upon by the district court was Fortune’s lack

of remorse. The record developed in this case, however, does not

demonstrate a lack of remorse. When Fortune testified, neither party

asked him questions regarding the topic, nor did the State make an

argument about his lack of remorse at the hearing. It seems to have been

1There is a body of empirical evidence related to the question of recidivism among

sexual offenders. See, e.g., Kim Steven Hunt & Robert Dumville, U.S. Sent’g Comm’n,

Recidivism Among Federal Offenders: A Comprehensive Overview (2016),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-

publications/2016/recidivism_overview.pdf [https://perma.cc/5SDL-SK73]; Patrick A.

Langan et al., U.S. Dep’t of Just., Recidivism of Sex Offenders Released from Prison in

1994 (2003), http://www.bjs.gov/content/pub/pdf/rsorp94.pdf [https://perma.cc/

3RFW-DKR7]; Elizabeth J. Letourneau et al., Med. U. S.C., Evaluating the Effectiveness

of Sex Offender Registration and Notification Policies for Reducing Sexual Violence Against

Women (2010), https://www.ojp.gov/pdffiles1/nij/grants/231989.pdf [https://

perma.cc/9WGU-DW4C]; Roger Przybylski, U.S. Dep’t of Just., Recidivism of Adult Sexual

Offenders (2015), https://www.smart.gov/pdfs/RecidivismofAdultSexualOffenders.pdf

[https://perma.cc/RW5S-NSV6].

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a nonissue to the parties. Further, the record shows that Fortune

successfully completed SOTP, which generally requires that an offender

confront his responsibility for past offenses. On the record developed in

this case, the district court erred in relying on a lack of remorse that did

not have a factual basis in the record.

Finally, the district court found that the reasons offered by Fortune

were not compelling. Fortune stated that he wanted to be a first responder

or volunteer firefighter but was advised to first get off the sex offender

registry. He also wanted to participate more freely in the school activities

of his stepchildren.

The provisions of sex offender registration are onerous. The direct

and collateral consequences of sex offender registration include

stigmatization, challenges in finding employment, restrictions on

residency and movement, and difficulty in finding housing. See Elizabeth

Reiner Platt, Gangsters to Greyhounds: The Past, Present, and Future of

Offender Registration, 37 N.Y.U. Rev. L. & Soc. Change 727, 759–64 (2013).

In Fortune’s case, he is not only required to report quarterly, but he must

also comply with various other restrictions, including those related to

attendance at school events. Any person in his position would desire to

be relieved of the legal restrictions. We do not see the lack of a “compelling

reason” as a proper factor to consider in denying Fortune’s request for

modification. Further, we see nothing nefarious about Fortune’s prosocial

desire to contribute back to his community in the fashion he proposes.

The district court did not have the benefit of the guidance provided

today. Based on the above discussion, we vacate the district court’s order

and remand the case for further proceedings.

On remand, the district court will reassess the merits of Fortune’s

modification application consistent within the framework and analysis

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provided in this opinion. The ultimate disposition does not depend solely

upon compliance with the mandatory threshold requirements of Iowa Code

section 692A.128 but lies in the discretion of the district court in light of

the purposes of the registration statute and the modification provision

fashioned by the legislature.

IV. Conclusion.

For the above reasons, the decision of the district court is vacated

and the matter is remanded to the district court for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.