For Some Sex Assault Defendants, Justice Not So Blind

This is a partial transcript of The Big Story With John Gibson, August 7, 2003, that has been edited for clarity. Click here to order the complete transcript.

JOHN GIBSON, HOST: Heads up, Kobe Bryant. Be glad you're not in Minnesota.

Like many states, Minnesota has a sex offender registration (search) law, but at least one man on the state list was actually never convicted of a sex crime, and he wants his name taken off.

FOX News senior judicial analyst Judge Andrew Napolitano (search) has the lowdown on this unusual situation. How can you end up on the sex offender list if you got acquitted of the crime?

JUDGE ANDREW NAPOLITANO, FNC SENIOR JUDICIAL ANALYST: Well, the Minnesota statute says if you are convicted of a crime involving a sexual assault or a set of facts emanating out of an alleged sexual assault, you have to register as a sex offender.

GIBSON: A set of facts emanating?

NAPOLITANO: Yes, that's what the statute says. This defendant had an altercation with a woman he met at a bar. She accused him of rape. Police found zero evidence of rape. The rape charge was thrown out. He pled guilty to the assault because they had a sort of a slapping fight. He violated probation, he went to jail. Before he left jail, they make him register as a sex offender, even though the charge of rape was thrown out because of zero evidence. Why? Because the assault emanated out of the same set of facts as the sexual allegation.

GIBSON: Okay. So, there is the reason to never get called a sex offender. It follows you around.

NAPOLITANO: Correct. It does follow you around.

GIBSON: And here is Kobe Bryant (search). Let's say that he gets found guilty of some minimal thing, and I don't even know what that would be. What's the minimum possible?

NAPOLITANO: Well, the minimum possible would be touching a sexual part of the body with clothing on. That would still be sexual assault under Colorado law. Just like this Minnesota case.

GIBSON: Let's just say he didn't actually have to serve jail time and got probation. He'd still have to go around and register as a sex offender?

NAPOLITANO: Correct. Think of probation as permission.

GIBSON: Permission to go live.

NAPOLITANO: Permission to go live, permission to move, permission to get a job, permission to drink alcohol, permission to go to a movie, permission to look at pornography… registering wherever you go. In New Jersey, they practically put a sign on the front of your lawn, “The occupant of this house is a sex offender.” Kobe could be living with that, even if acquitted of the charge of rape...

GIBSON: Assume the worst in Kobe's situation, that he is convicted or found guilty of something, and irrespective of jail, is then free to go about and continue his basketball career. And he gets on a plane and he flies to a new city and he goes to see a hotel, he goes to see the arena, he plays basketball and goes back to the hotel and reports in to the local sex offender office?

NAPOLITANO: Yes, absolutely. Well, it would be very difficult for him because his probation would have to be transferred, literally, to every city in which he was going to play, because he would have to have some local authority responsible for him. If he violated parole while playing the New Jersey Nets in New Jersey, he couldn't be punished by the probation people in Colorado. Therefore, there has to be a New Jersey probation officer as well.

GIBSON: That has jurisdiction over him.

NAPOLITANO: That has jurisdiction over him when he is playing for the Nets.

GIBSON: And he would have to grant that jurisdiction.

NAPOLITANO: Correct. Meaning he could have a probation officer in every state in which he needs to go to play for the L.A. Lakers. Or he moves to Colorado and doesn't play anymore.

GIBSON: It doesn't sound like there is a good chance of that.

NAPOLITANO: Probation is permission and you literally have to get permission to do the things that the rest of us take for granted.

GIBSON: How long would this go on?

NAPOLITANO: Twenty years. Twenty years, even if he is found not guilty of the charge of rape.

GIBSON: Unbelievable. All right. Well, Judge Andrew Napolitano, thank you very much.

NAPOLITANO: You're welcome, John.

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