ACLU suit seeks changes to Michigan sex offender registry
William Hetherington says he's still being punished after paying his debt for a crime he didn't commit.
Hetherington, 65, made national headlines after his 1986 conviction for a new Michigan crime, spousal rape. Innocence advocates raised questions about the conviction, and his case was highlighted in the 1990s by multiple media outlets, including the "Phil Donahue Show," ABC's "Prime Time Live" and CBS's "60 Minutes."
Despite his clean prison record, Hetherington served more than double the maximum sentence under Michigan guidelines for spousal rape because at parole hearings he refused to express remorse for a crime he insisted he hadn't committed. When he was released in 2009, his name was added to the Michigan State Police Sex Offender Registry, and he struggled to adjust to life after prison.
The Air Force veteran was in a federal program that provides housing and other services for honorably discharged homeless military veterans — but when the state changed the rules in 2011 requiring him to stay on the sex offender list for life, he was kicked out of the program, which bars anyone with lifetime reporting requirements on sex offender registries.
Civil rights advocates say Hetherington is an example of how thousands of people have been unfairly penalized by the Michigan Sex Offender Registry more than two years after the Sixth Circuit Court ruled the state's changes retroactively putting people on the list for life were unconstitutional.
"All the government has ever done is violate my rights," said Hetherington, who lives in a small apartment provided by a minister in Vassar, near Frankenmuth. "Now they're doing it again. It's the story of my life."
Hetherington is one of 40,000 convicted sex offenders in Michigan who are represented by the American Civil Liberties Union in a federal class-action lawsuit against the state.
The lawsuit, filed in June in U.S. District Court, demands that the state lift the offenders' lifetime registry requirements. That would allow them access to benefits they're cut off from because they're on the list — including the program Hetherington was kicked out of, the HUD-Veterans Affairs Supportive Housing initiative.
"The lifetime requirement is effectively lifetime parole, because you have to report even small things like getting an email address or phone number," said Miriam Aukerman, senior staff attorney at ACLU of Michigan.
"There are other reporting requirements, such as if you want to travel anywhere for more than seven days, you have to report that in person," Aukerman said. "The statue also says people on the registry can’t loiter within 100 feet of a school, which means parents can't watch their kids' sports games or graduations without being in violation."
State police spokeswoman Shanon Banner said the agency is in compliance.
"As a result of the 6th Circuit decision, the MSP informed law enforcement that similar retroactive enforcement of the requirements under the 2006 or 2011 amendments against other similarly situated offenders could likewise be unconstitutional," she said in a written statement.
"However, it needs to be noted that the court did not find the sex offender registry itself to be unconstitutional, nor did it find prospective enforcement of the 2006 or 2011 requirements against offenders with offense dates after such amendments to be unconstitutional."
Banner said state police are unable to take people off the list who had been retroactively required to report for life.
"Efforts to modify the registry as a whole require legislative changes to the (sex offender registry)," she said. "To this end, we have been engaged in discussion with the Legislature, Attorney General’s Office and other stakeholders for some time in regards to the offenders who were named in the lawsuit."
Phone calls to the Attorney General's Office were not returned.
Aukerman said the current system diverts police from monitoring potentially dangerous sex offenders because the list includes people convicted of less serious crimes.
"Our original lawsuit involved five people," she said. "One of our clients was a little older than the girl he was dating in high school, and she got pregnant at age 15. He got prosecuted. He's now married to the girl; they have kids together, but he's on the sex offender registry for life. That's not the kind of person law enforcement should be wasting resources monitoring."
Michigan passed the sex offender registration law in 1994 as a private law enforcement database. After initial registration, the only other requirement was for offenders to tell the state within 10 days of a change of address.
When the registry was set up, people convicted of one sex offense were to stay on the list for 25 years after the conviction; those convicted of multiple crimes were to be on the list for life.
Through the years, lawmakers amended the registry, including making the names public. A 2006 change retroactively barred most offenders from living, working or loitering within 1,000 feet of school property. In 2011, a rules change forced many offenders who would have been on the list only for 25 years to remain in the database for life.
The ACLU and the University of Michigan Clinical Law Program filed a lawsuit in 2012 on behalf of five offenders who were required under the new rules to be on the list for life. In 2016, the 6th Circuit U.S. Court of Appeals ruled that retroactively applying the changes to people already on the list was unconstitutional.
The U.S. Supreme Court in 2017 declined to hear an appeal, upholding the 6th Circuit Court decision — but despite the ruling, Hetherington and thousands of others remain on the sex offender list for life.
"The state isn't in compliance, so we filed a new lawsuit against the state in June," Aukerman said. "It's a class action on behalf of everyone on the registry."
As that case winds its way through the courts, Hetherington said he's struggling to make ends meet. He said his sole income is his Social Security check.
"My own government is screwing me over," he said. "But that's nothing new."
Hetherington had separated from his wife, Linda, and was in the middle of a custody battle for their three daughters when she twice accused him of raping her before asking prosecutors to drop the charges, according to Detroit News archives.
Linda Hetherington later made a third rape claim after she and her estranged husband had sex on Sept. 24, 1985. He said the sex was consensual; she claimed she was tied up and brutally raped.
Hetherington was arrested and became the first person charged under Michigan's spousal rape law. During his trial in Genesee County Circuit Court, the judge prohibited cross-examination of his wife, who died in 2012.
The rape charge was prosecuted at the same time as Hetherington's custody case, and the divorce court froze his assets so he was unable to hire an attorney or get out of jail on bond. But the judge in the criminal trial ruled he wasn't indigent and refused to provide him with a court-appointed lawyer.
Prosecutors produced no physical evidence of rape at the trial. Linda Hetherington had undergone a pelvic examination in a hospital three hours after the reported rape, and there was no evidence of injury or forced penetration.
The court-designated psychologist who examined Hetherington concluded: "This is not a man who would force himself sexually or hostilely on another individual," according to court records.
Two police officers testified they had seen tape marks on Linda's face. Two doctors who examined her said they saw no such marks, but the jury apparently believed the officers and returned a guilty verdict.
"There's something about you, Mr. Hetherington, that frightens me," Genesee County Circuit Judge Thomas Yeotis said before handing down his sentence.
The sentencing guideline for the new offense was 12 months to 10 years but Hetherington was sentenced to 15 to 30 years. Yeotis didn't explain why he deviated from the guidelines.
"The whole thing was a joke," Hetherington said. "There were so many holes in my case it wasn't funny. But I got convicted anyway."
Ten years after Hetherington's conviction, attorney Jeff Feldman accepted the case pro bono. He used the Freedom of Information Act to get copies of five photographs police took of Linda Hetherington hours after the alleged rape. Prosecutors never disclosed the photos to the defense.
Feldman took the photos to forensic photographer John Valor, who was the lead forensic photographer in the trial of serial killer Ted Bundy.
Valor swore in a 1998 affidavit that the pictures of Linda Hetherington showed no scratches, tape marks or abnormalities of any kind. He added such marks would have been clearly visible
Still, Hetherington's appeals were denied until he was released from prison in 2009. He said life hasn't been easy since then.
"It's just been one nightmare after another," he said.
Julie Hurwitz, a civil rights attorney who has consulted Hetherington, said he's been given a raw deal.
"He had four months left on the sex offender registry before his 25 years were going to be up," she said. "He was originally told he'd be on the registry for 25 years — then they changed the law and retroactively required him to stay on the list for life.
"That meant he was immediately kicked out of this housing program, and job training programs, and lost other benefits," Hurwitz said. "The real impact is this poor man is afraid to leave this one-room hovel he's living in, fearing he'll be picked up for violating the Sex Offender Registration Act. It's a shame."