The Appellate Division concluded with the following: Without an alternative instrument, or new study or empirical data, J.G. and C.C. rely on the assertion that child pornography was not expressly considered when the RRAS was developed. That argument is an insufficient basis for rejecting the use of the RRAS.
The RRAS was developed in 1995 by the Attorney General with the assistance of mental health experts. Child pornography clearly existed in 1995. As developed, the scale was to be applied to various sex offenders. Even if every type of offender were not expressly considered, that omission does not mean that the RRAS is automatically inapplicable to a particular type of offender, such as a one-time child pornography offender. In other words, although the developers of the RRAS did not expressly consider child pornography, that omission is not evidence that the RRAS should not be applied to a registrant convicted of a child pornography offense. Instead, there must be evidence that experts in the area of assessing the risk of re-offense of sex offenders generally agree that one-time child pornography offenders are different, and should be evaluated differently, from other sex offenders. Neither J.G. nor C.C. presented such evidence. Moreover, neither J.G. nor C.C. presented evidence demonstrating that the Attorney General has been requested to reevaluate the efficacy of the RRAS for tiering child pornography offenders under Megan’s Law.
In summary, we discern no basis to reject the trial courts’ findings that J.G. and C.C. both failed to present evidence demonstrating that as applied to them the use of the RRAS was improper. We also hold that neither J.G. nor C.C. presented evidence that warranted a rejection of, or modification to, the RRAS when applied to one-time child pornography offenders. Finally, we do not preclude the possibility that a registrant could develop the record to challenge the RRAS when it is applied to a one-time child pornography offender. That record, however, was not presented by either J.G. or C.C.
The Court suggests a roadmap for challenging the RRAS as applied to one-time child pornography. It is unclear, however, who the Court would require to make the request to the Attorney General regarding the need to reevaluate the efficacy of the RRAS for tiering child pornography offenders under Megan’s Law.