¶ 41. {dissenting). When James Smith was 17 years old, he was convicted of falsely imprisoning another 17-year-old boy for the purpose of collecting a drug debt. Smith, the State, the circuit court, the court of appeals, and the majority all agree that "there is no allegation that the false imprisonment entailed anything sexual." Majority op., ¶ 3. Nevertheless, based on this conviction, the majority concludes that there is a rational basis for making Smith register as a sex offender.
*410¶ 42. The majority rejects Smith's assertion that the purpose of the sex offender registry is to protect the public from sex offenders. Id., ¶¶ 9-10, 28. Rather, it concludes that the legislative purpose behind the sex offender registry is to "protect the public and assist law enforcement." Id., ¶¶ 26, 29. It determines that there is nothing arbitrary about requiring Smith to register as a sex offender because "Smith was convicted of an offense for which registration is required" and because the legislature could have concluded that "in the large majority of cases where people kidnap or unlawfully imprison other people's children, the children either are sexually assaulted or are in danger of sexual assault." Id., ¶¶ 39, 36 (quoting New York v. Knox, 903 N.E.2d 1149, 1154 (N.Y. 2009)).
¶ 43. Two essential errors drive the majority's analysis. First, the majority fails to carefully define the purpose of the statute. Its broad statement of the statutory purpose evinces an unwillingness to provide meaningful review. Second, the majority mischaracterizes Smith's challenge. In so doing, the majority blurs the distinction between facial and as-applied challenges and ducks the constitutional challenge that is the subject of this appeal.
¶ 44. As a result of these errors, the majority abdicates its responsibility to determine whether there is a rational basis for requiring Smith to register as a sex offender. Contrary to the majority, when I examine the legislative purpose behind the sex offender registry, I conclude that there is no rational basis for making Smith register as a sex offender when everybody acknowledges that there was nothing sexual about his offense. Accordingly, I respectfully dissent.
*411I
¶ 45. The majority opinion has set forth the test to determine the constitutionality of a statutory requirement under rational basis review as follows: Does the means selected by the legislature bear a reasonable and rational relationship to a legitimate governmental purpose (or interest or objective) advanced by the statute? See majority op., ¶¶ 11, 12.1 Therefore, the question presented here is: Does requiring Smith to register as a sex offender because he was convicted of false imprisonment of a minor who was not his child bear a reasonable and rational relationship to a legitimate governmental purpose?
¶ 46. Analyzing and articulating the legitimate governmental purpose is the first and often most important step in determining the constitutionality of a statute. The rational basis test depends on a careful description of the governmental purpose. However the purpose is stated by the court — carefully, carelessly, narrowly, broadly, or far ranging — it often becomes determinative of whether the statute passes constitutional muster. Thus, there is substantial need for accuracy, specificity, and analysis when articulating the nature of the government's legitimate purpose.
¶ 47. Unfortunately, the majority fails to carefully identify the legitimate governmental purpose advanced by the sex offender registry, Wis. Stat. § 301.45. It declares that the purpose advanced by the sex offender registry is "to protect the public and assist law enforcement." ¶¶ 10, 13, 26, 27. This statement of the governmental purpose is far too broad to permit meaningful due process or equal protection review.
*412¶ 48. With the governmental purpose stated so broadly, mandatory "sex offender" registration would be justified for many disparate offenses, even offenses that have no nexus whatsoever to a sexual crime or even to the risk of such a crime. A conviction for violating most provisions of the Wisconsin Criminal Code could trigger mandatory "sex offender" registration to advance the purpose of "assisting law enforcement." Further, because traffic offenders may create a danger to the public, any offender found guilty of a traffic infraction could be required to register as a "sex offender." Applying the broad purpose articulated by the majority, the court would necessarily conclude that registration requirements for most criminal and traffic offenses are rationally related to the "purpose" underlying the sex offender registry.
¶ 49. As authority for its rendition of the governmental purpose of Wis. Stat. § 301.45, the majority cites a quotation from State v. Bollig, 2000 WI 6, ¶ 21, 232 Wis. 2d 561, 605 N.W.2d 199. Majority op., ¶ 26. Its reliance on Bollig is a classic example of a court yanking a quotation out of context to give the illusion of adhering to precedent.
¶ 50. Bollig was decided nearly ten years ago under a prior version of the statute and in a much different context than at issue in this case. At issue in Bollig was whether a failure to inform a defendant of his registry requirements at the time he entered a guilty plea was a violation of his constitutional rights. Bollig, 232 Wis. 2d 561, ¶ 1. The court held that the statute did not "evince the intent to punish sex offenders, but rather reflected] the intent to protect the public and assist law enforcement." Id., ¶ 21. Thus, the registry requirement was not a direct consequence of conviction but rather, it was merely a "collateral conse*413quence." Id., ¶ 27. Because the statute was non-punitive, the court determined that a plea colloquy need not explicitly state the registry requirement, and the defendant was not entitled to withdraw his plea. Id.
¶ 51. The focus in Bollig was not on the legitimate governmental purpose of Wis. Stat. § 301.45 as it pertains to a substantive due process or equal protection analysis. Rather, the Bollig court's focus was on whether the statute qualified as a direct consequence of conviction for purposes of a plea colloquy. At the time Bollig was decided, dissemination of the sex offender registry was limited.2 Thus, the court concluded that the registry was not "akin to traditional shaming punishments" because the statute "[did] not allow for the indiscriminate publication of a sex offender's vital information." Id., ¶¶ 23-24. A general expression that the statute is non-punitive — the statute is not designed to punish but rather is designed to "protect the public and help law enforcement" — was a sufficient statement of the legislative intent for the purposes of the issue in that case.
¶ 52. However, the analysis in Bollig regarding the purpose of the sex offender registry law is not a sufficient articulation of a legitimate governmental purpose under an equal protection or substantive due process review. By superimposing the legislative intent found in Bollig onto a due process and equal protection challenge, the court waters down its constitutional analysis.
¶ 53. The level of generality of the majority's statement of the legitimate governmental purpose *414makes a mockery of the rational basis test and evinces the majority's unwillingness to conduct any form of meaningful judicial review. It signals, in essence, the court's refusal to test legislation under the equal protection and substantive due process provisions of the federal and state constitutions. Under the majority's approach, the people of the state lose "the touchstone of due process [] protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558 (1974).
¶ 54. The actual governmental purpose advanced by Wis. Stat. § 301.45 is easily identified. It may be stated simply as protecting people — especially children — from sexual crimes. This purpose is evinced by the types of offenses that trigger the registration requirement,3 *415the title of the registry,4 and the legislative history of the Jacob Wetterling Act.5
*416II
¶ 55. It may be that the legislature's choice to include the crime of false imprisonment of a minor is rationally related to the legitimate governmental purpose of protecting people, especially children, from sexual crimes. The legislature could have concluded that false imprisonment of a child is often a precursor to sexual abuse or exploitation of that child, and that an individual who has falsely imprisoned a child should be required to register in order to protect other children from the risk of sexual crimes.
¶ 56. This appears to be the conclusion advanced by the majority — that the "nexus" between false imprisonment óf a child and a sexual crime against that child justifies the registration requirement. See majority op., ¶ 30. The majority states: "[I]n the large majority of cases where people kidnap or unlawfully imprison other people's children, the children either are sexually assaulted or are in danger of sexual assault." Majority op., ¶ 36 (quoting Knox, 903 N.E. 2d at 1154) (emphasis added).
¶ 57. Here, however, we need not decide whether the statute survives a facial challenge because Smith makes an as-applied challenge to the constitutionality of the statute. He contends that as applied to the facts of his underlying false imprisonment conviction, forcing him to register is not rationally related to the governmental purpose of protecting the public from sexual crimes. Despite reiterating the phrase "as applied to Smith" countless times,6 the majority does not undertake an analysis appropriate to an as-applied constitutional challenge.
*417¶ 58. A defendant may challenge a statute as being unconstitutional on its face or as applied. "[A] facial challenge requires the court to examine the words of the statute on a cold page and without reference to the defendant's conduct." People v. Stuart, 797 N.E.2d 28, 35 (N.Y. 2003).
¶ 59. By contrast, "an as-applied challenge calls on the court to consider whether a statute can be constitutionally applied to the defendant under the facts of the case." Id. The court must assess the merits of the defendant's as-applied challenge by "considering the facts of his case, not hypothetical facts in other situations." State v. Harridan, 2003 WI 113, ¶ 43, 264 Wis. 2d 433, 665 N.W.2d 785.
¶ 60. "In an as-applied challenge, if the statute in question cannot be constitutionally applied to the litigant, then she will prevail without having to show that no set of circumstances exists under which the statute could be constitutionally applied to someone else." Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 239 (1994); see also State v. Robinson, 873 So. 2d 1205 (Fla. 2004) (holding that as applied to the facts of the case where the State conceded that the crime contained no sexual element and the circumstances of the crime belied any sexual motive, mandatory sex offender registration violated the defendant's due process of law); State v. Small, 833 N.E.2d 774 (Ohio Ct. App. 2005) (holding that as applied to the facts of the defendant's conviction for kidnapping, the registration requirements were unconstitutional).
¶ 61. Because Smith poses an as-applied challenge, the majority must tie the legitimate government purpose underlying the sex offender registry to the facts of Smith's case. Smith contends that there is no *418rational basis for making him register because it is undisputed "that his underlying conviction had no sexual element or motivation."7 Thus, the question presented is whether the registration requirement is constitutional even though it is undisputed that Smith's crime of false imprisonment was not sexually motivated and involved no sexual act or misconduct.
¶ 62. The majority ducks the actual question presented by flipping it on its head. Instead, it chooses to tackle a far easier question: is there a rational basis for making Smith register even if a prosecutor cannot prove that his crime had a sexual element or motivation? See majority op., ¶ 31 ("regardless of whether the State can prove a sexual component"); id. ("to require a second layer of proof regarding the sexual nature of the crime"); id., ¶ 32 ("regardless of whether there is proof that the crime he committed was sexual"); id. ("regardless of whether proof exists as to the crime's sexual underpinnings"); id., ¶ 34 ("regardless of whether a sex crime can be proven").
¶ 63. To answer this question, the majority addresses hypothetical facts. It asks: "Is a person who falsely imprisons a minor with the purpose to commit a sexual assault less dangerous to the public if the assault is thwarted, the child cannot be found, or the child cannot communicate about the crime?" Majority op., *419¶ 32 (emphasis added). It states further: "An abductor's intentions or actions cannot always be proven or alleged, particularly when a child is missing or the body is decomposed." Id. (emphasis added).
¶ 64. These hypothetical inquires are not applicable here, and none of the majority's analysis justifies the inclusion of Smith based on the facts of his case. As a result, the majority fails to determine whether the statute is arbitrary or irrational as applied to Smith and fails to squarely address the claim in this appeal.
¶ 65. Contrary to the majority, I conclude that there is no rational basis for requiring Smith, who committed no sexual offense, to register as a sex offender. The government purpose of protecting the public — particularly children — from sexual crimes is not reasonably related to the requirement imposed by law that he register as a sex offender. To the contrary, the governmental purpose may be undermined by requiring non-sex offenders to register. When the registry is clogged by offenders who bear no meaningful relationship to its legislative purpose, the court undermines the legislative purpose in creating the registry.8
*420¶ 66. The majority holds its analysis up as "a paradigm of judicial restraint." Majority op., ¶ 17. To the contrary, I conclude that it has abdicated its responsibility. The majority fails to provide meaningful review, thus depriving citizens of the touchstone of due process protection of the individual against arbitrary action of the government. By mischaracterizing the defendant's challenge, it blurs the distinction between as-applied and facial challenges. Ultimately, by ducking the actual facts of this case, it diminishes the effectiveness of the registry in protecting the public — especially children— from sexual crimes. Accordingly, I respectfully dissent.
¶ 67. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.Although the majority uses "purpose," "interest," and "objective" interchangeably, for consistency, I will use "purpose."
Bollig was decided several months before 1999 Wis. Act 89 created Wis. Stat. § 301.46(5n), requiring an Internet site providing sex offender information.
In addition to child kidnapping and false imprisonment, the following offenses trigger mandatory registration: sexual exploitation by therapist; sexual assault (first, second, or third degree); incest; sexual assault of a child (first or second degree); engaging in repeated acts of sexual assault of the same child; sexual exploitation of a child; trafficking of a child (defined as trafficking for the purpose of commercial sex acts or sexually explicit performance); causing a child to view or listen to sexual activity; incest with a child; child enticement for the purpose of having sexual contact or sexual intercourse with the child; child enticement for the purpose of causing the child to engage in prostitution; child enticement for the purpose of exposing a sex organ to the child or causing the child to expose a sex organ; child enticement for the purpose of recording the child engaging in sexually explicit conduct; use of a computer to facilitate a child sex crime; soliciting a child for prostitution; sexual assault of a child placed in substitute care; sexual assault of a child by a school staff person or a person who works or volunteers with children; exposing a child to harmful material or harmful descriptions or narrations; possession of child pornography; child sex offender working with children; human trafficking if the trafficking is for the purposes of a commercial sex act. Aside *415from kidnapping and false imprisonment, every one of the crimes triggering mandatory registration contains a sexual element.
The registry's title is consistent with the public explanation of the registry's purpose. The homepage of the sex offender registry website states: "[This website] will [] serve to enhance public awareness about sexual violence in our communities and provide valuable information about the ways in which individuals and communities can protect themselves and those they love from acts of sexual violence." Wisconsin Dep't Corrections, Sex Offender Registry, http://offender.doc.state.wi.us/public/home.jsp (last visited Nov. 25, 2009). The homepage links to a page containing notices and disclaimers, which claims: "This law requires registration of individuals who have been convicted of certain sexual offenses." Wisconsin Dep't Corrections, Notices & Disclaimers, http://offender.doc.state.wi.us/public/disclaimer.jsp (last visited Nov. 25, 2009).
When the Jacob Wetterling Act was initially introduced in 1992, the sponsor stated: "[This Act] may require some of us to choose between two interests. On one hand, we must protect children from sexual abuse and exploitation. On the other hand, there are those whose priority is in protecting convicted child sex offenders from the inconvenience of registering their addresses once a year." In 1993, the sponsor explained: "Sexual crimes against children are more pervasive than we would like to believe. . . . The tragedy of sexual abuse and molestation of children is compounded by the fact that child sex offenders tend to be serial offenders." "Under the Jacob Wetterling bill, a registration requirement would be triggered by the conviction of a sexual crime against a child."
The majority opinion appears to agree that false imprisonment was included as an offense triggering registration because of a purported link to sexual assault. See majority op., ¶¶ 31-33.
See majority op., ¶¶ 1, 2, 7, 12, 16, 36, 40.
Smith was originally charged with party to the crime of taking a hostage, contrary to Wis. Stat. §§ 940.305 and 939.05. A conviction for hostage taking is not a crime that triggers mandatory sex offender registration. Smith pled down to false imprisonment, contrary to Wis. Stat. § 940.30. It is clear from the sentencing transcript that neither the sentencing judge nor the author of the presentence investigation contemplated the possibility that Smith would be required to register as a sex offender under the statute.
A recent news report indicates that "[t]he sheer numbers of sex offenders on the registries in all 50 states ... are overwhelming to local police departments and, at times, to the public, who may not easily distinguish between those who must register because they have repeatedly raped children and those convicted of nonviolent or less serious crimes, like exposing themselves in public." Monica Davey, Case Shows Limits of Sex Offender Alert Programs, N.Y. Times, Sept. 2, 2009. The mother of Jacob Wetterling, who has been an activist against sexual violence since her son was kidnapped, commented: "The thing that is hard to remember is that all people on a registry are not the same, and we need to distinguish between them." Id. So much the more so for James Smith, who was convicted of a crime where there is no indication of a sexual motivation or element.