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Sex Offender Registry

SEX OFFENDER REGISTRY

Can you ever reclaim your life after being on the sex offender registry?  It can be difficult, even if your registry requirements end.  While a registered sex offender, however, your very movement and liberty are limited and threatened.  The government's position is that a person has little or no constitutional grounds to fight against being placed on the sex registry. The courts, in their turn, have ruled that the sex registry is not a punishment, but a remedial measure.  Therefore, individuals cannot challenge the requirement.  It is very important to know, from the beginning of any criminal case, whether there is a possibility of being placed on the sex offender registry. Additionally, it is crucial to know how long you will be required to register, and how that will change your daily life and close relationships.

There are two different avenues which can require an individual to register: sustaining Federal sex crime convictions, or sustaining Virginia sex crimes convictions. If you are convicted of a Federal sex crime, you will be required to register in all jurisdictions where you live, work, and go to school.  This in turn requires you to register in Virginia if you live, work, or attend school here.

42 U.S.C. §16901 et seq., known as the Adam Walsh Act, contains the Federal Sex Offender Registration and Notification Act (“SORNA”).  It dictates three tiers of registration, as follows:

TIER I - a requirement to register for 15 years, with the possibility of being taken off the registry after 10 years

TIER II - a requirement to register for 25 years, with no possibility of early removal

TIER III - a requirement to register for LIFE.  If an adult, you can never be removed from the registry.  However, if you were adjudicated of a Tier III offense as a juvenile, you may petition to be removed after 25 years.

Virginia's sex offender registry requirements are found at Va. Code §9.1‐900 et seq.  Similar to the requirements of SORNA, the Virginia sex offender registry scheme also “tiers” sex offenders, based upon the seriousness of their offense.  Virginia uses a two-tiered approach (violent and non‐violent).

The "violent" tier includes those who are convicted of (i) a “sexually violent offense” or (ii) murder, if the murder victim was under the age of 15, or was under the age of 18 and the murder was related to a sexual offense.  The registration requirement is for LIFE, with no possibility of removal, ever. The "non-violent" tier includes those who are convicted of (i) any registerable sex offense that is not a “sexually violent offense” or (ii) manslaughter, if the death arose out contributing to the delinquency of a child, or the abuse and neglect of a child.  In this tier, individuals are placed on the registry until their petition to be removed is approved.  Most individuals can petition to be removed after 15 years, although certain classes of offenses require you to wait 25 years to petition for removal.  For individuals with multiple convictions, however, the registration requirement is LIFE.

One of the most difficult things to navigate as a registered sex offender are the ongoing requirements which pop up unexpectedly.  The burden is on the registrant to avoid mistakes in order to comply with the registry laws. As the federal and state guidelines change, law enforcement changes the requirements for in-person visits, mailed in updates, and holidays a registrant cannot leave his house on. Some places have tried to require around the clock GPS monitoring (recently held by the Supreme Court to require Fourth Amendment protections.) If you violate any provisions, whether you knew about them or not, you could be charged with a separate crime for violation and noncompliance with the sex registry requirements. Naturally, this is extremely stressful and often leads to feelings of defeat.

Additionally, the registry does not adequately, in our opinion, differentiate between severity of offenses - a person convicted of a lesser sex offense is grouped on the online registry right next to someone who has been deemed a sexual predator and committed rape.  Moreover, some of the registry's strict requirements leave registrants with virtually no housing or employment options, and can lead to befuddling results, such as (in one state) probation officers instructing registrants to go live in a tent city in the woods.

This system is still evolving, and advocates are doing a good job of vocalizing how registries can be improved to serve their purpose more effectively.  However, many prosecutors, public officials, and members of the public continue to vilify "sex offenders" and lump them all together, regardless of whether the convictions were sustained under completely different circumstances.

If you are facing a registration requirement, it is crucial to have an experienced attorney closely analyze your case to determine whether alternative charges can be fashioned to avoid that requirement, or to determine whether you could possibly have your time on the registry reduced.  Many factors contribute to this, such as out of state conviction interpretation, and incorrectly assigned tier levels.  Possible remedies include contacting the Sex Offender Registration Board to make a tier level change, or going back to the court of conviction to request a change.

If you are facing a charge of Failure to Register, or a registration violation, an experienced lawyer will need to go on the offensive on your behalf. Although you are "innocent until proven guilty," with this charge, there is an unspoken presumption that you have violated.  Once the petition or charge has been filed, the government stops investigating on your behalf, and it will be up to you and your lawyer to collect and present the evidence for your defenses.

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