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Sex offender registration

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Sex offender registration

Sex offender registration is a system in various states designed to allow government authorities to keep track of the residence and activities of sex offenders, including those who have completed their criminal sentences. In some jurisdictions, such as the United States registration is accompanied by notification requirements. The information in the registry is made available to the general public via a website or other means. In many jurisdictions registered sex offenders are subject to additional restrictions, including on housing. Those on parole or probation may be subject to restrictions that don't apply to other parolees or probationers. Sometimes these include (or have been proposed to include) restrictions on being in the presence of minors, living in proximity to a school or day care center, owning toys or other items of interest to minors, or using the Internet.

Sex offender registration by country

Australia

The Australian National Child Offender Register (ANCOR) is a web-based system used in all jurisdictions. Authorized police use ANCOR to monitor persons convicted of child sex offences and other specified offences once they have served their sentence. Offenders are monitored for eight years, 15 years or the remainder of their life (four years or 7½ years for juvenile offenders). On 1 March 2011, there were 12,596 registered offenders across Australia.

Canada

Canada's National Sex Offender Registry (NSOR) came into force on December 15, 2004, with the passing of the Sex Offender Information Registration Act (SOIR Act).[1] The public does not have access to the registry.

Since 2001, the Province of Ontario operates its own sex offender registry concurrently with the federal registry. Unlike the federal registry which has an opt-out provision, if an offender can convince a judge they are not a threat, the Ontario registry has no such provision. As a result, individuals who have been convicted of a designated offence at any time after 2001, and relocate to Ontario, are obligated to register for a period of at least 10 years. The registration period begins on the day the ex-offender relocates to Ontario.[2]

Ireland

Under the 2001 Sexual Offenders Act, all those convicted of certain sexual offenses are obliged to notify the police within 7 days of their name and address. They must also notify the police of any changes to this information or if they intend to stay somewhere other than their registered address for more than 7 days (including if they are traveling abroad). Individuals are subject to these registration requirements for varying durations, based on a sliding scale of the severity of the sentence they received. This scale is; 5 years for those who received a suspended or non-custodial sentences, 7 years for those who received custodial sentences of 6 months or less, 10 years for those who received custodial sentences of between 6 months and 2 years and indefinitely for those who received a custodial sentence of more than 2 years.

South Africa

The National Register for Sex Offenders was established in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. It records the details of anyone convicted of a sexual offence against a child or a mentally disabled person. The public does not have access to the registry; it is available to employers of people who work with children or mentally disabled people, to authorities responsible for licensing institutions that care for children or mentally disabled people, and to those responsible for approving foster care and adoptions. People listed on the register are prohibited from working with children or mentally disabled people, from managing institutions that care for children or mentally disabled people, and from being foster parents or adoptive parents.[3]

United Kingdom

In the United Kingdom, the Violent and Sex Offender Register (ViSOR) is a database of records of those required to register with the Police under the Sexual Offences Act 2003, those jailed for more than 12 months for violent offences, and unconvicted people thought to be at risk of offending. The Register can be accessed by the Police, National Probation Service and HM Prison Service personnel. It is managed by the National Policing Improvement Agency of the Home Office.

United States

The Supreme Court of the United States has upheld sex offender registration laws twice, in two respects. Two challenges to state laws (in Hawaii and Missouri) have succeeded, however.

In 1947, California became the first state in the United States to have a sex offender registration program.[4] Community notification of the release of sex offenders from incarceration did not occur until almost 50 years later. In 1994, a federal statute called the Jacob Wetterling Act required all states to pass legislation requiring sex offenders to register with state sex offender registries. Then again in 1996, based on a set of New Jersey laws called "Megan's Laws", the federal government required states to pass legislation mandating public notification of personal information for certain sex offenders. In Connecticut Dept. of Public Safety v. Doe (2002) the Supreme Court of the United States affirmed this public disclosure.[5][6]

The Adam Walsh Child Protection and Safety Act became law in 2007. This law implements new uniform requirements for sex offender registration across the states (however, these laws can differ in each state). Highlights of the law are a new national sex offender registry, standardized registration requirements for the states, and new and enhanced criminal offenses related to sex offenders. Since its enactment, the Adam Walsh Act (AWA) has come under intense grassroots scrutiny for its far-reaching scope and breadth. Even before any state adopted AWA, several sex offenders were prosecuted under its regulations. This has resulted in one life sentence for failure to register, due to the offender being homeless and unable to register a physical address.[7]

Because of the act, all 50 states have now passed laws requiring sex offenders (especially child sex offenders) to register with police. Accordingly, the law requires offenders to report where they take up residence upon leaving prison or being convicted of any crime.

In 2006, California voters passed Proposition 83, which will enforce "lifetime monitoring of convicted sexual predators and the creation of predator free zones".[8][9] This proposition was challenged the next day in federal court on grounds relating to ex post facto. The U.S. District Court for the Central District of California, Sacramento, found that Proposition 83 did not apply retroactively. Patty Wetterling, the mother of Jacob Wetterling and a major proponent of the Jacob Wetterling Act, has openly criticized the evolution of sex offender registration and management laws in the United States since the Jacob Wetterling Act was passed, saying that the laws are often applied to too many offenses and that the severity of the laws often makes it difficult to rehabilitate offenders.[10]

Constitutionality

U.S. Supreme Court rulings

In two cases docketed for argument on November 13, 2003, the sex offender registries of two states, Alaska and Connecticut, would face legal challenge. This was the first instance that the Supreme Court had to examine the implementation of sex offender registries in throughout the U.S. The ruling would let the states know how far they could go in informing citizens of perpetrators of sex crimes. The constitutionality of the registries was challenged in two ways:

Ex post facto challenge

In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court upheld Alaska's sex-offender registration statute. Reasoning that sex offender registration deals with civil laws, not punishment, the Court ruled 6-3 that it is not an unconstitutional ex post facto law. Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer dissented.

Due process challenge

In Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003),[11] the Court ruled that Connecticut's sex-offender registration statute did not violate the procedural due process of those to whom it applied, although the Court "expresses no opinion as to whether the State's law violates substantive due process principles".

Update: Reynolds V. United States Certiorari to the United States Court of Appeals for the Third Circuit No. 10–6549. Argued October 3, 2011—Decided January 23, 2012 "The Act does not require pre-Act offenders to register before the Attorney General validly specifies that the Act’s registration provisions apply to them".

State Court rulings
Hawaii

In State v. Bani, 36 P.3d 1255 (Haw. 2001), the Hawaii State Supreme Court held that Hawaii's sex offender registration statute violated the due process clause of the Constitution of Hawaii, ruling that it deprived potential registrants of "of a protected liberty interest without due process of law". The Court reasoned that the sex offender law authorized "public notification of (the potential registrant's) status as a convicted sex offender without notice, an opportunity to be heard, or any preliminary determination of whether and to what extent (he) actually represents a danger to society".[12]

Alaska

After losing the constitutional challenge in the US Supreme Court in 2002 one of the two Doe's in the case committed suicide. The other Doe began a new challenge in the state courts. Per the ALASKA DEPARTMENT OF PUBLIC SAFETY website: On July 25, 2008, Doe number two prevailed and the Alaska Supreme Court ruled that the Alaska Sex Offender Registration Act’s registration violated the ex post facto clause of the state's constitution and ruled that the requirement does not apply to persons who committed their crimes before the act became effective on August 10, 1994.[13]

Missouri

Many successful challenges to sex offender registration laws in the United States have been in Missouri because of a unique provision in the Missouri Constitution (Article I, Section 13) prohibiting laws "retrospective in [their] operation".[14]

In Doe v. Phillips, 194 S.W.3d 837 (Mo. banc 2006), the Supreme Court of Missouri held that the Missouri Constitution did not allow the state to place anyone on the registry who had been convicted or pleaded guilty to a registrable offense before the sex offender registration law went into effect on January 1, 1995.[15] and remanded the case for further consideration in light of that holding.[15] On remand, the Jackson County Circuit Court entered an injunction ordering that the applicable individuals be removed from the published sex offender list.[16] Defendant Colonel James Keathley appealed that order to the Missouri Court of Appeals in Kansas City, which affirmed the injunction on April 1, 2008.[16] Keathley filed an appeal with the Supreme Court of Missouri.

In response to these rulings, in 2007, several Missouri state Senators proposed an amendment to the Missouri Constitution that would exempt sex offender registration laws from bar on retrospective civil laws.[17] The proposed amendment passed the State Senate unanimously but was not passed by the Missouri House of Representatives before the end of the 2007 legislative session.[18] The same constitutional amendment was proposed in and passed by the Missouri Senate again in 2008, but also was not passed by the House of Representatives by the end of that year's legislative session.[19] As a result, the decisions of the Missouri courts prohibiting the retrospective application of sex offender laws remained intact.

The Missouri Supreme Court ruled on Keathley's appeal (Doe v. Phillips now styled Doe v. Keathley) on June 16, 2009. The Court held that the Missouri Constitution's provision prohibiting laws retrospective in operation no longer exempts individuals from registration if they are subject to the independent Federal obligation created under the Sexual Offenders Registration and Notification Act (SORNA), 42 U.S.C. § 16913.[20] As a result, many offenders who were previously exempt under the Court's 2006 holding in Doe v. Phillips were once again required to register.

On January 12, 2010, Cole County Circuit Judge Richard Callahan ruled that individuals who plead guilty to a sex offense are not required to register under Federal Law and thus are not required to register in Missouri if the date of their plea was prior to the passage of the Missouri registration law.[21]

Missouri also has a number of laws that restrict the activities of persons required to register as sex offenders, several of which have also been challenged as being retrospective in their operation. On February 19, 2008, the Supreme Court of Missouri held that a law prohibiting registered sex offenders from residing within one thousand feet of a school was retrospective in operation as applied to registered sex offenders who had resided at a location within such a distance prior to the enactment of the law.[22] Another exception to the school-residence proximity requirement was handed down by the Court on January 12, 2010 in F.R. v. St. Charles County Sheriff's Department. In this case, F.R. was convicted prior to the enactment of the law and the Court held that, as such, he was not required to abide by the restriction.[23] Consolidated with F.R. was State of Missouri v. Raynor, in which the Court found that Charles A. Raynor was not required to comply with R.S.Mo. § 589.426, a law restricting the activities of registered sex offenders on Halloween.[24] It should be noted that, in both F.R. and Raynor, the ruling applies only to the named party.

Florida

In the ruling of Florida Chapter Law 97-299: Senate Bill 958. The Bill was related to the release of Public Records Information.
Florida legislature outlined Sex Offender Registration in the creation of §921.0017 Credit Upon Resentence of an Offender Serving a Split Sentence, which has nothing in regards to the release of public records information as Legislature attempted to mask a cross reference correction. In the correction there was statutory language added in effort to bring it in compliance with the Florida Constitution and 3 subsections appeared in §921.0017, that were in regards to appropriation of funds.

Adam Walsh Act (2006)

Legal authority

Title I of the Adam Walsh Child Protection and Safety Act, the Sex Offender Registration and Notification Act, abbreviated as SORNA, and codified under 42 U.S.C.16911 et seq., is a federal mandate requiring U.S. jurisdictions to update their sex offender registration laws to conform with federal guidelines. States that do not substantially implement SORNA face a mandatory 10% penalty in their Bureau of Justice Assistance grant under 42 U.S.C. 3750 et seq.[25]

Tiers of offenses

Crimes that are deemed sex offenses for registration purposes have been expanded under SORNA. Each state must decide which tier violations of state law belong to, depending on the following guidelines, and then enact statutes that tier each criminal offense. This is in contrast to the current method in some states, where prosecutors or the courts tier individual offenders.

Thus, an offender's tier under this scheme is based on the particular statute to which an offender plead guilty, or was convicted of. So an offender's tier is not necessarily based on the seriousness of the crime, nor does it reflect the danger or re-offense risk of the offender. However, offenses must be punishable by imprisonment for more than 1 year (i.e. a felony) to be classified higher than Tier I.

Violations of state law are tiered according to the federal offenses to which they are comparable, or more serious than. Note that for federal purposes, sexual act typically refers to sexual penetration, while sexual contact refers to a touching offense, though sexual act can include sexual contact depending on the reading of the statute.[26]

Tier III Offenses require lifetime registration and quarterly verification, involve:[27]

  • sexual acts involving force or carried out under threat, 18 U.S.C. 2241(a)[28]
  • sexual acts with one whom the actor causes unconscious, or impairs by drugging or intoxication, 18 U.S.C. 2241(b)[28]
  • sexual acts with a child under the age of 12, 18 U.S.C. 2241(c)[28]
  • sexual acts with one whom is mentally incapable of appraising, or physically incapable of declining, or communicates unwillingness of, the sex act, 18 U.S.C. 2242[29]
  • sexual contact with a child under the age of 12, 18 U.S.C. 2244(c)[30]
  • non-parental kidnapping or false imprisonment of minors,
  • any attempt or conspiracy to commit of any of the above, and
  • any new offense committed by a Tier II offender.

Tier II Offenses require registration for 25 years and semiannual verification. It generally consists of nonviolent sex offenses, involving minors:[27]

  • sex trafficking of minors, 18 U.S.C. 1591[31]
  • transportation of minors with intent to engage in criminal sexual activity, 18 U.S.C. 2423[32]
  • coercion and enticement (Mann Act), 18 U.S.C. 2422(b)[33]
  • sexual acts with minors age 12-15, 18 U.S.C. 2243(a)[34]
  • sexual contact with minors age 12-15, 18 U.S.C. 2244[30]
  • sexual offenses involving those in custody, and the actor has custodial, supervisory, or disciplinary authority, 18 U.S.C. 2243(b)[35]
  • offenses where minors are used in prostitution,
  • offenses where minors are used in sexual performance,
  • offenses involving the production or distribution of child pornography,
  • any attempt or conspiracy to commit of any of the above, and
  • any new offense committed by a Tier I offender.

Tier I Offenses require registration for 15 years and annual verification. This tier is for sex offenses that do not fall into the higher tiers, and includes both felonies and misdemeanors. States can include any conduct that by its nature is a sex offense, although Tier I is generally reserved for nonviolent offenses where the victim has reached the age of consent:

  • sexual contact without permission, 18 U.S.C. 2244(b)[30]
  • offenses involving simple possession of child pornography,
  • offenses involving public indecency (some states limit this to where the victim is a minor),
  • offenses involving voyeurism, 18 U.S.C. 1801[36]
Retroactive application

The required retroactive application of requirements will be defined by criteria relating to the nature of their sex offenses. For example a tier 3 sex offender who was released from imprisonment for such an offense in 1930 will still have to register for the remainder of their life. A tier 2 sex offender convicted in 1980 is already more than 25 years out from the time of release. In such cases, a jurisdiction may credit the sex offender with the time elapsed from his or her release.

Application to offenses other than felony sexual offenses

Sex offender registration has been applied to crimes other than rape, child molestation, and child pornography offenses.

In Connecticut, those with state convictions for certain misdemeanors have to register, including: Public Indecency, in violation of C.G.S. § 53a-186, provided the court finds the victim was under 18; and Sexual Assault, 4th Degree, in violation of C.G.S. § 53a-73a.[37]

In New York and various other states, crimes that society does not necessarily view as sexual in nature are also considered to be registerable sex offenses, such as kidnapping, "sexual misconduct", unlawful imprisonment, and in some cases "sexually motivated offenses" (such as assault, burglary, etc.) that are not categorized as sexual offenses unless the court determines that the offense was committed pursuant to the offender's own sexual gratification. In New York specifically, kidnapping and unlawful imprisonment are registerable offenses only if the victim is under 17 and the offender is not a parent of the victim.[38]

In Kentucky, all sex offenders who move into the state and are required to register in their previous home states are required to register with Kentucky for life, even if they were not required to register for life in their previous residence.[39]

Public notice

In some localities, the lists of sex offenders are made available to the public: for example, through the newspapers, community notification, or the Internet. However, in other localities, the complete lists are not available to the general public but are known to the police. In the United States offenders are often classified in three categories: Level I offenders, who are at low risk to reoffend; Level II offenders, who are at moderate risk to reoffend; and Level III offenders, who are at high risk to reoffend. Information is usually accessible related to that risk (information being more accessible to the public for higher risk offenders).

Additional restrictions beyond public notice

Sex offenders on parole or probation are generally subject the same restrictions as other parolees and probationers.

Sex offenders who have completed probation or parole may also be subject to restrictions above and beyond those of most felons. In some jurisdictions they cannot live within a certain distance of places children or families gather. Such places are usually schools, worship centers, and parks. It could also include public venues (stadiums), airports, apartments, malls, major retail stores, college campuses, and certain neighborhoods (unless for essential business). In some states, they may also be barred from voting after a sentence has been completed and at federal level, (like all ex-offenders) barred from owning firearms. In the United States, they are likely to be also on the TSA's No Fly List, unable to obtain tickets to flights within the U.S.

Some states have Civil Commitment laws, which allow very-high-risk sex offenders to be placed in psychiatric hospitals or forced to live under very heavy supervision after the end of their normal sentences. See also: Child Sex Offender penalties.

The State of Missouri now restricts the activities of registered sex offenders on Halloween, requiring them to avoid Halloween-related contact with children and remain at their registered home address from 5 p.m. to 10:30 p.m., unless they are required to work that evening. Regardless of whether they are at work, offenders must extinguish all outside residential lighting and post a sign stating, "No candy or treats at this residence".[40]

In the United Kingdom, anyone convicted of any criminal offence cannot work in the legal, medical, teaching, or nursing professions. List 99 includes people convicted of sex offences barred from working in education and social work, though it also includes people convicted of theft, fraud, corruption, assault, and drugs offences.

Facebook prohibits any convicted sex offender from using Facebook.[41]

Effectiveness and consequences

The vast majority of sexual offence victims are known to the offender, either related, or intimate to the victim, this is contrary to media depictions of stranger assaults or child molesters who kidnap children unknown to them.[42] Thus, despite the public awareness of the whereabouts of convicted sex offenders, there has been no evidence shown that mandatory registration has made society safer.

In at least two instances, convicted sex offenders were murdered after their information was made available over the Internet.[43]

The Human Rights Watch organization criticized these laws in a 146-page report published in 2007.[44] and another report in 2013.[45]

Registration and homelessness

People who are registered in offender databases are usually required to notify the government when they change their place of residence. This notification requirement is problematic in cases where the registered offender is homeless.

The state of Washington is among those that have special provisions in their registration code covering homeless offenders, but not all states have such provisions. A November 2006 Maryland Court of Appeals ruling exempts homeless persons from that state's registration requirements, which has prompted a drive to compose new laws covering this contingency.

News reports in 2007 revealed that some registered sex offenders were living outside or under the colony at the causeway grew to as many as 140 registrants living there as of July 2009, but eventually became a political embarrassment and was disbanded in April 2010, with the residents moved into acceptable housing in the area.

As of 2013 Suffolk County, New York, which had imposed onerous restrictions on sex offenders exceeding those required by New York State law, was faced with a situation where 40 sex offenders were living in two cramped trailers located in isolated locations.[46] This situation had been created by the county in 2007 as a solution to the problem of housing sex offenders.[47]

See also

References

External links

  • US Dept. of Justice sex offender registry
  • Sex offender registry by state on PublicRecordsWire.com
  • Registry inaccuracies
    • Sex Offender Accused of Falsely Registering Family's Address
    • Sometimes 'sorry' doesn't cut it Police raid apartment long after sex offender has moved out
    • Sex Offender Community Notification in Scotland (Briefing Paper)
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