Virginia, like every other state in the country, has a Sex Offender Registry, which lists everyone in the state who has been convicted of certain sex crimes. The statute that established the Sex Offender Registry was first passed in 1994, and it has been amended every few years every since. In virtually every case, the amendments have made the Sex Offender Registry requirements tougher, and now some people on the Sex Offender Registry can’t go on school property, or near a school bus, or to a playground.
There are four things that a lawyer can do for someone on the Registry:
- File a petition to have him taken off the Registry. Under present law, someone who is on the list for a “non-violent” offense can ask to have his name taken off the list 15 years after he first registered, under the authority of Virginia Code §9.1-910.
- File a petition to reduce the frequency of required re-registration under Virginia Code §9.1-909.
- File a petition to allow him to go onto school property under Virginia Code §18.2-370.5.
- Defend against a charge that he failed to properly re-register, under Virginia Code §18.2-472.1.
Lloyd Snook has successfully petitioned to have someone taken off the Registry, and has represented many people in efforts to allow them to go on school property under limited circumstances, such as to see their child’s school play, or to confer with teachers, or to pick up their child when she is sick. He was involved in two appeals to the Virginia Supreme Court over the application of the statute that allows courts to permit a sex offender to go onto school property. In the first case, Commonwealth v. John Doe, 278 Va. 223 (2009), we had successfully persuaded the Circuit Court of Charlottesville to issue an order under the statute to permit John Doe to go onto school property for certain limited purposes. The School Board appealed, and the Supreme Court reversed, saying, in essence, “We will interpret the statute differently from its literal meaning, because the General Assembly doesn’t have the power under the Virginia Constitution to enter an order that tells the schools who they have to let on their property.” In the second case, John Doe v. Commonwealth, Supreme Court docket number 100423, the Court, by an unpublished order, reversed the decision of the Circuit Court for the County of Fairfax that denied the petitioner the relief that he sought under the statute. The bottom line on these two cases is this — before the General Assembly passed Virginia Code §18.2-370.5, a sex offender could go on any school property unless he had been served with a trespass notice by the School District. So if he lived in Charlottesville and was given a no-trespass notice by the Charlottesville schools, he could still go onto the property of private schools, or of the schools of Albemarle County or any other city or county. The statute was passed to provide that a sex offender is not permitted on any school property, and if he is found on school property it is a felony punishable by up to 5 years in prison. But the statute gave the power to the Circuit Court to permit the sex offender to go on to school property. The Supreme Court ruled that the Circuit Court could remove the felony ban, and leave it to the School Board to work it out with the sex offender on a case-by-case basis.
If you are on the Sex Offender Registry and want to be able to go onto school property for legitimate purposes related to the education of your children, we may be able to help.
Finally, there is an important issue that needs to be discussed. The U. S. Supreme Court upheld Sex Offender Registry statutes in Smith v. Doe, 538 U.S. 84 (2003), reasoning that they were not criminal statutes and so they were not governed by the Ex Post Facto Clause of the U.S. Constitution. The Court applied a seven-part test to decide that the Alaska statute was civil. The Court found that five of the criteria were seriously at issue:
- Exposing someone to public shame by disseminating accurate information is not “punishment.” This criterion may get a different hearing now because every year the General Assembly attaches new restrictions on people on the Sex Offender Registry. In other words, it’s no longer just a list — it is now a list plus a whole series of probationary conditions that act and feel like probation, which is punishment.
- You don’t actually go to jail as a part of being listed on the Sex Offender Registry, and its obligations are less harsh than the sanctions of occupational debarment, which the Court has held to be nonpunitive. But where, in addition to being on the list, offenders are told where they can and cannot go, they have to tell the state police about every computer that they use, and in some states they are not permitted to live within 1,000 feet of a school, park or library, at some point those conditions become sufficiently harsh that they have to be called punishment.
- The Sex Offender Registry Act does not promote the traditional aims of punishment — rehabilitation, isolation from society, retribution, or deterrence. But when the Sex Offender Registry scheme involves isolating someone from society by not permitting them to associate with children, perhaps Sex Offender Registry Act, with all of its conditions, begins to look more like punishment.
- The Registry has a rational connection to a legitimate nonpunitive purpose, public safety, which is advanced by alerting the public to the risk of sex offenders in their community. But this “balancing” analysis necessarily means that if it could be shown that the Registry does not have a rational connection to a nonpunitive purpose — as where the people subject to the Registry can be shown to be not dangerous, or where the restrictions have no connection to the particular offender (as where someone whose underlying crime had nothing to do with computers is barred from using the Internet) — this analysis may cut go the other way. Part of the proof here would involve testimony from sex offender therapists that most of the people on the list are not at all likely to commit another sex offense. In one case in Oklahoma, experts testified that probably 90% of the people on their Sex Offender Registry pose little risk to the community.
- The Registry scheme is not excessive with respect to the Act’s purpose. That may have been the case in 2003, but the statutes have changed since then. A court may decide that the 2011 version of the Registry presents a very different analysis.
Applying a Cruel and Unusual Punishment analysis, the Michigan Court of Appeals recently held that requiring registration under certain circumstances may constitute cruel and unusual punishment under Michigan’s constitution. See People v. Dipiazza, 286 Mich App 137, 153-157, 778 NW2d 264, 273-274 (2009).
It is quite possible that someone will file a challenge to Virginia’s Registry statute. If so, they would find that those who diagnose and treat sex offenders generally believe that most of the people on Virginia’s Registry are not likely to re-offend, and that there are legitimate and valid psychological testing instruments that, if properly applied to individual offenders with an individualized assessment of their dangerousness, could result in a much smaller, and much more narrowly targeted, list of people who are actually dangerous. See generally Morello, “Unclear and Unconvincing Evidence in SORA Hearings,” N.Y.L.J., April 18, 2011, at 6 (identifying studies showing that recidivism rates for sex offenders are not as high as popularly believed).
This is a complicated area of the law. If you are a sex offender and you need help figuring out what you can and cannot do, call us at 434-293-8185.