The following blog contains general information, that should not be relied upon in substitution for the advice and the representation of a criminal defense lawyer familiar with the facts and circumstances of your particular case. The law is subject to modification based upon the development of legal precedent, and changes to the existing statutory law, which could effect its application to your particular circumstances.
The Michigan Sex Offender Registation Act (SORA) is found in the Michigan Compiled Laws Sections 28.721 et seq. There have been some recent amendments to the Act that were implemented on July 1, 2011. Highlights of the new changes are as follows:
Three Tier System – you should always consult with an experienced criminal defense attorney as to how a particular allegation is classified for purposes of the Michigan Sex Offender Registry
Tier I cases are the least severe, which places the offender on a non public registry for 15 years. The information must be verified by the offender with law enforcement at least 1 time per year. Examples of Tier I offenses include (but are not limited to) Criminal Sexual Conduct 4th Degree, Possession of Child Sexually Abusive Material (child pornography), Indecent Exposure as a Sexually Delinquent Person.
Tier II cases are mid range sex offenses, which places the offender on a public registry for 25 years. The information must be verified by the offender with law enforcement at least 2 times a year: between January 1st and 15th; and between June 1st and 15th. Tier II cases include (but are not limited to) CSC 2nd Degree involving a victim 13 or older; Distribution or Production of Child Sexually Abusive Material (child pornography); Solicitation against a Minor; Pandering (enticing a female to prostitute herself); Use of a Computer to Solicit an Immoral Act Against a Minor
Tier III cases are the most severe sex offenses, which places the offender on a lifetime public registry. The information must be verified by the offender with law enforcement at least 4 times a year; January 1st through 15th; April 1st through 15th; July 1st through 15th; October 1st through 15th. Tier III cases include (but are not limited to) Criminal Sexual Conduct 1st Degree, Criminal Sexual Conduct 3rd Degree, Criminal Sexual Conduct 2nd Degree involving victim under 13 years, Assault with Intent to Commit Sexual Penetration.
For all Tiers, the offender must also report to law enforcement whenever the following occurs to the offender, in addition to the reporting requirements listed above: he/she moved; bought a vehicle; he/she established an email address; he/she changed name (for example – through marriage); he/she changed employment; he/she enrolled at a college or university; he/she changed his/her residence temporarily for more than 7 days. The change in the above status is supposed to be made within 3 days. Offenders are required to provide more information to law enforcement, such as social security numbers, passport, e-mail addresses, vehicle information, and employer information. There is also an increase in the registration fee. The system is also linked with the Secretary of State database, which provides up to date photographs of offenders for tracking purposes. The purpose behind gathering this information is to provide law enforcement and the public with more accurate information concerning the offender.
The registration usually occurs after the plea but before sentencing. The probation department typically has the Defendant sign the required sex offender registration paperwork at the time of the presentence investigation report interview. If the Defendant refuses to sign the registration paperwork, the probation officer writes on the registration that the Defendant refused to sign it, and the registration still gets processed.
The probation department will register a previously unregistered offense brought to its attention by a new felony criminal offense. For example, if a Defendant was convicted of Criminal Sexual Conduct 3rd Degree in 1985 (before the Sex Offender list was created), and the same Defendant is convicted in 2011 of Felonious Assault, the probation department has the discretion to register the offender for the 1985 offense.
Failure to Register as directed is a crime, that can and is prosecuted. The crime is classified as a misdemeanor or a felony depending upon the circumstances. Violations of the Sex Offender reporting requirements are sought for sex offenders that are probationary or parole status.
There are additional consequences to being a registered sex offender besides the social stigma, the burdens of the registering requirements, and possible criminal consequences. Being on the sex offender list could also effect an individual’s ability to travel based upon the reporting requirements.
There are a couple ways that the registration requirements can be avoided:
1. HYTA Sentence – an offender may petition to discontinue registration for placement and successful completion of a sentence under the Holmes Youthful Trainee Act. The Defendant has the burden of proving by clear and convincing evidence that he or she will not reoffend.
2. “Romeo & Juliet” Cases – certain sex offenses involving sodomy, gross indecency, or criminal sexual conduct (CSC) with a minor would not require registration if the victim was at least 13 years old but younger than 16 years old at the time of the offense, the victim consented to the sexual conduct, and the offender was not more than 4 years older than the victim.
In addition an offender would not have to register for sodomy and gross indecency violatations if the victim was 16 or 17 years old at the time of the offense, the victim consented, and the victim was not under the offender’s custodial authority at the time of the offense.
3. Plea Bargain. If a plea bargain is entered into to reduce a sex offense to a non sex offense (for example a plea from a Criminal Sexual Conduct 4th Degree to an Assault and Battery), the Probation agent will look at the facts of the case rather than the conviction offense to determine the need to register. The probation department will abide by a discretion of the sentencing Judge to not require registration for cases resolved by plea bargain to a non sex offense. A clear record should be made on the record that sex offender registration is not required.
A person charged with indecent exposure for urinating in public will not have to register as a sex offender. A person who is repeatedly convicted for indecent exposure for urinating in public will likely be registered as a sex offender.
A person convicted of a sex offense can also pursue appellate remedies to overturn the conviction that lead to the sex offender registration. Furthermore, a Motion for Relief from Judgment can also be considered as a way to possibly reverse the conviction that lead to the sex offender registration requirement as well. Typically, a Defendant only has 1 opportunity to file a Motion for Relief from Judgment, and extreme caution needs to be used when filing such a Motion to address all the necessary issues in a meritorious way.
It is possible for the existing sex offender laws to be applied retroactively. An offender can petition his or her sentencing Court to be removed from the sex offender list, or to change the registration to the appropriate Tier level, depending upon the circumstances. Removing, or unregistering, a person from the sex offender registry is a difficult process. It is strongly suggested that an individual charged with a sex offense, or who is trying to modify or terminate the conditions of registering as a sex offender be represented by an experienced criminal defense lawyer.