Sex Offender Bills in the General Assembly

As promised, here is the SOSVA commentary on a few of the bills we listed last night. Check out the full text of these bills and feel free to send us comments or other talking point on these. You can find the full text of these bills at Richmond Sunlight (http://www.richmondsunlight.com/) and/or the Virginia Legislative Information System (http://leg1.state.va.us/lis.htm).

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* HB 1862 (Shannon) – Provides that any “failure to register is a Class 6 felony”. Requires the revocation of probation or parole if a person is convicted of an FTR while still on probation or parole.

SOSVA Response: This bill was brought by Del. Shannon last year but died in appropriations last year, likely because of a hefty price tag and no positive impact. During the 2008 session, Del. Shannon noted that registration is “easy” and there is no reason for offenders not to do it unless they are hiding something. This is not the case.

• Registration is a complex animal. An FTR is not necessarily an intentional refusal to register - it can be a result of not fully understanding or complying with the myriad of registration requirements. Requirements include reporting change of employment status within 3 days and reporting and change of email or IM or chat iD within 30 minutes (even though the State Police have no mechanism for doing that).
• Pending bills (see HB1898 and HB1928) will add even more wrinkles to the registration process, creating even more opportunities for offenders to not be in compliance. If an FTR was clearly the result of an RSO going underground and trying to evade detection, well, that would be a different story. However, that is not the case. Registration isn't simply showing up once a year or even four times a year. Let's not set former offenders up with a felony and/or probation/parole revocation because the system is out of control.
• It’s important to remember that so-called “violent” offenders (over 90% of all registered offenders in Virginia) already are committing a Class 6 Felony for even a first FTR. This would apply to less than 10% of offenders – the lowest level.
• This is a very costly bill. The fiscal impact of this bill is extensive given the current budget crisis: Fiscal Impact: State Adult Correctional Facilities: At least $505,619 (19 beds), Local Adult Correctional Facilities: At least $71,106 (7 beds).
• Note that although the Adam Walsh Act requires states to raise the FTR penalty to a class 6 felony, we would lose only $400,000-$450,000 by NOT complying with AWA at all – less than we would spend on this bill alone!!

* HB 1898 (Watts) – SOR – Adds a number of registration requirements in order to comply with the Adam Walsh Child Protection and Safety Act of 2006. Persons required to register must submit to state or local police information relating to immigration status, telephone numbers, professional and occupational licensing, volunteer positions, physical job site locations, change in employment status, temporary lodging and motor vehicles, watercraft and aircraft regularly operated by the person. Under current law nonresident offenders must register in Virginia if they are here for employment exceeding 14 days and if they are here for any other purpose for 30 days or more, this bill reduces both time frames to seven days.

This is the critical piece of the bill: (proposed sections in italics) - A person required to register shall register, and as part of the registration shall submit to be photographed, submit to have a sample of his blood, saliva, or tissue taken for DNA (deoxyribonucleic acid) analysis and submission to the DNA databank to determine identification characteristics specific to the person, provide electronic mail address information, any instant message, chat or other Internet communication name or identity information that the person uses or intends to use, any telephone number the person uses or intends to use, immigration status information, submit to have his fingerprints and palm prints taken, provide information regarding any professional or occupational license held by him, his place places and physical job site locations of employment including volunteer work, and provide motor vehicle, watercraft and aircraft registration information for all motor vehicles, watercraft and aircraft owned or regularly operated by him.

SOSVA Response: Um, other than “horse hockey”? Well, to begin with, the summary of this bill claims that the changes are being made to comply with the AWA, however, this bill goes substantially further.

• While we have no issue with requiring a telephone number as long as it isn’t published (frankly, I thought they already did), the requirement to include any number an offender intends to use is ridiculous and not required by AWA. I’m wondering what this means and how it would be enforced. If and offender visits a relative’s home and uses the phone, would it be assumed that since he visits frequently he obviously intended to use that phone at some point? It’s just vague and allows for bogus arrests.
• Employment is already required by the SOR and is published online, despite massive evidence that this severely impairs the ability of sex offenders to find and maintain jobs. This bill goes a step further by requiring in person reregistration for changes in physical job sites. Has anybody even given this the tiniest bit of thought? While this will not represent an imposition on some offenders, many other will find it absolutely impossible to comply. Consider those who work construction, a variety of trades, and road work. These (mostly) men change physical job sites often – sometimes several times a day. How, exactly, will this be defined? It is not defined in the bill itself, so again, we are relying on law enforcement to make this decision.
• AWA does require information regarding professional or occupational licenses, so there’s no argument there. It’s a ridiculous requirement, but we have no specific argument against it.
• We have not been able to locate a requirement in AWA regarding immigration status. Given the Bush administration’s war on immigration/immigrants, I wouldn’t be surprised. However, Virginia deported sex offenders last year, so this could just be a Virginia thing. If anybody has further info on this, let us know!
• Every single time we add requirements to the registration process, we are increasing the likelihood that RSO’s will slip up, serve prison time, and increase their frequency and duration of registration. These mistakes, even if unintentional, are all viewed as a Failure to Register. Offenders don’t necessarily know that requirements have changed as there is no mechanism in place to alert them. Some of these demands are ambiguous and will be very difficult follow.

* HB 1928 (Lewis) - SOR - Provides that any person who is required to register on the Sex Offender and Crimes Against Minors Registry be required to submit his Internet Protocol address as well as the currently required email address, instant message or chat name, etc. The bill also requires that the person reregister and submit to be photographed within three days of any significant change in his appearance.

SOSVA Response: Shall I say “horse hockey” again?

• Many people have dynamic IP addresses. Others don’t even know what an IP address is. Virginia already requires registration of all emails, IM and chat ID. This serves no purpose.
• Excuse me while I go on a rant, here. What, exactly, is a “significant change in appearance”? Is it shaving your head or just a haircut? If an offender gains or loses weight, at what point does it become “significant” – at 10 pounds, 20 pounds, or 50? If the offender doesn’t shave, at what point does the stubble become a beard? Is it a new tattoo or the removal of an old one? What about a monstrous pimple on the nose, a black eye, a rash? Where is the line? Of course, there is no qualifying this requirement – it will be solely up to law enforcement to decide. We know how that will go.
• Again, every requirement increased the likelihood of a felony mistake.

* HB 1962 (Mathieson) – Removes all judicial discretion regarding registration of sex offenders.

SOSVA Response: Although this is really more of an administrative issue, SOSVA is offended. It is very rare that judges attempt to allow an adult offender to avoid registration. The law states “shall register” not “may be required to register”, so it is a non-issue. This bill is just intended to clarify that no way, no how will judges EVER be able to exercise discretion. Remind me again why we have judges? We could just have juries (or just convict based on the charge) and be done with it. Our legislature yearly removes judges’ power.

* HB2225 (Marsden) - The State Police shall publish on the publicly available Internet sex offender database and mail to all persons for whom registration is required the text of all general laws affecting such persons solely because of their inclusion in the Registry. The State Police shall publish and mail the text of all such laws upon their enactment, if such laws are emergency acts, or upon the adjournment of the reconvened session following the regular or special session at which such laws were enacted.

SOSVA Response: This bill would add a section in Chapter 9 of Title 9.1 (the section related to the SOR). This bill is almost identical to HB2511 which inserts a section into 9.1-907. It would require that registrants be informed about changes in laws related to registration. Our only concern is those offenders who are not required to register for life. Once they are off the registry, they won’t receive notification regarding changes in restrictions such as those related to residency, proximity to schools, recreation centers, etc. We would encourage Virginians to suggest to their legislators that this should not only pass but should be expanded to include those who have completed registration. Please note that this will have a fiscal impact although no statement has been filed. I would guess that the provision for mailing RSO’s may be removed if this is to pass.

* HB2511 (Marsden) - As soon as practicable following the enactment of any laws of the Commonwealth that change offender registration requirements in the Sex Offender and Crimes Against Minors Registry or affect the rights or liberties of offenders who are required to register, the Department of Corrections or Community Supervision shall give written notice of such enactment to each offender who is required to register. (actual proposed section)

SOSVA Response: This bill inserts a section into 9.1-907, the section that deals with Failure to Register. It would require that registrants be informed about changes in laws related to registration. We’re not clear why it is being placed there. HB2225 requires the VSP to publish this information and mail offenders while this bill places the burden on DOC and does not include any online publication. We would support either bill but a notification process should include both online and written announcements.

* HB2361 (Gilbert) - Requires juveniles of any age convicted of a “sexually violent” offense or homicide to register as a sex offender. Requires expulsion from school of juveniles required to register for sexually violent or homicide offenses.

SOSVA Response: Del. Gilbert is following up on Sen. Stuart’s failed bill from last year with one requiring all juveniles down to age 12 to register.

• This bill has NO LOWER LIMIT but only includes “sexually violent” offenses. This would seem to be good, right? Just the worst offenders get listed. However, we know that almost all offenses in Virginia are considered to be “sexually violent”. Therefore, this bill advocates placing even the youngest offenders on the registry FOR LIFE. No redemption for these kids. This is incredibly repugnant to us at SOSVA.
• Our schools with their general paranoia and zero-tolerance policies are, for the most part, already expelling these kids. Why do we need a law to require it? My guess is that even with the overriding fear and disgust schools feel in the face of a sex offender, some schools have made the decision that given the facts and circumstances, some kids would not be expelled. Please, do we really believe that schools aren’t expelling kids if they have even the a minute level of concern of the safety of their students? Most schools are expulsion-happy. Why take the decision away from school administrations and school boards?

* HB2274 (Poindexter) - Requires that the Internet SOR information include a "wanted" notation for a person who is wanted for any crime. Currently, the "wanted" notation is only posted for a person who is wanted for failing to register.

SOSVA Response: The intent of the SOR has always been to publish ONLY offenses related to registration. If we open the registry up to these “wanted” notations, all other offenses will soon follow.

Only one of these bills has a Financial Impact Statement that claims an impact (see statement for HB1862). HB1898 and HB1928 add requirements to the SOR, but their Fiscal Impact Statements note that the impact "cannot be determined." Logically, if requirements increase, violations will increase, and more local and DOC bed space will be required. A consequence of an FTR is more frequent in person reregistration and address/employment verifications by state police. In some cases, an FTR can result in an extension of the duration of registration. Clearly there will be a fiscal impact - don't be fooled that "cannot be determined" means there won't be one.

We encourage readers to contact their legislators or all legislators on relevant committees with their thoughts on these bills.

2009 Virginia General Assembly in Session

The 2009 Virginia General Assembly session has begun. As usual, there are a plethora of bills focused on sex offenders of all ages. One difference this year is that two bills actually are somewhat positive for former offenders. In addition, there are several general criminal justice bills that seek to level the playing field for various types of offenders (not sure if we’ll have time to include those or not).



Over the next few days, we will be posting several articles related to pending legislation and the SOSVA response. For now, we’re just including a list of relevant proposed bills.



While SOSVA does oppose many of these bills, we do not oppose ones related solely to offenses – as in what qualifies as an offense. We do not offer blanket opposition to laws that hold sex offenders accountable for their behavior. Where we differ with current law and most proposed legislation is in the area of eternal punishment with or without treatment. We want to always make it clear that we do not condone any type of sexual assault on a child or an adult. However, we do believe that our current laws go too far and don’t protect children, nor do they provide an appropriate level of accountability for offenders. We don’t agree that all types of sex offenses require registration.



All that being said, I encourage readers interested in tracking Virginia legislation to go to Richmond Sunlight - http://www.richmondsunlight.com and/or the Virginia Legislative Information System - http://leg1.state.va.us/lis.htm.



Please check back for our comments on some of the bills listed below.

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* HB 1843 (Griffith) - Civil commitment of sexually violent predators; changes including access to sealed records, etc.



* HB 1862 (Shannon) – Provides that any “failure to register is a Class 6 felony”. Requires the revocation of probation or parole if a person is convicted of an FTR while still on probation or parole. .



* HB 1898 (Watts) – SOR - Adds numerous changes to required registration information.



* HB 1928 (Lewis) - SOR - Adds changes to registration requirements.



* HB 1962 (Mathieson) – Removes all judicial discretion regarding registration of sex offenders.



* HB 1963 (Mathieson) - States that if an offense, as a condition of registration, requires that the victim be a minor, be physically helpless, or be mentally incapacitated, the charging instrument or order of conviction does not need to allege the age, helplessness, or incapacity of the victim.



* HB2225 (Marsden) - State Police shall publish on their website and mail to RSO’s the text of all laws affecting registrants.



* HB 2361 (Gilbert) - Requires juveniles of any age convicted of a “sexually violent” offense or homicide to register as a sex offender. Requires expulsion from school of juveniles required to register for sexually violent or homicide offenses.



* HB 2397 (Bell) - Adds a venue provision to the child porn statute that includes the jurisdiction where the unlawful act occurs or where the sexual material is produced, reproduced, found, stored, or possessed.



* HB2511 (Marsden) - State Police or DOC or Community Supervision, as applicable, shall give written notice of law changes to each offender who is required to register.



We'll be commenting on these soon, so stay tuned and get ready to write and make phone calls!!

Virginia - the Progressive State?

Virginia likes to view itself as “progressive”. Sure, I can see that. Legislators are “progressively” increasing penalties for everything in the free (or incarcerated) world while systematically dismantling the U.S. and Virginia Constitutions. In the Senate during the 2008 session, there were jokes regarding a bill related to Class 1 and 2 Misdemeanors. Senators were laughing as they asked if we still had misdemeanors in Virginia. I, for one, don’t think that is a joke.

I am also not amused by ongoing efforts in Virginia to “get tough” on sex offenders without any inclination to “get smart”. There is extensive research available that would allow the legislature to craft quality legislation – laws that consider the fact that sex offenders are not a homogeneous group. Instead, they have jumped on the Attorney General’s bandwagon with an omnibus bill in 2006 followed by approximately 40 new bills in 2007 and again in 2008. These laws all place additional restrictions on offenders regardless of their offense. Prior to the recent session, they had retroactively reclassified almost all sex offenses to put 83% of Virginia offenders in the “violent sex offender” category with lifetime registration. During that session they added another 2,000 offenders, putting the percentage of so-called “violent” offenders closer to 90%. At no point have they considered government and academic studies and reports. At no point have they consulted with experts in the field. At no point has there been any attempt to determine whether or not these offenders actually ARE dangerous or violent.

Now, if ignoring all the evidence and operating on myths and misinformation is “progressive”, then our legislature is doing a bang-up job.

I have spoken with numerous representatives who agree that we have “gone too far” with these laws. They admit that the laws contradict our best research and the opinions of both sex offender treatment experts and numerous victim advocacy professionals. They nod when testimony is presented in opposition to ridiculous bills. Then they vote for them.

Now that’s progressive!

We all want to protect children from sexual abuse and assault. However, creating laws that most experts say are actually detrimental to public safety (while being incredibly costly) is not the way to go.

And they knew all along ...

I had a plan for today’s blog. I was going to provide a history of Virginia sex offender legislation ... but then I came across this in a 1999 article in the Washington Post. Senator Howell introduced the original bill to make the Virginia Sex Offender Registry public. She is also the patron for SB590 in the 2008 session – a bill that would extend the duration of registration for thousands of low level offenders.

I [the reporter] also raised the question of effectiveness with Sen. Janet Howell (D-Reston), the state legislator who sponsored the bill that created the Virginia site. She told me: "This is the easy, feel-good, politically popular approach, but it's only one little piece of what could be done. I don't think it does much to protect the public, and I fear it will give the public a false sense of security. Most sex offenders are never caught, much less convicted. Most children are in danger from people they know rather than from a stranger, and many offenders listed on the Internet are no longer a danger."

So, I’m trying to get this straight. The bill patron admitted up front that a public registry was just “politically popular” and wouldn’t “protect the public.” Further, she admitted that “many offenders” on the registry pose no danger.

If the registry isn’t effective in preventing sexual abuse or assault, then why implement it in the first place? Once implemented, why expand it? The constitutionality of the registry has been held up only because it is "regulatory" and not "punitive". However, if is serves no purpose, then it becomes clearly punitive.

Senator Howell seems interested only in the “politically popular” piece – not any actual efforts to combat the problem of sexual abuse.

Can somebody explain why this is acceptable?

Her current bill, SB590, reclassifies “carnal knowledge of a minor 13-15” to a “sexually violent offense.” This is Virginia’s “statutory rape” or “consensual sex” statute. Although the Senate approved a provision to allow young offenders under 21 and less than 5 years older than their “victim” to petition the court to have the “violent” designation removed, the House Criminal Law sub-committee removed this provision, citing concerns about votes and bloggers.

We are fast on a path to put young consensual sex offenders on the registry for life as “violent sexual offenders”. Does anybody have a problem with that?

This bill arbitrarily extends registration periods for low level offenders from 10 years to 15 or 25 years. Interestingly, we already have a statute that prevents noncompliant offenders from getting off the registry.

Section 9.1-910 of the Code of Virginia (that section related to removal from the registry) was previously amended to remove the automatic removal of lower level offenders from the registry after 10 years. It currently requires a petition that cannot be filed less than 10 years from the date of original conviction OR any subsequent conviction for any felony or FTR. A FTR could be as simple as neglecting to provide state police with information regarding a new email or IM within 30 minutes (despite their being no mechanism in the state police departments to handle this requirement). The court also considers total criminal history and may hear witnesses for both sides. This seems to be an adequate procedural safeguard to prevent people who are not compliant from getting off the registry. Extending registration periods for all lower level offenders simply punishes those who are doing what they’re supposed to do!

The registry doesn’t do anything helpful for anybody and has been repeatedly shown to do more harm than good. Senator Howell has admitted that it is useless for community safety. Even if it were useful, we already have procedures in place to prevent people from getting off the registry if they aren’t following the rules. Yet, this bill to retroactively punish people is zipping through the General Assembly.

I have operated for so long under the premise that many legislators BELIEVE that what they are doing is right. It is incredibly disturbing to discover that Senator Howell knew all along that this was the wrong thing to do and now is working to make a bad situation worse.

Save Our Sons: The Problem

“If it saves just one child.”

That mantra is repeated by every legislator and misinformed child advocate in the country. It is spouted by frightened parents and by vigilantes. The folks over at Perverted Justice have it tattooed on their foreheads.

Yet, there is no evidence that our sex offender laws protect any children and ample evidence that they do more harm than good. Our current laws are devastating to the children of former offenders whose lives and constantly disrupted by ever-changing restrictions and the harassment by neighbors and their peers. Those children who are the victims of intra-familial offenses have their addresses plastered on the Sex Offender Registry and are revictimized by an unforgiving public on a daily basis. Children are denied the presence of a parent at school functions and the swimming pool and their soccer games. They suffer in poverty because their father can’t get a job once a potential employer realizes he committed a sex offense 20 years ago. Juvenile offenders (even pre-teens) are increasingly being placed on state registries for both minor and serious sex offenses throwing away years of specialized strategies for dealing with kids in juvenile court.

Another group getting lost in the attack on sex offenders includes those convicted of consensual sex crimes – commonly referred to as statutory rape and termed "carnal knowledge of a minor 13-15" in Virginia law. I’m not talking about the 50 year old man who has “consensual” sex with a 14 year old. I’m talking about the KIDS who have consensual sex (intercourse or oral sex) with a younger teen. In Virginia, an 18-19 year old engages in consensual sex with a willing (often QUITE willing and experienced) girl of 13 or 14, is subsequently deemed a sex offender and must register for a period of 10 years. While not advocating for teenage sex, we need to acknowledge that kids of these ages are in school together – sexual encounters can and do happen. Is it really worthy of the sex offender label?

Some would think that it is. I read a post on a forum recently where someone asserted that sex between an 18 year old and a 14 year old was “rape, plain and simple.” Hmm. I would guess that those people are rare.

The sex offender label is one thing – 10 years and off, right? Just deal with it. Don’t do the crime if you can’t do the time, right?

Well, it’s not that simple. Virginia continues to enact new legislation every year imposing new restrictions and penalties for all sex offenders that impact those offenders for life. Current and proposed legislation includes residency restrictions and bans from schools, churches and recreation/community centers – FOREVER. In addition, there is a bill in the 2008 session to reclassify “carnal knowledge of a minor” to a “violent sexual offense” with lifetime registration and other ancillary restrictions. These kinds of consequences seem far beyond the scope of the offense.

We can't treat these young offenders as if they were serial rapists. A lifetime as a social outcast doesn't benefit the offender or society.

Interestingly, when you start to study this issue, you find that these laws aren't just bad for this group of offenders, they are just ridiculous in general. The myths surrounding sex offenders drive our legislation and public fear to the point that people can't even listen to the facts.

Sex offenders do not have high rates of recidivism, yet the public insists on believing that they do. In the past five years, studies by the Bureau of Justice (2003), the Virginia Sex Offender Task Force (2006), Ohio Dept. of Corrections, and a New York State Sex Offender Registry (2005) examined from 2,000 to 20,000 offenders in periods from 3 years to 10 years post-release. Sex offense recidivism ranged from 3% to 8%. This is not opinion – it is government-sponsored research. Pedophiles who molest boys and men who rape women have the highest likelihood of reoffending at 52% and 39% respectively in longitudinal studies. Rates for serial offenders are much higher in all studies and skew the results – a few offenders committing a higher percentage of all offenses as is the case with any type of offense.

Sex offenders are not the creepy guy in the alley - only 7% of all sex offenses are committed by strangers. The danger is closer to home. Yet, legislation focuses on the "stranger danger" theory.

Research has shown that 92% of all new sex offenses are committed by people not on the Sex Offender Registry - yet we continue to expand the registry and use "site visits" as the measure of effectiveness.

The bogus myths impact all reformed offenders unfairly. When this knee-jerk legislation starts to play out with young consensual offenders, it should start to get people's attention. Unfortunately, many people simply do not believe that kids are on the registry for this. They believe that the Sex Offender Registry is for the worst of the worst.

Yes, we need to do what we can to protect children from sex offenders, drug dealers, gang members, drunk drivers, and general lunatics. However, we need to accept that what we're doing is just wrong. When we make a decision to "protect" and "save" children, those policies shouldn't hurt more kids than they help.

This blog is dedicated to informing the public about the impact of laws in Virginia and across the country that devastate the lives of these boys. Stay tuned for more specific information about Virginia legislation and what you can do to help!

SAVE OUR SONS!

Save Our Sons

"If it saves just one child."