Sex Offender Registration
Sex offender registration can be a terrible black mark on your record. Unfortunately, it follows you around like a black cloud and is visible to anyone who takes the time to look. The best way to keep yourself off of the sex offender registry is to prevent a conviction for criminal sexual conduct, public indecency, gross indecency, or related sex crime from ever going on your record. This means dealing with charges by pursuing an aggressive and comprehensive legal defense strategy with an experienced sex crimes attorney to win your case.
Whether you have already reached the post-conviction phase in the legal process or you just wish to learn more about Sex Offender Registration and what it entails, this section will provide a detailed explanation of sex offender registration, the listed offenses that require registration, and the initial steps a person must take if they must register. There are several notable exceptions to sex offender registration for statutory rape known as “Romeo and Juliet” exceptions that we will discuss in detail. If you can prove one of these exceptions applies to your situation, then you do not need to register as a sex offender even if you have been convicted of a listed offense.
Who Must Register as A Sex Offender?
Under MCL 28.723(2) and the Michigan Sex Offender Registration Act, if you have been convicted or plead guilty to one of the listed offenses and you fall into one of the following three categories, then you have to register as a sex offender. First, if you live or reside in Michigan or work in the state even if you do not receive compensation for the work. Finally, if you are a student in Michigan you will have to register. As you can see these categories are broad and nearly all encompassing. Therefore, nearly everyone convicted of a listed offense is required to register and reveal their identities, current addresses, and other identifying information that will be published on the Michigan Public Sex Offender Registry.
According to MCL 28.725a(1), the department of state police must mail a notice to each person who is required to register under the Sex Offender Registration Act to explain the individual’s duties under the act. The notifications will include a written statement that explains the duty of the individual registered and notice of any changes in his or her registration information. However, if the person is in a state correctional facility, then the Michigan Department of Corrections (DOC) is required to provide each person with a written notice explaining his or her duties under MCL 28.725a.
Is It Possible for Me to Be Removed from the Michigan Sex Offender Registry?
Yes, it is possible to be removed from Michigan’s Sex Offender Registry (SOR), but you must qualify for eligibility. The following circumstances describe when an individual may be eligible to petition for removal from Michigan’s SOR:
- If you were convicted of a sex crime as an adult and are classified as a Tier 1 offender, then you may be eligible for removal if at least 10 years have passed since the end of your sentence and you successfully completed your sentence.
- If you were adjudicated as a juvenile under the age of 17 and are classified as a Tier 3 offender, then you may be eligible for removal if at least 25 years have passed since the end of your sentence and you successfully completed your sentence.
- If you were convicted of a “Romeo and Juliet” crime involving sexual contact, then you may be eligible to petition for removal if the victim was over the age of 13 but under the age of 16, and you were not more than four years older than the victim, nor were in a position of authority over the victim.
If you have already filed a petition to be removed and were denied, then you are not allowed to file another petition. You only get one chance to be removed from Michigan’s SOR, so make sure it counts. If you have questions about your eligibility for removal from the Michigan SOR, then it is important to speak to an experienced sex crimes attorney from our office who can best help you.
How Does a Sentence Under the Holmes Youthful Trainee Act (HYTA) Affect Registration Requirements?
A sentence under the Holmes Youthful Trainee Act (HYTA) does not require you to register with Michigan’s SOR. Changes to the sex offender registry initially allowed for a retroactive application of new rules to old cases that had already been decided. A legal challenge to the retroactive application and requirement for an individual who plead guilty and was sentenced under HYTA to register made its way to the Michigan Supreme Court, which declared the measures unconstitutional. A plea under HYTA requires an individual to first be screened for eligibility. HYTA is only available to people between the ages of 17 and 24. If an accused is under the age of 21, then the trial judge has the sole discretion to determine if a sentence under HYTA is appropriate. If an accused is over the age of 21, then both the judge and prosecutor have to be on board with a sentence under HYTA. If an individual is successful under HYTA, the charge and conviction is erased from the individual’s criminal record, and all other governmental consequences related to the conviction must also be removed. HYTA is generally thought of to be a diversion program that can only be applied one time. In fact, under Michigan law, it is possible to be sentenced under HYTA more than once. Although it is uncommon be sentenced under HYTA a second time for a second offense, it is possible if the court agrees. If you have questions about your eligibility for HYTA or ability to avoid public registration, then it is important that you speak to an experienced sex offender registration attorney from our office as soon as possible.
Michigan SOR Statistics
The Michigan SOR has come under recent scrutiny for legislative attempts to retroactively punish offenders with unconstitutional restrictions. These issues have led to much uncertainty around the enforcement of the requirements of Michigan’s SOR. Some important and interesting statistics about Michigan’s SOR include:
- Michigan has the fourth largest sex offender registry in the entire country
- More than 2,000 people are added to Michigan’s sex offender registry each year
- There are approximately 44,000 people currently on Michigan’s sex offender registry
- It costs the state of Michigan approximately $1.5 million annually to operate and maintain the Michigan sex offender registry
- There are some people on the registry who have not even been convicted of a sex offense
- There are people on the registry as young as 14 years old
Michigan Public Sex Offender Registry: Online Sex Offender Database
The information is compiled and used for a computerized law enforcement database and also for the public internet website. The Michigan Public Sex Offender Registry (PSOR) is an online database that is accessible to the general public via the internet. The registry includes a picture of the offender, a map of where they live, and the details of the conviction. Therefore, the tier of the offense will be listed in addition to the specific conviction and sometimes some details such as if the person was under 13 years of age or incapacitated. Consequently, it is imperative to do everything possible to avoid having your name on the sex offenders list, because it can be accessed by employers, neighbors, and clients. This can have a detrimental effect on a person’s life, because most people are unwilling to look past the conviction to see the person. It can be an automatic disqualification for some people in important areas like employment opportunities, loan applications, and positions of community standing.
Initial Duties of Registration
A person who is convicted of a listed offense after October 1, 1995, must register before sentencing. The probation agent or the family division of circuit court will give the person the registration form after he or she is convicted. They will also explain that the person has a duty to register and the probation agent will accept the completed registration form. This is very important, because the court will not issue a sentence, enter an order, or assign a person to youthful trainee status until the registration is complete and it is forwarded to the state police department in accordance with MCL 28.726.
Tier System: Listed Offenses
The tier system is essentially a ranking of the severity of the various sex crimes with tier three being the most serious and tier one less serious. The different tiers all have similar monitoring and reporting requirements. However, for someone who checks the online database, it will demonstrate to the person the seriousness of the offense, and potentially how dangerous the person could be. In addition to the tier of the offense the specific conviction information is viewable as well.
Listed Offenses: Tier One
Tier I offenses are listed in MCL 28.722(s), and include all of the following offenses:
- Knowing possession of child sexually abusive material under MCL 750.145c(4)
- Aggravated indecent exposure which is indecent exposure involving fondling under MCL 750.355a(2)(b)
- Unlawful imprisonment if the other person is a minor under MCL 750.349b
- Engaging or offering to engage a person under 18 years old for prostitution under MCL 750.449a(2)
- Criminal Sexual Assault Fourth Degree under MCL 750.520e
- Criminal Sexual Assault Third Degree under MCL 750.520e
- Assault with intent to commit Criminal Sexual Assault in the Second Degree under MCL 750.5520g(2)
- Voyeurism if the victim is a minor under MCL 750.539
- An offense that was committed by a person determined to be a sexually delinquent person at the time of the offense under MCL 750.10a
- Any other violation substantially similar to a tier one offense that is specifically listed in federal law 42 USC 16911
- Any other violation of Michigan law or a local ordinance of a municipality that is not a tier two or a tier three offense that by its nature is a sexual offense against a minor
Listed Offenses: Tier Two
Tier two listed offenses Under MCL 28.722(u) and include all of the following offenses:
- Soliciting a minor under the age of 16 for an immoral purpose under MCL 750.145a
- Criminal Sexual Conduct Second Degree under MCL 750.520c
- Criminal Sexual Conduct Fourth Degree under MCL 750.520e
- Creation, production, or financing of child sexually abusive activity or material under MCL 750.145c(2)
- Distribution or promotion of child sexually abusive material under 750.145c(3)
- Soliciting a minor under the age of 16 for an immoral purpose second offense under MCL 750.145b
- Sodomy of a minor under MCL 750.158 unless the convicted person was not more than four years older than the other person, and the other person consented and was at least 13 but less than 16 at the time
- The use of a minor for commercial sexual activity under MCL 750.462e
- Assault with intent to commit criminal sexual conduct second degree if the other person is at least 13 years of age but under 18 under MCL 750.520c
- Soliciting prostitution or an immoral act if the other person was a minor under 750.448
- Procuring or attempting to procure a person for prostitution under MCL 750.455
- Gross indecency between males under MCL 750.338 if the other person was at least 13 but less than 18 years of age
- Gross indecency between women under MCL 750.338b if the other person was at least 13 but less than 18 years of age
- Gross indecency between males and females if the other person was at least 13 years old, but less than 18 at the time of the violation - unless the person was not more than 4 years older than the other person and the other person consented and was at least 13 years old, but less than 16 at the time
- Other offenses substantially similar to a tier two offense that is listed under federal law 42 USC 16911
Listed Offenses: Tier Three
Tier III offenses under MCL 28.722(w) and include all of the following offenses:
- Criminal Sexual Conduct First Degree under MCL 750.520b
- Criminal Sexual Conduct Third Degree under MCL 750.520d
- Criminal Sexual Conduct Second Degree under MCL 750.520c
- Criminal Sexual Conduct Fourth Degree if the person is 17 years or older and the other person is under age of 13 under MCL 750.520e
- Assault with intent to commit Criminal Sexual Conduct Second Degree if the victim is under 13 under MCL 750.520g(2)
- Assault with the intent to commit Criminal Sexual Conduct Third Degree under MCL 750.520g(1) unless the person is not more than four years older than the other person, and the other person consented to the conduct and was at least 13, but under 16 years of age
- Kidnapping if the other person was a minor under MCL 750.349
- Enticing a child under age of 14 with the intent to detain or conceal the child from his or her parent, guardian, or adoptive parent under MCL 750.350
- Gross indecency between men under MCL 750.338 if the other person is less than 13 years of age
- Gross indecency between women under MCL 750.338a if the other person is less than 13 years of age
- Gross indecency between men and women under MCL 750.338b if the other person is less than 13 years of age
Romeo & Juliet Exceptions
The following are the specific instances where the statutory rape “Romeo and Juliet” exceptions that exclude people of listed offenses from having to register as sexual offenders.
Romeo & Juliet: Sodomy
Michigan does have a statutory rape exception that is referred to as a “Romeo & Juliet” exception. It only applies in very limited circumstances, but it is worth knowing about especially if it may apply to your case. The exception involves a violation of MCL 750.158, which is sodomy involving a minor. To claim the exception the following circumstances must be proven at a hearing. First, that the other person consented to the conduct that constituted the violation. Second, that the individual claiming the exception was not more than four years older than the other person.
Otherwise, the exception may also be claimed if all of the following three elements can be proved at a hearing. That the other person consented to the conduct that was the subject of the violation. Second, that the other person was either 16 or 17 at the time of the violation. Finally, the other person was not under the custodial authority of the individual claiming the exception at the time the violation occurred. This means that the other person could not be living under the same roof at the time of the violation.
Romeo & Juliet: Gross Indecency
There is a very similar exception for gross indecency violations when there was gross indecency between men, women, or men and women involving a minor at least 13 but less than 18 years of age. To prove this exception applies, it is necessary to demonstrate that the person claiming the exception was not more than 4 years older than the other person, and the other person consented to the conduct and was at least 13 years of age, but less than 16 years of age.
The second way to prove this exception applies in a gross indecency case is if the other person consented to the conduct and was 16 or 17 years of age and not living under the custodial care of the person claiming the exception. If either of these two situations can be proven in a hearing, then it is not necessary to register as a sex offender.
Romeo & Juliet: Tier Three Offenses
Finally, there are two specific circumstances when a person can claim a Romeo and Juliet exception to a tier three offense. This could be for a criminal sexual conduct first degree, criminal sexual conduct third degree, or an assault with intent to commit criminal sexual conduct with penetration. To prove this exception, it is necessary to request a hearing and demonstrate the following three circumstances existed at the time of the underlying offense. First, that the other person consented to the conduct underlying the offense. Second, that the other person was at least 13 but less than 16 years of age. Last, that the person claiming the exception was not more than four years older than the other person at the time of the offense.
Procedure for Claiming a Sex Offender Registration Exception
If you think that you may qualify for any of these exceptions, then it is necessary to request a hearing alleging that you do not need to register under SORA because one of the exceptions apply. The hearing is conducted pursuant to the procedure outlined in MCL 28.723a. However, it is very important to note that according to the applicable procedure, it is necessary to schedule the hearing prior to sentencing. Therefore, you must request a hearing before you are sentenced to claim one of these exceptions. Then you must establish the elements of the exception by a preponderance of the evidence. This means that it must be shown by the person claiming the exception that each element is more likely to be true than not true. This is a formal hearing where the prosecutor will be present. The other person who was involved in the underlying offense may submit a written statement describing their consent to the act pursuant to MCL 28.723a(4).
If you believe that you qualify for this exception it would be a very good idea to retain legal counsel for the proceeding. Grabel & Associates has experience adjudicating all manner of sex crimes, and can ensure that you comply with the procedural requirements and make the best case for your exception possible. Contact us online or call us now at 1-800-883-2138 for your free consultation.