MANDATORY PENALTY RELATED TO ALL SEX CRIMES
Michigan requires those who have been convicted of a sexual assault crime to register as a sex offender with the Sex Offender Registry, aslo known as the Sex Offender Registry Act (SORA).
The lay of the land, when it comes to the Sex Offender Registry, is in flux. There are potentially going to be some BIG legal changes soon. However, in the meantime, the following rules apply:
The Sex Offender Registry is a mandatory penalty related to first degree criminal sexual conduct, second degree criminal sexual conduct, third degree criminal sexual conduct and fourth degree criminal sexual conduct.
There are also other sexually related crimes that require to be on the Sex Offender Registry, which we will go into more detail below.
Both the Private Sex Offender Registry and the Public Sex Offender Registry exist.
SEX OFFENDER REGISTRY REQUIREMENTS
One of the most severe penalties attached to a sexual offense charge is the fact that the Michigan Sex Offender Registration Act (SORA) requires adults who are convicted sex offenders to register as sex offenders.
There are three tiers that assist in determining how long the accused will have to register. The different tiers are determined by which sexual assault crime you are sentenced to.
Tiers are determined by the severity of the crime. The more severe the crime, the HIGHER number tier you are assigned to.
Depending on the tier level, convicted sex offenders may remain registered sex offenders on the Private or Public Sex Offender Registry for 15 years, 25 years, or life.
Below are examples of crimes that sex offenders, if found guilty, may find themselves on the Public Sex Offender Registry for. We have broken them out into their respective tiers:
Tier One: Sex Offender Registry is for 15 years
- Indecent exposure with self fondling in front of a child
- Child pornography (and related cases)
- Unlawful imprisonment or restraint of a minor
- Fourth degree criminal sexual conduct (CSC 4th degree)
Tier Two: Sex Offender Registry is for 25 years
- Accosting, enticing or soliciting a child for immoral purposes
- Crime against nature or sodomy, if the accuser is younger than 18, but older than 13
- Second degree criminal sexual conduct (CSC 2nd degree)
- Gross indecency against an accuser under age 13
- First degree criminal sexual conduct (CSC 1st degree)
- Third degree criminal sexual conduct (CSC 3rd degree)
*This list is just an overview, and it’s not exhaustive. For additional guidance, you must call Blank Law, PC for immediate assistance.
Michigan Sex Offender Registry
Once you are on the Public Sex Offender Registry, your private life will no longer be private. Your picture, your name, your address, your crime details, etc., will all be available for the public to see.
The public can track your every move, including, but not limited to, employment changes, residency changes, or even if you enroll in school.
THE CURRENT LAW ON MICHIGAN’S SEX OFFENDER REGISTRY IS IN A STATE OF LIMBO:
SORA, Michigan’s Sex Offender Registry, is currently being challenged for certain unconstitutional provisions. This law has become more and more punitive over the years, which is why it is being challenged.
Michigan’s Sex Offender Registry law is retroactive and captures certain convicted sex offenders whose offenses were committed before the laws were put into place. The challenges to the Sex Offender Registration Act are two fold, prior to 2011 and after 2011.
The draft legislation HB5679 has only been introduced and will likely NOT be what eventually gets signed into law.
On April 6, 2020, Judge Cleland issued an interim order which stops any local law enforcement agency from enforcing registration, verification, school zone and fee violations connected with Michigan’s Sex Offender Registry law, from Feb. 14, 2020 through the end of the COVID-19 crisis. Michigan State Police will continue to use the Sex Offender Registry during this time.
The Michigan State Police have a memo declaring that they are not verifying pre April, 2011 registrants at this time. Local law enforcement received the memo, but it is unclear if they are all complying with it.
If you are told that you do not have to report anymore and you are being removed from the Sex Offender Registry database/public records, you should get written verification of being removed.
If you were in fact removed from the Sex Offender Registry, there is little chance you will be put back on it.
Whether or not you can be removed from the Public Sex Offender Registry is a common question asked.
Typically, once you are on the Public Sex Offender Registry, it is difficult to get off. With that said, there are a few exceptions. In order to determine if you fit into any of those exceptions, contact Nicole Blank Becker with Blank Law, PC today.
For example: If convicted sex offenders are eligible for HYTA (Holmes Youthful Training Act), they do not need to be on the Public Sex Offender Registry at all.
However, if convicted sex offenders violate with future criminal sexual acts while on HYTA, they go back to their original charges and may be subject to the Public Sex Offender Registry.
FAILURE TO REGISTER AS A SEX OFFENDER
If you violate any of the requirements of the Public Sex Offender Registry, you can and will be charged with the crime of failure to register as a sex offender.
The law states, per MCL Sec. 28.728a:
- If an individual on the Sex Offender Registry fails to register or to update his or her registration information, as required under this act, law enforcement agencies shall do all of the following immediately after the date the individual was required to register or to update his or her registration information:
(a) Determine whether the individual has absconded or is otherwise unlocatable.
(b) If the registering local law enforcement agency was notified by a registration jurisdiction that the individual was to appear in order to register or update his or her registration information in the jurisdiction of the registering authority, notify the department in a manner prescribed by the department that the individual failed to appear as required.
(c) Revise the information in the Sex Offender Registry to reflect that the individual has absconded or is otherwise unlocatable.
(d) Seek a warrant for the individual’s arrest if the legal requirements for obtaining a warrant are satisfied.
(e) Enter the individual into the National Crime Information Center Wanted Person File if the requirements for entering information into that file are met.
- If an individual fails to register or to update his or her registration information as required under this act, the department shall do all of the following immediately after being notified by the registering authority that the individual failed to appear as required:
(a) Notify that other registration jurisdiction that the individual failed to appear as required.
(b) Notify the United States Marshals Service in the manner required by the United States Marshals Service of the individual’s failure to appear as required.
(c) Update the National Sex Offender Registry to reflect the individual’s status as an absconder or as unlocatable.
OTHER FACTS ABOUT MICHIGAN’S SEX OFFENDER REGISTRY:
- An individual required to register under the Sex Offender Registry must report in person “immediately” after the individual changes or vacates a residence.
- The SORA defines “immediately” as “within 3 business days.”
- If the individual willfully violates this or any other portion of the SORA, the individual is guilty of a felony.
- “Willfully” requires something less than specific intent, but requires a knowing exercise of choice.
- If the accused claims to have a bad memory, and the jury believes that assertion was a facade, a jury could find that his failure to register was willful.
- Even though the state produced sufficient evidence that the accused had knowledge of his duty to register, the state still must prove that the accused exercised a choice or a purpose not to register.
- If an officer testifies that the accused was nervous when confronted about his change of address, a jury may infer consciousness of guilt from evidence of lying or deception.
- When initially registering as a Michigan sex offender, there is a requirement to sign the registration document which lays out all of the rules and requirements for the Sex Offender Registry.
- By signing the registration document, registered sex offenders confirm that they are aware of all the registration requirements.
- If the accused winds up homeless, by originally signing the registration document, which bore instructions regarding how to register if he/she were homeless, the defense of “I forgot” or “I did not understand that I had to register as homeless” is a credibility issue for the jury.
- Failure to register as a Michigan sex offender can be found under MCL 729(1)(a).
COMMON QUESTIONS REGARDING MICHIGAN’S SEX OFFENDER REGISTRY
Q: IS THERE A PUBLIC SEX OFFENDER REGISTRY AND A PRIVATE SEX OFFENDER REGISTRY?
A: Yes. Michigan has both a Public Sex Offender Registry, which can be seen by the general public, and a Private Sex Offender Registry, which cannot be seen by the general public.
Only Michigan State Police can see the SOR (Sex Offender Registry) database that contains the registration records (both public and non-public offender information). This information is available only for Michigan State Police purposes.
However, the PSOR (Public Sex Offender Registry) is the internet site that displays the Public Sex Offender Registry information, contained in the Sex Offender Registry database, for the public to view.
Q: WHERE DO I GO TO REGISTER?
A: Convicted sex offenders in Michigan must register at a local law enforcement agency or Michigan State Police department. There will be a small fee to register.
Q: WHEN DO I HAVE TO START REGISTERING?
A: One you have taken a plea (guilty, not guilty, or no contest) or are found guilty by a jury, and it’s one of the listed offenses on the Sex Offender Registry, you must register after conviction and before sentencing.
Q: WHAT DO I HAVE TO DO WHEN I REGISTER?
A: Convicted sex offenders are required to provide the local Michigan State Police department/local law enforcement agency with their current address. Once they provide the Michigan State Police with that address, they will have to verify, in person, that they are in fact still living at that residence throughout the year.
If the Michigan sex offender is registering due to a misdemeanor conviction, the Michigan sex offender must verify their address one time a year, in person. If the Michigan sex offender is registering due to a felony conviction, the Michigan sex offender must verify their address four times a year, in person.
Q: WHAT WILL THE PUBLIC BE ABLE TO SEE?
A: The sex offender information that the public records accessed will be their name, date of birth, registration number, photo, registration details, physical characteristics, known alias(es), scars, marks, tattoos, offense information, address information, campus information, employment information, and vehicle information.
Q: AM I ELLIGABLE TO GET OFF THE MICHIGAN SEX OFFENDER REGISTRY?
A: Michigan does allow removal from the Sex Offender Registry under limited circumstances. First, you must determine if you are eligible to have your name removed from the Sex Offender Registry.
FAILURE TO REGISTER AS A SEX OFFENDER
Failure to register as a sex offender is a felony and carries a penalty of imprisonment for not more than 4 years.
FAILURE TO UPDATE SEX OFFENDER REGISTRY INFORMATION
The failure to comply with the specific registration requirements has consequences.
The Michigan Sex Offender Registration Act requires registered sex offenders to report their current contact information to the Michigan Public Sex Offender Registry.
Sex offenders convicted of felonies must register every three months, while those convicted of misdemeanor offenses must register yearly.
Failure to update sex offender registry information is considered a felony, and can be found under MCL 28.729.
FAILURE TO REGISTER AS A SEX OFFENDER & FAILURE TO UPDATE SEX OFFENDER REGISTRATION INFORMATION
If the individual has no prior convictions for a violation of this act, they will face potential penalties of imprisonment for not more than four years, a fine of not more than $2,000, or both.
If the individual has one prior conviction for a violation of this act, they will face potential penalties of imprisonment for not more than seven years, a fine of not more than $5,000, or both.
If the individual has two or more prior convictions for violations of this act, they will face potential penalties of imprisonment for not more than 10 years, a fine of not more than $10,000, or both.
An individual who fails to comply with section 5a, other than payment of the fee required under section 5a(6), is guilty of a misdemeanor punishable by imprisonment for not more than two years, a fine of not more than $2,000, or both.
An individual who willfully fails to sign a registration and notice, as provided in section 7(4), is guilty of a misdemeanor punishable by imprisonment for not more than 93 days, a fine of not more than $1,000, or both.
An individual who willfully refuses or fails to pay the registration fee, prescribed in section 5a or section 7, within 90 days of the date the individual reports, under section 4a or 5a, is guilty of a misdemeanor punishable by imprisonment for not more than 90 days.
The court shall revoke the probation of an individual placed on probation who willfully violates this act.
The court shall revoke the Youthful Trainee status of an individual assigned to Youthful Trainee status who willfully violates this act.
The parole board shall rescind the parole of an individual released on parole who willfully violates this act.
PETITION TO GET OFF THE SEX OFFENDER REGISTRY
THERE ARE 5 CIRCUMSTANCES IN WHICH A PETITION TO GET OFF THE SEX OFFENDER REGISTRY CAN BE FILED:
- If you were convicted as an adult and are a Tier I sex offender, you may be eligible to petition the court.
- If you were adjudicated when you were a juvenile (less than 17 years of age) and are a Tier III sex offender, you may be eligible to petition the court.
- If you were convicted of an offense listed in MCL 28.722(s), (u), or (w), that was the result of a consensual sexual act between you and the accuser, you may be eligible to petition the court.
- If you were registered under the Sex Offender Registration Act before July 1, 2011 for an offense that required registration, but that registration is no longer required on or about July 1, 2011, the Michigan State Police/local law enforcement agencies may have made the determination that you are no longer required to register.
- If you were adjudicated as a juvenile for an offense listed in MCL 28.722(s), (u), or (w), and you were less than 14 years of age at the time of the offense, the Michigan State Police/local law enforcement agencies may have made the determination that you are no longer required to register.
DO YOU QUALIFY TO BE REMOVED FROM THE SEX OFFENDER REGISTRY?
If you qualify under the above guidelines, you MUST contact Nicole Blank Becker and Blank Law, PC immediately in order to request removal.
The laws regarding removal from the Public Sex Offender Registry are complicated and confusing. Blank Law, PC is there to make the process easier.
Nicole Blank Becker is ready and qualified to appropriately petition the court on your behalf.
You only get ONE CHANCE to petition the court, so MAKE IT COUNT!
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