Failing to Register or Register as a Sex Offender

§§9.1-907 and 18.2-472.1 both deal with violating the registration requirements set forth in earlier sections. The major difference between the two sections is that §9.1-907 is a civil statute, while §18.2-472.1 is penal in nature.

It is important to recognize the differences between subsections (A) and (B) of §18.2-472.1. The most noticeable differences are whether or not the offender was convicted of a sexually violent offense or a non-violent offense, and the range of incarceration between the two subsections. Despite the apparent clarity of the language in each subsection, there is one key fact the language does not reveal; this is not a specific intent statute. The key language here is "knowingly fails" or "knowingly provides." This threshold is below that of specific intent, which requires the mens rea to break the law. To violate this statute, one simply need to have knowledge of the registration requirement and either a failure to fulfill it, or a failure to fulfill it honestly.

In Marshall v. Commonwealth,[1] the Defendant was convicted of failing to register as a sex offender, second or subsequent offense, in violation of The Code of Virginia §18.2-472.1(B). On appeal, Marshall argued that the trial court erred in its construction and application of the term "knowingly" failed to reregister, as proscribed by the statute; and contended that that the statute required specific intent, and thus the evidence was insufficient to support his conviction.

The Court, rejecting Marshall's argument, stated that § 18.2–472.1(B) is not a specific intent statute. They based this holding on the Legislative History leading to the passing of the statue in question. In setting forth the mental state required for a violation of Code § 18.2–472.1(B), the legislature specifically used only the word "knowingly" to modify "fails to register or reregister." Thus, the court said it must assume the legislature deliberately omitted additional modifiers found in other criminal statutes under Title 18.2 of the Code, denoting specific intent or purpose as an element of the crime.[2]

There is accordingly, no indication in the wording of § 18.2–472.1(B) that evidence of specific intent or purpose to violate the registration requirement is an element of the offense. As the United States Supreme Court noted in Bryan v. United States, "[U]nless the text of the statute dictates a different result, the term 'knowingly' merely requires proof of knowledge of the facts that constitute the offense."[3]

The Court also stated that it found support for its reading of § 18.2–472.1(B) from other provisions of the Code where the term "knowingly" was defined. In the context of certain prohibited transactions with minors, § 18.2–390 defined "[k]nowingly" as "having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of [certain information]."[4]

Lawyers are thus left with creative defenses for representing clients with offenses falling under this statute. In Purvy v. Commonwealth,[5] one quick thinking attorney, during the reading of the indictment at the defendant's arraignment, objected on the grounds that there was a fatal variance between the indictment and the offense. At trial, the Commonwealth presented evidence that Purvy regularly reregistered. The Commonwealth argued that three of the reregistration forms he submitted falsely identified his residence address. Purvy moved to strike the evidence, arguing the indictments alleged only that he failed to register or reregister, not that his reregistration forms contained inaccurate information. On appeal, Purvy contended that the Commonwealth indicted him for failing to register or reregister but obtained convictions on the theory that he provided false information in his reregistration forms. The Court of Appeals agreed.

This "fatal variance" defense is, at the time of writing, the only defense found in case law which resulted in the overturning of a conviction under the registration violation statute. While other defenses might exist, they have yet to be enshrined as precedent in Virginia.

§9.1-907 is encountered far less by defense counsel than §18.2-472.1 is. §9.1-907 is more a guide for the police on how to handle a case of someone failing to register or reregister, while §18.2-472.1 is the criminal statute violated by such action.

Explore our blog to learn more about other topics related to the sex offender registry:


[1] 708 S.E.2d 253 (2011)

[2] See, e.g., §18.2-41.9 ("knowingly, wrongfully and intentionally" withholding child from parents in violation of court order); § 18.2–119.1 ("knowingly and intentionally" posting no trespass signs on land of another without permission); § 18.2–308.1:1, § 18.2–308.2, § 18.2–308.2:01 and § 18.2–308.7 (prohibiting various classes of individuals from, inter alia, "knowingly and intentionally" possessing or transporting firearms); § 18.2–308.4 (prohibiting individual unlawfully in possession of controlled substance from "simultaneously with knowledge and intent" possessing firearms); § 18.2–369 (abuse of incapacitated adult means "knowing and willful conduct" causing physical injury or pain); § 18.2–370 ("knowingly and intentionally" taking indecent liberties with children); § 18.2–386.1("knowingly and intentionally" videotaping, photographing, or filming nonconsenting person in certain situations).

[3] 524 U.S. 184 (1998)

[4] Id.

[5]717 S.E.2d 847 (2011)