Reducing the Frequency of Sex Offender Registration

Section 9.1-908 addresses how long a convicted offender is required to register in Virginia. In short, it a non-violent offender is required to register until a Court enters an order lifting this requirement.[1] If, however, the crime committed is deemed to be sexually violent, the reregistration requirement is for life.

The second part of §9.1-908 gives guidance on issues of tolling. If a convicted offender is hospitalized or imprisoned, the duty to register or reregister tolls until their release, and the time on the SOR is extended for a period equaling the time spent in such a facility. Furthermore, if the convicted offender is ordered to register while imprisoned, the registration does not begin until their release. The first registration post-release is considered the initial registration.

For individuals classified as sexually violent offenders or murderers that are required to register\reregister with the SOR every 90 days[2] the process of reducing the frequency of registration is actually quite involved and arduous. The first step in representing someone in reducing the registration frequency, begins with an analysis of where and when the initial registration occurred, and if the client has any prior registration related convictions pursuant to Va. Code §18.2-472.1. This dictates whether the Petition can be filed three years after the initial registration or five years. For people who do not have any SOR violations, they may petition the court three years from the date of their initial registration. The petition should be filed in the Circuit Court where the individual was convicted, or if the conviction occurred outside the Commonwealth, then the Circuit Court in the location where the individual resides.

After filing the petition, with service upon the Commonwealth's attorney, the statute requires that the court shall have an initial hearing to order a comprehensive assessment of the Petitioner. This assessment is performed by a panel of three certified sex offender treatment providers, as defined in Virginia code section 54.1 – 3600.[3] Once the comprehensive assessment report is filed with the court, the court then conducts a hearing to determine if the individual suffers from a "mental abnormality or personality disorder that makes a person a menace to the health and safety of others or significantly impairs his ability to control the sexual behavior."[4] It is important for the practitioner to make certain that any testing instruments used on their client are complete. There are instances where some certified sex offender providers take shortcuts by including partial subsets of testing instruments. This does a disservice to the individual and the court system because an accurate assessment cannot be obtained by utilizing this shortcut method. If possible, the attorney should research each provider before the assessment takes place, and ask the court to include in its order, that any psychosexual testing performed comprise of a complete battery of psychosexual testing.

An evidentiary hearing is held once the results of the assessment have been submitted. The court decides, using a clear and convincing standard, whether or not the individual suffers from a mental abnormality or personality disorder making that person a menace to the health and safety of others, or significantly impairs his ability to control their sexual behavior. If the court finds no evidence of this, then the petition shall be granted and any duty to reregister more frequently than once a year, shall be terminated.

If the petition is denied, the duty to reregister shall continue as before without any deduction in the frequency of reregistration. The statute does not confer any right to the Petitioner ask the Court to modify any other terms of their reregistration. Additionally, a subsequent petition may not be filed within three years from the date on which any prior petition was denied. If unsatisfied with the decision, the petitioner has the right to appeal to the Virginia Supreme Court.

The duly appointed guardian of a person convicted of an offense requiring registration or reregistration as either a sex offender, sexually violent offender or murderer, who due to a physical condition is incapable of (i) reoffending and (ii) reregistering, may petition the court where person was convicted for relief from the requirement to reregister. The Court shall hold a hearing on the petition, on notice to the attorney for the Commonwealth, to determine whether the person suffers from a physical condition that makes the person (i) no longer a menace to the health and safety of others and (ii) incapable of reregistering. Prior to the hearing the court shall order a comprehensive assessment of the applicant by at least two licensed physicians other than petitioner's primary care physician. A report of the assessment shall be filed with the court prior to the hearing. The costs of the assessment shall be taxed if, after consideration of the report and such other evidence as may be presented at the hearing, the Court finds by clear and convincing evidence that because of their physical condition, there is no reason to require further reregistration.

However, for a person whose duty to reregister was terminated under this subsection, the Department of State Police shall, verify and report to the attorney for the Commonwealth in any jurisdiction in where the individual resides if the person continues to suffer from the physical condition that resulted in such termination. This shall occur annually for sex offenders and quarterly for persons convicted of sexually violent offenses and murder.

The court shall promptly notify the State Police upon entry of an order granting a petition to terminate the duty to reregister. A petition for relief pursuant to this subsection may not be filed within three years from the date on which any previous petition for such relief was denied. If, at any time, the person's physical condition changes so that he is capable of reoffending or reregistering, the attorney for the Commonwealth can petition the court to require the offender to once again reregister. If the petition is granted, the duty to reregister shall commence from the date of the court's order. If the decision is appealed, the Supreme Court will order the same assessment which is required for lifting the reregistration requirement before ruling.

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[1] Va. Stat. Ann. 9.1-908

[2] Caveat: It is important to go through the Petitioner's registration and reregistration history prior to filing the Petition. If the individual has a prior conviction pursuant to Va. Code 18.2-472.1 AND he is required to reregister every monthly, he cannot file a Petition for five years to reduce the frequency of reregistration.

[3] The statute is silent with respect to whether or not the petitioner may prearrange to be evaluated with the three certified sex offender treatment providers. Notwithstanding, the costs associated with these three providers are taxed as costs of the proceeding to the Petitioner. For the text of this statute see Appendix 7-1, immediately following the text of §9.1-909

[4] Va. Stat. Ann. §9.1-909