Sex Offender Registration Procedures

§9.1-903 covers the "how-to's" of registration on the SOR. While most of this section does not warrant further explanation, defense counsel may encounter situations when there is confusion about the "initial registration" as written in this statute.

The first question one often finds themselves asking is; when does the initial registration occur?

Excluding individuals on the Violent Sexual Offender Registry and persons required to wait 25 years to petition for removal, the time begins after the date of the initial registration. But when does an individual have their initial registration? In Miller v. Commonwealth,[1] the Court stated, "[S]ince inclusion in the Registry does not seem to be the determinative factor as to whether a Petitioner initially registered, the Court must look to the text of the relevant statutes to determine what the General Assembly contemplated by the phrase 'initial registration.' In looking at the text of the relevant statutes, the Court must bear in mind that this statute has undergone substantive changes since its inception in 1994. Thus, in determining whether Petitioner initially registered in 1998, the Court must consider the registration requirements as they existed in 1998 and not as they exist today."[2]

The Court further stated "It is clear to the Court that the General Assembly used the phrase 'initial registration' to intend that this statute apply to the Registrant's first date of registration in the Registry. A sex offender is required to re-register with the Registry on an annual basis; obviously, the General Assembly included the word "initial" to have the statute apply to the first of the offender's registrations with the Registry."[3]

In determining when an offender petitioning for removal is initially registered, Courts must consider whether they fulfilled the statutorily designated procedures that existed at the time they were initially required to register. In 1998 when Miller[4] was decided, §19.2-298.1[5] of the Code of Virginia governed registration procedures for the SOR. The statute, as it existed at that time, did not require Petitioner to submit themselves to be photographed, or that they submit a DNA sample. The statute also did not require that they appear in person to register. Thus, it is vital to understand the requirements of the registration statute as it existed at the time of Petitioner's conviction.

Complete Initial Registration

Notwithstanding the foregoing, the next issue often encountered is what constitutes a complete initial registration? Subsection §9.1-903(B) sets forth the criteria which must be met for the registration to be complete. The Virginia Supreme Court has stated; in order to complete registration, pursuant to Code of Virginia §9.01-903, "in-person registration is specifically required for the initial registration" with the local law enforcement agency."[6]

When determining where "initial" registration occurs for the purposes of removal from the SOR, the statutes are largely silent. Case law implies, however, that the Initial Registration is determined when the Registrant is either ordered or complies with his or her registration in Virginia. In Harris v. Commonwealth,[7] the Court held that the evidence was sufficient to support conviction for failure to re-register as sex offender; beginning with initial date of registration. The defendant was required to re-register every 90 days thereafter, which established a certain date on which defendant was required to re-register. Virginia Code Ann. §9.01-904(A).

There are a few additional issues which discuss the registration procedures found in §9.1-903, but those are specific to cases where counsel is either seeking to have the offender removed from the SOR or there is an effort to have the reregistration frequency decreased. Because these are more specific to those issues, they will be discussed in the sections on §9.1-907 and §9.1-910.

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

[1] 88 Va. Cir. 177 (2014), Fairfax County

[2] Id

[3] Id

[4] NB: The Court in the Miller case specifically found that the Petitioner's initial registration was complete on December 2, 1998, when he submitted all necessary documents for registration, even though the Department of State Police later agreed with the Petitioner that he was not required to register.

[5] NB: This is an explanation of the 1998 version of former Va. Stat. Ann. 19.2-298.1. The 1994 version did not require photographing of the offender. "Under this section, registration is required for the violation or attempted violation of a list of sex offenses, sexually violent offenses, or offenses where the victim is a minor, physically helpless, or mentally incapacitated. Every person convicted after July 1,1997, including juveniles tried in the circuit court, is required to register as part of the sentence imposed upon conviction. The court is obligated to remand the person to the custody of the local law-enforcement agency for the purpose of obtaining the necessary information. The local law-enforcement agency is then required to forward such information to the State Police for inclusion in the Sex Offender and Crimes Against Minors Registry. Furthermore, every person serving a sentence of confinement or under community supervision on July 1,1997 for an offense for which registration is required shall be required to register and given appropriate notice of their duty to register. Upon release from confinement, or if not confined from the date of suspension of sentence, a person will have ten days to register. If a person attempting to establish residence in the Commonwealth has been convicted of similar offenses in other state or federal courts, he or she must register within ten days of establishing residence in the Commonwealth. Anyone under a duty to register must re-register within ten days of changing their address. The registration shall include the offender's name, known aliases, date and locality of conviction, fingerprints, photograph, date of birth, social security number, current address, description of the offense for which convicted, and information related to prior convictions. Sexually violent offenders must re-register every ninety days by confirming their address and providing the police with identifying information. All other offenders required to register must re-register annually. Failure to comply with the registration requirements constitutes a Class I misdemeanor or a Class 6 felony." NEED CORRECT BLUEBOOK CITATION: 1998 Summary of Virginia Sex Offender Registration Statutes Developments in Mental Health Law, Vol. 18 No. 1-2 (Jan.-Dec. 1997-1998) Accessed athttps://www.questia.com/magazine/1G1-220057129/1998-summary-of-virginia-sex-offender-registration (Last Accessed June 29, 2016)

[6] McCabe v. Commonwealth 74 Va. 558 (2007).

[7] 53 Va.App. 494 (2009)