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Who Is Required & What Offenses Are Required in Sex Offender Registration?

§9.1-901 designates who is required to register on the SOR. This section is relatively straightforward and can be found in Appendix 7-1. Briefly, the following people are required to register on the SOR as per §9.1-901:

  1. Those convicted in Virginia of a crime set forth in §9.1-902;
  2. Those convicted in another state for an offense similar to an offense requiring registration in Virginia; or
  3. Those convicted of any offense for which registration in the sex offender registry is required in the jurisdiction of the conviction.

There are two situations in which an offender may be required to register in Virginia due to crimes committed in another jurisdiction. The first is when an individual is convicted in another forum for a crime similar to a crime requiring registration if they were convicted in Virginia. The second is when an individual is convicted of a crime requiring registration in the state of conviction. Initially, these two situations seem to be similar, if not identical.

After a look at the statutory construction, and related case law, the nuances become clearer. The first situation, that of a "similar" crime relates to the offense itself. Regardless of whether or not the state of conviction required registration in their jurisdiction, if the offense is similar to one requiring registration in Virginia, the convicted person may be required to register upon relocating. The second situation deals more directly with the remedy. If a person is convicted of a crime which requires registration in the original forum, Virginia may also require registration after relocation regardless of whether the "similar" crime is one in which a conviction requires registration under Virginia law. There are various reasons behind the promulgation of these subsections, but the most compelling is the State's interest in protecting its citizens. In both cases, the State is protecting its citizens from an influx of offenders whose only reason for relocation is the fact that they would not have to register as a Sex Offender in Virginia.

Those Convicted of a Similar Crime in another Jurisdiction

The terms "similar" and "substantially similar" can cause great confusion for an attorney representing a client required to register in Virginia for crimes committed in another state, as the crime they were convicted of may not have been one requiring registration in the original forum.

The Code of Virginia § 9.1-902(A)(5) states that an offender convicted of a sex offense in another jurisdiction, whether foreign or domestic, who moves to Virginia, is required under Virginia's Sex Offender and Crimes Against Minors Registry Act to register as a sex offender in the Commonwealth, if the offense is similar to, as opposed to being substantially similar to, a Virginia offense for which the Act requires sex offender registration.

This issue was addressed in Johnson v. Commonwealth[1] in which Johnson was convicted in North Carolina in 1995 of aiding and abetting a second-degree rape as well as aiding and abetting second-degree sex offense. He was sentenced to twenty years in prison with no other restrictions, prohibitions, or requirements. Johnson was released from prison in 2003 and subsequently moved to Virginia. After moving to Virginia, Johnson was indicted for failing to register or re-register as a sex offender after having previously been convicted of a sexually violent offense. Johnson was convicted and the matter was appealed. The issue on appeal was whether Johnson was required to register as a sex offender pursuant to §9.1-902(A)(5).

On appeal, Johnson argued that the North Carolina statute under which he was convicted was not "substantially similar" to the Virginia Statutes requiring registration, and that Virginia law did not require people convicted as principals in the second degree to register as sex offenders. The Court of Appeals held that according to subsection §9.1-902(A)(5)[2] registration was required when there was a conviction in another forum for an offense which was "similar" and not "substantially similar." They stated that even though the distinction between "similar" and "substantially similar" was slight, there was a significant difference when it came to statutory construction. For two statutes to be "similar", the Court held, they need only to "have characteristics in common or be alike in substance or essentials",[3] while to be substantially similar they must be more closely tied, sharing common "core characteristics"[4] or be "largely alike."

The Court also held that Johnson confused the language which defined who must register pursuant to the section § 9.1-902[5], with the language used to enhance the punishment for one who is convicted of a second or subsequent offense for failing to register or re-register under section §18.2-472.1[6]. The Court stated that a plain reading of subsection § 9.1-902(A)(5)[7] clearly indicated, for someone to be convicted in another jurisdiction for failing to register under the Act, the offense for which he was convicted only needed to be "similar" to an offense listed in the Act. Conversely, the "substantially similar" language of §18.2-472.1[8] required an analysis of the registration laws of another jurisdiction to determine if one is subject to enhanced punishment for a conviction for failing to register or re-register. Va. Code Ann. §18.2-472.1 does not contemplate the original offense requiring registration as a sex offender.

For practitioners, the major take away from the Johnson case is, therefore, for the Commonwealth to require registration based on a conviction from another forum under §9.1-902(A)(5), the offender must be convicted of a crime which is similar to a Virginia offense. To be charged with an offense of failing to register, the underlying offense must be substantially similar to a Virginia offense.

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

[1] 53 Va.App 608 (2009).

[2] Va. Stat. Ann. §9.1-902(A)(5)

[3] Id at 614 (Internal quotations omitted).

[4] Id.

[5] Va. Stat. Ann. §9.1-902

[6] Va. Stat. Ann. §18.2-472.1

[7] Supra note 22

[8] Supra note 26