Richmond Criminal Defense Attorney
Free Consultation 804.557.0440
You Can Have Confidence in Our Experience. We Will Fight to Secure the Best Possible Outcome for Your Case.

Getting off the Sex Offender Registry

Removal of a convicted offender from the SOR is one of the more common issues defense counsel will encounter. The controlling statute is §9.1-910 of The Code of Virginia. This section does not assist those individuals on the "violent offender registry" or those convicted of having committed a "violent sexual offense."

The first issue is determining where "initial registration" occurred for purposes of registration on the Virginia SOR. §9.01-910 is silent with respect to where the Initial Registration takes place, but case law implies that the Initial Registration is determined when the Registrant is either ordered or complies with his or her registration in Virginia.

A number of issues arise when representing a client convicted of registrable offense in another Jurisdiction. The amount of time a convicted offender is required to remain on the SOR varies from state to state. This fact can be especially problematic when a client relocates to Virginia after the registration requirement of their previous domicile has expired, but before Virginia's time requirement for registration has expired. Even if they are removed from the SOR in their previous domicile, Virginia can require them to register upon relocation. §9.1-910 is not helpful in resolving such a situation, and the case law is scant. The Court in Rosin v. Monken[1] states that the removal of an individual from the Sexual Registry in one state does not have any power to dictate the means by which another state can protect its public. If a black-letter rule can be found, it seems to stem from a Supreme Court Case in the topic of Conflict of Laws: "The Full Faith and Credit Clause does not require a State to apply another Sate's law in violation of its own legitimate public policy."[2] There is, however, case law from other states which deal directly with this topic. In Crofoot v. Harris,[3] the sex offender registration statute in the State of Washington allowed for termination of registration after ten years. The comparable statute in California required lifetime registration. After Washington released the petitioner from his requirement to register, he moved to California. He was required to register by California with the state arguing that their registration statute required lifetime registration. The Court held that the Full Faith and Credit Clause did not require California to recognize the Washington post-judgment Order, and Crofoot was required to register as a sex offender for his lifetime.

In Virginia, once an individual has been removed from the SOR by judicial decree, their removal is considered a vested right. Under the holding of McCullough v. Virginia[4], no subsequent changes in statutory law can require that individual to reregister based on their initial conviction. In Morency v. Commonwealth, the Court held "An individual's right in a trial court's judgment is an inchoate right which becomes vested upon the happening of one of two events: An affirmance of the decree of the trial court by the Supreme Court of Appeals; or by the expiration of the period allowed at the time in which to take an appeal."[5] It is not within the power of a legislature to take away rights which have been once vested by a judgment

Finally, counsel must be cognizant of how a conviction at the federal level works with the Virginia SOR. As of 2016, certain sexual crimes in the Federal System, are not classified as a violent sexual offense. The most notable of these are crimes related to child pornography. This is problematic if an individual is required to register in the Commonwealth of Virginia.[6] Unlike the federal classification, the Commonwealth classifies crimes relating to child pornography as violent sexual offenses. The end result of this conflict in classification is that police officers often treat those convicted federally as if they were violent sexual offenders, when the Federal guidelines say otherwise.

A further complication arises when a former federal defendant is accused of failing to register. In this situation, the accused can face charges at both the federal and state levels.

For purposes of removal from the SOR in these cases, it is critical to ascertain whether an individual was prosecuted under the Federal system or the State of Virginia.

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

[1] 599 F.3d 574. 577 (7th Cir. 2010).

[2] Nevada v. Hall, 440 U.S. at 421-22, 99 S.Ct. 1182.

[3] 239 Cal. App. 4th 1125; 192 Cal. Rptr. 3d 49 (2015)

[4] 172 U.S. 102, 123-124 (1898)

[5] 274 Va. 569 (2007), quoting Bain v. Boykin, 180 Va. 259 (1942)

[6] Up until 2007, Federal child pornography offenders were not required to register in the Commonwealth of Virginia.