Throughout history, societies have labeled people partially based on what they did, but mostly because of who they are. Sex offender registries are a good example. The first federal sex offender registry appeared in the 1990s. Most states, including Georgia, quickly followed. However, like other labeling initiatives, sex offender registries have come under fire recently. Critics include the ACLU, the Human Rights Watch, and even the National Center for Missing & Exploited Children. The NCMEC’s director, Patty Wetterling, initially spearheaded the registration movement. But she has reversed course. “I’m worried that we’re focusing so much energy on naming and shaming convicted sex offenders that we’re not doing as much as we should to protect our children from other real threats,” she said in 2007.
Because of these criticisms, many states, including Georgia, have relaxed their sex offender registration laws. So, in many cases, a one-time mistake is not essentially a life sentence. That’s especially true for non-violent sex offenses. Therefore, these individuals have a chance to find a good place to live, find a good job, go to school, and do other things that many of us take for granted. As outlined below, a Marietta criminal defense lawyer basically has three opportunities to remove a person’s name from the sex offender list or keep it from appearing on this list at all.
Who Must Register
The list of infractions that trigger a registration requirement is rather short in Georgia. Most jurisdictions require anyone convicted of any sex crime, even something like possession of illegal pornography, to register. But Section 42-1-12 of the Georgia Statutes only applies to the following offenses:
- Sex trafficking,
- Aggravated sexual battery,
- Obscene internet contact with a minor,
- Possession or production of child pornography (production of child pornography could be asking a minor for an illicit photo),
- Statutory rape,
- Enticing a minor,
- Child molestation, or
- Sexual exploitation of a minor.
All these infractions are sexually dangerous offenses or infractions with victims who are minors. Let’s break these categories down a bit.
Most aggravated sexual battery cases are acquaintance rape cases. Statistically, the vast majority of alleged victims know their alleged attackers. Consent, or lack thereof, and drug use are usually the two biggest issues in these cases.
Generally, consent is current permission to engage in a specific sexual act. Prosecutors usually rely on circumstantial evidence, such as a rape kit, to establish lack of consent. However, rough sex is not necessarily nonconsensual.
As for drug use, alcohol is technically a date rape drug in Georgia. However, the alleged victim must be almost completely incapacitated. That level of intoxication requires a lot more than three or four drinks, at least in most cases.
Offenses against minors occasionally involve the so-called Romeo and Juliet rule and/or the entrapment defense.
Lower registration requirements apply if the alleged victim was at least 15 and the defendant was younger than 18.
Entrapment comes up as well, especially in internet solicitation cases, but not as often as one might think. The defense only applies if the officer enticed the defendant, and the defendant had no predisposition to commit the crime. If the defendant was in an online sex chat room, the defendant had some predisposition to commit the offense.
Frequently, especially if the complaining witness is uncooperative, unavailable, or unreliable, a Marietta criminal defense attorney can arrange a plea bargain to a non-registration offense, like reckless conduct.
In a way, there is only one registration level in Georgia. All offenders, regardless of their offenses or risk levels, must register publicly. Their names, pictures, addresses, and infractions all appear on the Georgia Bureau of Investigation’s website. Furthermore, all offenders must update their information annually. Failure to do so is a separate offense.
However, there are three different risk levels in Section 42-1-12. Level I offenders are low risk re-offenders, Level II offenders are moderate risk, and Level III offenders are “sexually dangerous predators.”
Usually, the probation department handles the risk level assessment. Although there is no formal hearing, a Marietta criminal defense lawyer can usually advocate for defendants in these situations and lower the risk level. These efforts could pay significant dividends in the third and final area.
Petition for Removal
Ten years after the sentence ends, not ten years after the judge passes sentence, Level I offenders may be eligible to file removal petitions. There are other eligibility requirements as well, such as:
- No prior sex crimes arrests or convictions,
- No prior convictions for any crime against a minor, and
- The defendant did not transport the alleged victim, physically restrain the alleged victim, or intentionally harm the alleged victim during the offense.
That last bullet point renders many defendants ineligible to file a petition. Frequently, especially in acquaintance rapes, the defendant and alleged victim go from one room to another. Additionally, physical restraint could include passive restraint, such as false imprisonment or blocking a door.
At a hearing, the defendant has the burden of proof to show that s/he “does not pose a substantial risk of perpetrating any future dangerous sexual offense.” This phrase is very subjective, especially since the statute does not define “substantial risk” or a “dangerous sexual offense.”
The burden of proof is only a preponderance of the evidence, or more likely than not. That’s much lower than beyond a reasonable doubt, which is the burden of proof at trial. So, a little evidence goes a long way. However, simply rehashing the eligibility requirements is usually not enough. Just because the defendant is eligible for removal does not mean that s/he doesn’t pose a substantial risk of dangerous re-offense.
Pragmatically, the before-and-after approach often works well in these situations. For example, before I had a substance abuse problem, and now I’m clean and sober. Or, before I was a godless heathen, and now I’ve found religion.
Incidentally, removal petitions are not a one-time affair, at least in most cases. If one judge denies a petition, a subsequently elected or appointed judge who has a different outlook might see things differently.
Sex offense registration is not necessarily a lifelong requirement. For a free consultation with an experienced criminal law attorney in Marietta, contact The Phillips Law Firm, LLC. Virtual, after-hours, and home visits are available.