Monday, January 27, 2014

Action Item: Virginia Bill SB442 Passed Through Senate Committee and Remains Unconstitutional

Today SB442- Sexual Abuse of a Child - Senator Thomas Garrett Raises the penalty for sexual abuse (a defined term) of a child aged 13 or 14 from a Class 1 misdemeanor to a Class 6 felony was heard by the Senate Courts of Justice Committee. 

I was advised while voicing my first concern of no specific age gap allowance for a perpetrator who is close in age to the victim and did NOT use force, threat or intimidation, was unwarranted and that minors within 3 years of each other would not be unintentionally swept up.  

I was pleased to hear this news, but believe actual text stating it should be included in the text of the proposal in order to prevent potential Romeo and Juliet cases from being prosecuted as a felony. 

My second concern was completely ignored by the Courts of Justice Committee today. 

Leaving SB442 a likely violation of due process and ex post facto with regard to those already required to register. 

The patron acknowledged to me last week that by not adding a start date if it would reclassify citizens already listed on our registry, it would be unconstitutional! But yet after asking the entire Committee to add a date, no one took the initiative to do so. 

As written SB442 would be applied retroactively to ALL past convictions for Registry purposes.  This is not my opinion or a hunch, it is fact! 

When it comes to the Virginia Registry, any registerable offense will be applied retroactively unless there is a start date per our statute.  There is a double-whammy when a misdemeanor is increased to a felony because re-classification occurs. 

Until 9.1-901 section C. is changed any and all registry offenses must include a date going forward. 

Without a date of July 1, 2014, what would this mean?   

Anyone convicted in 2010, 2000 or maybe even earlier would be retroactively reclassified from a Non-Violent Sex Offender to a Violent Sex Offender, without ANY due process. These newly categorized Violent Sex Offenders would now become “lifers” on the Virginia Registry, requiring Virginia State Police to monitor and manage them until they die.  

There are two possibilities with this. 

1- If the affected person is still on the Registry they would now be mandated to re-register every 90 days instead of once a year (4 certified letters per year) for another 30, 40 or even 50 years. This comes at a hefty cost to the state, one that the current fiscal impact statement does NOT take into account. 

2- Any person with a previously conviction of a misdemeanor who had petitioned the courts years back and was successfully removed from our Registry….by NOT having a start date of 2014 they would automatically be returned to the Virginia Registry as “Lifers” denying them due process.

So the next issue is how many people does this retroactive mandate capture? 200 or 2000? Not knowing the actual quantity means the fiscal impact statement is not accurate. 

A FOIA in 2010 informed me that 83% of our entire Registry was already classified as Violent; the remaining 17% as Non-Violent. This imbalance is due to Virginias current inferior 2-Tier, Conviction-Based (instead of a 3-Tiered, Risk-Based) Classification System. 

Fact is there are very few sexual misdemeanors left in Virginia because of bills like this lowering the bar while raising the penalty.  

If SB442 remains retroactive and reclassifies these people (an unknown variable) the already low 17% group will become even smaller, perhaps disappearing all together. The usefulness of our registry becomes even weaker. 

So I wonder would there be ANY Non-Violent Sex Offenders left in the Commonwealth or does this bill make Virginia a single classification system where everyone is a “lifer” and no one ever has an opportunity to be removed? With no gauge the public will conclude everyone listed is equal.  

This is critical; as in Virginia to date these reclassifications have not been challenged. Mass…retroactive…re-classifications in other States … have been ruled unconstitutional due to the lack of Due Process. The simple question the courts will ask is what did these individuals do to cause them to be reclassified? When the answer is nothing, the courts will have no choice to rule the Virginia law unconstitutional, just like in these states. 

Retroactive Extension of Time Required
       to Register and Retroactive Mass Reclassifications
                                Ruled Unconstitutional 
Ohio-                  June 2010
Nevada-             December 2011
Oklahoma-       June 2013 
Kansas-             July 2013 

          Additional Restrictions or Retroactive Mandates
                Ruled as Punitive Not Administrative and
Ohio-                  July 2011
Nevada-             December 2011
Oklahoma-       June 2013 

In these 3 states, the courts directed the Attorney General’s office to immediately return everyone to their original classifications and remove those who had been unjustly returned to the registry, at an extremely high cost to the State. 

SB384 has been sent to Senate Finance Committee 

After today’s vote to allow SB384 to remain retroactive, the patron took me aside and asked me to “draft” a proposal with a start date that he would then submit as a substitute. He further stated that he has a lot going on which led me to think that this might be forgotten, so I’ve shared his comment with all the other Legislators in an email a few minutes ago.  

I do hope that if SB384 makes it out of Finance in its current state and to the Senate floor to be voted on that a start date of July 1, 2014 will be added by floor amendment to avoid these Constitutional issues and a future court challenge which could result in all previous laws that were applied retroactively being undone in the Commonwealth. The best way to avoid such action is to add the required and much needed start date of July 2014 sooner rather than later. 

Please Email or call  your Virginia Delegate and Senator today and tell them to add the start date of July 1, 2014! 


Mary Devoy