Thursday, January 23, 2014

SB454 Committee Discussion Reveals the True Intention of Virginia’s Sex Offender Registry, it is Punishment!

During yesterdays Senate Courts of Justice hearing SB454 - Amends the Sex Offender and Crimes Against Minors Registry Act to add solicitation of prostitution from a minor was discussed and voted on. Other than it missing a start date of July 1, 2014, I did not oppose it.  

When the patron made his argument for SB454 to become law in Virginia the reasoning became public and the true intention of our Registry was not only revealed but supported by a unanimous 15-0 vote of the Committee. Yesterdays “sales pitch” I believe places the Virginia Sex Offender Registry even further at risk of being Constitutionally compromised.

I have reviewed the audio from yesterdays hearing; 3 times to be sure I have captured it completely and accurately. 

Senator Obenshain: 

“Looking at Human Trafficking issues …..and registration is not required today, this is a significant impediment…… the people engaging in the consumer side of sexual activity….. in a survey of individuals concerning what would deter them from engaging in commercial sex…. NOTHING was more successful than listing the potential offender on the Sex Offender Registry. 

Not even putting their face on billboards……. or putting them on television…… listing them on the Sex Offender Registry was the number one deterrent”. 

A deterrent is defined as 
deterrent - something immaterial that interferes with or delays action or progress
difficulty - a factor causing trouble in achieving a positive result or tending to produce a negative result; "serious difficulties were encountered in obtaining a pure reagent"
albatross, millstone - (figurative) something that hinders or handicaps; "she was an albatross around his neck"
bind - something that hinders as if with bonds
diriment impediment - (canon law) an impediment that invalidates a marriage (such as the existence of a prior marriage)
drag - something that slows or delays progress; "taxation is a drag on the economy"; "too many laws are a drag on the use of new land"
obstacle, obstruction - something immaterial that stands in the way and must be circumvented or surmounted; "lack of imagination is an obstacle to one's advancement"; "the poverty of a district is an obstacle to good education"; "the filibuster was a major obstruction to the success of their plan"
deterrent - tending to deter; "the deterrent effects of high prices"
preventative, preventive - tending to prevent or hinder

If Virginia is using registration as a Sex Offender as a deterrent, much like incarceration, probation, fines, restitution or community service then this changes the very nature of the registry.  

In the context of Senator Obenshain’s proposal from yesterday the Commonwealth’s intent is to utilize the Virginia State Police Sex Offender Registry as part of the punishment for criminal activities.  

SB454 which passed the Committee unanimously 15-0 after this “sales pitch” of mandating registration because it would be a deterrent to criminal activity means our Registry is NOT simply administrative (because the public has a right to know the whereabouts of those found guilty of sexual crimes), but raises it to a form of punishment and seriously undermines it maintaining Constitutionally.  

With yesterday’s 15-0 vote to proceed, registration of Sex Offenders in the Commonwealth has become a confirmed punitive action. Putting their faces or names on television wouldn’t have harmed them enough, neither would posting them on a giant billboard, but the requirement to register as a public Sex Offender… now THAT creates serious difficulties, gives them a significant handicap, it’s the one obstacle or barrier that they will never overcome, sentences them to a lifetime of suffering. 

The claim of the Virginia Registry being administrative as opposed to punitive was the only argument that allowed past additions of those not mandated to register at sentencing to be added later as an administrative move in addition to the punitive segments of their crime.  

If the Virginia Registry has truly become a deterrent to be used as part of the punitive phase of any crime then those who were added administratively, were done so unconstitutionally.  

It can only be one or the other, it cannot be both. 

As I stated at the beginning, my reason for sitting in the hearing after the other two bills SB442 SB384 I planned to speak on were pushed off until next Monday was not to oppose SB454’s intent, but I wanted to ensure it was Constitutionally sound.  

By adding a start date of July 1, 2014 any due process and ex post facto issues and violations were eliminated. Even though there was significant push-back yesterday in adding a specific start date by the patron, by the VSP and by some committee members but per our statute if it’s not added the new law becomes retroactive, a fact that some in the room tried to deny or suggest I was not knowledgeable enough on the subject.  

Before I became a volunteer advocate in time for the 2009 Virginia General Assembly the 2008 Legislature failed to add a start date to a proposal mandating all Non-Violent offenders no longer register for a minimum of 10 years before a petition would be allowed but increased it to 15 years. Another change that was made before I was around was in 2006 AND 2008 where misdemeanor offenses became felony offenses and because there was no start date those Non-Violent offenders were reclassified to Violent making them “lifers” on our Registry with no option to petition for removal. These 3 examples all denied thousands of citizen’s due process and violated ex post facto.  

So far (to date) no one, who has been previously affected in Virginia by the examples I have given here (2006 and 2008) has challenged these violations either because they can not afford legal representation or because they have not reached their 10 year anniversary. But that will not always be the case, especially with yesterdays public rationale to pass SB454 being fully supported 15-0, I believe its just a matter of time before the Virginia Registry and past retroactive mandates fail the sniff-test that they are only administrative and not punitive when legislation is making it through Committee to the Chamber floor based on the claim that plastering those convicted of said crime on T.V and billboards isn’t as severe enough or as devastating as mandating they must register as a Sex Offender would be.

Mary Devoy