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Monday, July 7, 2014

Action Alert: 8 Proposals for 2015! Contact Your One Virginia Delegate, One Virginia Senator, Attorney General Mark Herring and Governor Terry McAuliffe Asking Them to Sponsor or Find Sponsors Today!

 
Back on April 18th I asked you all to look over the Top 7 Goals I have been asking the Virginia Legislators to sponsor over the last 6 General Assembly sessions and pick one or two that you believe in and to then ask your District’s Delegate and Senator to sponsor for the 2015 Virginia General Assembly (begins January 14th) because most Legislators decide on all their bills by September in a non-election year like 2014. In an election year they usually wait till late November or even mid-December to make their final decisions/selections on bills for the upcoming January. 

Last week I made more than 25 separate requests for 2015 sponsors, now I wait for their answers. 

Today, I am asking all of you once again (if you have not already done so) to contact your one Delegate and one Senator before the end of July. 

This way they hear their constituents asking for these reasonable changes and asking them to step up and patron/sponsor one “good” bill for the next session.

        Side Note:
Since the April action item post, two Delegates and one Senator have retired/resigned in June and then on July 1st another Senator retired/resigned. This mean there will be one or two Special Elections for 4 District’s in the Commonwealth to fill these vacated seats.

       They are:
1.       Senator Phillip Puckett          -D           of the 38th District
2.      Delegate Algie Howell           -D           of the 90th District
3.      Delegate Robert Brink           -D          of the 48th District
4.      Senator Henry Marsh             -D           of the 16th District 

If you live in one of these districts then you need to wait until the Special Elections occur to know who is representing your district. Then you can contact the newly elected Legislator, introduce your self and make a request for 2015.

The candidates for the upcoming Special Elections in these 4 Districts’ are not finalized (as of today). Once they are I will post about the candidates. 

2015 (an odd year) will be a short-session this means the Virginia Delegates are limited to a maximum of 15 bills, that’s it! Whereas, Virginia Senators do not have a bill limit in a short session. 

Both the Governor and the Attorney General have their own Legislative Agendas each session, known as “Administration Bills”.  So they too are looking for Delegates and Senators to patron/sponsor their bills leaving fewer opportunities for constituents and advocates during a short session. 

I’ve selected one additional goal from the full list, for this post. #8 in this post is in response to the Manassas, Virginia case of the 17 year old boy who “sexted” with his girlfriend and was forced by the state to submit to official photos of his genitalia. Goal #8 is not specific to him being forced to be photographed but to separate Teen Sexting from Child Pornography. 

From the 8 goals below, please select one or two that speaks to you the most and ask your representatives to sponsor a bill proposing the change. You can ask them in a phone call, in an email or in an in-person appointment at their district office (near you). 
 
Do you know who your representatives are? If not, look them up Virginia Delegates and Senators.   

If you are feeling industrious you could also contact:

Virginia Governor Terry McAuliffe
1111 East Broad Street, Richmond, VA 23219  
804-786-2211
https://governor.virginia.gov/commonwealth/email-the-governor/  

Virginia Attorney General Mark Herring
900 East Main Street Richmond, VA 23219
804-786-2071

Ask them to add one or two of the below proposals to their 2015 Legislative Agenda.   

If your parents, siblings, adult children, aunts, uncles, cousins, etc live in Virginia ask them to contact their one Delegate and one Senator too! 
The 8 goals (in no particular order) are:
1.       Remove the Employer/Company name of Offenders from the VSP Public Sex Offender Registry
2.      Written notice needs to be given of all current and new legal restrictions /regulations for RSO’s
3.      Procedural changes to Offender Registration to make compliance attainable based on VSP operational hours
4.      Implement a 3-Tier Risk-Based Classification System as opposed to our current 2-Tiered Conviction Based System
5.      Form a Virginia Sex Offender Management Board (SOMB) to take the politics out of policy
6.      Compliant Non-Violent Offenders should be automatically removed on 15 Year Anniversary instead of petitioning the court
7.       Repeal Virginia’s 21-Day (to Recant) Rule
8.      Separate Teen Sexting and Sexual Extortion from Child Pornography
                See below for more details on each of these goals.

When you send e-mails or leave voice-mails to your Representatives:
v     They must be factual, don’t make numbers or facts up. If you don’t know or you aren’t sure about specific points say that and tell them you’ll get back to them with the information and be sure you do! Then next time do some prep work ahead of time so you’ll be better prepared.
v     Emails should not be any longer than a one page Word document with standard margins and font. If your email is longer than one page, edit it and if needed edit again.
v     You can be blunt but don’t be rude, condescending or threatening. Be polite, professional and respectful.
        Caller fined for profane message to AG’s office, (Virginia), April 21, 2014       http://www.timesdispatch.com/news/state-regional/caller-fined-for-profane-message-to-ag-s-office/article_94def2d2-c99a-11e3-9481-001a4bcf6878.html
v     Your request should be about public safety and citizens in general, not about your personal plight. Keep it about others, the public and the children of the Commonwealth
v     Whining is a waste of time; they don't want to hear it and anything else you’ve said will be ignored

After you call, email or meet with them, follow up a few weeks later looking for an answer if they didn’t already give you one. 

If they decline to be a patron/sponsor, find out why. What are their issues, concerns, hesitations?  

Now that you know their concerns if they can be addressed they may patron a bill in the future.  

If their concerns or objections can not be addressed thank them for considering your request and let them know you will be contacting them during the General Assembly. 

Hopefully if any myth-based, punitive bills come before your representative during the next session they may not automatically vote for it because they’ve now been enlighten by a constituent on these issues. 

And if another Virginia lawmaker patrons the bill you had asked your representative to sponsor, your representative may not automatically vote against it because of the knowledge you imparted on this issue months prior.  

If they decline your request, you’ve still made a difference by reaching out to them and arming them with facts. 

Now, if they do decline to be a patron/sponsor let them know you will return next year and perhaps the year after that with a different request. Advise them this is an issue that will not go away and neither will you.  

Below you will find more details on each of the 8 Goals so you can build your email or prepare for your phone call or appointment.  

There are some issues we’ve all encountered that can only be fixed with court challenges BUT many issues can be fixed with legislation. Without a patron to propose the legislation (bill) at the yearly legislative session, reform will never happen and problems will remain. If we don’t speak up, make the request then nothing will ever change.  

Standing on the sidelines helps no one.  

If you’re uncomfortable about this issue, the more you talk about it the more comfortable you’ll become, trust me. 

This action item is a step forward and you can do it from the security of your home if you like, start small but at least start advocating for yourself, your family and those Virginians who have yet to be swept up by these one-size-fits-all laws that requires a lifetime of public stigma and impossible restrictions for the entire family, not just the RSO.  

Thank you!  

Mary Devoy 

 

#1 -Remove the Employer/Company Name of Offenders from the VSP Public Sex Offender Registry so Virginia Employers aren’t being shamed for hiring the best candidate or participating in the successful re-entry of former offenders across the Commonwealth.
 
Today, 29 states currently do not list any employer information publicly.  

Virginia is one of only 6 states that publicly list both the employer name and the address.  

Back in 2012 Kansas and in September 2013 Texas removed ALL employment information from their public registries. 

The Federal Adam Walsh Act/SORNA does NOT require the name of the employer/company to be publicly posted, just the address. The AWA/SORNA recognized that this practice would hinder the ability of an ex-offender to re-acclimate to societal norms.  Of the 17 states the SMART Office has certified as AWA compliant  5 of them do not list ANY employer information and 2 only list the county and/or zip code. Proving Federal compliance is possible without listing the employers address. 

Previous Virginia Legislation attempting to accomplish this:
·         2010- SB635 (Passed the Virginia Senate 40-0 to then be stopped in a House Militia, Police and Safety Sub-committee of 6)
·         2012- HB413
 
#2 -Written notice of all Legal Restrictions /Regulations that all Registered Sex Offenders
(RSO) must abide by in Virginia.  

Currently when a new law is passed that changes where an offender can or can’t be, who they can or can’t be with, what their classification is or when certain information is required to be updated they are NOT notified of the change nor are these restrictions readily available anywhere. 

All Virginia and all Federal laws should be available in easily understandable terms not legal mumbo-jumbo.  

The first copy would be given to an RSO at upon their first registration and then an updated and complete list given each year after the General Assembly session when the new laws take effect on July 1st . 

The list would be posted on-line and available upon request including to be mailed to those RSO’s without Internet access. 

Previous Virginia Legislation attempting to accomplish this
·         2009-    HB2225
·         2010-     HB1328
·         2011-      HB2382
·         2012-     SB420
·         2013-    No Bill
·         2014-    SB553 

Plus:
Problem: The Virginia State Police (the owner of the Virginia Registry and manager/monitor of all the RSO’s) is not liable for giving out incorrect or out-dated information to Virginia’s RSO’s per § 9.1-917   

Solution: They need to be disseminating correct information when asked and they need to be accountable if they don’t.
 
Plus:
Problem: There are Federal laws/rules for RSO’s who want to travel internationally, visit a Federal Park, Forest or Campground and are NOT under Probation supervision, but yet the VSP can not advise Virginia’s RSO’s what those requirements are or where to find them.

Being an RSO is like being on lifetime Probation except the “rules of the game” change yearly. When you are on Probation you are given a written list of the rules and you must sign that you understand them all. Then if you break a rule of Probation you face the legal consequences. 

But for RSO’s no one tells you the rules, many people in authority don’t even know them because they change so frequently, but yet if an RSO breaks “a rule” which is actually a law they face a new Felony even if their original conviction that put them on the Registry might have been a misdemeanor. 

Registry laws (restrictions and regulations) are generally based on the… “What if’s”, almost a crystal ball approach to lawmaking. So how are the RSO’s supposed to know what the lawmakers have recently legislated as a “no-no”? 

Every year there has been a bill the VSP Legislative Liaison has lobbied hard against it and they’ve been successful.

The VSP does NOT want Virginia’s 20,700+ RSO’s to know what the can and can’t do.


#3 -Procedural Changes to Offender Registration to Make Compliance actually attainable

2 Issues Exist: 

Problem#1: The current “3 day” requirement for all information being submitted does not work because VSP Barracks are only open Mon-Fri 8:30 to 4:00PM, closed weekends and all holidays. Any three day weekend (Saturday, Sunday, Monday) becomes a failure to register and a Class 6 Felony. A large majority of local authorities (police and sheriff’s offices) refuse to accept registered offenders re-registration information claiming they do not have the equipment, time or personnel to participate in the registration process. The VSP is the owner and publisher with the responsibility of verifying the content and accuracy of the Virginia Sex Offender Registry as well as compliance and statute requirements. These must be aligned with the VSP hours of operation.  

Solution: The statute needs to be revised to “3 business days” or extended to “5 days”.  

Problem #2: The current 30 minute requirement to register any E-mail or IM changes in-person to a VSP Barracks is impossible. Many offenders live 2-3 hours from a VSP Barracks and they are only open Mon-Fri 8:30 to 4:00PM, closed weekends and all holidays. A failure to register within 30 minutes is a Class 6 Felony. When this law was passed in 2007 (HB2749-Hurt) it was drafted to be 3 days but then the “marijuana advocate” Roy stood up and proposed to the committee to make it 30 minutes thinking the VSP would create an electronic system to accept offender email changes, they accepted the amendment. In 2012 while defending HB416 Roy admitted this to the House Criminal Courts of Justice Sub-Committee that when he proposed the change he and the 2007 Committee expected an electronic system to be set-up, he felt terrible that for 5 years offenders were having such a difficult time complying with an impossible requirement.  

Well, it’s now been 7 years that a law exists and no system has been established to make compliance possible. 

Solution: Either the VSP creates a secure (password protected) electronic system that is available 24 hours a day and sends an immediate receipt to the offender confirming the information has been received by the VSP or this statute needs to be revised to “3 business days” or “5 days”.  

Problem#1: The current “3 day” requirement for all information being submitted does not work because VSP Barracks are only open Mon-Fri 8:30 to 4:00PM, closed weekends and all holidays. Any three day weekend (Saturday, Sunday, Monday) becomes a failure to register and a Class 6 Felony. A large majority of local authorities (police and sheriff’s offices) refuse to accept registered offenders re-registration information claiming they do not have the equipment, time or personnel to participate in the registration process. The VSP is the owner and publisher with the responsibility of verifying the content and accuracy of the Virginia Sex Offender Registry as well as compliance and statute requirements. These must be aligned with the VSP hours of operation. 

Solution: The statute needs to be revised to “3 business days” or extended to “5 days”. 

Problem #2: The current 30 minute requirement to register any E-mail or IM changes in-person to a VSP Barracks is impossible. Many offenders live 2-3 hours from a VSP Barracks and they are only open Mon-Fri 8:30 to 4:00PM, closed weekends and all holidays. A failure to register within 30 minutes is a Class 6 Felony. When this law was passed in 2007 (HB2749-Hurt) it was drafted to be 3 days but then the “marijuana advocate” Roy stood up and proposed to the committee to make it 30 minutes thinking the VSP would create an electronic system to accept offender email changes, they accepted the amendment. In 2012 while defending HB416 Roy admitted this to the House Criminal Courts of Justice Sub-Committee that when he proposed the change he and the 2007 Committee expected an electronic system to be set-up, he felt terrible that for 5 years offenders were having such a difficult time complying with an impossible requirement.

Solution: Either the VSP creates a secure (password protected) electronic system that is available 24 hours a day and sends an immediate receipt to the offender confirming the information has been received by the VSP or this statute needs to be revised to “3 business days” or “5 days”. 

Previous Virginia Legislation attempting to accomplish these 2 goals
·         2011-      HB1628  
·         2012-     HB416     
 
#4 -Virginia has not implemented a 3-Tier Risk-Based Classification System and we should. 

Virginia currently has a 2-Tiered Conviction Based Classification System. Non-Violent and Violent. 

In 2006 and 2008 hundreds possibly thousands of Non-Violent Offenders were retroactively reclassified to Violent by the Virginia Legislature changing their re-registration from once a year to every 90 days and their minimum time listed on the Virginia Registry from 15 years to a Lifetime.  This was done retroactively and denied them due process. I’ve submitted FOIA’s with the Virginia State Police looking for the actual quantities and I’ve been denied the data. 

When this occurred these offenders became “lifers” with no opportunity to every petition for removal. Some offenders had already been removed a few years beforehand and were returned to the Virginia Registry because of this legislation.     

These two mass legislative implementations significantly increased the costs to Virginia, including the number of registered letters being tracked, printed and mailed out 4 times a year instead of once a year as well as the man-power to be on-duty to accept the re-registration information 4 times a year per offender all upon a citizen who was originally convicted of a misdemeanor and classified as Non-Violent. 

A Risk Based classification system as opposed to the current Conviction Based system would identify those who pose a real threat to society instead of classifying them on a conviction which was mostly likely downgraded with a plea agreement. Meaning a real-threat could be currently classified as Non-Violent because they pled to a misdemeanor instead of the original felony they were facing. 

A Risk based classification system would take some time and money initially but in the long run it would save the Commonwealth millions because everyone would not be treated the same, more resources would be directed toward the higher risks whereas today they do not receive heightened monitoring. 

The offenders who get placed in the highest level won’t be happy but if they are evaluated to be the worst-of-the-worst then state resources and monitoring will be better directed towards them instead of the current process of monitoring everyone as an equal threat, when they aren’t. 

3 Tiers would also assist the public in deciphering between those who have been swept up by ever expanding laws and lowering the threshold of crime while raising the penalty. 

·         Tier/Level 1 would be the lowest risk to reoffend and could automatically be removed after 10 years of compliance
·         Tier/Level 2 would be a moderate risk to reoffend and could petition for removal after 15 or 20 years of compliance
·         Tier/Level 3 would be the highest risk to reoffend and would be registered for life 

Some states like New Jersey and Massachusetts.  don’t publically list/post the lowest level (Tier 1’s) they are on a private/police registry.

 Some states like Maryland don’t publically list the juveniles they are on a private/police registry and are automatically removed on their 21st birthday.

#5 -Virginia should form a Sex Offender Management Board (SOMB). 

Many States have SOMB’s, they draft and propose Sex Offender Legislation, they study what does and does not work when it comes to regulations and restrictions. They have monthly public meetings where citizens, offenders, experts and victims are heard on issues of employment, housing, resources, registration, civil commitment, etc.  

An SOMB would know what is required by the Federal Adam Walsh Act/SORNA instead of guessing as we’ve seen happen during almost every Virginia General Assembly in the last 6 years. The SOMB would know what reports, studies and experts in the field across the country are finding and recommending. These recommendations must be adhered to by the lawmakers. This eliminates feel good laws that serve no purpose; it takes the politics out of public safety. 

Their web-site would also become a great resource for citizens and the minutes from the meetings would be posted so those that could not travel to attend could still be apprised. 

The Boards usually consist of a Commonwealth’s Attorney, a Public Defender, a District Judge, a Juvenile Judge, a member of the Department of Corrections, a member of the Department of Probation, a member of the Department of Juvenile Justice, a member of the State Police, a State Delegate, a State Senator, 2 licensed mental health specialists in Sexual Abuse and Sex Offender Treatment, a minster of a Faith Based Group, a member of a Civil Liberties Organization, a member of a Restorative Justice Organization, a Victims Advocacy Group and a Registered Offender or family member of an offender. 

When a piece of Legislation comes from the Board into the Legislature it’s usually flawless and accepted by all sides and will succeed once implemented into the community. 

Having a SOMB in place will hopefully reduce the bills that are based on fear not facts that get submitted almost every year during the General Assembly simply to look tough on predators to their constituents. 

Virginia must have a board of people that are dedicated to Sex Offender issues, legislation, restrictions, regulations and resources; it can not be handled as a part-time job as is being done today. 

An SOMB would take the politics out of policy when it comes to Sex Offenders, Civil Commitment of SVP’s and the public perception of “Predators”.
 
#6 -Compliant Non-Violent Offenders Should be Automatically Removed on 15 Year Anniversary Instead of Petitioning the Court 

Problem: Currently for those classified as Non-Violent Sex Offenders to be removed from the Virginia Sex Offender Registry after they have served their mandated 15 years, they must petition to be removed in the court of their original conviction per  § 9.1-910 

This is a very costly and timely process, in many cases it is cost prohibitive. This keeps the registry overburdened and dilute with those who will not recidivate and adds additional cost to our Commonwealth and the courts. It also requires a judge to be willing to put their name on the removal of the citizen from the list and most judges are not willing to do this even if the offender poses no threat to society and has been compliant. 

Solution: If someone has served their mandated time (15 years) on the registry with exemplary behavior (no new charges, no failures to register) their removal from the registry should be automatic on their 15th anniversary.  

One piece of paperwork could be submitted by the offender 3 months ahead of their 15 year anniversary, no lawyers, no mental health experts to evaluate, no time or cost to the courts.  For those offenders that have had one or more failures to register or even a new non-sexual conviction during their 15 year period then they would be required to adhere to the current process of petitioning the court, hiring an attorney and two evaluators to testify at a hearing.  

Additionally there is a small percentage of those classified as Violent who are eligible to petition for removal after they remain on the Virginia Registry for a minimum of 25 years. This new automatic removal for those who have remained registry compliant and conviction free would also apply to this small percentage of offenders 3 months prior to their 25th anniversary. 

(The Non-Violent Offenders would most likely fall into the Tier 1’s if Virginia were to implement a 3-Tiered Risk Based Classification system).
 
#7 -Repeal Virginia’s 21-Day (to Recant) Rule 

Problem: Currently an accuser or witness is only allowed 21 days to recant an accusation in Virginia. Any longer and the state will not accept their recant and so the conviction and the requirement to remain on the Virginia Sex Offender Registry stands. Only DNA can reopen a conviction. 

Solution: Either repeal the 21 day limit entirely or amend it to be 21 years or add recants to the list of excepts as DNA had been added years back. 

There have been past proposals that did not pass and excluded Virginians who took a plea deal. Both Alford and Guilty, these Virginias CAN NOT be excluded when more than 94% of Virginia criminal cases in Virginia are settled with a plea deal and less than 6% of our citizens have the resources to arrive at  a jury trial. 

Virginia has repeatedly adjusted legal statutes to allow victims of abuse to come forward many years later. But when it comes to a recant by a witness it is 21 Days or NOTHING! The very same person that the Commonwealth previously based their entire case upon is now ignored. 

Every recant should be taken seriously and investigated thoroughly as would be done with every new accusation of abuse no matter how old. 

There should be no deadline on the truth or clearing the name of an innocent citizen!
 
#8 -Discern Teen-to-Teen images (Sexting) from Real Child Pornography 

Teenagers who send or exchange sexual or nude photos or videos with other teens do not pose a threat to society. 

Under current Virginia law teenager sexting is the equivalent of Child Pornography. Including the production, the distribution and the possession, all carry a mandatory minimum sentence. This means the judge in charge of their case has his/her hands tied, no matter what the specifics of the individual case is the defendant (14, 15, 16 and 17 year old) will be convicted with multiple felonies (one for each image) and sent to prison for  5-20 years for each image they created, shared or possessed. Once they are released from prison (if they survive) they will be required to register as a public Sex Offender for the rest of their life. They will be classified as Violent, not Non-Violent. As a Registered Violent Sex Offender they will not be accepted to college, they will never be able to have a career but only a job, they will be denied housing and employment because of the label, they will finding dating almost impossible and if they do marry someone and have children they will be prohibited from taking their children to daycare or school, they will be prohibited from attending their school recitals, football games and even graduation. Their spouse would basically be a single parent when it comes to their children’s needs and activities outside the home and because of the label their chances of having their marriage end in divorce is much more likely than the average marriage. 

Their VSP Registry posting will list charges of Child Pornography, the year the charges occurred, if the “victim” was a minor or not and the offender’s current age. So anyone scanning their post will see they are 25+ years old and they were convicted of Child Pornography 9 years ago. The reader will not know they took the photo of themselves or that they received a photo of their girlfriend who was the same age as they were. The assumption will be that the now 25 year old Violent Offender is in reality a Pedophile, a Pervert and a Predator. That assumption would be incorrect.  

Let’s not forget about the 18 and 19 years olds, just because they are adults under the law does not mean the image their 17 year old girlfriend sent them 6 months ago or that they sent and is now discovered on their phone should result in felonies, prison and a scarlet letter of pedophile. 

Child pornography is the unwilling/nonconsensual sexual abuse of children captured on electronic devices. By force, threat, intimidation, or profit.  

Extortion or “Sextortion” as a recent Suffolk case was labeled should not be considered child pornography either if the age gap allowance between the two teens is not unreasonable. There should be a new category of crime created for this type of offense, criminal sexual extortion. 

At most, Teen Sexting (including the 18 and 19 year olds), should be a misdemeanor, not a felony, with the requirement of classes on the risks and criminal possibilities, perhaps a year or two of probation supervision, maybe some public service at a domestic abuse shelter and even perhaps a ban on electronic devices (phones) and social media for a year. If they need to use a computer at home it must be in a public location for their parents to supervise and if the parents drop the ball on the supervision, they could face a penalty.  

But no prison,  no one-size-fits-all Sex Offender therapy, no mandated polygraphs, no Penile plethysmography (PPG) for the males, no registration as a Sex Offender with lifetime monitoring/tracking. 

Previous Virginia Legislation attempting to accomplish this
Problems with Both Past Bills:
  1. They did not state “create” or “produce” anywhere so I’m not sure if the teen who takes the images could still face felony charges. If that is in fact the case, the word “produce” needs to be added.
  2. The 18 and 19 year old boyfriends and girlfriend who receive the “sext” from the minor would still face felony child pornography charges. Even if they received it when they were 17 years old and still have it on their phone today as an 18 or 19 year old. Something needs to be added to exclude age appropriate relationships from being caught up in the courts. An age gap allowance of 3 or 4 years so they would face a misdemeanor instead of a felony.
It’s time the Virginia Legislature separates Teen Sexting from Child Pornography in the Code of Virginia.