Monday, January 27, 2014

The Rationale Behind SB384 is Absurd and Today’s Amendment Did Nothing to Make it Any Better

Today SB384  RSO’s in Libraries - Senator Bryce Reeves Provides that any adult who is convicted of an offense prohibiting proximity to children, when the offense occurred on or after July 1, 2014, shall as part of his sentence be forever prohibited from knowingly and intentionally having any contact whatsoever with children that are not in his custody on the premises of any place that he knows or has reason to know is a public library. A violation is a Class 6 felony was heard by the Senate Courts of Justice Committee. 

I raised a few concerns with this proposal to the committee members today. 

1- Growing up in Norfolk during the 70’s and 80’s (long before the Internet) if I had a school project to research I would go to the Kirn Library, downtown…. a known sanctuary for the homeless, mostly men.  

Could some of those homeless men have been “sex offenders” with a prior conviction? Sure. 

Did I ever interact with those men in a way that could be captured by this proposal? Yes I did and that’s where “knowingly and intentionally having any contact whatsoever” has me very concerned.  

The homeless men held the door to the entrance open for me, they stood in line at the fountain waiting for a drink of water, even holding the stubborn button down for me, they sat and sometimes slept at the same table I was sitting at, they’d walked down the same row of books I was sitting on the floor in, they road inside the elevator with me and they smiled and said hello almost every time, they were polite and so was I. 

In today’s paranoid, hyper-sensitive and “think-the-worst-first” world we live in, I wonder if those men who might have been “sex offenders” but were not up to anything sinister would today be questioned and charged for their “contact” with me. Would common courtesy NOW be construed as criminal activity simply because they are on a registry? 

This proposal probably sounds reasonable to most people because the perception of a Registered Sex Offender is of a high risk of danger, an inevitable threat. Well, perception is NOT reality. RSO’s have the second lowest recidivism rate of ANY crime. 

Wouldn’t it be just as reasonable to instead propose that ANY adult male or female be prohibited “whatsoever” from contact with ANY child not in their custody; ONLY Library employees can speak to, approach or assist minors? After all statistically there is a MUCH higher chance that a person not on the registry will approach, abduct or molest a child than someone who is a known ex-offender. Additionally if a person, anyone is creating a public nuisance or even talking in a library this person can be approached and told to discontinue their activities. Further activities in violation of Library policy could result in them being asked to leave the premises by the librarian and failing to follow this instruction I believe could be charged with disorderly conduct or creating a public nuisance. 

2- Today the proposal is for Libraries…. Next year will it be Barnes & Noble stores, McDonald’s, Museums, Zoos, Malls or maybe the State Capitol. Once we start banning contact in one location, won’t it lead to another and another until finally we’ve banished them from having contact with anyone, anywhere, whatsoever? When will it be enough?  

3-This proposal creates a NEW Felony for ONLY Registered Sex Offenders. Today in Virginia even after 5 separate attempts over the last 6 sessions to mandate the Virginia State Police inform Registered citizens of their legal restrictions and regulations they still vigorously opposes a requirement to disseminate this critical information.
·         2009-   HB2225
·         2010-    HB1328
·         2011-     HB2382
·         2012-    SB420
·         2013-    No Bill
·         2014-   SB553 

How will Virginia’s Registered Sex Offenders know that their next trip to the local library could result in a Felony charge if this bill becomes law? They won’t, situations with no criminal intent and normal behavior will now be a crime with SB384. 

The requester (a Commonwealth’s Attorney) of SB384 came to Richmond and spoke to the Committee to explain why this bill is needed. 

She stated that there have been 14 separate cases in Virginia where RSO’s have approached and been seen by minors in libraries with some deviant intent. They fell into 3 categories public masturbators, public urinator’s and sexual “propositioners”. 

I spoke to the requester on January 14 via phone so I knew what the reasoning behind the request was before today’s meeting. Over the last 2 weeks I have been searching on-line for news of Registered Sex Offenders in Virginia libraries committing such acts, not only did I find only one article where it was not noted anywhere that the “flasher” was an RSO but I did NOT find 14 cases. Just one! 

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.