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Friday, August 14, 2015

Virginia State Police (VSP) Interpretation of Virginia Code has Been Ruled Unconstitutional in Other States


Don't Commit an Inadvertent Felony, Which You Have No Knowledge of!
 
I sent the below to the current Virginia Legislators who are running for office in November, the Governors office, the ACLU of Virginia and a few Virginia newspapers. 
As my note below states I spoke with 3 different VSP employee today’s about this. 

The second person Supervisor _________ said during my call that "Offenders must take the initiative" and that "the VSP is doing the Offenders a favor even sending them the SP-236-A".  

I have to disagree with both of his statements and I will work to change this mine-field environment, but I do believe his two claims are a perfect reflection of the VSP’s attitude I have been up-against for the last 8 years. 

Ignorance of the law is not an accepted defense but blatantly setting people up for failure is also not acceptable. 

If anyone has been charged for NOT registering a website’s user name that was attached to an email address that WAS registered, please send me an email about the specifics of what happened to you. I’m not an attorney and we can’t undo the damage but having an example of a case where they over-interpreted a vaguely written law might help for other RSO’s in the future. 

Mary Devoy 

 

Dear Virginia Delegates and Senators, 

So we all know per Virginia Code § 9.1-903Registration and § 9.1-904. ReRegistration 

  1. Sex Offenders must register within 3 days of their conviction OR  move to the Commonwealth:
·         Fingerprints
·         Palm Prints
·         DNA sample
·         To be photographed
·         Legal Name, Nicknames or Aliases
·         Date of Birth
·         Social Security Number
·         Residential Address
                                        Including homelessness
·         Proof of Residency       (Physical Address)
·         Mailing Address           (P.O. Box)
·         Employer and Location
                                        Including self employment OR unemployment
·         Proof of Employment
·         All Vehicles with name on the title
                                        Including Auto, Watercraft and Aircraft AND vehicles without license plates.
·         All Phone Numbers
                                        Home, Work, Cell
·         Enrollment with any high school, technical school, college or university
                                        Proof of Enrollment
  1. Then if ANY of this information changes you have 3 days (not 3 business days) to register the changes.
  2. Sex Offenders must register within 3o minutes any creation or deletion of an electronic email address, any instant message, chat or other Internet communication name or identity information that he uses or intends to use.
I heard from an RSO today……….it seems that the Virginia State Police (VSP) are interpreting Virginia law to go even further and they consider ANY User Name for pretty much any website that you can communicate through as an Internet Identifier. So even though the RSO has registered their email address with the VSP if they haven’t elaborated all their User Names connected to that email address the VSP considers that a Registry violation and will send the information onto the Commonwealth’s Attorney to determine if criminal charges should be pursued. 

So I called the VSP today and spoke to 3 different people about this issue, two confirmed what the RSO told me and 1 refused to take a stand.
 
Are you on?
·         Facebook
·         Twitter
·         Linkeden
·         Pintrest
·         Google+
·         Tumblr
·         Instagram
·         Flickr
·         Vine 

Are you looking for work through?
·         Career Builder
·         Monster
·         Snag a Job
·         Indeed 

Do you meet/communicate with people on?
·         eHarmony
·         Match.com
·         OKCupid.com
·         Zoosk
·         Christian Mingle
·         Classmates.com 

Do you sell or shop on?
·         eBay
·         etsy
·         Amazon
·         Craigslist 

Do you leave comments to articles or posts on?
·         The Washington Post
·         The Virginian Pilot
·         The New York Times
·         Huffington Post
·         ACLU Blog
·         SCOTUS Blog
·         Richmond Sunlight 

You can communicate with other people using any of these websites. 

Some of these websites may have a policy against an RSO joining and when they receive the email address from the VSP IT Department (which does send them out) the site will shut the account down as soon as they find out the user is an Virginia RSO but it’s not a crime. 

In fact some states that made being on social media websites a crime or that demanded their RSO’s report every user name and email address learned through court challenges their law was unconstitutional and was overturned:
2009/2012:
-          Nebraska
2012:
-          Louisiana
2013:
-          California
-          Indiana
-          North Carolina
                2015:
-          Illinois 

I have just reviewed the VSP Registration RSO forms (SP-236A and SP-236) that we have kept over the last 8 years. 

I have attended a Non-Violent Offenders annual re-registration and information updates for the last 7 years.  

NO WHERE on the VSP SP-236A Re-registration form (which is mailed out to Offenders by the VSP) OR the VSP SP-236 blank form that the VSP employee fills out by hand when an RSO’s information changes does it ask about website user names. At NO TIME during the 2-3 minutes of a Re-registration OR during an information change visit has a VSP employee asked the Offender I’m with about website user names. 

Do you know how much of the already scarce VSP resources would be wasted if every RSO in Virginia had to notify the VSP of a new user name on a website, in addition to their quarterly re-registrations and  when they have data changes? If the email address connected to that user name or account is registered with the VSP that is sufficient and to require more is not only ridiculous but I feel would definitely be a 1st Amendment violation especially if criminal charges were filed against an RSO and their email had been properly registered. 

At the bottom are some facts about the VSP RSO forms for those of you who aren’t familiar with them, they lack a ton of much needed information. 

I feel the VSP is misinterpreting current Virginia Code by thinking ANY website User Name needs to be registered. If that is really what the Virginia Legislature intended, then an electronic VSP Registration system MUST be implemented within the next year so RSO’s can comply. Plus the VSP needs to create a full list of websites that they want to know if an RSO is on, hand the list to the RSO and ask are you on ANY of these websites? And if the VSP’s interpretation is correct, I believe a 1st Amendment challenge is in our future as there is precedence this is unconstitutional. 

We can be proactive and address this issue now with the Administration advising the VSP every website user name was not the intention of the Virginia statute just email addresses, Instant Messenger names and Chat Identifiers. Or we can be reactive and if the intent of the Legislature was for RSO's to self-report their Facebook, Twitter, Instagram, Google+ and Linkedin (to name just a few) User Names and if they don’t they'll face a felony even though the email address was registered we can let the courts decide if this mandate is a violation of 1st amendment rights. 

Mary Devoy 

 


VSP Forms: 

The VSP SP-236A form which is mailed out (USPS certified mail) either every 30 days, 90 days, 180 days or annually to Virginia’s Registered Sex Offenders lists the Offenders:
  1. Full Name
  2. Sex
  3. Race
  4. DOB
  5. Residential Address
  6. Registration Number      (meaningless to the Offender)
  7. SID                                      (meaningless to the Offender)
  8. FBI Number                      (meaningless to the Offender)
  9. SSN
  10. Current Photograph Date
  11. Next Photograph Due Date
On the opposite of the side of the paper: 

The offender is asked to verify this information on the VSP SP-236A form with a signature and thumbprints by the given due date. 

The VSP SP-236A form then reminds the Offender they are responsible to notify the State Police within three days of chaining their address, employment, vehicles or moving to another state within 10 days. Anytime the Offender  changes any information thy much provide a photo identification, place of employment, physical residential address, all electronic mail address information, any/all instant message chat or any/all other Internet communication name or identity information that they may use or intend to use, whether within or without the Commonwealth and my vehicle registration information. 

The VSP SP-236A form does NOT list the Offenders:
  • Employment information
  • Vehicle information
  • Telephone numbers
  • Email addresses or Instant Messenger/Internet Identifiers
So that means the Offender can NOT confirm if what the VSP currently has in their database is correct or NOT, paperwork does get lost, typos do happen and sometimes a person deletes the wrong thing. 

The VSP SP-236 form is the legal sized form that is filled out by a VSP employee during non-Reregistration periods when an Offenders information like residence, telephone, employment, email or vehicles has changed. It has blank areas that are handwritten not typed by the VSP employee and the Offender is given a carbon copy that never actually can be read so most offenders list at the top what they actually changed that day in case an investigation is ever begun.  

Above the signature area the form does state in accordance with § 9.1-903 and § 9.1-906 ALL types of Sex Offenders know that:
  1. Within 3 days of a conviction or suspended sentence they must register
  2. Within 3 days of their release from a correctional facility they must register
  3. Within 3 days of a change in their name, residence, employment, any type of vehicle or school enrollment they must register
  4. Within 30 minutes of a change in electronic mail, instant messenger, chat or other Internet communication name or identity information they use or intend to use they must register.
Where the Offender signs confirmation of the changes they made that day on the VSP SP-236 form that was completed by the VSP employee it says below the Offenders signature: That they  understand a re-registration form (VSP SP-236A form) will be mailed to them (timeframe depends on their level/classification) from the State Police  to verify their physical and mailing address, electronic address, instant messenger, chat or Internet communication name or identity information that they may use or intend to use. Plus, how long they must register which depends on their original conviction. The Offender acknowledges that providing false information is a violation of the Sex Offender Registry. On the back of the VSP SP-236 form is a list of all criminal convictions that require registration as a Violent or Non-Violent Offender.