Thursday, December 24, 2015

Action Item: Virginia Bill SB86 Needs a Start Date Added Otherwise Current Non-Violent RSO’s Will be Retroactively Re-Classified to Violent and Become “Lifers” with No Due Process

SB86 has just posted today, it’s been submitted by Virginia Senator Tom Garrett (who has recently announced he will run in 2016 for the open Congressional seat of retiring Representative Robert Hurt) for the upcoming 2016 Virginia General Assembly session. 

SB86 RAISES the penalty for sexual abuse (a defined term) of a child 13 or 14 years old from a Class 1 misdemeanor to a Class 6 felony.  This is Senator Garrett’s third attempt to get this change passed into law…. in 2015 it was SB1138 and in 2014 it was SB442  both died in the Appropriations Committee due to it’s high cost.  But supposedly for the upcoming 2016 session there is plenty of money available so I’m thinking this time the proposal has a very good chance at passing through the Legislature. 

Now personally I do not oppose the increase in penalty if it is an adult being charged for this crime. When I originally stood up in 2014 with a list of concerns against the same proposal I asked that an age gap allowance for a perpetrator who is close in age to the victim and did NOT use force, threat or intimidation be added to the text. I was told by the Senate Courts of Justice Committee that an “age gap was not needed” because § 18.2-67.4:2 would only be used for adult (18 years and older) perpetrators so I did not bother making this request in 2015. 

BUT there is a VERY serious problem with SB86 that needs immediate attention. 

2016’s SB86 does NOT include an “effective date” of July 1, 2016; this means as currently written this proposal to increase the penalty for sexual abuse of a 13 or 14 year old from a Class 1 misdemeanor to a Class 6 felony would be applied retroactive by the Virginia State Police. 

Anyone convicted of this crime since it’s inception in 2007 until June 30 2016 who was originally classified as Non-Violent Sex Offender will be elevated to a Violent Sex Offender, without ANY due process. 

I raised this issue back in 2014 and it was ignored by the patron. 

I again raised it in 2015 and at first the patron and the Committee members tried to say my concern was unwarranted but then when I provided facts and real examples they reluctantly added a start date. 

And more recently I raised it with the Virginia Legislators and the Administration after a sit down meeting with VSP Lt. Col. Kemmler (who is retiring on January 1, 2016) confirmed to me that yes, indeed if the Legislature does NOT add a start date to Legislation directed towards Registered Sex Offenders the VSP will apply it retroactively.

And yet Senator Garrett filed the exact same verbiage for the upcoming 2016 session that he filed in 2014 and 2015 ignoring this issue all over again! 

How many Non-Violent Offenders would this retroactive mandate capture if passed into law as-is? 

100, 200 or 800? We don’t know which means the 2016 fiscal impact statement (yet to be done) that will only capture the cost of prison beds, will miss a huge increase in costs to the State that are not an issue today. 

These newly categorized Violent Sex Offenders would now become “Lifers” on the Virginia VSP Registry, requiring Virginia State Police (VSP) monitoring and management until the day they die, it would also increase the Offenders re-registrations from once a year to 4 times a year letters, postage and data updates that are NOT being captured.  

Back in 2006 and 2008 the Virginia Legislature took sexual misdemeanors and turned them into felonies, they did NOT add a start date to that legislation so the VSP took Non-Violent Registered Sex Offenders and retroactively changed them to Violent RSO’s. 

In 2006 the number of RSO’s affected was 1,492...... the number for 2008 is unknown as the VSP has denied every FOIA request I’ve ever submitted asking for this information.

Without a start date SB86 will wrongfully and retroactively (a violation of ex post facto) increase the classification of current Non-Violent RSO’s who were convicted years ago.  

Everyone involved in the Virginia Legislative process and the implementation of Virginia law knows this, but here we are for the third year in a row needing to amend Senator Garrett’s proposal. 

Please Email or call your one Virginia Delegate AND your one Virginia Senator and ask them to request a start date for SB86 because if they don’t current RSO’s will be wrongfully swept up. 

The Virginia VSP Sex Offender Registry already lists approximately 83% of the Offenders as Violent leaving just 17% as Non-Violent, this bill as submitted will move Virginia closer to a one tiered system where everyone listed is considered the same and no one ever has the ability to petition for removal. Making it worthless to the public who is attempting to decipher who poses a true threat and who has just been swept up in mass legislative mandates…… like this one. 

Come on Virginia, it’s time to stop watering-down the VSP Registry and to look at making it better (smarter) not just bigger.

Thank you! 

Mary Davye Devoy