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Wednesday, December 28, 2016

Arbitrary Felonies: Virginia’s Loitering, Residency and Employment Laws that Only Apply to Registered Sex Offenders


A few days ago I posted for the first time about HB1485 and some of the many reasons I will be opposing it. 

HB1485 adds “shall include any offense under the law of any other jurisdiction that is substantially similar” to §§ 18.2-370.2 , §§ 18.2-370.3 AND §§ 18.2-370.4 . So any out-of-state OR military convictions from 2000 (or later), 2006 (or later) or 2008 (or later) who are already listed on the Virginia State Police Sex Offender Registry would now be retroactively required to abide by these three restrictions or face a Class 6 Felony. 

I oppose two (§§ 18.2-370.2  and §§ 18.2-370.3) of the three parts in HB1485 but I do not oppose the §§ 18.2-370.4 portion.

So for the last few days I’ve been reading and rereading these 3 VA statutes, picking out problems with the current verbiage, looking up court challenges/rulings across the U.S., deciding on the outline for my mass email to all the Virginia Delegates  / Senators and percolating on what my public statement to the House Courts of Justice Committee and if needed to the Senate Courts of Justice Committee will include.
 
For anyone who has never read these 3 Virginia Statutes I suggest you click on the 3 links and attempt to understand what you can and can not legally do if convicted under one of the specific statutes (crimes).  

You’ll find that not all sexual statutes apply and even some secondary convictions (“while in the commission of”) are needed, resulting in a confusing maze for Virginia’s RSO to know if they are prohibited from loitering at just schools or parks too. And as for intent to commit a crime, only Loitering at a playground, athletic field/facility or gymnasium includes contact with a child, with everything else the RSO’s mere existence is a Class 6 Felony. Even……..if the original conviction back in 2000 or 2006 was a misdemeanor! 

Here’s a quick run down of the 3 VA Statutes that 2017-HB1485 proposes to expand. 

§§ 18.2-370.2 – Loitering within 100ft of:
  • A primary, secondary or high school, if the conviction is on or after July 1, 2000
  • A child daycare program (not defined) , if the conviction is on or after July 1, 2006
  • A locality operated playground, athletic field or facility, or gymnasium, if the conviction is on or after July 1, 2008 “for the purpose of having any contact whatsoever with children that are not in his custody”
§§ 18.2-370.3 *Residing within 500ft of:
  • A primary, secondary or high school, if the conviction is on or after July 1, 2006 AND if the Offender is 3 or more years older than the victim
  • A child day center (as defined in § 63.2-100 ), if the conviction is on or after July 1, 2006 AND if the Offender is 3 or more years older than the victim
  • The boundary line of any place he knows is a public park, if the conviction is on or after July 1, 2008 AND if the Offender is 3 or more years older than the victim  when such park:
                        (i) Is owned and operated by a county, city or town
                        (ii) Shares a boundary line with a primary, secondary, or high school
                        (iii) Is regularly used for school activities

                * The residence is allowed if the school, daycare or park is established subsequent to his conviction

§§ 18.2-370.4 – Prohibited from working (or volunteering) on school property:
  • A primary, secondary or high school, if the conviction is on or after July 1, 2006 AND if the Offender is 3 or more years older than the victim
  • A child day center, if the conviction is on or after July 1, 2006 AND if the Offender is 3 or more years older than the victim 
Clear as mud, isn’t it? 

Now I’ll be posting about HB1485 many more times over the next 4+ weeks with many facts and action items but I do want to remind all the readers here that back on May 20, 2016 I submitted a FOIA to the Virginia State Police asking how many RSO’s are obligated to abide by §§ 18.2-370.3-Residency Restrictions and we learned that the VSP who manages and monitors Virginia’s RSO’s, registers and re-registers them, opens all investigations for violations and maintains the online Virginia State Police Registry had no idea how many RSO’s currently must abide by Virginia Residency Restrictions but yet Delegate Dickie Bell is looking to expand it with 2017’s HB1485 which was a request from a VSP Investigator in his District. 

So………We (the VSP) have no idea how many people are obligated to abide by a baseless, fear-mongering law that reduces their housing options, has been ruled unconstitutional in other states and results in an arbitrary felony….all  for a public Registry that supposed to be Administrative, not punitive but we (the VSP) want to expand it to include out-of-state and military convictions going all the way back to 2000. 

Both Virginia’s Loitering Law and Residency Law should be repealed, NOT expanded and I hope readers will take action against this hateful, ignorant and punitive Bill at the upcoming session. I won’t just be opposing a Delegates proposal, but the Virginia State Police who can’t even pull data on the current situation in the Commonwealth whose employee is pushing to sweep up even more people retroactively which could result in homelessness and/or them committing a felony next autumn when they are legally allowed to take their own children to school today.

Just remember what the 4th Circuit Court of Appeals stated back on November 30, 2016 in their ruling on North Carolinas Residency Restrictions “empirical evidence is needed to prove that without the restriction harm will occur”. 

There is ZERO evidence that loitering or residency restrictions against RSO’s make our communities any safer. 

Whether HB1485 affects you or your loved one (or not) the Commonwealth’s refusal to study our current Sex Offender Registry, laws and classification system while continuing to cast the net wider and wider every GA session should propel you to oppose HB1485. See December 23, 2016 Action Item for more details. 

Mary Davye Devoy