Written by attorney Brian M. Fishman

Once A Sex Offense, Always A Sex Offender: The Retroactivity of PA's Megan's Law

In December 2012, Pennsylvania's newest version of Megan's Law (also known as, "SORNA") will go into effect. It's draconian, unfair, over broad and casts way to big a net. I'll discuss some of those issues in greater detail in a later post. But, the law should be declared unconstitutional for another reason: Its retroactive nature. In other words, "Me, Again...I already paid my debt to society. Why are you coming back to me know and requiring registration years after my sentence is over?" Let me first say that society and our children should be protected from violent pedophiliac sex offenders. I have two children and if a sex offender was to ever touch either of them inappropriately, I may be the one that would need to pay bail. But, it's one thing to require a recent sex offender, upon release from prison, to register & verify their residence to protect our children. It's quite another to make someone who was convicted of rape of another adult decades ago, served their debt to society, never had to register and is now on probation for possession of marijuana, to now have to register for LIFE and comply with all of the conditions of Megan's Law. But, that's exactly what the new law requires. According to the new law, any person who, after December 12, 2012, had been previously been convicted of a sex offense and is on state parole or county probation for a non-sex offense, misdemeanor or felony, has to register under Megan's Law. So, if you were convicted of attempted rape in 1985, served 4-8 years in prison and are on probation for a DUI on December 12, 2012, you will have to register for life even though you served your sentence, remained arrest free until the recent DUI and never previously had to register (the first PA Megan's Law wasn't passed until about 1995). Or, if you get sentenced to one year of probation for possession of drugs next week and were convicted of indecent assault and received and completed probation in 1992, you will have to now register under Megan's Law for 15 years, as it's a Tier 1 offense. And, indecent assault was not even a Megan's Law offense prior to this most recent iteration of the law when you pled to it. In fact, you could have pled guilty to indecent assault, which is any inappropriate touching (not direct skin contact) of another's private parts (butt and breasts, included) for sexual gratification, last year and received two years of probation with no special conditions of probation. But, on December 12, 2012, you will be labeled a sex offender, required to register your residence, employment and/or educational institution for the next 15 years. You may say, "Well, what's the big deal? If the offender hasn't committed any sexual offense in years, no reason to commit one now but better safe then sorry for our children, right?" Wrong. There are a number of problems with this law and this thought process. First, the stigma in the community of being labeled a "sex offender" is almost insurmountable. Nobody wants you to live in their backyard. No employer wants you working for them. Your personal information is on the PA Megan's Law website for all to see. Second, there are serious criminal consequences for failing to register. You face potential criminal prosecution for 15 years should you forget to verify information. There are mandatory state prison sentences for failure to register. If you travel and you're living in another state for over a month and fail to register, you're in violation. Or, if, while on that trip, your "verification anniversary" comes and goes and you simply forget to register, you're in violation. Or, you move. But, in the vast confusion of moving, you don't update your information with the Pennsylvania state police within a mere 48 hours, you're in violation. Third, was your original plea a knowing, intelligent and voluntary plea? Absolutely not. No lawyer or judge told you about the registration requirement because they didn't exist at the time of your plea and you obviously didn't take this onerous condition and the label associated with it into consideration when you pled. These are just some examples of the unfair and constitutionally infirm problems with this new laws retroactivity. If you were convicted of a sex offense at anytime in your passed, it maybe a good idea to contact a lawyer simply to know the state of the law. This is especially true if you've recently been arrested or you're currently on probation or parole for another non-Megan's Law offense. You should also contact a lawyer if you recently pled to a sex offense and are not currently required to register, as that might change on December 12, 2012.

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