Written by attorney Mark H. Freedman

One Year Later – Are The Sweeping Changes Made To Michigan’s Sex Offender Registration Act Working?

Approximately one (1) year ago, on April 12, 2011, Michigan Governor Rick Snyder signed a bill (Public Acts 17, 18 and 19 of 2011) making sweeping changes toMichigan’s Sex Offender Registration Act (SORA). Prior to these changes,Michigan’s Sex Offender Registration Act, MCLA 28.721 et seq. was a “one tier" system which meant that anyone convicted of a “listed sex offense" under the statute was placed on the same registry. The act made absolutely no distinction between offenses such as those committed by “Romeo and Juliet" offenders – teenagers accused of statutory rape (MCLA 750.520d(1)(a)) for having sex with their underage boyfriend or girlfriend - or hardcore child molesters. The registry was simply one size fits all and, if convicted, you were placed on it.

The aforementioned bill signed into law changed all of that. Michiganis now referred to as a “three tier" system to conform to federal law requirements. First tier offenders would be those convicted of lesser sex offenses such as indecent exposure, simple possession of child pornography and the vast majority of 4th degree criminal sexual conduct convictions. These individuals would not be listed on the public registry and instead would be required to register on a private list (available to law enforcement only) with the Michigan State Police once per year for 15 years. Thereafter, following a 10 year period, some individuals in this category would be eligible to petition the court to have their name removed from this list.

Second tier offenders would consist of those individuals convicted of most internet and child pornography crimes, date rape and 2nd (MCLA 750.520c) and 3rd (MCLA 750.520d) degree criminal sexual conduct offenses against adults. These individuals would be required to register two (2) times per year with the Michigan State Police and remain on the registry for 25 years.

Third tier offenders consist of those individuals convicted of the any crime involving sexual molestation of a child under the age of 13 and those persons, for example, convicted of 1st degree criminal sexual conduct (MCLA 750.520b). This requirement also applies to juveniles and offenders would be required to register four (4) times per year and would remain on the registry for life.

The most significant of these changes, however, revolve around the so called “Romeo and Juliet offenders" and the SORA reporting requirements. In many of these cases, criminal charges are brought based on the simple fact that two teenagers had consensual sex and one or both of them are legally underage. This is an everyday occurrence and, despite this fact, it is still a crime in Michigan. In fact, the charge for this is almost always criminal sexual conduct 3rd degree (CSC 3) – a 15 year felony with mandatory sex offender registration - when the victim is between the ages of 13 and 16. sexual conduct in the third degree — whenever someone has sex with another person between the ages of 13 and 16. This applies even if the sex is consensual and both parties are underage

How have the changes in the law impacted this important group of individuals? For the most part, in a very positive fashion. If it can be proven that the victim consented (by a preponderance of the evidence) to the sexual contact, the victim is between the ages of 13 and 16 and the defendant is less than 4 years older than the victim at the time of the alleged offense, than a defendant will not be required to register as a sex offender. Sometimes consent may be agreed upon, or stipulated to, with the prosecutor on the case and other times, if consent is genuinely in dispute, it may be required to be proven by way of an evidentiary hearing. Moreover, depending upon the age of the defendant, he or she may be eligible for a plea arrangement underMichigan’s Holmes Youthful Trainee Act (“HYTA"), MCLA 762.11 et. seq which ensures no jail time, a non-public criminal conviction record and non-placement on the registry upon the successful completion of a period of probation.

The role of educated and experienced counsel in these “Romeo and Juliet" scenarios often plays a very critical role in how these serious cases unfold. In fact, early involvement of legal representation in the investigative stage, including cooperating and working closely with investigators and prosecutors, can play a key role in the development a favorable map for future charges and, if necessary, terms of a favorable plea arrangement for the client. Understanding by the lawyer of the delicate nuances of these laws, and how to use them to assist and benefit the client, is absolutely essential to yield a positive outcome.

Mark H. Freedman

Law Offices of Freedman & Freedman, PLC

31555 W. 14 Mile Road, Suite 212

Farmington Hills, MI 48334


E-mail: [email protected]

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